Excerpt from A Preliminary Analysis of the Legal System of Employers Liability in the State of New York But at common law the employer has certain defenses to an action at law brought by an injured employee which are very important. (a) Contributory negligence. If the employee who is injured has failed to use reasonable care himself and that neglect has contributed to his injury he can recover nothing from the employer, and the employee must show his freedom from negligence to make out his case. This defense of contributory negligence has always been a part of the common law of this state and of the English common law. (b) Fellow Servant Rule. If the employee be injured by the negligence of a fellow servant that fact will bar his recovery against the employer at common law. This fellow servant rule is a special rule applying only to employees, which was incorporated into the common law by two decisions about 1840, one by Lord Abinger in England, one by Chief Justice Shaw in Massachusetts, and was certainly adopted on insufficient reasoning. It had never previously existed at common law. The fellow servant rule has been limited by decisions in this state in two important particulars: 1. The rule will not avail the employer as a defense if the negligence of the fellow servant was a failure of one of the duties (previously described) which by law rest on the employer himself; i. e., such as the duty to provide a safe place to work. 2. A superintendent in general charge of work and so acting is not a fellow servant within the meaning of the fellow servant rule, but the alter ego of the employer, and for his neglect the employer must respond in damages. (c) Assumption of Risk. The third important common law defense which the employer has is the doctrine of assumption of risk. About the Publisher Forgotten Books publishes hundreds of thousands of rare and classic books. Find more at www.forgottenbooks.com This book is a reproduction of an important historical work. Forgotten Books uses state-of-the-art technology to digitally reconstruct the work, preserving the original format whilst repairing imperfections present in the aged copy. In rare cases, an imperfection in the original, such as a blemish or missing page, may be replicated in our edition. We do, however, repair the vast majority of imperfections successfully; any imperfections that remain are intentionally left to preserve the state of such historical works.

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