labor of females and minors, and the structural and sanitary conditions of work places. 2. Absence of engineering experts.-Though we are not without notable individual instances of zealous and efficient factory inspectors, first-class technical and mechanical engineering ability which employers and their plant superintendents can respect, and which is competent to discuss difficult safeguarding problems authoritatively, has been largely absent and rarely sought. It is an open secret that, even with superior safety laws, the success in Europe has been largely due to the tact, executive experience in plants, and high intelligence of the safety inspectors. Our State initiative in the matter of safety in the relatively few cases where it is pushed to a legal conclusion is sometimes exercised with a timidity and lack of technical ability, which makes an unfortunate impression upon the courts and employers. These conditions are not the fault of our hard-working labor commissioners, but spring from the system under which the legislatures and their political superiors compel some of them to work. 3. Need for scientific administration.-The disproportion between the business laid upon these departments by numerous statutes and the appropriations and staff arrangements is very great, and at present precludes much scientific progress in accident prevention. It is not necessary that all the inspectors should be safety experts or that they should be ubiquitous. With the obligation to safeguard placed upon the proper shoulders, a moderate policing force will suffice, but every factory department should have in addition several mechanical engineers, experts in matters of safety, and paid not less than $2,500 a year. These, under a scientific system, should devote all their time to promoting industrial safety, by visiting plants solely for that purpose, conducting special investigations of accidents, preparing and issuing bulletins to employers illustrating effective safeguards, training ordinary inspectors in safety work and cooperating with machinery makers, casualty insurance inspectors, plant safety committees and professional engineers in securing standards of safety for all apparatus in general use. Such standards will be progressive. They should have the force of law, but need not be embodied in any statute. In any case, if in successful operation, they will serve equally well in disputed cases to convince the courts that the safeguarding required by the statute is practicable. The members of factory-inspection staffs, carefully recruited, should not be appointed or removed by any individual at will, and the position should only be withdrawn by a State department for proved inefficiency or on an age limit. An active temperament is essential, as vigor and physical alertness are impor tant factors in inspecting properly the less obvious accident risks of many plants. 4. The use of safety museums.-A properly organized safety museum in each State, under the care of a competent mechanical engineer, would be the natural result of expert safety work by the factory-inspection department and the accumulation of valuable models and records. Such a museum should not solicit or accept theoretical devices for safeguarding. Unlike the ordinary museum, it should not contain anything obsolete and should admit nothing the re liability of which has not been thoroughly tested out in the plants which, it should never be forgotten, are after all the true laboratories of the safety engineer. 5. Scientific collection, analysis, and interpretation of accident reports.—The chief part of the State safety experts' attention should be given not to theories about accident prevention, but to what is actually happening in the plants and to drawing the proper inferences therefrom. Such a study must be based on the facts, and at the present time our accident statistics are of little value. It is well known that many injuries remain unreported and that the present statutory forms of report fail to distinguish sufficiently between trivial and serious occurrences and to properly describe the manner in which injury was inflicted. As a mass, our recorded information on accidents is at present the despair of our best statisticians seeking light upon American conditions. THE BRITISH WORKMEN'S COMPENSATION ACT IN RELATION TO ACCIDENT PREVENTION. tion of Factory Accidents," 1899, perhaps the first to note, analyze, and explain the peculiar effect of the act in swelling accident returns and accident statistics. This effect was cumulative and took some 8 years to reach a climax. It excited such alarm that a special investigation of the increase was ordered in 1909. The committee, which reported in the present year, had 10 years' expe rience of the act to found upon, and they have largely confirmed the writer's contentions and predictions of 1899. Leaving out of account the particular nature of the compensation scheme and judging from a practical experience of 12 years in Great Britain as a mechanical engineer in close touch with the dangerous industries, and subsequently for the same length of time in control of American plants, the effects of the compensation acts in the United Kingdom on industrial accidents, and, indeed, in any country with existing accident records, are chiefly as follows: 1. An immediate increase in the total volume of reported accidents due to an early and precise record of injuries received being in the interest of employee and employer alike. 2. A large increase in the volume of trivial and nonpreventable accidents, due to the fact that the cause of the injury is usually unimportant for compensation purposes, and reporting was formerly of little use in a large number of accidents for claim purposes under the old liability laws. 3. A permanent but not large annual increase in the trivial accidents reported after the employer and employee have been fully educated in the requirements of the law. 4. An improvement in safeguarding and safe working precautions, due to the attention of factory inspectors being concentrated on safety measures and more specific instances of danger, and due also to pressure from the skilled safety inspectors of the insurance underwriters of the accident risks involved. The employer also is more likely to seek differential insurance rates by proving that he is more careful than some of his competitors. 5. The reduction in the rate of serious and preventable accidents as a whole will naturally follow the above executive and material improvements, but this may be irregularly varied for particular industries by temporary increases due to exceptional trade pressure or prosperity. 6. The above reduction in the rate of serious and preventable accidents may be quite consistent with a slow but perceptible rise in the annual total of such accidents and with a somewhat quicker upward movement of reported trivial accidents due to a natural expansion of industry and increase in the number of people employed. 7. While some employees may, and possibly do to a relatively small extent, attempt to prolong the period of disability from accident, there is no ground for believing that guaranteed compensation leads them to bring disability about. 8. The writer does not believe that a compensation burden of itself will create the best accident-reducing conditions. The burden is sure to be discounted after economic equilibrium is restored, and will be carried by the consumer. Civil liability for compensation should be supplemented by quasicriminal liability of employers for failure to protect and accompanied by efficient State or Federal factory inspection. 9. All the above effects producing an apparent large increase in accidents would probably be intensified in a civilization such as ours, where industry is conducted at higher pressure and life and limb are more recklessly exposed by the worker and more inadequately safeguarded by the employer and the State. The ascertained facts about industrial accident in the United States are bad enough to contemplate but they will become appalling if, through and suitably legislation, it should become the immediate interest of employer and employee alike to reveal every injury received, promptly and precisely. The real accident rate would, of course, remain unchanged whatever the unprecedented statistics might suggest, but the revelation would start the forces of conservation on the most beneficient task which awaits them and gradually bring about a scientific reduction of industrial casualties by the administrative and practical means suggested by the writer in the other two briefs submitted on these subjects. BRIEF FILED BY MORRIS M. COHEN, LITTLE ROCK, ARK. Congressional power to deal with the responsibility of the master to the servant, present and prospective, must be confined to the interstate commerce business; and Congress has no power to legislate on that subject in favor of employees not at the time of the injury engaged in interstate commerce. (207 U. S., 463, 498.) The relation of master and servant, according to the decision just cited, may only be dealt with by Congress to the extent that it flows from interstate commerce. And this implies, in the last analysis, that, at the time of the injury complained of, there is a participation by the employee or servant in interstate commerce; i. e., two certain and definite things must concur before there can be a right to reach carriers engaged in the transportation of persons or property through congressional legislation, (1) injury of an employee, (2) who must be engaged in interstate commerce at the time. But if by general legislation carriers engaged in interstate and intrastate commerce are to be subjected to present or future responsibility to employees, without reference to an existing injury or the happening of an injury, the certain and definite connection which must obtain at the date of the injury in the employment of the servant as to interstate transportation does not obtain. The attempt to impose a liability or duty upon the carrier to provide a fund for future contingencies, according to this reasoning, is outside of the range of congressional legislative power, because it has no certain and definite relation to interstate commerce. A subordinate proposition presents itself. May a hard and fast rule of compensation be created by Congress, where it is impossible to separate the interstate from the intrastate functioning, so as to render certain the prospect that the compensation will only accrue to the employee while he is engaged in interstate commerce? It was suggested at the hearing before the commission that Congress might provide for a waiver of a jury trial to be made either at the date of entering on the employment, or at some time after the cause of action had arisen. (1, p. 25.) If Congress can only deal with interstate commerce, and the employment it seeks to affect must be confined to that class of commerce, any waiver that it provides for must relate solely to an employment entered into for interstate commerce purposes exclusively. But passing this, a general waiver of a jury trial before any cause of action has accrued is obviously against public policy and is, in effect, an attempt to nullify the seventh amendment to the Constitution. It is impossible to conceive how a man can waive a thing which does not exist at the time he waives it; that is to say, the right to a jury trial does not exist until a cause of action has accrued. Can a statute, as a condition to the enforcement of a cause of action which it confers, deny a trial by jury? While in some statutory proceedings, such as proceedings for condemnation of rights of way and alienage cases, right to a jury trial has been effectually denied, it has been decided by the Supreme Court of the United States that a jury trial is a constitutional right under the seventh amendment in all cases triable in common-law courts, whether the cause of action existed at common law or be given by statute. (Parsons v. Bedford, 3 Peters, 474, and cases cited in Rose's Notes to this case.) An incidental point is this: If a fixed sum is recoverable by the employee under the act of Congress, so that the only issue for the jury be whether the plaintiff is an employee engaged in interstate commerce, and possibly what class he belonged to, is not the employee entitled to have left open and undealt with any damage sustained by him in his capacity of servant in the handling of intrastate commerce? Upon what theory can Congress defeat his right to recover in that capacity? And if it does attempt that, does it not follow that it is thereby undertaking to deal with the whole relation of the employee to the master, whether it concerns interstate commerce or not? 30198° S. Doc. 338, 62-2, vol 2—50 MONDAY, NOVEMBER 6, 1911. EMPLOYERS' LIABILITY AND WORKMEN'S The commission met at 10.30 o'clock a. m. Present: Senators Sutherland (chairman) and Chamberlain; and Hon. William G. Brantley and Hon. Reuben O. Moon, Members of the House of Representatives, and Mr. D. L. Cease, editor the Railroad Trainman. Also the secretary, Launcelot Packer, Esq. OPENING STATEMENT BY THE CHAIRMAN. The CHAIRMAN (Senator Sutherland). The commission will be in order. Since the hearings were had in Chicago the commission has had several meetings and as the result of them has agreed upon a general tentative plan which it will recommend, unless changes are made in it, to the Congress when it reports next January. We propose to recommend as follows: (1) The law to provide for payment of compensation by interstate carriers engaged in interstate commerce to employees sustaining injury by accident while engaged in such commerce, except in cases of willful misconduct to be hereafter specified. The idea of the commission being that that general provision shall conform to the language of the amended employers' liability law, which has been practically sustained by the Supreme Court of the United States. (2) The compensation to be paid by the employer directly, and not out of a general fund created by any form of taxation. There were two general plans suggested to the commission; one may be said roughly to be modeled after the German system, by which a tax would be imposed upon the various employers, to go into a general fund under the control of the Government; the other modeled after the English plan, by which the payments of compensation would be made directly by the employer to the employee. For a good many reasons the majority of the commission favor the plan of direct payments. In the first place we have no data at present by which we could determine the amount of the tax to be imposed upon the various railroads of the country. Therefore it would be necessary to impose a flat rate upon all the railroads of the country-not having any data by which we could differentiate—and the result of that would be that the best-managed road, the road with the latest devices, with the block signals, safety devices, and taking the most care to prevent accident, would pay precisely the same rate as the poorly managed road and thus the best-managed road would be penalized for the benefit of the most poorly managed road. Í shall not take time to enumerate other reasons which constrained the commission finally to agree to the plan of direct payment, by which each road will bear the entire responsibility of the accidents which occur upon that road. (3) That the law shall be in form compulsory, and not subject to election by either employer or employee. It was the thought of the commission that if the plan was made elective a good many of the evils of the present system would simply be perpetuated. The laws of various States with reference to employers' liability differ very greatly, so that in one State, for example, all of the common-law defenses are preserved, while in another State they have been practically abolished or very much modified, with the result that out of a given number of accidents a railroad company in the first-named class of States would pay very much less in the aggregate as a result of litigation than it would in the other class. We thought this would simply lead to a balancing of the cost on the part of these various railroads and that they would accept or reject the law as they thought it was to their financial advantage to do. That sort of thing would be expected. So that we should have the law in operation in one State and not in operation in another, and for that and other reasons we have concluded to recommend a law compulsory in form. (4) The remedy provided by such law to be exclusive of any common-law or other statutory remedy. For substantially the same reason we concluded that the employee should not be given the right to elect to sue under the common law. The result of that, of course, would be to perpetuate the evils of the present system to a very large extent. (5) To apply to all accidents resulting to the employee while in the course of his employment, except those where the disability continues for a period of two weeks or less, the employer, however, to furnish medical and surgical assistance to an amount not exceeding $200. That explains itself. (6) Payments of compensation to be made under the law shall be made periodically and not in lump sums, with, however, appropriate provision for commutation at any time after the lapse of six months on the application of either party. I think the commission was unanimous on that provision, our thought being that it would be clearly to the advantage of the men as well as to society to have periodical instead of having lump-sum payments. A great many men who are working for these companies would not be able, we think, to make investments of lump sums profitably, and this plan would insure an income to them, which we think better than to have payments in lump sums. These payments are therefore to be made periodically-monthly or weekly, as the case may be. Of course that will entail a little more trouble upon the part of the railroad companies to keep accounts, but, after all, it will amount to nothing more than extending their pay rolls. We have also provided there that commutation may be had on the application of either party after the expiration of six months. Of course that will be under restrictions that will be named in the law itself. (7) The amount of payments to be limited to a minimum and maximum sum, and not to continue beyond a specified term of years, to be hereafter fixed. The question as to whether or not this limitation shall apply to permanent total disability is left open. . |