Ruminations: The Centennial of Workers’ Compensatioin in Vermont
sulted, they may well argue, as to the
character and ability of those with
whom they are compelled to work.22
This Republican governor and the Republican-dominated legislatures of the
years leading up to the adoption of the law
recognized the need for reform.
Assumption of Risk
The common law doctrine of assumption of risk applies to workers in inherently dangerous occupations. Justice Wendell
Stafford described it in Kilpatrick v. Grand
Trunk Ry. Co. (1902) as
only one phase of the broader doctrine expressed by the maxim, ‘Volenti non fit injuria.’ One is not to be allowed to recover for an injury which he
has voluntarily brought upon himself,
and he has brought it upon himself voluntarily if it resulted from a course of
action which he took with full knowledge and appreciation of the risk.
Moreover, one who enters upon a regular employment is presumed to know
and appreciate the risks ordinarily incident thereto, and he assumes them.
And when, in the course of his employment, a special and obvious risk is presented to him, one not ordinarily incident to the business, he may, as a rule,
refuse to accept it, and if he choose
to encounter it he assumes that also. 23
Contributory Negligence
The starkness of this doctrine, as applied to employees, is described by Justice Seneca Haselton in Harris v. Bottum
(1908). “It would be manifest injustice
to hold an employer liable for injuries received by an employé through defects or
insufficiencies in place or machines that the
employé observed or that were plainly observable by him.”24 Actual knowledge was
not required. The general rule, according
to Judge George Powers in Wiggins v. E.Z.
Waist Co. (1910),
is that a servant is presumed to see
and understand all that a prudent
and intelligent person, with the same
means and opportunities for acquiring a knowledge of the material facts
and the same capacity for estimating
their significance, would see and understand. The true test is, not whether
he actually knows and comprehends,
but whether, in the circumstances, he
ought to know and comprehend the
dangers which beset him.25
Justice James M. Tyler, in Carter v.
Central Vermont R. Co. (1900), wrote,
If, by the vigilant use of his eyes and
ears—which in the circumstances is
only ordinary care—the plaintiff might
12
have discovered and avoided the danger, and omitted such vigilance, he
was guilty of contributory negligence;
and he is chargeable with such knowledge of the approach of the train as he
might have obtained by the exercise of
that degree of care, which in the circumstances of danger, he was bound
to use.26
In his 1910 inaugural, Governor John
Mead condemned the doctrine.
Under the existing law, if an employee of a railroad or of any of our great
industrial corporations, is killed or injured by the combined negligence of
himself and his employer, however
gross the negligence of the latter may
be, recovery of damages is barred. In
the words of our Supreme Court, if the
employee is guilty of contributory negligence ‘in the least degree,’ there can
be no recovery.27
To present day thinking, these common
law rules, intended to encourage economic development, protect employers, and
leave employees to bear their own losses
in industrial accidents, seem unfair and irresponsible. That is one indication of the
impact of Workers’ Compensation.
Adoption of the Law
The first law repudiating the fellow servant doctrine in Vermont was enacted
in 1910.28 This law guaranteed the same
rights to compensation and to sue an employer as if the injured worker had not
been an employee, if injured in the exercise
of due care caused by a defect in machinery that the worker couldn’t have discovered, from the negligence of a fellow worker or person in charge of the machinery.
The act provided damages to the widow or
next of kin, in the case of death, limited total damages to $5,000, and granted a minimum of $500 in cases of instant death or
death without conscious suffering. No recovery was allowed if no formal notice of
the injury was given to the employer within
two years of the accident. There was no recovery if the employee knew of the defect
or negligence who failed to give notice to
a superior within a reasonable time of discovery. The Act provided that, “Nothing in
this act shall be construed to abridge the
common law rights or remedies which the
employee may have against his employer,”
and recovery created a bar to any claim under the common law. It was a start, but it
did not satisfy the growing realization that
more dramatic changes were needed.
On March 25, 1911, 146 garment workers were killed in a fire at the Triangle Shirtwaist factory, and as the conditions at the
factory became known, particularly the
locked doors on exits, a reform movement
began that led directly to the adoption of
THE VERMONT BAR JOURNAL • SUMMER 2015
the first Workmen’s Compensation Act in
New York.29 A year later, the Court of Appeals of New York ruled the Act unconstitutional, as a violation of the right to a jury
trial.30 In that decision, Justice William E.
Werner, who generally praised the purpose
of the law, deemed it “a legislative usurpation of one of the functions of a commonlaw jury.”31 The new law, wrote Werner, did
not stop at reversing the common law.
It attempts to reverse the very provisions of the Constitution which, the
commissioners admit, are obviously
beyond the reach of the Legislature.
We cannot understand by what power the Legislature can take away from
the employer a constitutional guaranty
of which the employé may not also be
deprived.32
In direct response to the Ives decision,
New York amended its constitution to include specific authority to enact workman’s compensation laws in 1913.33 That
addressed the high court’s concern about
the New York Constitution, but as Justice Werner had included the Fourteenth
Amendment in his list of offended constitutional sections, there was still some question about the law. In 1915, the Court of
Appeals of New York, recognizing that the
Ives decision had been reversed by the
amendment, found that the concern about
the federal constitution was also satisfied
with the passage of the law.34 The difference between the act declared unconstitutional and the new act was sig