would not be compensated by his
employer and if, as was usually the
case, the worker did not have money with which to sue his employer in
the courts, he and his family would be
without an income during the period
of his incapacity. If he did have money
with which to sue the employer, chances were that he would only lose it to
his lawyers as the decision, in all probability, would go against him because
of the application of the common law
rules.18
The Fellow Workman Rule
The fellow workman rule held that injuries caused by the negligence of another
employee of the employer were not compensable by the employer. The concept
was first recognized in Vermont in Noyes v.
Smith & Lee (1856). Judge Pierpoint Isham
explained,
The general rule seems to be well settled by the authorities, that there is
nothing growing out of the mere relation of master and servant that raises the duty stated in the declaration.
When there is no actual notice of defects in an engine of that character, and
no personal blame exists on the part of
the master, there is no implied obligation or contract on his part that the engine is free from defects, or that it can
safely be used by the servant. The law
imposes no such obligation. There are
risks and dangers incident to most employments, and, especially is this true
in relation to such services as those in
which the plaintiff was engaged. Those
risks the parties have in view when engagements for services are made, and
in consideration of which the rate of
compensation is fixed. In all engagements of that character, the servant assumes those risks which are incident
to his service, and, as between himself
and his master, he is supposed to have
contracted on those terms. If an injury is sustained by the servant, in that
service, it is regarded as an accident,
a mere casualty, and the misfortune
must rest on him.19
Judge George Powers described the felwww.vtbar.org
low servant rule in Brown v. People’s Gaslight Co. (1908):
Among the nondelegable duties which
a master owes his servant is that of
providing and maintaining a reasonably safe place in which to work. But
this rule does not require the master to
supervise the merely executive details
of the work as it goes along. These
are acts of service, and are within the
proper range of the servant’s duties.
They may be delegated to a competent co-servant, and, when so delegated, negligence therein, though resulting in injury, will not support an action
against the master.
The master was not legally responsible,
once he supplied the workman with a safe
place to work and suitable materials, for
the negligence of any other worker, including the foreman on the job.20
Even the requirement to provide a safe
workplace had exceptions. A man was
killed when a twenty-five ton rock fell on
him while working in a quarry. His claim
against the employer failed. Justice John
Watson explained,
Ruminations: The Centennial of Workers’ Compensatioin in Vermont
The historian who described the process
of enacting workmen’s compensation best
was Winston Allen Flint. A Columbia University professor, Flint published The Progressive Movement in Vermont in 1941,
and told the story of the struggle in the first
decades of the twentieth century for workers’ rights. Flint pictured the situation prior
to the adoption of workmen’s compensation graphically. Should a worker in a quarry fall from a derrick, and suffer injuries, he
Every succeeding blast effected a
change in the condition and surroundings, and the danger to which they
were exposed was the direct result of
their own operation. In such circumstances the ordinary rule requiring the
master to furnish the servant a safe
place in which to perform the duties of
his employment does not apply.21
In his inaugural of 1908, Vermont Governor John Mead promoted laws to protect
the injured employee, and repudiate the
fellow servant rule. He said the fellow servant rule was
... unjust in view of our present industrial conditions and tends to induce
less vigilance on the part of corporations in the employment of competent
men. In other departments of business
an employer is held responsible for the
acts of his employee done within the
scope of his employment, and there is
no just reason why the same doctrine
should not prevail as between master
and servant in respect of the acts of a
fellow servant.
Moreover, the existing fellow servant law affords the various labor organizations very reasonable ground
for insisting that their employer shall
engage as their fellow servants only
members of their order; for if they are
substantially without remedy when injured through the carelessness of their
fellow servants, they should be conTHE VERMONT BAR JOURNAL • SUMMER 2015
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