If he were turning a grindstone and his awkward fellow workman so held
the scythe as to cut him, if he were in the forest and his fellow
workman gave no notice of the falling tree, it was natural to presume
that the carelessness was shared between the two, and the law would
neither attribute blame to the employer nor levy the damage upon him
when he was not blameworthy.
But the organization of labor and the creation of elaborate machinery
has destroyed this presumption of the common sense, and therefore in all
civilized countries has destroyed this presumption of law. When a
railway train runs off the track because of a misplaced switch or a
defective rail, there is no presumption that the engineer was careless
or could have guarded against the carelessness of the switch tender or
of the manufacturer of the rail. When a fire breaks out in a room where
scores of shirt-waist makers are confined at their work and a hundred
and forty of them are burned to death, there is no presumption that the
impossibility of their escape through narrow passageways and a locked
door was due to their carelessness, or that they were to blame because
the tables at which they were working were wood, not metal, or that they
could have prevented the careless fellow workman from throwing his
cigarette down in the inflammable material which surrounded them.
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