For example, although Hinde's chapter on the 1909 explosion is very good, his discussion of mine safety might have profited from James Whiteside' s fine study, Regulating Danger: The Struggle for Mine Safety in the Rocky Mountain Coal Industry (Lincoln, Nebraska 1990), a book that includes an excellent summary of the common-law concepts--assumption of risk, the fellow servant rule
, and contributory negligence--which informed the attitudes of courts and employers to mine safety, prior to the passage of liability acts.
These defenses include the fellow servant rule
, the assumption of risk rule, and the contributory negligence rule.
By contrast, the few judges who rejected the fellow servant rule and upheld employers' vicarious liability for the negligence of one employee that resulted in injury to another did so by appealing to the importance of effective managerial control over the workplace.
Even after the development of the fellow servant rule, slaves and seamen were exempted from the contractarian logic of the law of workplace accidents.
201, 203 (1854), the plaintiff's position was that where the employer had placed "one person in his employ under the direction of another," and where the subordinate employee "was acting under his orders and control, at the time he received the injury," a plaintiff might recover despite the general validity of the fellow servant rule. It is precisely this way in which the law shapes an individual's claim so as to legitimate authority that some historians have identified as the source of law's hegemonic power.
Instead, the tort developed from the fellow servant rule, which imposes a duty on employers to select employees who will not endanger fellow employees by their presence on the job.(4)
At common law, the fellow servant rule required an employer to provide its employees with a safe place to work.(5) For example, in an 1885 case, an intoxicated train engineer accidentally backed a train over another employee and killed him.
He is certainly correct in noting that the fellow servant rule was not foreordained.
Thus the assumption of risk and fellow servant rules in Priestly v.