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This Day in Labor History: October 30, 1837

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On October 30, 1837, Nicholas Farwell, a train engineer toiling for the Boston and Worcester Rail Road Corporation fell off a train while at work and had his hand crushed by the train. Farwell sued the company for damages. The 1842 decision by the Massachusetts Supreme Court set into place the doctrine of worker risk. This decision set a vitally important precedent in American labor history that the worker voluntarily took on risk when he or she agreed to be employed on the job. Over the next century, tens thousands of Americans died on the job with employers doing nothing.

Farwell had done nothing wrong. While he was working, a switchman messed up and the train derailed, which is how Farwell was thrown. Rather than accept his fate, which was not good as a disabled individual in a world without a social safety net, Farwell sued the company for $10,000. In his decision in Farwell v. Boston and Worcester Rail Road Corporation, Massachusetts Chief Justice Lemuel Shaw disagreed. Shaw claimed that Farwell was personally responsible for the risk of work. Risk was what someone took on by taking a job as well as the opportunity of bettering oneself in the new industrial system. Because Farwell was paid more than other railroad workers, he was already being compensated for the higher risk of his work. Shaw called the $2 a day Farwell made, a “premium for the risk which he thus assumes.” Shaw might sue his “fellow servant” who made the mistake that led to his fall but the company was immune to lawsuits of this kind.

These ideas come back to the idea that American people were fundamentally independent operators, free labor who made economic choices as such. He could have farmed, he could have apprenticed, he could have been a millionaire, but he chose to work on the railroad and was thus responsible for the choice. The upside of higher wages and the downside of higher risk was something Farwell had to judge for himself, as did any worker.

The Farwell case was part of a larger transformation in the American legal code to facilitate corporate growth at the expense of those it affected. It’s not just labor law either. Citizens sued textile mills for damming rivers that ended eon-old fish runs people upstream relied upon. The courts consistently found in favor of the new corporations, broadly using ideas of progress to justify their decision. This led to corporations having the right to pollute at will, timber companies to destroy the stream banks and land of farmers with nominal riparian rights, and dominate anyone who got in the way of their growth.

The Farwell decision directly led to tens of thousands of dead workers and hundreds of thousands (if not millions of workers) who suffered from occupational disease, tuberculosis, lead poisoning, electrocution, hands caught in unsafe saws, hair pulled from their heads after it was caught in machinery, suffocation in coal mines, and endless other workplace hazards in world where corporations had no responsibility for their workers’ safety and health.

This terrible scenario finally began to change after 1900, when courts began ruling in favor of suing plaintiffs or their surviving families. While many corporations were outraged at the sheer idea of responsibility for workers (the Progressive workplace reformer Alice Hamilton famously told a story about a paint manufacturer’s sheer incredulity when he realized she was telling him he should be responsible for his workers getting lead poisoning. He just couldn’t imagine such a world), others saw the writing on the wall and created the system of worker compensation that took the issue out of courts and gave corporations a consistent way out of large settlements, a system that would provide workers some protection, however minimal and however lower the compensation was than their previous wages, but also meant they could not sue their employers.

Increased laws regulating corporate responsibility for workplace health eventually helped many companies decide to move their production facilities outside the United States where they could reproduce the days where they didn’t have to care about dead or sick workers. Today, workers toil for American companies or subcontractors with American companies in Bangladesh, Mexico, Honduras, Sri Lanka, Vietnam, and other countries across the world and face many of the same problems of workplace safety and long-term health that Americans did 150 years ago. This is not an accident. It’s an intentional choice by corporations who seek to recreate the Farwell doctrine.

You can read the Farwell decision here.

There’s a good bit of literature on this case. I primarily used the first chapter of Jonathan Levy’s 2012 book, Freaks of Fortune: The Emerging World of Capitalism and Risk in America, which is an excellent book in the rapidly expanding literature broadly described as “histories of capitalism,” a literature with which labor historians have a lot of problems, but that’s for a different discussion.

This is the 81st post in this series. Other posts are archived here.

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  • Thank you! Fascinating. I knew of the case and its implicatiins but had firgotten its real history and its connection to workmans comp.

  • mojrim

    Thank you yet again. I always look forward to these.

  • Gregor Sansa

    This one is particularly shocking. As you say, it directly caused tens of thousands of deaths and hundreds of thousands of illnesses and injuries. Even the worst historical violent episodes are nowhere near that heavy. And while it’s no surprise that 19th century workers were effectively without safety protection, I had no idea that they were explicitly so.

  • rea

    the system of worker compensation that took the issue out of courts and gave corporations a consistent way out of large settlements, a system that would provide workers some protection, however minimal and however lower the compensation was than their previous wages, but also meant they could not sue their employers.

    This misses a hugely important point about workers’ compensation. It treats employee injuries as a foreseeable risk of running a business, and requires the employer to get insurance to cover the risk. A fault-based system, even one without the pernicious “assumption of risk” doctrine and with modern comparative (rather than contributory) negligence, would leave a lot of injured employees–perhaps most–SOL. A fault-based system simply does not deal well with the fact that human beings in a modern industrial environment are often going to screw up and hurt themselves. The high-rise window-washer who misfastens his safety harness, or the press operator who tries to clear a jam out of a pinch-point by hand rather than using the tool provided, ought to be taken care of as part of the cost of doing business. The worker injured by a third party (the bartender beaten by a customer, the delivery person hit by a car), also ought to be assured of compensation rather than left to his uncertain remedies against often-judgment proof tortfeasors.

    • But you are missing the history of why workers compensation was created, which was explicitly to protect corporations from workers’ lawsuits. There’s a reason that the American Federation of Labor opposed workers compensation. More than one actually. But a big one was that workers in the early 1900s were starting to win major lawsuits against corporations and they felt that this method would lead to more changes than workers compensation. They were mostly right about this as well.

      That doesn’t mean that workers compensation isn’t ultimately a good thing. But I don’t think there’s any issues missed by me here at all. I understand how that system works and I also understand that it was created to help corporations and undermine reasonable compensation for workers (in fact, compensation was far below thee wages they made before they got hurt).

      • rea

        Erik, I would think, based on the cases I’ve seen, that going to a fault-based recovery system would likely reduce recovery rates by more than 50%.

        in fact, compensation was far below thee wages they made before they got hurt

        In my state (Michigan) comp rates are approximately 85% of wages, which reflects the fact that comp isn’t subject to income tax.

  • efgoldman

    I don’t know why, but I’m surprised that it was the MA court which issued the decision. Somehow I thought the Commonwealth would have been more enlightened than that.

    Erik, I’m sure you’ve been asked this before: Is a book coming out of this series?

    • rea

      Lemuel Shaw was from a very rich Boston family. He was Herman Melville’s father-in-law and the novel Typee was dedicated to him. The Overton window for liberalism has moved somewhat left since those days . . .

      • Hogan

        He also wrote the decision in Commonwealth v. Hunt, ruling that labor unions are not by definition criminal conspiracies. People have moods.

        • rea

          I was wondering if he were related to Robert Gould Shaw, but seemingly not, or at least not very closely (although he presided over the trial of the man who murdered R. G. Shaw’s father-in-law).

  • DrDick

    A perfect example of how the libertarian fantasy actually plays out. Ignorance of history (and pretty much everything else) is the only defense for being a libertarian.

    • ExpatJK

      Indeed. With an emphasis on the “pretty much everything else” in your second sentence.

  • Bruce Vail

    State-based workers comp systems left out many rail workers and Congress passed FELA in early 1900s to offer them some coverage. The railroads have been trying to kill FELA ever since.

    • Bruce Vail

      This from the Brotherhood of Locomotive Engineers & Trainmen is a pretty good explanation of FELA:

      http://www.ble-t.org/fela/

  • partisan

    “There’s a good bit of literature on this case. I primarily used the first chapter of Jonathan Levy’s 2012 book, Freaks of Fortune: The Emerging World of Capitalism and Risk in America, which is an excellent book in the rapidly expanding literature broadly described as “histories of capitalism,” a literature with which labor historians have a lot of problems, but that’s for a different discussion.”

    Discuss! Discuss! Or at least mention some congenial articles while we wait for the formal blog post. Please? (The imperative tone is just a joke.)

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