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.
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