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This Day in Labor History: November 23, 1891

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On November 23, 1891, a miner in Alaska named Patrick Whalen was injured in a mining accident. After a lower court awarded him financial compensation, the Supreme Court stepped in to make sure that injured workers would get nothing. This moment both demonstrates the indifference of mine owners to the safety of their workers and the outright of the hostility of the courts to allow Americans to do anything about it.

Patrick Whalen worked for the Alaska Treadwell Gold Mining Company in the early 1890s. I don’t know anything about him at all except for one point. On November 23, 1891, he was working in the company’s mine on Douglass Island in Alaska. The foreman, not realizing Whalen was there, ordered a gate opened to fill a mine car with ore before the small railroad took it out. The ore was dropped into the chute below while he was working in it. He fell down too. The fall was about thirty feet. Whalen was “severely and permanently injured,” though I do not know the details.

Whalen survived though. Remember that there was no safety net and no government programs for disabled workers until 1920. So if you were injured on the job, you were just out of luck. Going all the way back to 1842, courts had consistently ruled that companies had no responsibility to injured workers or the families of dead workers. They had chosen to take that job at the wage offered by the companies. By placing gigantic corporations and individual workers as equals in society, the courts told themselves lies about what American work was really like. But they held on to the doctrine of employee responsibility as long as they could.

By the 1890s, some courts were beginning to question these doctrines. After all, shouldn’t there be some responsibility by the company for someone who could never work again? Juries were key here, starting to not only find in favor of employees but even sometimes giving them significant damages. A court found in favor of Whalen when he sued. The lawsuit attempted to skirt past some of the larger questions of corporate responsibility for unsafe working conditions based around the claim that the foreman, a man named Samuel Finley, was not a “fellow servant” of Whalen. What this meant is that the lawsuit accepted that if another worker had screwed up and cost Whalen his ability to work, then of course the company would not be at fault. But a foreman, that was a different thing.

This case wound its way through the courts over the next several years. The initial court found in Whalen’s favor. So did the district and appeals courts when the company appealed the decision. So in 1897, it finally wound its way to the Supreme Court. This was the Supreme Court at its very worst–the Melville Fuller years. A year earlier it had issued Plessy v. Ferguson. This was a court that issued horrible decisions at every possible opportunity on questions of race, on questions of taxation, on questions of regulation. And it took the opportunity to do the same here. Writing for the majority, the odious Horace Gray threw out the lawsuit, saying that the foreman was in fact a fellow servant despite his employment status and thus Whalen could collect nothing.

This case just gave employers more power in their battles against workers in the next two decades. This went far to undermine the efforts of injured employees in mines throughout the American West, not to mention other industries, to gain some kind of compensation for their injuries. This reinforced a doctrine common in American mining camps of an extreme individualism that just shrugged shoulders at an accident and went on with their day. Calling something an accident just let the employer off the hook and the courts would reinforce this, all the way to the top.

Meanwhile, the actual conditions of hard rock mining were terrible–miners laboring ten or more hours a day underground with a candle on their hard hat to see the way and trying to avoid rocks falling from the mine roof that could easily brain them to death. Foremen pushed workers to the very edge, constantly demanding more production. Of course workers would wear down, get careless, and “cause” accidents. But because these were individual workers causing the accidents and structural issues were barred from consideration, the companies escaped all responsibility. Plus, many workers had families to support. Not working in danger meant not eating.

At most, injured workers or the survivors of the dead had to hope for some kind of voluntary compensation from employers, which was more likely for a widow with small children, but certainly paid nothing like they could live on while the kids grew up. Moreover, if a widow tried to sue for damages in a case that they would probably lose, the company would be far less likely to give her anything at all.

This 1897 decision got challenged though. America was moving into the Progressive Era. A lot of people realized the rough and tumble days of the post-Civil War economy did not work for a modernizing nation. Moves for reform with basic levels of health and safety began to gain momentum. Juries began to award damages anyway, no matter the potential of them being overturned later. States began creating the basic outline of workplace safety programs, with mine inspectors occasionally actually being useful here.

The Supreme Court most certainly kept overturning cases as long as it could. But by the early 1910s, industries, who were increasingly organized themselves, moving into the age of the modern corporation looking for rational methods instead of the age of single entrepreneur, started wanting to know what the costs of an injured worker would be. In industries such as timber and mining in the West, which was a leading region in Progressivism in part because of the hard labor conditions of the area, juries increasingly gave plaintiffs quite large settlements. This led companies to lobby state legislatures for workers compensation programs, first with Wisconsin and Washington in 1911 and spreading to nearly every state (Mississippi being the less than shocking exception) over the next few years. And to be clear, the damages now institutionalized for injury were far, far less than what juries were giving plaintiffs. They were still highly incentivized to crack down on “lazy” workers who would “shirk” work even though they had one leg or something. And ever since, the workers comp program has not compensated injured workers properly for their pain and suffering. As in the rest of American labor law, the system is highly titled toward the employer.

I borrowed from Mark Wyman, Hard Rock Epic: Western Miners and the Industrial Revolution, 1860-1910 to write this post.

This is the 460th post in this series. Previous posts are archived here.

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