Railway Safety
Bill Long 10/29/05
Before The Railway Safety Appliance Act of 1893
This and the next two essays essay implicate several little-known but significant themes in American legal history. The themes are important to understand not simply in order to comprehend another era but to see the way that the debate over railway safety tells us something about who we are as Americans.
Let us begin by going back to the administration of the faceless Republican President Benjamin Harrison (1889-93). As the Supreme Court says in a later opinion (1904--see third essay), in his annual messages of 1889, 1890, 1891 and 1892 President Harrison "earnestly urged upon Congress the necessity of legislation to obviate and reduce the loss of life and injuries" in the railroad industry.
It was not the safety and welfare of the general public that was in Harrison's view, but the safety of railroad workers. They were endangered and injured primarily because lack of standardization of coupling technology often required them to enter between slowly moving railroad cars and couple and decouple cars by hand. In addition, safety bars were not required, steam engines often exploded and locomotives could not be stopped with any precision. However, technological innovations which would effect safer conditions for workers were available. For example, George Westinghouse had invented the air brake in 1869 and Eli H. Janney had invented the "Janney Automatic Coupler" (a "knuckle" coupler rather than the lock and pin couplers in widespread use at the time) in 1873, which would enable cars so equipped to couple automatically when pushed against each other. The Master Car Builders Association had selected the Janney Coupler in 1887 as its standard design. Thus, by the time President Harrison was inaugurated, safety equipment was accessible for railroad companies to cut down on worker injuries.
What was the extent of these injuries? President Harrison said in 1892:
"Statistics furnished by the Interstate Commerce Commission show that during the year ending June 30, 1891, there were forty-seven different styles of car couplers reported to be in use, and that during the same period there was 2,660 employees killed and 26,140 injured. Nearly 16% of the deaths occurred in the coupling and uncoupling of cars, and over 36% of the injuries had the same origin" (quoted in Johnson v. Southern Pac. Co., 196 US 1 (1904)).
Thus, the statistics showed very grim numbers, numbers that were made worse because the technology was available to reduce if not eliminate these deaths and injuries. One potentially important fact at this point escapes me--how much it would have cost the industry to have "upgraded" the cars, but no doubt these costs would have been passed along to the passenger and freight customers. Nevertheless, and we can almost hear the argument of those opposing any change in the status quo ringing in our ears 113 years later, 'The costs are just going to be passed along to consumers.' As if that is a sufficient argument to provide for the safety of people.
Legal Doctrines
But it was not as if one should point a bony accusing finger at the railroad industry and condemn them for not upgrading their cars and thus adding to the woes of countless individuals and families. Law was complicit with the railroads in not requiring any upgrades of the equipment. What do I mean by that? Law had a series of doctrines which could be pulled out of its legal portmanteau to support the status quo and not require any railroad improvements. The "biggies" were three: worker assumption of the risk, contributory employee negligence and no liability for negligence if equipment was up to a common standard in the industry. I think it would be helpful to review the operation of these doctrines in the 1880s and early 1890s. Let's look at two cases, one of which dealt with a death and one with a crippling injury.
The first, Tuttle v. Detroit, G.H. and M. Ry Co (122 US 189 (1887)), had the following facts. Mr. Tuttle was killed while attempting to couple two railroad cars standing on a sharp curve. The drawheads of the cars failed to meet and passed each other. He, standing between the cars at the inside of the curve, was crushed to death. Had he been standing on the outside of the drawbar, he would have been free from danger. This occurred during the ordinary course of employment.
It was most natural for the plaintiff's estate to charge negligence in the defendant--that it neglected its duty either in the construction of the cars or in the construction of the sharply curved railroad tracks, thus allowing the cars to fail to meet each other and crush Mr. Tuttle. Yet the Court held for defendant and made three points in its reasoning: (1) even though the curve was very sharp where the cars were to be joined (and thus increased the danger), "yet we do not think that public policy requires the courts to lay down any rule of law to restrict a railroad company as to the curves it shall use in its freight depots and yards, wehre the safety of passengers and the public is not involved"; (2) that it really was in the interest of railroad companies to get rid of these sharp curves (for easy of movement of trains), and therefore it should be left to their discretion to make changes. Indeed "it must be a very extraordinary case..in which their discretion in this matter should be interfered with in detemrinig their obligations to their employees"; (3) Mr. Tuttle was an experienced brakeman who had been in these situations previously, and thus had assumed the risk of the danger that might come his way when the cars failed to couple. Quoting an earlier case, the Court said, "It is for those who enter into such employments (as railroad employees) to exercise all that care and caution which the perils of the business in each case demand." Tuttle must have had knowledge of the danger, and that knowledge will be imputed to him.
Therefore the railroad was not liable in his death. Period.
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