Railway Safety II
Bill Long 10/29/05
Getting to the Railway Safety Appliance Act of 1893
The Tuttle case might be seen to be an incredibly "cold" ruling, and indeed two Justices dissented. Justice Miller would have held that the company had a duty not to build tracks with such sharp curves, and Justice Harlan agreed with Miller. But no one attacked the basic doctrine of employee assumption of the risk when he decided to work for the railway company or step between the moving rail cars.
A second case, from January 1893 (Kohn v. McNulta, 147 US 238 (1893)), may have been the catalyst finally to provoke the Congress into action on safety for railway workers. Mr. Kohn began working as a brakeman for the Wabash, St. Louis and Pacific Railway Company in April 1887. On July 11 of the same year, "in attempting to couple two freight cars, his arm was caught between the deadwoods and crushed." At trial the jury awarded him $10,000 but the judge overruled that amount because the jury opinion was only "advisory." [The Supreme Court informs us that since this was a proceeding in equity on one fact alone, the jury decision was not binding on the judge.] At issue before the Supreme Court was the propriety of the judge's decision to overrule the jury. The Court doesn't confine itself simply to the procedural question, but moves quickly to the merits of the case. "With respect to the merits, the decision of the court was also clearly correct."
Why? The injured man was 26 years old. He had been working as a blacksmith for six years before taking up work with the railroad. Because he had been working with the latter for two months, the Court concluded he was "therefore familiar with the tracks and condition of the yeard, and not inexperienced in the business." Since he had seen those cars that caused the accident, even though he claimed the rail car was not a "Wabash" car, "it must be held that it was one of the risks which he assumed in entering upon the service." In language that sounds eerily like that in Lochner 12 years later, the Court held: "The intervener (injured man) was no boy, placed by the employer in a position of undisclosed danger, but a mature man, doing the ordinary work which he had engaged to do, and whose risks in this respect to obvious to any one. Under those circumstances, he assumed the risk of such an accident as this, and no negligence can be imputed to the employer."
Thinking about the Issue
Let's freeze the action here for a moment. How are we to think of these two decisions of the Court? On the one hand they seem to be naive in the extreme. No worker in 1890, even if he had danger to face, could easily walk away from a job. Many jobs were dangerous; he most likely had a family to feed; chances were good, however, that he wouldn't be hurt if he took adequate precautions. If one person wouldn't take the job another would. For the Court to assume that "it is his own damn fault" (which is what the cases seemed to come down to) because he knew the dangers and nevertheless just went ahead and did the work, seems to evoke an almost visceral reaction of "Injustice!" in me.
Yet, let's look at the issue more closely. The Court had no statutory guidance from the Congress on the issue of safety or danger. All it had were a series of common law doctrines developed over time. The common law doctrine of negligence assumed that there was a level of fault somewhere that lay behind liability. Negligence isn't an unusual or unreasonable doctrine. The railroad didn't make the cars not couple. The danger of interposing yourself between heavy cars should be clear to anyone. And, furthermore, you have a series of precedents dating back to the beginning of the rail era (possibly 30 or more years) which held that workers assumed the risk of their conduct on the job. On what grounds would the Courts have to overturn the precedent? From the perspective of 2005, where we want judges just to "interpret the law" or give a "strict constructionist" view of things, where "judicial activism" is akin to a swear word, how else really do we want the Courts to act?
Thus, these cases are almost "slam dunk" cases. Of course the worker bears the risk of hurting himself on the job. Of course if he contributes to his own injury by being negligent on the job it would be unjust to force the employer to pay for the employee's injury. If Congress wanted to change things, Congress could do so. But it was not the province of the Court to do anything other than to uphold their precedents on the issue.
One other comment before getting to the Safety Act. In his 1897 article "The Path of the Law," OW Holmes, Jr. argues that the law does not develop by logic, as if one can divine new legal doctrines by drawing them out of pre-existing doctrine. Rather, as he says elsewhere, the life of the law has been experience. These two cases would have provided fodder for him to examine law from the perspective of "social advantage" as he calls it, but they really wouldn't have led him, or many others at the time, to think that the Court ought to have overruled itself.
Enter Congress
Just six weeks after the Kohn decision was handed down, President Harrison signed the Railway Safety Appliance Act of 1893 (27 Stat. 531). The relevant sections are the first four. Sec. 1 mandated that railroads use locomotive engines equipped with "power driving-wheel brakes" (the Westinghouse air brakes). Sec. 2 mandated automatic couplers between cars (the Janney knuckle couplers). Sec. 3 allowed cars in compliance with secs 1 and 2 to refuse to connect with insufficiently equipped cars. Sec. 4 required grab irons or handholds for security in coupling and uncoupling cars. Later sections of the act imposed sanctions or fines for noncompliance.
The next essay reflects on safety regulations in general and shows the way the Act was construed in a 1904 decision of the Court.
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