Legislative Erosion of the Fellow-Servant Rule

State legislatures affected labor and the economic circumstances of the new industrial work place by fastening statutory limitations on the existing common law of industrial accidents. Death and dismemberment were one of the social and individual costs of industrialization. New technology wrought human havoc. By the 1890s, for example, railroads alone were killing 6000-7000 and injuring 30,000-40,000 people each year. About one-third of the killed and two-thirds of the injured were railroad employees. Such bloodletting prompted demands from labor that legislatures reform the common law doctrines (the fellow-servant rule, assumption of the risk, and contributory negligence) that applied to industrial accidents, all of which courts had forged earlier in the century when industrialization was only beginning and when its casualties were few.

The English anticipated developments in the United States, but only by a few years. Parliament in the Liability Acts of 1880 and 1887 increased employer liability for on-the-job accidents. Legislatures in the United States moved more cautiously. Georgia in 1856 became the first state to modify the fellow-servant rule, allowing railroad employees to recover for injuries caused by the acts of fellow servants, provided they themselves were free from negligence. Iowa passed a similar act six years later, followed by Wyoming ( 1869) and Kansas ( 1874). The distributive nature of the political system during the "party period" meant that the winds could blow in both directions, as the example of Wisconsin suggests. That state in 1875 abolished the fellow-servant rule for railroads; in 1880, however, when conservative political forces regained control of the statehouse, the act was revoked.

The long-term trend was toward legislative repeal of the fellow-servant rule. By 1911 twenty-five states had laws modifying or abolishing the rule. Railroad accident law "reached a state of maturity earlier than the law of industrial accidents generally; safety controls were imposed on the roads, and the common law tort system was greatly modified by removal of the employer's most effective defense": the fellow- servant rule. ²⁴ By 1900, even though the number of industrial accidents had increased,

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the costs of managing them seemed far more possible than a half-century before. Moreover, shifting liability from employee to employer was not enough, because the legal remedies might well prove too costly for workers who were injured, out of a job, and with few resources to pursue a lengthy court battle. Corporate leaders were also ready for a change, because they wanted a rational scheme of compensating injured employees that would end the chaos and uncertain costs associated with jury trials in industrial accident litigation.

By 1910 six states had passed compulsory worker compensation laws. Although these varied in substance and content, they shared several common features. They established a government-operated insurance pool, and all employers were required either to pay into it or to purchase comparable private insurance. The laws made employers immune from liability for specified accidents. Schedules of payment were established for injured workers who needed only to file for an administrative hearing before a state commission. By 1920 more than half of the states had established compensation plans.

The experience of the states was vital in shaping the federal response to industrialization. For more than half a century, Americans had been absorbed in the furious development of their country and the distributive politics of their mass two-party system. Industrialization, however, fostered economic and social conditions, the regulation of which exceeded the grasp of the states' police powers.

Date: 2015-01-29; view: 702