Disability Studies Quarterly Summer 2008, Volume 28, No.3 <www.dsq-sds.org> Copyright 2008 by the Society for Disability Studies

The Federal Employers' Liability Act of 1908 (FELA) established an accident liability policy that set railroaders apart from other twentieth-century workers and placed them in a unique relationship to the state that endures to this day. What had won railroaders this singular status? Why didn't the FELA more closely resemble the Progressive Era's state workmen's compensation statutes?2 The answer to that question can be found in the evolution of railroaders' arguments about the relationship between risk and manhood in the decades following the Civil War. These workers argued that they were the soldiers of capital, and their adoption of the martial metaphor was key to achieving their distinctive policy position.

Danger epitomized the early U. S. railroad industry. Members of the railroad running trades—locomotive engineers, firemen, conductors, and brakemen—not only grappled with their work's physical risks, but also developed a work culture that celebrated bravery and skill as the defining characteristics of the true railroad man. When O.H. Kirkpatrick, for example, looked back over his long railroading career, he devoted an entire chapter of his memoirs to a brakeman known only by the nickname of Shorty: "I saw him perform hundreds of feats that required perfect timing, alerted reflexes, and the speed of lightning — where the slightest error…would have ended in tragic death."3 Shorty's indifference to danger marked him as a "hustler," in the railroader's lingo. The hustler valued speed and dexterity above all, and evaluated his colleagues on their ability to work quickly yet skillfully. At a time when railroads were rapidly expanding and hired thousands of new workers a year, running trade members could still argue that their profession was only suitable for superior specimens of manhood.

However, with the founding of railroad brotherhoods in the 1860s and 1870s, some railroaders began to question the hustler model of manhood. The Brotherhood of Locomotive Engineers (BLE), which aimed at improving engineers' reputation in the eyes of managers and the public, scorned men who took foolish risks with passengers and property. The Brotherhood of Railroad Brakemen (BRB) explained, "A man who belongs to this order must be upright, sober, and industrious. Railroad officials are beginning to see the good of the order and are giving brotherhood men the preference."4 The fellow who was indifferent to danger was courting an accident; cool heads and steady habits would give men the best chance of succeeding (and surviving) in the industry.

As rail traffic increased and trains sped up during the last decades of the nineteenth century, it became clear that neither individual skill nor manly valor would be sufficient to protect railroaders from workplace dangers. When the newly established Interstate Commerce Commission (ICC) released the first national report of railroad accident statistics in 1889, railroad companies revealed that one out of every 375 employees had been killed in the previous year. One out of 35 had been injured. Running trade members faced even greater risks. Nationally, one out of every 117 men employed in the running trades had been killed. One out of every 12 trainmen had been injured on the job during the previous year.5 The ICC report confirmed for individual railroaders what workers themselves had begun to suspect: they could no longer protect themselves from injury without help from their brotherhoods and the state.

Once again, the characterization of the true railroading man would need to change. Brotherhood members argued that the true railroader was a brotherhood man who worked cooperatively with his fellow unionists to campaign for a safer workplace. However, if faced with unavoidable danger, the true railroader was a man willing to sacrifice himself to protect passengers and fellow workers. As railroaders moved from an idea of manhood based on individual competence to a new cooperative idea dependent on brotherhood and sacrifice, they paved the way for a fundamental change in the relationship between themselves and the state that would significantly influence federal policy. Running trade members claimed that the risks they faced were directly comparable to those soldiers confronted, and that the manly sacrifices that they made deserved similar recognition from the state in the form of a special citizenship status.

Running trade members and their allies had never found it difficult to compare railroading and warfare, and some veterans had directly drawn upon their Civil War experiences to describe their work. One BLE member exclaimed, "The life of the engineer was like a constant cavalry or artillery charge."6 Edward A. Moseley, secretary of the ICC, compared railroading and warfare when he discussed the recent ICC accident report. He found it "appalling…that more of the grand army of railway men of this country were cut and bruised and maimed and mangled last year than all the Union wounded and missing on the bloody field of Gettysburg."7

During the 1890s the rhetoric of warfare helped transform the railroad safety movement into a campaign. Influenced by a petition that the Brotherhood of Railroad Trainmen (BRT) sent to the ICC, President Benjamin Harrison backed the idea of federal safety legislation. In his first annual message to Congress, Harrison commented, "It is a reproach to our civilization that any class of American workmen should, in the pursuit of a necessary and useful vocation, be subjected to a peril of life and limb as great as that of a soldier in time of war."8

As the first effort to pass railroad safety legislation died during the last session of Congress in 1891, L.W. Rogers, the editor of the Railroad Trainmen's Journal, again compared railroaders and soldiers when he explained, "It is as though the railroad men are an army going on duty in the morning, and knowing that by eventide five of their number must die and fifty be crippled."9 The patriotic context, coupled with the ICC's yearly accident reports, struck a chord with some United States legislators. During the final debate on the bill, Mr. Wise of Virginia, the chairman of the ICC, explained that railroaders were "serving in their quasi-public capacity, as no other class of wage-earners ever do."10 After overcoming railroad companies' resistance and a protracted debate in the Senate, the Fifty-second Congress passed the Safety Appliance Act on March 2, 1893. Companies would now be forced to install automatic couplers and air brakes on their rolling stock. The successful campaign for the Safety Appliance Act showed that the martial metaphor worked.

Railroaders and their allies would next argue for an even more privileged relationship with the state based on their position as indispensable soldiers of capital, recognizing that the time was ripe to make this new citizenship claim. Sympathetic bureaucrats had argued that industrial workers, because of their contributions to the nation's economic welfare, should receive federal pensions. For example, George McNeill, first deputy of the Massachusetts Bureau of Statistics, argued, "the scandal may no longer continue that a man is pensioned for wounds received in the destruction of property and life, but must be pauperized when receiving injuries in the peaceful pursuits of life."11 Legal historian John Witt also has revealed that other unions, such as the United Mine Workers, argued "if disabled soldiers were pensioned, so too should the injured soldiers of the industrial army."12 "The war analogy," according to Witt, "came quickly to have a political significance."13

Emboldened by their success in the safety movement, railroaders and their allies began to argue that as soldiers of capital, railroaders too deserved federal pensions. BRT member W. J. Daily wrote,

We are too prone to accept the casualties of industrial warfare as a matter of course. The old soldier of the Civil War is pensioned. This is right. But what of our soldiers of peace? The nation could not do without them a single day. They furnish prosperity in peace and the utilities and substance for national defense. Some pension system should be evolved.14

Other commentators echoed this view. McClure's author John M. Gitterman explained, "The State assumes that if it goes to war somebody is bound to be hurt; and the State, as a matter of course, shoulders the inevitable burden of these injuries. Railroading is virtually a state of war."15

Of course, by the time railroaders portrayed themselves as soldiers of capital who deserved a privileged citizenship status, soldiers' pensions were a familiar model for the provision of widespread social benefits. In 1893, over forty percent of the federal budget was used to finance military pensions in the United States.16 To workers anxious about the calamitous effects that disabling injury might bring to themselves and their families, the military pension system seemed to offer a promising model for providing earned benefits to those who served the nation honorably.

Significantly, the Civil War soldier's pension was non-stigmatizing aid. As an earned benefit, disabled men received a stipend to replace their lost wage-earning potential.17 Pensions also allowed veterans to remain at least the titular head of their families. The absence of stigmatizing charity and the chance to secure their patriarchal prerogative caused running trade members to view Civil War veterans and their government-administered pension system as the ideal model for the type of relief they sought from the state.

Although they did not ultimately secure federal pensions, railroaders did achieve a special citizenship status through the passage of the Federal Employers' Liability Act (FELA) in 1908. The FELA owed its existence to Section 8 of the Safety Appliance Act. This section removed the implied contract doctrine—a common ploy used by companies to avoid liability for injured railroaders. The doctrine of implied contract allowed companies to claim that running trade members who had agreed to work for a railroad accepted all risks, both ordinary and extraordinary, that accompanied their work. Prior to Section 8, if a worker had pointed out a safety hazard to a supervisor yet continued to work under unsafe conditions, then the courts understood that he had waived his previous objections and agreed to assume the risks of his workplace.18 Without Section 8, railroad companies would have been able to avoid compliance with the Safety Appliance Act merely by delaying their installation of automatic couplers and air brakes.

While companies challenged the constitutionality of federal efforts to regulate, claiming that the legislation was unduly burdensome, the Supreme Court held that "the primary object of the act was to promote the public welfare by securing the safety of employees and travelers…"19 The way had now been cleared for the passage of the Federal Employers' Liability Act. Although a major victory had been secured with the Safety Appliance Act, companies could still avoid liability using other common-law defenses. The fellow-servant rule allowed companies to claim that workers could not recover for injuries if a co-worker had helped to cause the accident.20 Contributory negligence barred a worker's recovery if he had, in any way, helped to cause his accident. Ending those common-law defenses would be necessary if workers were ever to receive just recompense for their injuries.

The FELA's advocates argued that running trade members were more than mere workers. Their position as soldiers of capital fighting for the advancement of the nation's economy demanded a policy response that recognized their sacrifices and placed the state in a mediating relationship between employers and employees. As Moseley argued in a speech before the BRT, "The lives of the public are intrusted [sic?] to you, and our daily existence isߪdependent upon the products hauled by you at a regularly recurring expenditure of life and limb, and I say the public should pay for the necessary cost…"21 Congress soon acted, passing the first FELA in 1906 to great fanfare.

Despite ringing rhetoric, however, this first attempt at rewriting accident liability law was stillborn. The first FELA had attempted to cover all railroad employees, but the Supreme Court ruled that under the Commerce Clause, the Congress had power to address only those workers engaged in interstate commerce.22 The Act was unconstitutional.23

President Theodore Roosevelt's enthusiastic endorsement of the quick adoption of a new version of the FELA, however, was reassuring to brotherhood members.24 When the second FELA became law on April 22, 1908, it fundamentally changed the relationship between running trade members and railroad companies.25 The Act revised common-law liability defenses and removed legal barriers that had long kept railroaders from winning damage suits. It abolished the fellow-servant rule for railroaders in interstate commerce and adopted a comparative negligence rule for accidents.26 This new doctrine of comparative negligence allowed a disabled railroader to recover for damages even if he contributed to his injury-causing accident. According to Section 3 of the FELA, a jury would adjust compensation based on its determination of an employee's share of negligence.27

Why didn't a straightforward workmen's compensation scheme take hold for railroaders instead of the FELA's comparative negligence system? During the last several decades of the nineteenth century, the railroad brotherhoods effectively endorsed a model of railroading manhood that valued cooperation and brotherhood above all else. The idea of the risk-taking hustler, however, was never far from the surface. Even in the early-twentieth century, muckraker John M. Gitterman argued that complete prudence was a detriment in both soldiers and railroaders. Winning battles required that soldiers took risks, and if railroaders "comported themselves as 'ordinarily prudent persons,'" Gitterman warned, "the internal commerce of this country would simply stop."28 Men had to take risks to do their jobs. However, the railroad brotherhoods had successfully argued that the risks running trade members continued to take were for the greater good and should be rewarded. Thus, the meaning of risk had been channeled to support a claim for privileged citizenship.

Ordinary workmen's compensation systems would not do for railroaders. Running trade members had spent half a century imbuing the dangers of their workplace with rich social meaning and establishing themselves as soldiers of capital deserving of a special citizenship status. At a time when the growth of industrial capitalism threatened to reduce typical wage earners into cogs in a machine, railroaders insisted that they employed skills and made physical sacrifices that ordinary workers could not match. Workmen's compensation, although a Progressive reform, reduced workers' bodies into clearly known monetary values. Under workmen's compensation, a worker's "parts" had a knowable replacement cost—like that of a machine part—for which companies could budget. Although the financial security that workmen's compensation offered was appealing, especially within the context of an often hostile court system, it ultimately rested on a way of viewing workers' bodies that denied the value of an individual's contribution to the workplace. Railroaders had spent half a century arguing that they were more than mere industrial wage earners. Comparative negligence under the FELA helped them to maintain this status.

The FELA's doctrine of comparative negligence continued to recognize that railroaders were self-reliant men who navigated railroading's risks and bore responsibility for both accomplishments and failures that occurred during the workday. When a running trade member was injured and tried to recover under the FELA, there was an understanding that he might bear some responsibility for his accident. Unlike workmen's compensation, which assigned damages according to what part of a worker's body was injured, comparative negligence was decided before a jury. The outcome of the trial was based on the jury's determination of comparative fault for the accident, rather than the knowable value of a lost limb. Comparative negligence meant that the injured railroader or his heirs would always get something. His own skills and specific decisions in the workplace, however, would determine the amount. The railroader was not, therefore, merely a cog in the machine, but a soldier of capital (more than a mere worker) who was judged on his own merits.

Railroad companies initially preferred the FELA's comparative negligence rule to a workmen's compensation system and placed their faith in friendly courts. Soon, however, railroaders regularly won their cases and companies urged the adoption of a workmen's compensation system that would restrict suits in favor of standardized payments. Their workers had the last laugh: the FELA governs railroad employee accidents to this day.29 Railroaders, supported by allies such as ICC secretary Edward Moseley, had managed to use ideas about the ideal relationship between risk and manhood to shape a federal liability policy that continued to recognize railroaders as individuals critical to the economic health of the nation—as soldiers of capital.

John Williams-Searle is the director of the Center for Citizenship, Race, and Ethnicity Studies (CREST) at The College of Saint Rose in Albany, New York. He earned his Ph.D. in history from the University of Iowa in 2004. His primary research agenda is to examine how and why disability is often at the very center of the history of labor and the working class and what this means for the study and teaching of labor history in the United States.