Work Accidents and Employers’ Liability
May 19-26, 1910 — 37th Annual Session of the National Conference of Charities and Correction, St Louis MO
Nearly three years ago I went to Pittsburgh under the direction of the now famous Survey and spent twelve months investigating the industrial accident situation there. Then I came back to New York and began to tell people what I had learned. Somehow it was a success — probably because the subject was just becoming popular and because I was the lucky one who had first gathered facts about it. At first it was fun to be introduced as a person who knew all about industrial accidents and enjoyed telling my little knowledge. But the time soon came when I was tired of my story, when Pittsburgh and her killed and injured workmen bored me beyond words. I used to lie awake nights hoping somebody would ask me to make a speech about “The Barbaric Hair-Dress of the Female Tribes of North America in 1910” or “The Color of the Eyes of the Men of Timbuctoo,” or anything else on earth except industrial accidents, employers’ liability and Pittsburgh! But it is no use, I’ll never be famous for anything else.
Wouldn’t you think when Governor Hughes appointed me on a state commission with thirteen men, after I became an “Honorable” — a duly accredited officer of the state and traveled around from city to city holding public hearings with my fellow commissioners, that there might be a certain unusualness in that which would overshadow any Pittsburgh performance? Well, it didn’t. For when Mr. Kellogg asked me to speak at this Conference, I offered these two titles of possible papers: “The Trials of a Female Commissioner, or How I Became Smoke-Proof”; “Serving the State, or the Sufferings of an Honorable Woman.” But he turned both of these down and insisted on “Work Accidents and Employers’ Liability, or What I Learned in Pittsburgh.”
So here goes! But don’t expect it to be as exciting as if he had chosen one of those other subjects I offered. We shall begin with Pittsburgh and end with the Workmen’s Compensation Bills now pending at Albany. Please imagine yourselves asking me four very reasonable questions about our investigation of work accidents in Pittsburgh:
1. Why did we do it?
2. How did we do it?
3. What did we find out?
4. What can be done about it?
In these days there is among the “upllfters” almost a craze for investigation of social and industrial conditions. This sort of study, which involves going into peoples’ homes and asking them questions about their personal affairs, is justified, it seems to me, only when there is a pretty strong conviction that a wrong exists big enough to warrant the interference of society, and of such a nature that society can right it. investigation just for the sake of investigation does not appeal to me. Social investigators should know what they are driving at. They should have not only evidence that there is an evil but a rough plan for remedying it in mind before they begin an investigation.
There had been for some years a growing conviction in America that our laws do not furnish just and proper compensation to workmen injured at their work, nor to the widows and children of workmen killed. This conviction was based on a vast number of unconnected incidents, individual experiences, newspaper stories, and magazine articles, etc.
Such was our evidence that a wrong existed. Had we any reason to believe that it was a wrong which legislation could remedy? We knew well enough that no law could really comfort the mother for the death of her son, nor compensate the stricken widow and children for a workman killed, nor make up to a man for the loss of his strong right arm. But we did believe that some law could be devised which would take from the injured wage earner and his family part of the economic burden of the accident, some law by which society should make up to them at least a share of their income loss, and thus keep them from destitution. We were the more sure of this because of the fact that such laws had already been adopted in nearly every European country.
It was to get a reliable collection of facts to substantiate our conviction and give weight to our demand for legislation, that the study of industrial accidents in Pittsburgh was undertaken. That was the reason why.
Now, as to method. How did we do it? We soon found that there is no complete public record of industrial accidents, and at that time, as I have since learned, there was none in any state of the Union. There was, however, at the coroner’s office, a record of every fatal accident in the county. After some wire-pulling we got permission to use these files, and spent over a month in making a record of every industrial fatality reported to the coroner during twelve months — from July, 1906, to July, 1907, — taking down on a separate card for each case, the name and address of the man killed, his age, occupation and con jugal condition, the name of his employer, the circumstances of the accident, the names of important witnesses and the verdict. Armed with these records we set out to find, the family and complete each story.
The plan was to learn from the evidence in the coroner’s record how each accident happened, and to learn from visiting the family what happened after the accident, i.e., how great a financial loss was suffered by the family of the workman killed, how much of this was made up by compensation received from the employer, and how the family was affected in its economic life by the accident. When we had done this with the fatalities we followed the same course with the records of three months’ industrial injuries which we secured from the hospitals in Pittsburgh.
To an audience like this I need not explain that this was not a dull and dreadful way to spend a year. You know that the life of a social investigator is one of absorbing interest, full of experiences which give him a broader understanding of human life — deeper sympathies, and which ought to make him wise. But such experience cannot be written down on record cards, nor such wisdom tabulated and offered up to legislatures in proof that new laws are needed. The business of the investigator is to get accurate statistical information. From this point of view, then, what did we find out by our study of work accidents in Pittsburgh? First, that in one year 526 men were killed by accidents of employment in Allegheny county — 195 steel workers, 125 rail roaders, 71 miners, and 135 miscellaneous workers, including house-smiths, carpenters, electric linemen, elevator men, teamsters, quarry-men, etc. Of these men nearly half were American born, 70 per cent were workmen of skill and training, and 80 per cent were under forty years of age.
An analysis of these fatal accidents, according to personal responsibility, based largely on evidence given at the inquest, showed roughly this result: for 30 per cent of the accidents no one was responsible; for 30 per cent the workmen killed or his fellow workmen were responsible; for 30 per cent the employer, or some one representing him in a position of authority was responsible, and for 10 per cent both employer and workmen were responsible. If there were time for a further analysis of these groups of accidents, it would reveal much. I could show you that while sometimes the workmen’s carelessness is exasperating heedlessness, oftener it is ignorance, or inattention due to the long hours and intensity of work; or recklessness inevitably developed by a trade which requires daring; I could show you that while sometimes the employer’s carelessness is deliberate disregard for safety in the construction of his plant, often it is the human frailty of his agents, the hasty mistaken orders of foremen, or the putting off of necessary repairs from day to day so as not to delay the game, an ordinary outcome of competition. In short, one must conclude that these accidents seldom can be laid to the direct personal fault of any one. They happen more or less inevitably in the course of industry. If it were carried on slowly and carefully with safety as the first concern of all, there would be few accidents, but carried on as it is today in America, there are many accidents.
With this conclusion in mind concerning the nature and cause of work accidents, let us turn to the other side of the story — what happens after the accident. The first thing to notice is that the person injured or killed is always a worker, an income producer. No helpless children, no feeble old men, no idle women perish in these disasters. A moment’s thought will show you that, therefore, nearly every work accident leaves a problem of poverty behind. We found that of the 526 men killed in the year’s accidents, 258 or almost one-half were married men regularly supporting their families, (more than 470 children under 16 were left fatherless by the fatalities of the year); of the single men and boys killed, only 38 per cent were quite without dependents.
Speaking in terms of economics then, the most serious feature of the usual work fatality is the permanent income loss which it means to the family affected. Perhaps it is only the dollar or two over and above his board which a minor son contributes every pay day; perhaps it is the father’s regular $12 or $15 a week upon which the typical young family is wholly dependent; according to our figures 63 per cent of work fatalities mean the sudden cutting off of the sole or chief support of a family. Permanent injury to a worker may mean a bigger economic loss to the family than his death, and lesser injuries, while they mean but a temporary loss, may have serious economic consequences in the life of a family.
No investigation was necessary to prove that work accidents mean, in the first instance, income loss to the workers’ families. Under American laws and customs, is any considerable share of this loss shifted to the industry in the course of which the worker suffered his injury? That was the central question of the Pittsburgh accident study. Here is the answer: Among the families of married men killed, one-half suffered the entire loss, i.e., they got from the employer either no compensation whatever, or else merely funeral expenses. And only one-fourth of these families got more than $500. Among the families of single men (with dependents) 65 per cent stood the whole loss, and only 17 per cent got more than $500.
In injury cases we found roughly the same proportions, 56 per cent of married men, 66 per cent of single men with dependents, and 69 per cent of single men without dependents — stood the whole income loss resulting from their injuries.
The share of the burden born by employers as a whole can be better understood from these figures: For 139 cases of married men killed where we learned both the yearly wages and the compensation, the total compensation was $74,305, the total yearly wages $109,262. Thus the total compensation paid to the dependent widows and children amounted to less than three-fourths of their first year’s income loss.
It hardly seems necessary to prove by statistics that these innumerable income losses, resulting from work accidents, born as we have seen wholly or almost wholly by the workers and their families, result in hardship and privation. Yet to determine this by actual investiga tion was part of our task. The following figures give some idea of what a work fatality means in the home. Among 132 families where a husband and father had been killed, 53 of the widows went to work. 22 children were taken out of school and put to work, and 19 families moved to poorer quarters — all this within a year after the accident.
These three items upon which we have definite figures merely suggest the problem of poverty which those families had to face. One
half of the work accident victims were earning less than $15 a week — obviously not enough to carry adequate life insurance at the high rates necessitated by their occupations. The economic struggles of a family suddenly deprived of that small income can be left to the imagination.
Have we any reason to think this situation is peculiar to the Pittsburgh district or to the state of Pennsylvania? Can we of other States comfort ourselves with the thought that our laws are fairer, that our employers are more above self-interest, that more injured workmen are compensated? I think not. During the past year the New York State Employers’ Liability Commission carried on an investigation of the subject similar to the Pittsburgh study. Here are a few of the figures resulting:
Two hundred and thirty-six fatal cases — to more than half of the dependent families no compensation above funeral expenses paid. Ten hundred and forty temporary disability cases — 44 per cent did not receive even medical expenses from the employer.
The Wisconsin industrial insurance Commission found that out of 306 injury cases less than a third received anything more than medical expenses, while in 51 death cases only a third of the families were paid more than $500.
As to actual results in the families, the New York commission found as follows: — Among 186 families of married men killed: 93 widows went to work; 9 children under 16 went to work; 37 families reduced rent; 33 families had received aid; 10 families were destitute.
It seems to me that there is little need for further investigation. The facts of the situation are fairly well established for every state which has the same general laws in regard to an employers’ liability for injury to his employees. We are forced to conclude, with the New York commission in its final report, “that only a small proportion of the workmen injured by accidents of employment and the dependents of those killed get substantial damages; that comparatively few of the workmen in occupations which involve special hazard are earning enough to enable them to provide adequate insurance against it; that, therefore, through accidents of employment thousands of workingmen’s families are brought to extreme poverty and privation, the state suffers through the lowered standard of living of a vast number of its citizens and the public is directly burdened with the maintenance of many who become destitute.”
The law which governs this whole situation and which in its main features is the same in almost all the states, is the law of employers’ liability. It is a law based on fault. The injured workman can recover only when he can prove that the accident resulted from negligence in his employer, and by no means always even then. For the law holds that the workmen assumes all the ordinary risks of the trade, all the risks due to the negligence of fellow servants, all the risks due to the negligence of his employer, such as defective machinery, absence of guards, etc., if he knew about them and kept on working just the same. Moreover, if the workman’s own negligence contributed in any degree to the accident, he cannot recover no matter how gross the employer’s negligence was. Now it is clear that under this law the workmen’s chances of recovery are very slim. Practically his chances are still further reduced by the fact that his case loses and the employer’s case gains by the inevitable delay in the courts, that the witnesses are al most always in the employ of the defendant, and that the defendant is usually a big corporation which can fight forever, and the plaintiff, an injured workman or a widow and children in immediate need of funds.
The outcome of this law as we have seen is that the bulk of the accident loss rests on the workman injured and his dependents, bringing hardship, sometimes extreme poverty and even destitution upon them.
This is the most serious indictment of the law, but many other things can be said against it. Most people have a vague notion of the evils connected with “employers’ liability” — “ambulance chasers” pursuing the injured workman to his home to stir up litigation, or extracting enormous contingent fees from the distracted widow, claim-agents in league with hospital authorities, securing valid releases from men too sick to know their legal rights, or bribing witnesses to disappear, liability insurance for which the employer pays thousands of dol lars every year and from which his injured employees reap no benefit; law suits bitterly fought — lasting often several years — to determine fine
points of legal negligence, while the children of the workman killed are starving or dependent on charity; these are some of the mental images suggested to us by the phrase “employers’ liability”. And there is too much truth in them for comfort. To quote again from the New York report: “Because of the uncertain and arbitrary chances of recovery under our system (of employers’ liability), the state is put to the cost of much fruitless litigation and employers pay out enormous sums to protect themselves against liability on account of industrial accidents, from all of which the victims of those accidents reap little benefit; the system is slow in operation, is an encouragement to corrupt practices on both sides, and is a great source of antagonism between employers and employees.”
The last question was: What can be done about it? Is there a remedy? Accidents of employment as I have suggested are not for the most part due to the direct personal fault of any person. They occur in the course of industry. Danger is inherent in modern methods of production, construction, transportation — accidents are to a certain extent inevitable — men are bound to be killed and injured.
Our law, nevertheless, disregards all this; it is based on fault just as it was in the days when one man’s carelessly hitting another with his hoe was the typical work accident. Moreover, it has been very narrowly interpreted against the interests of the workmen. The way to cure such a situation is to fit the law to the actual conditions of modern industry — to abandon the law based on fault and put in its place a law based on the principle that every industrial enterprise should regularly share the loss resulting to the workmen injured in its accidents.
Such is the law in almost every civilized country except the Uni ted States. In England, for instance, since 1897, employers have been required to compensate all their employees injured, and the families of those killed according to certain limited uniform rates. By adopting some such law, I believe we might hope to accomplish three things:
(a). Save almost all of the tremendous waste of money and honesty and good will involved in the present system, by doing away with litigation over questions of negligence in such cases, (b). Provide an important incentive for the prevention of accidents by making each serious accident a direct, sure and considerable expense to employers. (c). Shift a share of the economic loss of each accident from the family affected, by way of the employer, to the whole body of consumers, by making accidents a regular cost of industry.
How to get such a law in America is another story.
There have been at least nine state commissions appointed within the last few years to inquire into this subject of employers’ liability for industrial accidents and devise a remedy for the situation which has just been set forth. The Connecticut, Massachusetts and Illinois com missions have reported but without results in legislation. In the two latter states new commissions have recently been appointed. The com missions of Wisconsin and Minnesota are expected to report soon. Those of Ohio and New Jersey are just commencing their labors. In New York state alone there is a probability of legislation during 1910 which will change fundamentally the system of employers’ liability: The New York commission appointed in June, 1909, submitted its first report to the legislature March 19, 1910, recommending two measures.
One of these provides several important amendments to the Employers’ Liability Act; it greatly modifies the assumption of risk rule, places upon the employer the burden of proving contributory negligence and makes employers liable for negligence of employees “en trusted with any superintendence” or “entrusted with authority to direct, control, or command any employee in the performance of the duty of such employee.” After having thus increased the liability of the employer, the bill introduces an elective compensation plan by declaring that “when and if any employer in this state and any of his employees shall consent to the compensation plan” therein described by filing such consent with the county clerk, then in case injury thereafter results to such employee, compensation shall be paid regardless of negligence, according to a uniform schedule, four years wages for death and half wages for disability up to eight years. This bill has passed both senate and assembly and will almost surely be signed by the governor. But the Employers’ liability amendments included in it find precedent in the laws of other states, and the compensation scheme presented, since it is purely voluntary cannot be said to be a radical step toward the substitution of a compensation for a liability system.
The other bill, known as the “Compulsory Compensation Act for Dangerous Employments,” however, will, if it becomes a law, be the first of its kind in this country, and warrants the attention of all who are interestsed in this reform. This bill, which has already passed the senate, applies only to the following specified employments in which of necessity the trade hazard is great:
1. The erection or demolition of any bridge or building in which there is, or in which the plans and specifications require iron or steel framework.
2. The operation of elevators, elevating machines, or derricks, or hoisting apparatus used within or on the outside of any such bridge or building for the hoisting of materials for such erection or demolition.
3. Work on scaffolds of any kind elevated twenty feet or more above the ground, water, or floor beneath in the erection, construction, painting, alteration or repair of buildings, bridges or structures.
4. The construction of tunnels or subways.
5. All work carried on under compressed air.
6. Construction, operation, alteration or repair of wires, cables,
switchboards or apparatus charged with electric currents.
7. All work necessitating dangerous proximity to gunpowder, blasting powder, dynamite or any other explosives, where the same are used as instrumentalities of the industry.
8. The operation on steam railroads of locomotives, engines, trains, motors, or cars propelled by gravity or steam, electricity or other mechanical power, or the construction or repair of steam railroad tracks and roadbeds over which such locomotives, engines, trains, motors or cars are operated.
The bill provides for the compensation by employers of all work men injured in these employments by any accidents due in whole or in part to the fault of the employer, or any of his officers, agents or employees, and also by any accident due in whole or in part to “a necessary risk or danger of the employment or one inherent in the nature thereof.”
The schedule of compensation provided is, in case of death, four years’ wages, not to exceed three thousand dollars; and in case of total or partial disability fifty per cent of the earnings of the injured person payable weekly, but not more than ten dollars per week, during the continuance of the disability, not to exceed a period of eight years.
This bill does not take away any of the rights of action now existing either at common law or under any statute, but provides that the persons suing must elect at the time of bringing his action whether he will pursue his rights under the compensation act or under the existing liability laws, and such election is final.
This measure has received much adverse criticism, particularly at the hands of those who are eager to see workmen’s compensation established in America. The members of the commission have been challenged to explain, first, why we limited the operation of the compensation principle to a few dangerous trades, and, second, why we provided for compensation in case of accidents due to negligence or to a risk of the trade instead of to all accidents in the course of employment. I am glad of this opportunity to answer those questions.
In the first place a very little experience in law-making is enough to teach one that doing a thing is a very different matter from telling how to do it. Especially is this true in regard to labor legislation in the United States. There are two chief reasons why in this country we cannot as a rule go ahead and pass a labor law when we see that it is good. In the first place, there is our interstate competition; we have legislative lines between the states, but no commercial barriers. This gives the manufacturer a substantial reason back of his protest against laws which will increase his cost of production. He can in fairness argue that if laws are passed in his state requiring compensation for all injured employees, while his competitors in neighboring states go on as before, he cannot “stay in the game.” Whether we sympathize with his plight or not we must recognize the effectiveness of his argument before our state legislatures.
In the second place, we have written constitutions, state and national. Certain provisions in these documents, doubtless originally intended to safeguard the rights of the people, serve often, so it seems to us reformers of today, to deny the rights of the people. But here again it seems wise to understand thoroughly and reckon with this dif ficulty rather than to pretend it is not there.
In drawing up a workmen’s compensation bill, the New York commission had to face both of these difficulties, and the bill we recommended was our way of getting around them. It may have been good or bad judgment but it was an honest and painstaking effort, and de serves your thoughtful consideration.
To begin with, we purposely left out so far as possible, the manufacturers, in the belief that we could get the new principle—limited compensation for industrial injuries based not on negligence but on trade risks — established more easily in connection with industries not directly involved in interstate competition such as railroading and building, than in connection with manufacture, where additional cost to employers would be an almost insurmountable argument against it; and when once enacted into law and “tried out,” as it were, we believed that the principle of workmen’s compensation would soon be come generally accepted as just and reasonable; that the new system would be found to entail advantages to the employer which would offset its additional cost, and that therefore, it could be rapidly ex tended to cover all employments in which accidents commonly occur. Second, as to the constitutionality of the proposed measure.
Without going into the “reasons why,” which are hard to explain, let me say that all but two of the lawyers whom we consulted told us that a general compensation act, covering every accident in the course of employment, would violate both the state and national constitutions. instead of going ahead and pretending we could not see this obstacle, we tried to find a way around it. Further study and consultation resulted in the conclusion that a compensation law limited to obviously dangerous employments and based upon the risk inherent in the employment would be upheld, the theory being that since the state can, if it likes, prohibit a dangerous enterprise, it can a fortiori exact certain conditions from those undertaking it, for instance, that they shall insure their employees against the risk involved. “The risk involved,” however, cannot be made to include every accident possible in the course of that employment, but only those resulting from its inherent danger. Upon this theory our bill was drawn. I believe it will be found to cover practically all serious accidents in the employments to which it applies. It is difficult to think of a bad injury or a fatality in railroading or construction work, for instance, which would not be due in “whole or in part” either to a failure of the employer or some of his “officers, agents or employees,’ or “to a necessary risk or danger of the employment or to one inherent in the nature thereof.”
To sum up this defense, we drew the bill so that it should apply largely to employers not directly competing with employers in other states, because we believed that by thus taking away the one solid economic argument of the opposition, we could get the bill passed; and because we believed that to get in the entering wedge containing the new principle was the important thing for us to do, — the rest would take care of itself. And, again, we limited the compensation principle to obviously dangerous trades, and to accidents due to the inherent risks of those trades, in order to have a sound argument for the constitutionality of the measure.
As might be expected, I am an enthusiastic advocate of this compensation bill recommended by the New York commission. The more I think about it the surer I am that it is right. For, as I see it, the fundamentally important step in this reform is to establish the principle that the risks of trade born through all these years by the workmen alone, should in all wisdom and justice be shared by the employer; and our bill, limited as it is, if enacted and upheld by the courts, must go a long way toward fixing that principle in American law.
Source: Proceedings of the National Conference of Charities and Correction, at the Thirty-seventh Annnual Session held in the City of St. Louis, Mo., May 19th to 26th, (Fort Wayne, Indiana: Press of the Archer Printing Co.), 1910, pp. 414-424.