Trying to get myself rolling on something else, related to the laundry and injury stuff…

Amy Dru-Stanley’s From Bondage To Contract is a history of the equation of freedom and contract in relation to labor and gender in the post-bellum United States. Stanley details how freedom came to mean freedom to contract, and how this understanding of freedom both shaped and was shaped by abolitionists’ understanding of slavery and waged labor.

The doctrine of freedom of contract, and the related notion of an implied contract between employees and employers which was freely entered into on both sides, shaped accident law in the United States. (See p67 in Labor and Employment Law By Victoria Ullmann [googlebooks]

The development of English common law in the late Middle Ages and Renaissance provided a legal framework that persisted into the early Industrial Revolution across Europe and America. Three critical principles gradually developed which determined what injuries were compensable. They were generally so restrictive they became known as the “unholy trinity of defenses4.

1. Contributory negligence.
If the worker was in any way responsible for his injury, the doctrine of contributory negligence held the employer was not at fault. Regardless of how hazardous the exposed machinery of the day was, any worker who slipped and lost an arm or leg was not entitled to any compensation. This was established in the United States through the case of Martin v. the Wabash Railroad, in which a freight conductor fell off his train. Although inspectors subsequently blamed a loose handrail, his injuries did not receive compensation because inspecting the train for faulty equipment was one of his job duties.

2. The “fellow servant” rule.
Under the “fellow servant” rule, employers were not held liable if the worker’s injuries resulted in any part from the action or negligence of a fellow employee. This was established in Britain through the case of Priestly v. Fowler in 1837, a case of an injured butcher boy. In America, precedent was provided five years later by Farnwell v. The Boston and Worcester Railroad Company.

3. The “assumption of risk.”
The doctrine of “assumption of risk” was exceptionally far-reaching. It held simply that employees know of the hazards of any particular job when they sign their contracts. Therefore, by agreeing to work in a position they assume any inherent risk it carries. Employers were required to provide such safety measures as were considered appropriate in the industry as a whole. In the nineteenth century, this often left a great deal to be desired. Assumption of risk was often formalized at the beginning of an employee’s tenure; many industries required contracts in which workers abdicated their right to sue for injury. These became known as the “worker’s right to die,” or “death contracts.” (From.)

With regard to the contributory negligence, the contract between employer and employee could be understood as a contract that the employee would perform the work in such a way that they would not cost the employer additional money. Injuring oneself and suing would be one such extra-contractual cost. With regard to fellow-servant, the contract was between employer and employee. The contract was not collective in nature. If one employee caused another to be injured, this was not something relevant to the individual employer/employee relationship. (I don’t know that these arguments were actually made, I need to find out.) Assumption of risk was the idea that employees knew the risks of their jobs and agreed to take those risks when they entered into employment contracts.

Implied in the notion of contract was the idea of competency to contract. The individual who assumed risk, for instance, was capable of being aware of the risk involved in the work. One way to prevent losing due to assumption of risk might be to argue a sort of perceptual or cognitive or epistemological incompetence, such that one did not know the risks and could not be faulted for not knowing them.

[Bracket off fellow servant and contract; just use Stanley on the gender of legal concepts – contract may be relevant here for comparison but don’t go too much into it.] What about contributory negligence…? It was important that the anti- assumption of risk argument not turn into “you brought this on your self,” that is, it was important that the lack of knowledge not be a blameworthy lack.

*

tentative outline
1. the accident doctrines (ie, employer defenses listed above)
2. accidents in the laundries (and possibly conditions in the laundries that made accidents more likely?)
3. actual arguments made in the laundry cases (the employer defenses, then arguments against, and courtroom behavior particularly gendered components thereof)

Advertisements