THE RAILROADS, THOSE CHILDREN OF THE INDUS- trial Revolution, introduced the world’s first nonmilitary instrument of widely dispersed destructive power. In so doing, they contributed mightily to the rise of litigation in America. Nearly half of all negligence cases decided through 1896 involved railroads. And the railroads usually won. In this they merely reflected the fact that a century ago, when an individual brought suit against a corporation, public opinion tended to protect the institution. But perhaps this phenomenon is most striking in the case of the railroads, not only because of their size and power but because in later years they came to incarnate for a good part of the public big business at its most ruthless.

Most of the cases were decided in state courts, when the railroads had the climate of the times on their sides. Government supported the railroad industry through huge land grants and friendly regulation; the progress railroads represented was not to be overly impeded by requiring them often to pay damages to those unlucky enough to get in their way or be hurt working for them.

Eliza Ann Hewins was one of the first to learn how implacable railroad rule could be. One snowy day in the early 1840s her husband, Joseph, was on a Berkshire Railroad Company car taking his work crew back to the station, when the switch tender accidentally directed it toward the closed door of the enginehouse. Joseph Hewins was thrown out of the car as it smashed through the door and died of his wounds within a day, leaving his wife and three children without any support. Faced with these facts, the Massachusetts Supreme Court applied a rule that any grounds for civil action—including wrongful death—died with the victim, leaving Mrs. Hewins with no claim at all. Until then, that rule had not been clearly accepted in the United States; now it was, but before long, the states were enacting statutes to overcome it.

Other court rulings also weighed against railroad workers. The same court that found against Mrs. Hewins imported the fellow-servant doctrine from Britain. A Mr. Farwell, an engineer, lost his right hand when a switchman’s negligence ran his engine off the track. The court reasoned that since Farwell had taken the job of engineer voluntarily at good pay, he had accepted the risk. Therefore the accident, though avoidable had the switchman acted prudently, was a “pure accident.” In effect a railroad could never be liable for injury to one employee caused by the mistake of another.

A justice in 1858 displayed a typical attitude of the day when he took from the jury a case about a man who had been killed because a railroad had allegedly failed to sound a bell. The railroad claimed