Abraham Lincoln's work as a lawyer for railroads is well known. But a new book on Lincoln's 25-year legal career shows that Lincoln was also one of the first attorneys in the country to champion an injured railroad employee.
Back in 1854 – when railroads were just beginning to use employees as easily disposable pieces of equipment – Lincoln sued Great Western Railroad Company for a severely injured brakeman named Jasper Harris.
According to a three-page complaint that is in Lincoln's handwriting, Harris' right leg was amputated above the knee because of an accident that was caused by the negligence of a fellow employee named George Armstrong.
Closing the complaint, Lincoln asked the court to give Harris $10,000 in compensation. That would be nearly two million dollars today.
Although the pleading was signed on behalf of the law firm of Lincoln & Herndon, historians have verified that the handwriting belongs to Lincoln.
This was a tough case for any lawyer, even a legendary trial and appellate advocate like Lincoln.
The first problem was that the Federal Employers' Liability Act did not exist in 1854, and Illinois had a horrible law – called “contributory negligence” – that made it extremely difficult for plaintiffs to win negligence cases. In addition to proving that the accident that injured Harris was caused by the negligence of a Great Western employee (his co-worker Armstrong), the contributory negligence rule meant that Lincoln had to also prove there was absolutely no carelessness by Harris. If Harris was even one-percent at fault in causing the accident, the contributory-negligence rule meant he would have received nothing.
Making a bad situation worse, a few months after Lincoln sued Great Western the Illinois Supreme Court adopted “the fellow-servant rule.” Under the fellow-servant rule, an injured employee was absolutely prohibited from suing his employer for an accident that was caused by the negligence of a co-worker.
The fellow-servant rule would have killed Harris' lawsuit – even if it survived the defense of contributory negligence.
We are not sure exactly what happened in Harris versus Great Western. The old records say the case was dismissed – at Harris' request. And this was a few months before the Illinois Supreme Court adopted the fellow-servant rule.
Reading between the lines, Great Western probably settled the case to avoid facing the formidable Lincoln in court. Although it looks like Jasper Harris received some money, the lethal combination of the fellow-servant rule and the doctrine of contributory negligence continued to unfairly block other railroaders from obtaining just compensation for on-the-job injuries – until the FELA was enacted in 1908.
A tremendous victory for railroaders, the FELA abolished the detestable fellow-servant rule and the odious defense contributory negligence.
See below for a copy of the complaint Lincoln wrote for Jasper Harris. I want to make this remarkable document widely available because, as FELA Designated Legal Counsel, I am proud to follow in Abe Lincoln's footsteps as an advocate for injured railroaders.
In the Circuit Court of Sangamon County
March term A.D. 1854
State of Illinois SS.
Jasper Harris, plaintiff, complains of The Great Western Railroad Company, defendant, being in custody etc. of a plea of trespass on the case—For that wereas heretofore towit, on the --- day of November, in the year of our Lord one thousand eight hundred and fifty three at the county of Scott, towit, at the county aforesaid, the said Railroad Company were possessed of a certain Railroad and were then and there possessed of and using thereon certain Locomotive-steam-engines, tanks, cars etc. and then and there had in their employment, as servant and engineer, managing and running one of their Locomotive steam engines with a tank and with and without cars attached, on their said Railroad, one – Edgar; and also said Railroad Company, then and there, had in their employment, as servant and conductor, in charge of the same Locomotive-steam-engine, thank and cars managed and run by said Edgar as engineer as aforesaid, one George Armstrong; and also said Railroad Company, then and there, had in their employment, as servant and brakeman, on and about the Locomotive-steam-engine, tank and cars, last aforesaid, the aforesaid plaintiff—And the plaintiff avers that it was, then and there, the duty of both said engineer and brakeman, severally, to obey the proper orders of said conductor, and then and there, was the duty of said Railroad Company by their engineer, whenever said Locomotive-steam-engine and whatever might be thereto attached, should be at rest, to not put the same in motion without the order of said conductor, not without giving a known signal of the intention to do so--- Yet the said Railroad Company, on the day and year aforesaid and at the county aforesaid by their said engineer being then and there in their employment as aforesaid and in the prosecution of their lawful business aforesaid; and the said Locomotive-steam-engine, then and there being at rest, with said tank thereto attached, (and said plaintiff then and there being in the attempt to go aboard of said tank in obedience to the proper order of said conductor and without any fault on his part) they, the said Railroad Company, by their said engineer, and without the order of said conductor, and without the giving of the signal aforesaid, put said engine and tank in motion, whereby said plaintiff was thrown down and his right foot, ankle, leg and thigh greatly torn, crushed and broken; so that thereby said plaintiff became and was sick, lame and disordered, and has so remained for a long space of time, towit for the period of four months; and also by means of which said wrong of said Railroad Company, amputation of his said right limb above the knee became and was necessary, and has actually been performed, and said limb has been wholly lost to said plaintiff; and other wrongs the said Railroad Company then and there did to the said plaintiff, and to his damage of ten thousand dollars and therefore he brings his suit etc.
Lincoln & Herndon, p.q.
The Great Western Railroad Company