Thank Goodness for a School Marm's Virtue in 1875 (Scandalous Details Follow)!

Before Craker v. Chicago and Northwestern Railway Co., an 1875 case, employers were liable in the U.S. for their employees only if the worker acted explicitly on the boss’s direction and caused harm.

An elementary school teacher missed her ride to Baraboo, Wisconsin on the passenger train, but was offered midday passage on the freight train making that run. She accepted the change in her ticket, and found herself seated in the cab near a conductor. Here is the court’s account from that point:

… the other passenger and the brakeman left the car, plaintiff and the conductor being the only persons remaining in it. The conductor then came and sat down near the plaintiff, and asked her several questions as to where she was going, where she lived, and whether she was acquainted with certain persons. What followed is thus stated by the witness: “He said, 'I suppose you are married like all the rest of the school marms?' I said, 'No, I am not.' Then he sat up nearer to me, and put his hand in my muff, and said, 'There is room for two hands in this muff, aint there?' I said, 'No, sir, there is not for yours,' and jerked my muff away. He then said, 'My hand is pretty dirty, aint it? It looks as though it needed washing.' I told him to wash it then, water was plenty. He then said, 'It is thawing considerable, that's so.' I had the tassel of my muff in my hand, tossing it, and he said, 'If you don't stop twisting that, you will wear it all out.' I said, 'I don't care if I do.' He then said, 'What makes you look so cross?' I didn't answer him, but turned away from him. Pretty soon he got up, and I supposed he was going away. He stepped to the side of my chair, threw his arms around me, and held my arms down. He threw his left arm around my shoulder, and took hold of my arm between the shoulder and left elbow with his right arm; he pressed his elbow on my right arm, and then commenced kissing me. I said, 'Oh, let me go; you will kill me.' He said, 'I am not agoing to hurt you.' Then I said, 'Do let me go; I will jump out of the car, if you will.' I tried to get up on my feet, and he pushed me back in the chair, and said, 'I aint agoing to hurt you.' Then I said, 'What have I ever done to you, that you should treat me in this way?' After he had kissed me five or six times, he said, 'Look me in the eye, and tell me if you are mad.' I said, 'Yes, I am mad.” Plaintiff continued in the car until she reached her place of destination.

…

The court expanded this employer’s liability, stating it didn’t matter if the employee’s actions were ordered or not. Here is how the court put it:

“It rested with the [company] to perform it by agents of its own choice, on its own responsibility. It chose the officers of the train, with the conductor at their head, to perform its contract for it. Where was the corporation and by whom represented, as to this contract and this passenger? Not surely in some foreign boardroom, by directors making regulations and appointing agencies for the corporate business. They could not perform this contract. ....  Like the English Crown, [the Company] lays its sins upon its servants, and claims that it can do no wrong. We cannot bend down the law to such a convenience.”

On feminine virtue, the court added: “In respect to female passengers, the contract proceeds yet further, and includes an implied stipulation that they shall be protected against obscene conduct, lascivious behavior, and every immodest and libidinous approach.”