1 Schwartz, Gary T., Tort Law and the Economy in Nineteenth-Century America: A Reinterpretation, 90 Yale L.J. 1717 (1981).CrossRefGoogle Scholar

2 Among the guilty are Morton Honvitz, The Transformation of American Law, 1780–1860 (Cambridge, Mass.: Harvard University Press, 1977); Lawrence M. Friedman, A History of American Law (2d ed. New York: Simon & Schuster, 1985) (“Friedman History”); Wex S. Malone, The Formative Era of Contributory Negligence, 41 Ill. L. Rev. 151 (1946).Google Scholar

3 Posner, Richard A., A Theory of Negligence, 1 J. Legal Stud. 29, 33 (1972).CrossRefGoogle Scholar

4 See, e.g., Edward Ursin, Judicial Creativity and Tort Law, 49 Geo. Wash. L. Rev. 229 (1981); G. Edward White, Tort Law in America: An Intellectual History (New York: Oxford University Press, 1980). This seems on the whole a rather conservative, not to say traditional, enterprise; but see Richard L. Abel, Torts, in David Kairys, ed., The Politics of Law: A Progressive Critique (New York: Pantheon Books, 1982), for an essay from the left which takes legal ideology into strong account.Google Scholar

5 Schwartz, , 90 Yale L.J. (cited in note 1). Another mixed interpretation is Comment, The Creation of a Common Law Rule: The Fellow Servant Rule, 1837–1860, 132 U. Pa. L. Rev. 579 (1984). The author argues that the rule was “shaped” by judges who “drew their rationale from the economic and social realities of an industrializing society;” but that the “spread of the rule from jurisdiction to jurisdiction” was “largely due to judges who were motivated primarily by intellectual norms within the legal community” (id. at 618).Google Scholar

6 Robert C. Reed, Train Wrecks: A Pictorial History of Accidents on the Main Line 10 (Seattle: Superior Publishing Co., 1968).Google Scholar

7 California Board of Railroad Commissioners, Seventh Annual Report, year ending Dec. 31, 1986, app. at 72.Google Scholar

8 In addition to Posner, see Engel, David M., The Oven Bird's Song: Insiders, Outsiders, and Personal Injuries in an American Community, 18 Law & Soc'y Rev. 551 (1984); Friedman, Lawrence M. & Percival, Robert V., A Tale of Two Courts: Litigation in Alameda and San Benito Counties, 10 Law & Soc'y Rev. 267 (1976); McIntosh, Wayne, 150 Years of Litigation and Dispute Settlement: A Court Tale, 15 Law & Soc'y Rev. 823 (1981) (St. Louis); Laurent, Francis W., The Business of a Trial Court: 100 Years of Cases (Madison: University of Wisconsin Press, 1959) (Chippewa County, Wisconsin). In Law and Urban Growth: Civil Litigation in the Boston Trial Courts, 1880–1900 (Princeton, N.J.: Princeton University Press, 1981) (“Silverman, Law and Urban Growth”), Robert Silverman has a chapter on accident litigation (ch. 6, at 99–121), probably the best account thus far. There is also material scattered about in other longitudinal studies of courts—e.g., Stephen Daniels, Continuity and Change in Patterns of Case Handling: A Case Study of Two Rural Counties, 19 Law & Soc'y Rev. 381 (1985); McIntosh, Wayne V., A State Court's Clientele: Exploring the Strategy of Trial Litigation, 19 Law & Soc'y Rev. 421 (1985).Google Scholar

9 Notably in work produced by the Civil Litigation Research Project of the University of Wisconsin; see, e.g., Felstiner, William L. F., Abel, Richard L., & Sarat, Austin, The Emergence and Transformation of Disputes: Naming, Blaming, Claiming …, 15 Law & Soc'y Rev. 631 (198081).Google Scholar

10 See Silverman, , Law and Urban Growth (cited in note 8), at 101 for the situation in Boston: on the number of street railway accidents in New York City, see Clark, William J., A Chapter of Accidents, 13 Street Railway J. 667 (Oct. 1897); railroad commission reports are good sources on the number of railroad deaths and injuries.Google Scholar

11 Joel P. Bishop, Commentaries on Non-Contract Law 192–93 (Chicago: T. H. Flood & Co., 1889) (“Bishop, Commentaries”).Google Scholar

12 Seymour Thompson, 1 Commentaries on the Law of Negligence 168–69 (Indianapolis: Bobbs-Merrill Co., 1901).CrossRefGoogle Scholar

13 Bishop, Commentaries at 211 (cited in note 11).Google Scholar

14 Davidson, Albert B., Contributory and Comparative Negligence in Illinois, 3 Nw. L. Rev. 93 (1895).Google Scholar

15 See Bishop, Commentaries at 311; Edward J. White, 2 The Law of Personal Injuries on Railroads 1607 (St. Louis: F. H. Thomas Law Book Co., 1909).Google Scholar

16 Friedman, Lawrence M. & Ladinsky, Jack, Social Change and the Law of Industrial Accidents, 67 Colum. L. Rev. 50 (1967).CrossRefGoogle Scholar

17 Bishop, Commentaries at 485.Google Scholar

18 Sheehan v. St. Paul & D. Ry. Co., 76 F. 201 (C.A.7, 1896).Google Scholar

19 One exception was the so-called turntable rule. The leading case was Railroad Co. v. Stout, 84 U.S. (17 Wall.) 657 (1873). The victim was a six-year-old boy, injured while playing on defendant's unlocked, unguarded turntable. The turntable was “a dangerous machine,” said the court. The railroad should have known that children would play on it; the cost of locking the turntable and preventing such accidents was low. The railroad was held liable. A California turntable case was Barrett v. Southern Pacific Co., 91 Cal. 296, 27 Pac. 666 (1891). Plaintiffs sometimes recovered, too, in cases where the “trespass,” across railroad tracks, was habitual, open, common, and known 10 the company. See Hansen v. Southern Pacific Co., 105 Cal. 379, 38 Pac. 957 (1895).Google Scholar

20 A leading case was Carey v. Berkshire Railroad Co., 1 Cush. 475 (Mass. 1848).Google Scholar

21 See Malone, Wex S., The Genesis of Wrongful Death, 17 Stan. L. Rev. 1043 (1965); American Fatal Accident Statutes—Part I: The Legislative Birth Pains, 4 Duke L.J. 673 (1965).Google Scholar

22 Cal. Code of Civil Procedure §§ 376, 377, enacted in 1873–74; see Redfield v. Oakland Consolidated Street Railway Co., 110 Cal. 277 (1895) (an award of $14,000 under the statute).Google Scholar

23 N.Y. Code Ann. 4 1904 (1902); Laws N.Y. 1895, ch. 946. p. 848 (“fair and just compensation”).Google Scholar

24 For a description of the court system, see Lawrence M. Friedman & Robert V. Percival, The Roots of Justice: Crime and Punishment in Alameda County, California, 1870–1910 (Chapel Hill: University of North Carolina Press, 1981).Google Scholar

25 18 Stats. 470 (act of Mar. 3, 1875).Google Scholar

26 24 Stats. 555 (act of Mar. 3, 1887), corrected and re-enacted, 25 Stats. 433 (act of Aug. 13, 1888).Google Scholar

27 The act of 1887 was “intended … to contract the jurisdiction” of the federal courts; and it allowed “to none but defendants the right to remove any case.”Hanvick, Hanvick V., 153 U.S. 192, 197 (1894).Google Scholar

28 Eight of these were originally filed elsewhere, and transferred to Alameda from other venues: five came from San Francisco.Google Scholar

29 For the data in this paragraph, see Friedman, & Percival, , 10 Law & Soc'y Rev. at 266 (cited in note 8).Google Scholar

30 In 47 of these cases, decedent was male; in 9 cases, female. In one terrible case, plaintiff lost all five of his children, three girls and two boys, when a train struck the wagon in which the children were riding. Nehrbas v. Central Pacific R.R. Co., Civ. No. 1047, 1881. A judgment for $10,000 was affirmed on appeal, 62 Cal. 320 (1882). In three-quarters of the wrongful death actions, the defendant was a common carrier; in 23 of these cases, the Southern Pacific Company was named as defendant.Google Scholar

31 A plaintiff may list in his complaint defendants whose identity is unknown at the time the complaint is filed but whom he expects to name later in the course of litigation. Such defendants are listed under fictitious names—John Doe, for example. Of course, unless and until the identity is known, no process can be served on these defendants.Google Scholar

32 Brock v. Giant Powder Co., Civ. No. 8726, 1893. On the explosion, see Oakland Enquirer, July 9, 1892, at 1; July 11, 1892. at 1, 4, and 5; July 12, 1892, at 1 Contrast the attitude toward property damage caused by this explosion. The owners of the premises on which the powder works stood sued the Giant Powder Company for damages; their buildings had been totally destroyed. They won a judgment for $41,164.75 from the trial court, and the California Supreme Court affirmed. Judson v. Giant Powder Co., 107 Cal. 549 (1895).Google Scholar

33 217 N.Y. 382, 111 N.E. 1050 (1916).Google Scholar

34 Cal. Code Civ. Proc. § 581.Google Scholar

35 Id. 0581(5).Google Scholar

36 Railroad Accidents: Their Origins and Problems (New York: G. P. Putnam's Sons, 1879), p. 267; see also 12 Street Railway J., July, 1896, No. 7, at 416, making a similar complaint.Google Scholar

37 The appeal was Rankin v. Central Pac. R.R., 73 Cal. 96, 15 Pac. 57 (1887).Google Scholar

38 118 Cal. 55 (1897); the case on file is Civ. No. 8144 (1892). There were three trials. The verdict in the first was for $7,000. Defendant asked for a new trial and got it. The verdict in the second trial was $6,000 and gave rise to the appeal mentioned in the text. A third trial ended with a verdict of $4,000. Then the case was dismissed—no doubt it was settled. Usually arguments that damages were excessive failed on appeal; see Redfield v. Oakland Consol. St. Ry. Co., 110 Cal. 277 (1895); Howland v. Oakland Consol. St. Ry. Co., 110 Cal. 513 (1895).Google Scholar

39 118 Cal. 55 at 67.Google Scholar

40 See note 22 supra.Google Scholar

41 A recent study found that the average award in San Francisco County in jury cases (almost all of these were tort cases) was something on the order of $120,000 in 1979 dollars. In Cook County, Illinois (Chicago and vicinity), it was something on the order of $90,000. Michael G. Shanley & Mark A. Peterson, Comparative Justice: Civil Jury Verdicts in San Francisco and Cook Counties, 1959–1980, at 30 (Santa Monica, Cal.: Rand Corp., 1983). Top awards were much higher, median awards considerably lower.Google Scholar

42 N.Y. Times, Aug. 12, 1880, at 1, col. 6; Dec. 14, at 8, col. 4. For accounts of settlements, in a train wreck in August 1887, on the Toledo, Peoria, and Western R.R. excursion train, see N.Y. Times, Oct. 23, 1887, at 16, col. 4. The largest awards ($12,000) were for death claims.Google Scholar

43 Friedman, History at 300 (cited in note 2).Google Scholar

44 In this period, of course, the federal courts were not bound to follow state courts on issues of common law. Thus, in theory at least, the federal court was free to develop its own norms with regard to negligence, the fellow-servant rule, and the like. See Tony Freyer, Harmony and Dissonance: The Swift and Erie Cases in American Federalism 63–69 (New York: New York University Press; 1981). Here too, however, we must distinguish between the story that is told by appellate cases and the data revealed on the level of trial courts. It is well known, e.g., that Justice Stephen J. Field, who was assigned to the 9th circuit, disliked the fellow-servant rule. See Field's opinion in Chicago, Milwaukee & St. Paul R.R. Co. v. Ross, 112 U.S. 377 (1884). A close comparison of 9th circuit cases with cases in other circuits might reveal some systematic differences. But we did not find any obvious differences between the trial court behavior of the federal courts and those of Alameda County, in personal injury cases—at any rate, none that could confidently be ascribed to doctrinal differences at the appellate level.Google Scholar

45 The figures on outcomes add up to 112; there were 110 cases, but in two instances, judgments on jury verdicts were set aside, and new trials ordered.Google Scholar

46 Second Annual Report on the Statistics of Railways in the United States, Interstate Commerce Commission 36 (1890).Google Scholar

47 I.C.C., Report 99 (1899); Julius Kruttschnitt, director of maintenance and operations of the Union Pacific/Southern Pacific system, in a talk to the Graduate School of Business Administration at Harvard in 1911, cited these figures to explain why the accident record was so much worse in the United States than in Europe. The problem was the prevalence of trespassing. “Trespassing is prevented in European countries by strict laws strictly enforced. The large number of trespassers killed in this country is evidence, not of the inefficiency of the railways, but of the inefficiency of government.” Efficiency of Public Service of the Railways 17 (Chicago, 1911).Google Scholar

48 Report of the Board of Railroad Commissioners, California, 1887, at 44.Google Scholar

49 Id. The next largest category was “getting on and off [the] train,” with 120 injuries. Most victims in this category were passengers.Google Scholar

50 Walter Licht, Working for the Railroad: The Organization of Work in the Nineteenth Century 199–200 (Princeton, N.J.: Princeton University Press, 1983) (“Licht, Working”); see also Robert S. Hunt, Law and Locomotives: The Impact of the Railroad on Wisconsin Law in the Nineteenth Century 151–56 (Madison: State Historical Association of Wisconsin, 1958).Google Scholar

51 David L. Lightner, Labor on the Illinois Central Railroad, 1852–1900, at 190 (New York: Arno Press, 1977).Google Scholar

52 Emory R. Johnson, Railway Departments for the Relief and Insurance of Employees, 6 Annals Am. Acad. of Pol. & Soc. Sci. 424 (1895); Charles R. Henderson, Industrial Insurance in the United States ch. 8 (Chicago: University of Chicago Press, 1909).Google Scholar

53 William F. Willoughby, Workingmen's Insurance 316 (New York: T. Y. Crowell & Co., 1898); see M. Riebenack, Railway Provident Institutions in English-Speaking Countries 33–34 (Philadelphia, 1905).Google Scholar

54 On this point, see Gersuny, Carl, Industrial Casualties in Lowell, 1890–1905, 20 Labor Hist. 435 (1979).CrossRefGoogle Scholar

55 9 Street Railway J., Jan. 1893, at 17. The article made the following observation, too, which may be of interest to those who delight in contrasting American and Japanese legal culture: “If we find on investigation that our men are at all to blame in a case, we suspend them and notify the complaining party of our action. Frequently we require an employee to hunt up the injured party, apologize, and get a written request from him for his reinstatement. If the complainant is a person in humble circumstances, he feels highly honored at receiving a courteous letter direct from a great railroad company.”Id. at 18.Google Scholar

56 Friedman, History at 482 (cited in note 2).Google Scholar

57 Hield, Willard J., The Best Method of Settling Damage Cases, and the Prevention of Accidents by the Use of Fenders or Otherwise, 13 Street Railway J., No. 11 (Nov. 1897), at 770; Street Railway Accidents, 14 Street Railway J., No. 2 (Feb. 1898). at 86, 87.Google Scholar

58 Oakland Tribune, Mar. 21, 1889, at 1.Google Scholar

59 See Sacramento Daily Record-Union, July 2, 1886, at 3; Dr. Huntington, Superintendent of the Southern Pacific Hospital in that city, reported that on June 30 there were 41 patients in the hospital; in addition, 222 “private house and office patients” were treated during the month. The Record-Union on that day also told the sad story of Barney Doherty, an “old railroad employee, efficient and popular,” baggageman on the passenger train between Sacramento and Reno. While coupling an airbrake hose, Doherty slipped and fell, and his “head was crushed. He was brought to the Railroad Hospital by special train,” where he “lingered for a few hours” and then died.Google Scholar

60 Bell, Clark, The Duty and Responsibility of the Attending Physician in Cases of Railway Surgery, 14 Medico-Legal J. 7 (189697); see also Bell, Clark, Railway Surgery in Law and Medicine, 11 Medico-Legal J. 37 (1893): Peck, F. H., The Duties of the Railway Surgeon to His Company, 13 Medico-Legal J. 410 (189697).Google Scholar

61 George C. Fabeus to A. J. Stevens, December 7, 1887, Stanford Special Collections, Letcher Railroad Collection (MS 268), Box 1, Folder 1.Google Scholar

62 See Lawrence M. Friedman, The Legal System: A Social Science Perspective 15 (New York: Russell Sage Foundation, 1975); id., Total Justice, 31–32 (New York: Russell Sage Foundation, 1985).Google Scholar

63 Christopher S. Patterson, Railway Accident Law 175 (Philadelphia: T. & J.W. Johnson & Co., 1886).Google Scholar

64 See, e.g., 38th Annual Report: Railroad Commissioners of Maine 34 (1896); of 11 passengers injured in 1895, “ten were from causes attributable to their own carelessness.”Google Scholar

65 Friedman, Total Justice ch. 4.Google Scholar

66 Mark Twain & Charles Dudley Warner, The Gilded Age ch. 4 (1874); see also Stuart M. Speiser, Lawsuit 124–44 (1980).Google Scholar

67 Oakland Enquirer, July 11, 1892; see note 32, supra, on a property damage case arising out of this calamity.Google Scholar

68 On this accident, see the accounts in the Oakland Enquirer on May 30, 1890, May 31, and June 2; also the Oakland Tribune, June 4, 1890.Google Scholar

69 The data presented here are drawn from one county, in one state at the edge of the continent. But there is no reason to believe that the tort system worked very differently in other parts of the country. The New York Times reported on July 5, 1886 (at 8, col. 5) that 46 lawsuits had been filed against the city in the first six months of that year for damages on account of street accidents. There were 16 recoveries, for a total of $11,778.91 (averaging $736.18 per plaintiff); the other 30 plaintiffs got nothing.Google Scholar

70 James Willard Hurst, Law and Social Order in the United States 196–97 (Ithaca, N.Y.: Cornell University Press, 1977).Google Scholar

71 11 Street Railway I., No. 2, (Feb. 1895), at 102; see also id. at 91. A prominent company offering this kind of insurance was the Guarantors' Insurance Company of Philadelphia; id. at 775.Google Scholar

72 In the Alameda Mole disaster, the coroner's jury accused the engineer, Samuel Dunn, of criminal negligence; Dunn had mysteriously disappeared just after the accident. Oakland Enquirer, June 30, 1890.Google Scholar

73 See Rabin, Robert L., The Historical Development of the Fault Principle: A Reinterpretation, 15 Ga. L. Rev. 925 (1981).Google Scholar

74 Lawrence M. Friedman, supra, note 65. The statement in the text refers to a general tendency. It is still true that many—perhaps most—victims do not recover full compensation. See, e.g., on auto accidents, H. Laurence Ross, Settled Out of Court: the Social Process of Insurance Claims Adjustments (Chicago: Aldine Publishing Co., 1970).Google Scholar

75 On the deficiencies of the present system, there is quite a large literature; see, e.g., Richard L. Abel, £s of Cure, Ounces of Prevention, 73 Cal. L. Rev. 1003 (1985), a review of Donald Harris et al., Compensation and Support for Illness and Injury (Oxford: Clarendon Press, 1984).Google Scholar

76 The accident system did not, after all, stand still during the 20 years of this study. Twenty years is not a long period, at least to historians, and our figures are probably too crude to capture changes in trial court behavior. But the outside legal framework was changing dramatically. Slaughter on the railroads and in factories had moved to center stage and was widely recognized as an important social problem. England adopted a form of workmen's compensation scheme in 1897. David G. Hanes, The First British Workmen's Compensation Act, 1897 (New Haven, Conn., 1968); see also P. W. Bartrip & S. B. Burman, The Wounded Soldiers of Industry: Industrial Compensation Policy, 1833–1897 (Oxford: Clarendon Press, 1983). In the United States, accident law was in process of centralization. The Interstate Commerce Commission Act was passed in 1887. 24 Stat. 379 (act of Feb. 4, 1887); on the background, see Gabriel Kolko, Railroads and Regulation, 1877–1916 (Princeton, N.J.: Princton University Press, 1965); Stephen Skowronek, Building a New American State: The Expansion of National Administrative Capacities, 1877–1920, at 138–50 (New York: Cambridge University Press, 1982). On the whole, economic issues lay behind this law, which said nothing about safety on the roads. But the commission soon became the institutional focus for safety regulation. A Safety Appliances Act of 2893, 27 Stats. 531 (act of Mar. 2, 1893), imposed new safety requirements on the railroads: “power driving-wheel brakes,” uniform automatic couplers, “grab irons or handholds,” and the like. Management grumbled and complained, and asked for delays (the act provided that the safety features were to be phased in gradually). But the trend was clear Some state railroad commissions also concerned themselves with safety. See, on railroad safety legislation, Licht, Working at 188–90 (cited in note 50);. Kurt Weitzel, Railroad Management's Response to Operating Employees' Accidents, 1890–1913, 21 Labor Hist. 351 (1980). California's laws on railroad safety were not very extensive. (See Cal. Civ. Code §§ 486, 491; Cal. Penal Code § 390.) But a statute of 1889 did lay down rules on sanitary conditions in factories and other work places. There had to be proper ventilation, to protect workers from “effluvia arising from any drain, privy, or other nuisance;” and the Commissioner of the Bureau of Labor Statistics had power to order factories to install “mechanical contrivances” to prevent inhalation of “dust, filaments, or injurious gases.” Cal. Stats. 1889, ch. 5 at 3. In a sense, legislation was a kind of alternative to the tort system, an end run around the harsh court-run doctrines. What is clear is that attitudes were changing; the almost unlimited power of business, with regard to employees, was fading. In the early 20th century, major federal legislation (FELA) reworked the system of accident compensation for interstate railroads. By 1920, most of the states had adopted workmen's compensation. Lawrence M. Friedman & Jack Ladinsky, Social Change and the Law of Industrial Accidents, 67 Col. L. Rev. 50 (1967). The shift in “responsibility” from the careless worker to the employer was an aspect of this long-term, fundamental trend. Safety legislation was thus more than a way to force new technology onto companies. It was the product of a fundamental change in legal culture, which laid the groundwork for the characteristic 20th-century forms of accident compensation.Google Scholar