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Civil Wrongs: Personal Injury Law in the Late 19th Century

Published online by Cambridge University Press:  20 November 2018

Lawrence M. Friedman
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Abstract

This is a report of data drawn from a study of personal injury actions in the Superior Court of Alameda County, California, and in the federal district court for Northern California, for the period 1880–1900. Tort actions, in this period, were relatively uncommon compared to the number of accidents. The most frequent type of action was against common carriers—railroads and street railways. Malpractice actions were rare. Most fired cases were settled or dropped out before full trial and jury verdict. Though plaintiffs won damages in most jury cases, the overall finding is that the system provided little compensation for most victims of accidents. Tort law and practice disfavored passengers less than employees or “trespassers.” Three types of barrier blocked the path to compensation: legal doctrines which made recovery difficult; an accident-compensation system which, especially for workers, discouraged enforcement of claims; and the legal culture, which was a culture of low expectations.

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Articles
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American Bar Foundation Research Journal , Volume 12 , Issue 2-3 , Spring-Summer 1987 , pp. 351 - 378
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Copyright © American Bar Foundation, 1987 

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References

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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

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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

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

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

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

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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

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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

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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

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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

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

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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