More on the
Palsgraf debate What really happened to
Mrs. Palsgraf of the 1928 New York state case of Palsgraf
v. Long Island R. R.? Mrs. Palsgraf lost the law
suit and apparently walked away with nothing, but lawyers
have been making money debating the case and writing
about it for over seventy years. During my first semester
at Catholic's law school, Catholic's torts professor told
his version of the "real story." I asked my
criminal law professor for help in tracking down the
source of the story the torts man told. The criminal law
prof is a Harvard man; he had the answer 24 hours later.
From the case book Prosser, Wade and Schwartz's
Cases and Materials on Torts, 9th edition, 1994,
published by The Foundation Press, Inc., Westbury, NY,
authored by John W. Wade, Victor E. Schwartz, Kathryn
Kelly, and David F. Partlett, at pages 312 and 313, in
the notes following the Palsgraf case is the following:
1. Plaintiff on a motion for
reargument pointed out that Mrs. Palsgraf stood much
closer to the scene of the explosion than the
majority opinion would suggest. . . .
2. The Record in this case is set
out in Scott and Simpson, Cases on Civil
Procedure, pp. 891-940 (1950). A study of it
indicates that as described in the opinions, the
event could not possibly have happened. These were
apparently ordinary fireworks, and not bombs.
Firecrackers were heard exploding; there was a
"ball of fire" (from a Roman candle?), and
a "mass of black smoke." All this happened
in the pit below the edge of the platform, which
would have protected the scale. No one testified to
seeing it fall over. An appreciable interval elapsed
after the first noise and smoke, during which Mrs.
Palsgraf said to her daughter, "Elizabeth, turn
your back." Then "the scale blew and hit me
in the side." The platform was crowded, and
there was no evidence of any other damage to anybody
or anything. Plaintiff's original complaint, before
amendment, alleged that the scale was knocked over by
a stampede of frightened passengers. . . .
The news story of the New York
Times for August 25, 1924, p. 1, col. 4, differs
in numerous details. It lists 13 persons injured,
including Helen Polsgraf [sic], whose injury was
"shock." It describes the events as
happening at ll:25 a.m. at the East New York station,
under the Atlantic Avenue stations, and a transfer
point. There was a large crowd of excursionists,
"jostling and pushing" to board a Jamaica
express train. Three men, each carrying a large
package, sought to board the train and a package fell
to the track below. A large explosion rocked the car
and tore away part of the platform and
"overthrew a penny weighing machine more than
ten feet away," smashing the glass and wrecking
its mechanism. The police surmised that the three
men, who disappeared, were Italians "bound for
an Italian celebration somewhere on Long Island,
where fireworks and bombs were to play an important
role." The police decided that the event was an
accident, with the man dropping the exploding package
being jostled by the crowd. One of the other men
dropped his parcel in the station as he fled, and it
was found to contain fireworks of various kinds.
Further discussion of the facts is
to be found in Prosser, Palsgraf Revisited,
52 Mich.L.Rev. 1 (1953); J. Noonan, Persons and
Masks of the Law, c. 4 (1976); and Palsgraf
Kin Tell Human Side of the Famed Case, 66
Harv.L.Record [No. 8] 1 (Apr. 14, 1978). ...
6. ... See, among many others,
Green, The Palsgraf Case, 30 Colum.L.Rev.
789 (1930), reprinted in L. Green, Judge and Jury,
ch. 8 (1930); 48 Yale L.J. 390 (1939), 39
Colum.L.Rev. 20 (1939); Ehrenzweig, Loss-Shifting
and Quasi-Negligence: A New Interpretation of the
Palsgraf Case, 8 U.Chi.L.Rev. 729 (1941);
Prosser, Palsgraf Revisited, 52 Mich.L.Rev.
1 (1953), reprinted in Prosser, Selected Topics
on the Law of Torts, 191 (1953); James, Scope
of Duty in Negligence Cases, 47 Nw.U.L.Rev. 778
(1953).
Justice Benjamin Cardozo (1870-1938) wrote the
majority opinion in Palsgraf. Regarding Cardozo,
Judge Richard Posner (as quoted in Cases and
Materials on Torts, 6th edition, 1995, published by
Aspen, authored by Richard A. Epstein) claims there were
"a number of errors in Cardozo's account of the
facts which render it 'both elliptical and
slanted.'" Posner's words are from his book Cardozo:
A Study in Reputation (1990). Posner's a Harvard man
who is now Chief Judge in the Seventh Circuit, U.S. Court
of Appeals. (Seventh Circuit is Indiana, Illinois, and
Wisconsin). Posner clerked for Supreme Court Justice
Brennan for a couple of years and was an assistant to the
solicitor general for another couple of years.
From this, it would appear that Catholic's torts
professor was wrong to
have told the class that there was no set of scales.
However, it may have been that it was not the scales that
injured Mrs. Palsgraf. It also would appear that
Catholic's torts man may have been wrong
to suggest that, perhaps, it was not firecrackers that
exploded but rather dynamite being carried by a railroad
employee. It does, however, appear that there is much
discussion and debate about the Palsgraf case, and it
appears that Cardozo's written opinion may have had some
factual or interpretive errors.
note
received rebutting Catholic's professor, & defending
Cardozo
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Off site link:
Palsgraf family's troubles over the
decades
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