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

return to December thoughts

Off site link:
Palsgraf family's troubles over the decades