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

Authors

  • Lawrence M. Friedman

    1. Lawrence M. Friedman is Marion Rice Kirkwood Professor of Law at Stanford University. The work on this paper was done under NSF Grant No. SES 83-10153.
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  • The author thanks Robert Baum, Julie Carlin, Arthur McEvoy, Michael Shachat, Ann Schultz, David Schultz, and Douglas Schwartz for their help with the research, and Richard Abel, Gary Schwartz, and Robert L. Rabin for their valuable comments.

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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