Streetcars were great American tortfeasors of the turn-of-the-century, injuring approximately one 331 urban Americans in 1907. In this empirical study, I consider the entire run of streetcar injuries, claims, trial-court suits, and appeals. My conclusions are based upon data drawn from the claims department records of Alameda County's principal street railway company, from all of the personal injury suits filed in the county's Superior Court, from all appellate cases involving the street railway company, and also from other sources concerning the street railway industry.
Richmond Road 1887 (NYPL)
Plaintiffs in street railway cases very rarely won their cases against the company, and when they did, they won little money. In terms of the bite taken out of the street railway company, I characterize the Superior Court as a flea. I argue that Professor Gary Schwartz was wrong to characterize tort law as generous and that Judge Richard Posner is wrong to call tort law efficient. Like Professor Lawrence M. Friedman and Morton Horwitz, I see the amount taken from the street railway companies as quite small, but I see no evidence of deliberate efforts to subsidize the industry.
I argue that the term "dispute pyramid," which is common among Law & Society scholars, is misleading. I propose that we instead think in terms of a salmon run, with very large drop-offs from the levels of injuries to claims and, especially, to litigation.
I also examine in detail the operation of the street railway's claims department. I describe the relationship of the amount of money paid out through the claims department to the amount paid out in Superior-Court judgments and costs. I show that the average amounts of money that successful claimants received were very small indeed and argue, contra Posner and others, that the bargaining that took place in the claims department was very distant from the level of the trial court. For example, where Posner derived an average figure of about $5,000 for wrongful death claims using appellate data, I show that in the claims department, claimants in death cases averaged $127.32.
I also consider some of the fine work done by constitutive theorists, particularly Barbara Welke, of the University of Minnesota. I agree with most of her conclusions regarding the manner in which tort law instantiated gender norms, but I remain convinced that the operation of street railways, as social and economic activities, and also the conduct of trials had much more formative influence on norms of gender than did legal doctrine. That is, along with Chris Tomlins, I think that Welke makes too much of the formative influence of law on American discourse or ideology. This may be a small quibble.
I adapt the methods of the constitutive theorists and try to build upon Welke's excellent work to show that the streetcar companies helped to instill norms of negligence within their women riders. This made some women safer and kept others from making claims when they were injured. I argue that the street railway companies' ability to shape norms of negligence show another flaw in Posner's theory regarding the regulatory effect of tort law.
Earlier drafts of this work have been cited in the Harvard Law Review, Vanderbilt Law Review, Tulane Law Review, Wisconsin Law Review, Harvard Women’s Law Journal, Law & Social Inquiry, Journal of Tort Law, and the Connecticut Journal of Insurance Law. The author is looking for a place to publish this either as a long article or a monograph.
--Dan Ernst
