On Monday I wrote about the legal legacy of Erie Railroad Company v Tompkins. Then last night on Legal History Blog I learned that in a forthcoming article, The Ballad of Harry James Tompkins, Brian Frye challenges the key factual assumptions at the heart of the Erie case. It is an entertaining but also quite significant article that rewrites the history of one of the Supreme Court’s most important cases.
For the last 84 years, the facts of Erie seemed straightforward. On the evening of July 26, 1934, an unemployed young man named Harry James Tompkins visited his mother-in-law in Exeter, Pennsylvania. After midnight he set off on the 2.5-mile walk home to his wife and infant daughter in neighboring Hughestown. Near the end of his journey, and after getting a ride from friends for part of the trip, the most direct route to his house was along a footpath running immediately parallel to an Erie Railroad track. As Tompkins made his way home on the footpath, he saw the headlight of an approaching train. Nevertheless he continued walking on the footpath until at the last second he glimpsed an unsecured door on one of the train’s refrigerator cars suddenly swing open. Before he could get out of the way, the swinging door knocked him to the ground. Tompkins’s right arm fell under the train’s wheels and was severed.
The case that ensued changed the course of American law. After finding a young lawyer in New York City to represent him, Tompkins brought suit in a New York federal court, which heard the case on the basis of diversity jurisdiction and general personal jurisdiction (Erie Railroad was incorporated in New York). Judge Samuel Mandelbaum, following the federal general common law, applied the plaintiff-friendly standard of ordinary negligence. As expected, the jury ruled for Tompkins and awarded him $30,000, a verdict affirmed by the Second Circuit. But in a dramatic turn of events, the U.S. Supreme Court reversed, holding that the trial court should have applied Pennsylvania common law, which called for the defendant-friendly standard of wanton negligence. On remand, the Second Circuit directed a verdict for the railroad, and Tompkins ultimately received no compensation for his injuries. The rest, as they say, is history.
But is the history right? Did an unsecured door on a refrigerator car really hit Harry Tompkins as he walked along the tracks at 2 a.m. on July 27, 1934? Or was the truth entirely different?
Professor Frye makes a compelling case that we’ve gotten the facts of Erie all wrong. As he explains in a fascinating reconstruction of the accident, Tompkins almost certainly was not walking innocently along the footpath when he fell under the train. Instead he was likely attempting to jump on the train as a trespasser in order to ride it to neighboring Wilkes-Barre. Tompkins himself was thus the negligent party and his lawsuit should probably never have gotten to a jury in the first place.
I won’t ruin the story by giving away all the details, but Frye’s explanation of what happened that fateful night in Hughestown is completely persuasive. You can find the article, which is forthcoming in the Akron Law Review, on SSRN here. When we get to Erie during my Civil Procedure class this fall, it will be fun to share Professor Frye’s article with the students. The story he tells provides a wonderful insight into the human actors who gave rise to the famous Erie case. It is also a good reminder that history is never fully settled. Even in the most famous and closely scrutinized Supreme Court cases, there is usually more to the story than we know.