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Posted March 14, 2003
Legal History of Railroads Reflects Struggle Between Liberty and Law

Bookcover

American railroads in the mid-to-late 19th century mirrored Americans' own regard for vigorous individualism. Classes intermixed in the cars, passengers could move freely about the train, and men were even expected to jump off trains early, or if trains didn't stop. In Europe, by contrast, there was little mobility for passengers, cars were organized by class and railroad officials enforced a number of safety measures. Yet over the course of time, as University of Minnesota associate professor Barbara Welke demonstrates in her book, constraints were added to American railroads as a result of personal injury lawsuits, Jim Crow laws, and pain and suffering lawsuits brought by female passengers. Welke's account in Recasting American Liberty: Gender, Race, Law and the Railroad Revolution, 1865-1920, discussed March 13 at an event sponsored by the Program on Legal and Constitutional History, traces how liability cases pressured railroads to more strictly regulate safety and passenger autonomy.

"It's appropriate to have to travel by public transport" to get to the Law School, Welke joked. "The issues we talk about in this book are still with us today."

Passing through a metal detector, having luggage x-rayed and even rifled through, showing a government-issued drivers' license or passport—all are barriers to travel that modern Americans—some begrudgingly—accept today.

Welke
Author Barbara Welke said legal history shows it matters who wins in court.

The book "does not intend to make the argument that regulations necessarily mean less liberty," she said. "Is a man free when the railroad expects him to jump off the train without stopping?" Instead, she argued, some liberties are assured through restraints rather than autonomy of actions.

Professor Michael Klarman and research associate professor Risa Goluboff opened the program with their comments on the book, mapping out Welke's arguments and presenting their own questions about the connections between race, law, gender and railroads.

Klarman described the book as showing "how robust individualism gets eroded over time" by laws dealing with the new railroad technology. In the 19th century, courts were likely to assume plaintiffs were contributorily negligence in injuries cases—for example if they jumped from a slow-moving train even though it never stopped—but by the 1900s "courts were much more likely to hold railroads responsible." Klarman noted one anecdote in the book where a newsboy stays on the train as long as possible to sell newspapers, then jumps, and the passengers applaud. But the public opinion moved from supporting risk-taking in the latter half of the 19th century to endorsing safety consciousness and protecting people from their own imprudence by the 20th century. Like looking both ways before you cross the road, "over time you internalize it and it doesn't seem like a big deal," he said.

Expectations of passenger behavior on trains were also tempered by gender, a factor Welke argues helped influence the course of liability cases. While men were expected to jump from trains, women were helped from trains by men, and were not expected to jump. Furthermore, women were much more likely to bring lawsuits alleging 'nervous shock' than were men, who were ridiculed for doing so because of the standards for masculinity at the time. If a train didn't stop, the fright and shock to the woman, who would have to get off at the next stop and worry about how to get back, could be grounds for a pain and suffering suit. Klarman said Welke's book argues the presence of so many female plaintiffs shifted the law to more feminine assumptions about safety over time.

Klarman Goluboff
Michael Klarman Risa Goluboff

"It's a little puzzle to me" why the presence of so many female litigants would push the standard toward feminization of the law rather than separate rules for each gender, particularly when men and women were already treated differently on trains, Klarman said. He argued the book too strongly emphasized the role of women, rather than taking into consideration a general increase in safety consciousness in all industries during the time period, whether women were present or not.

Another aspect of Welke's research concerns the effects of segregation on railroad passengers and civil rights. Railroads traditionally had set aside cars for women and their companions, but black women were not included. When black women challenged this separation with lawsuits, they often won damages, although courts did not require railroads to integrate. Jim Crow laws later passed in the 1880s and 1890s mandated segregation, but Klarman questioned the laws' importance on railroads, since segregation was widespread throughout the country, if not legally on the books. He suggested instead that segregation laws were more symbolic, designed to bring outliers in line with the rest of the country.

"Blacks had theoretical rights," he said, "but those rights in practice were nullified."

Goluboff praised Welke's work as having "a lot of the hallmarks of what we think of as the new generation of legal history." Bringing different intersections of history together—medical history, gender, law and race—suggests a non-linear narrative that isn't obsessed with winners, she said. It's also "the losers who have an impact on the law and are important to this story."

Goluboff's comments focused on the nature of claims by black plaintiffs as Jim Crow laws took hold. Before Jim Crow, women "used the hierarchy of gender," to win lawsuits but after Jim Crow, the book argues, the men's claims asserted rights for all African-Americans. Goluboff offered a different reading, noting the lack of evidence that male plaintiffs were supporting universal black rights. She said Ida B. Wells and Anna J. Cooper, two female plaintiffs, did in fact speak in terms of universal black rights. But most male claims could also be considered class claims. Goluboff added that along with other male-plaintiff lawsuits, the case of William Hurt, a plaintiff who identified with first-class passengers, suggested that a class hierarchy should trump a race hierarchy.

Goluboff also noted the strangeness of the static status of women in the book when in fact much was changing for women during that time. While men were "clearly becoming more dependent" as they economy shifted from farming to wage occupations, women were joining the workforce in increasing numbers in factories, not at home. The divorce rate also rose from less than 10,000 in 1867 to more than 55,000 in 1900. In the 19th century women brought lawsuits into courtrooms dominated by men, but by 1920 every state bar admitted women. In the book, Goluboff said, African-Americans push at the boundaries of law, "but the white women in this book do not." The laws assume women's helplessness throughout and did not reflect changing realities.

"It's true [the] status of women . . . changes dramatically in these years," Welke responded, so one might expect a similar change in laws.

But "dependence has been a winning story for women," she explained. Women would not have benefited from having the law changed because it gave them pain and suffering allowances, which were often the only way women could win. Female passengers' injuries—not just fright and shock, but often internal injuries—were not always apparent. They could be caused, for example by a fall when a woman's dress caught on the train. Men's injuries were much more apparent—a missing limb, for example. Welke said men's cases focused on fault, whereas women's cases focused on issues of causation.

"Injury had a sex, as I say in this book," Welke said.

Welke disputed Klarman's comments about the impact of segregation laws. In the late 1800s, railroads were no longer owned by southerners. Successful lawsuits against segregation made railroads "a little less committed to this southern thing about race," she said. Jim Crow laws allowed the South to reassert control over the "autonomous monsters."

Black women were winning cases before all-white juries because "railroads exercised a kind of power and tyranny that made people very angry," she added.

Welke argued that separate but equal laws acted as a building block for the second civil rights movement. If an African-American woman brought a lawsuit complaining that a drunk white man came into her car, the railroad company's position as the defendant rather than the white man offered her a space to legally contest it in a way that avoided antagonistic southern racists.

Formalized state laws provided a vehicle for challenging the Jim Crow structure itself, Welke said. When regulations are truly private, that opportunity doesn't exist.
• Reported by M. Wood

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