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Unreasonable Women: Gender and the Law of Accidental Injury, 1870-1920

Published online by Cambridge University Press:  27 December 2018

Barbara Y. Welke
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Abstract

At the wheels of railroads and streetcars, the law of accidental personal injury, known as negligence, became a discrete body of law between 1870 and 1920. The defining component of negligence was “fault”–the notion that the individuals (injured and injurer) must have failed to act according to some minimal standard of caution. Theorists of the history of negligence have explained that the conduct of all was measured against what a “reasonable man” would have done under the circumstances. The author here challenges this fundamental assertion. Through trial records, lawyer's written arguments, and appellate opinions, she reconstructs the critical role of gender in shaping the law of accidental injury. As she argues, in 19th- and 20th-century America, injury was a gendered event. The fact that courts in these years held men and women to different standards of care undermines theorists' arguments that economic considerations drove the law of accidental injury. Moreover, the reification of gender nm in private law, in turn, vitally affected the experience of gender in turn-of-the-century America.

Type
Research Article
Information
Law & Social Inquiry , Volume 19 , Issue 2 , Spring 1994 , pp. 369 - 403
Copyright
Copyright © American Bar Foundation, 1994 

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References

1 Oliver Wendell Holmes, Jr., The Common Law 108 (1881).Google Scholar

2 Lawrence M. Friedman, A History of American Law 468 (2d ed. New York: Simon & Schuster, 1985) (“Friedman, History of American Law”). See also Morton J. Horwitz, The Transformation of American Law, 1780-1860 (Cambridge: Harvard University Press, 1977) (“Horwitz, Transformation”).Google Scholar

3 Posner, Richard A., “A Theory of Negligence,” 1 J. Legal Stud. 29 (1972) (emphasis added).CrossRefGoogle Scholar

4 I hope I can hereby contribute also to legal scholarship that has been sensitive to the implications of standards for women like that of the “reasonable man,” assuming as it has that the standard bound both men and women but was patterned on the image of a man. See Lucinda M. Finley, “A Break in the Silence: Including Women's Issues in a Torts Course,” 1 Yak1. L. B Feminism 41, 57 (1989); Leslie Bender, “A Lawyer's Primer on Feminist Theory and Tort,” 38 Legal Educ. 3, 20 (1988); Guido Calabresi, Ideals, Beliefs, Attitudes, and the Law: Private Law Perspectives on the Public Law Problem 21-24 (Syracuse, N.Y.: Syracuse University Press, 1985).Google Scholar

5 See, e.g., Carroll Smith-Rosenberg, Disorderly Conduct: Visions of Gender in Victorian America (New York: Oxford University Press, 1985) (“Smith-Rosenberg, Disorderly Conduct”); Jacqueline Jones, Labor of Love, Labor of Sorrow: Black Women, Work and the Family from Slavery to the Present (New York: Basic Books, 1985); Alice Kessler-Harris, Out to Work: A History of Wage-earning Women in the United States (New York: Oxford University Press, 1982).Google Scholar

6 I want it to be clear that I am not conflating the terms “gender” and “woman.” Gender depends upon an oppositional structure. The ideology of masculinity depended on the ideology of femininity and vice versa. Joan Wallach Scott, Gender and the Politics of History 32 (New York: Columbia University Press, 1988). Nonetheless, I believe that in light of the nonexistent role historiography has assigned women (as well as gender), it serves both the interest of better understanding women's lives and the goal of understanding gender's place in the evolution of the law of personal injury to focus predominantly, if not exclusively, on cases involving injury to women. In the larger work of which this is a part, I will be relying, in fact, as much on cases involving injury to men as cases involving injury to women. The fact that both men and women were injured and brought suit simplifies the historian's task because the differences which emerge highlight the role of gender.Google Scholar

7 I have benefited from the explanations of historical causation in Marc Bloch, The Historian's Craft 193-94 (New York: Alfred A. Knopf, 1953); and Arthur F. McEvoy, “The Triangle Shirtwaist Factory Fire of 1911: Social Change, Industrial Accidents, and the Evolution of Common-Sense Causality,” ABF Working Pw#9315 (1993). As Bloch explains, “the monism of cause can be, for history, only an impediment. History seeks for causal wave-trains and is not afraid, since life shows them to be so, to find them multiple.”Google Scholar

8 I am indebted to the work of Christopher Tomlins, which provides probably the most powerful illustration of how courts can contribute to the creation a new social order by reifying the status quo. See Tomlins, , “A Mysterious Power: Industrial Accidents and the Legal Construction of Employment Relations in Massachusetts, 1800-1850,” 6 Law & Hist. Rev. 375 (1988). Tomlins argues that the fellow-servant rule, which the Massachusetts high court relied on in the landmark case of Farwell v. Boston B Worcester and related cases to deny employer liability for workplace injuries, was not the novel legal departure scholars have argued. Yet in embracing what amounted to the status quo, the court, Tomlins argues, directly contributed to the creation of the new industrial “order” in which employers rather than the state controlled social and organizational structure.CrossRefGoogle Scholar

9 While the basic doctrines of negligence had all been articulated well before 1870, reported cases were few. It was only in the 1870s and 1880s when railroad tracks crisscrossed the nation and streetcars created an urban maze that a law of accidental injury really began to emerge. By 1920, that law was well established and poised to enter a new phase of more extended liability. I selected this particular category of cases (alighting) for two reasons. First, in alighting cases the men and women themselves had some measure of control over the risk of injury (in contrast to cases arising from trains derailing, for example). Second, I assumed that because both men and women were injured alighting, exploration of these cases would highlight the significance of gender to courts' legal reasoning.Google Scholar

10 The term “gender” was not part of the vocabulary of 19th-century Americans. Rather, women were commonly referred to as “the sex.” In negligence suits involving female plaintiffs courts used “sex” in jury instructions. 1 have not found, and would be surprised to find, a similar use of “sex” in a case involving a male plaintiff. To retain the integrity of the case law, I use “sex” when quoting or when I am paraphrasing from an opinion or brief, but I use “gender” in my general discussion.Google Scholar

11 Of the roughly 60 appellate cases that directly address gender, I have been able to secure the trial record (including the trial transcript) and appellate briefs in roughly two-thirds of the cases. Of the 500 appellate cases involving alighting, I have the trial record and appellate briefs for a quarter of the cases. Considering only the cases in which the gender of the female plaintiff was in issue in determining the standard of care, the cases come from 21 states, alphabetically as follows: Arkansas, California, Colorado, Connecticut, Florida, Georgia, Illinois, Indiana, Maine, Massachusetts, Michigan, Missouri, New Hampshire, New Jersey, New York, North Carolina, Ohio, Pennsylvania, Texas, Washington, and Wisconsin. The cases I consider all presented the issue of contributory negligence. In a large number of accidental injury cases, contributory negligence was not an issue. Bridges collapsed; trains and streetcars collided, exploded, derailed, and caught on fire. In these cases, no one alleged that the injured persons had contributed to their injuries.Google Scholar

12 See infra, text accompanying note 26, for the discussion of Robert L. Rabin, “The Historical Development of the Fault Principle: A Reinterpretation,” 15 Ga. L. Rev. 925 (1981).Google Scholar

13 These cases suggest that women routinely traveled alone and with other women, without male companions. They thereby contribute to the current effort of women's historians to document women's presence in the public space and to consider how that revises the current understanding of public and private. See, e.g., Patricia Cline Cohen, “Safety and Danger: Women on American Public Transport, 1750–1850,” m Dorothy O. Kelly & Susan M. Reverby, eds., G&ed Domains: Rethinking Public and Private in Women's History (Ithaca, N.Y.: Cornell University Press, 1992); Mary P. Ryan, Women in Public: Between Banners and Ballots, 1825-1880 (Baltimore: Johns Hopkins University Press, 1990).Google Scholar

14 My research has only uncovered a few accidental injury cases where the opinion clearly identifies the plaintiff as a person of color. See, e.g., Central R.R. v. Whitehead, 74 Ga. 441 (1885); St. Louis, Iron Mountain & S. Ry. v. Briggs, 87 Ark. 581 (1908); Florida E. Coast Ry. v. Geiger, 64 Fl. 282 (1912). But, as I have learned, a court's failure to refer to the plaintiffs race did not necessarily mean the plaintiff was white. See, e.g., Chicago City Ry. v. Foster, 226 Ill. 288 (1907). The trial transcript shows that Foster was a black woman.Google Scholar

15 Legal digests of published cases include headings for the “reasonable man,” but do not include a heading for the “reasonable woman.” I found these cases by searching in the decennial digests under all headings relating to the standard of care in negligence. Finding some cases, I found others in which these original cases were cited. But most cases did not cite other authority on the relevance of gender to the standard of care. I also methodically checked treatises on negligence for citations to cases involving women. And for those few states whose early case reports are included in computerized data bases, I conducted word and phrase searches. Through computer searches, I found cases in which the relevance of gender to the standard of care was in issue, as well as cases in which, though gender was not in issue, the court had directed the jury to consider a female plaintiffs gender. Another fruitful source of cases, but one less easily accessible, is the briefs filed by lawyers in negligence suits involving women. Lawyers often cited relevant cases, which courts ignored or overlooked. Trial records also document the frequency with which trial courts directed jurors to consider a female plaintiffs gender in considering due care, without the instruction being an issue on appeal.Google Scholar

16 For a discussion of the historiography of “separate spheres,” see Linda K. Kerber, “Separate Spheres, Female Worlds, Woman's Place: The Rhetoric of Women's History,” 75 J. Am. Hist. 9 (1988). The problem of moving beyond the framework of separate spheres is not simply a historical one. Legal scholar Frances Olsen has persuasively argued that the inability to see beyond separate spheres explains why reform strategies have failed to improve the lives of American women. See her “The Family and the Market: A Study of Ideology and Legal Reform,” 96 Haw. L. Rev. 1497 (1983).Google Scholar

17 Holmes, The Common Law 108 (cited in note 1).Google Scholar

18 See Liva Baker, The Justice from Beacon Hill: The Life and Times of Oliver Wendell Holmes (New York: Harper Collins, 1991); Sheldon M. Novick, Honorable Justice: The Life of Oliver Wendell Holmes (Boston: Little, Brown & Co., 1989). See also Michael Grossberg, “Institutionalizing Masculinity: The Law as a Masculine Profession,” in Mark Carnes & Clyde Griffen, eds., Meanings for Manhood (Chicago: University of Chicago Press, 1990).Google Scholar

19 Holmes, The Common Law 95. If pressed, Holmes might have included women in his category of men with “distinct defects” (the blind man) and children, which he said illustrated the moral basis of liability. Paraphrasing Holmes's standard for the blind man, the standard might have gone something like: “A [woman] is not required to [move/think] at [her] peril; and although [she] is, no doubt, bound to consider [her] infirmity in regulating [her] actions, yet if [she] properly finds [herself] in a certain situation, the neglect of precaution requiring [unencumbered movements/reasoned judgments] would not prevent [her] recovering for an injury to [herself], and it may be presumed, would not make [her] liable for injuring another.” Id. at 109. This, in fact, would be a fair summary of what the law of accidental injury was for women. But women were not blind men. The blind man was exceptional, women were not. More important, the blind man was still a man. Holmes thought of the blind man; he did not think of women.Google Scholar

20 See, e.g., Horwitz, Transformation 67-71, 99–101 (cited in note 2); Friedman, History of American Law 299–302, 468 (cited in note 2); Malone, Wex S., “The Formative Era of Contributory Negligence,” 41 IU. L. Rev. 151 (1946).Google Scholar

21 See Lawrence M. Friedman, “Civil Wrongs: Personal Injury Law in the Late 19th Century,” 1987 A.B.F. Res. J. 351, 356–58; Lawrence M. Friedman & Thomas D. Russell, “More Civil Wrongs: Personal Injury Litigation, 1901–1910,” 34 Am. J. Legal Hist. 295 (1990). Two comments seem important here. First, I recognize that it is not fair to critique Friedman and Russell's work as though it were a completed project; the authors expressly note that the research they report is part of an ongoing study of personal injury litigation in the Superior Court of Alameda County, Cal., and the federal district court for Northern California. Second, the authors give less attention to doctrinal content, in part, because it is not their primary interest. Their primary interest in these articles is on the law of personal injury in action: “law as it was lived and felt” by the victims and their families. Even at this stage of their work, Friedman and Russell have provided scholars with critically important insight into the actual workings of the legal process in cases of accidental personal injury. But their work does not replace or limit the importance of achieving a more complex understanding of legal doctrine in cases of personal injury.Google Scholar

22 Posner, 1 J. Legal Stud. at 31, 32, 33 (cited in note 3).Google Scholar

23.“Negligence,” 29 Harv L. Rev. 40, 47(1915)CrossRefGoogle Scholar

24 Posner, I Legal Stud. at 51-52.Google Scholar

25 Malone, 41 IU. L. Rev. at 152.Google Scholar

26 Rabin, 15 Ga. L. Rev. 925 (cited in note 12); Schwartz, Gary T., “Tort Law and the Economy in Nineteenth-Century America: A Reinterpretation,” 90 Yale L.J. 1717 (1981); id., “The Character of Early American Tort Law,” 36 UCLA L. Rev. 641 (1989).CrossRefGoogle Scholar

27 William J. Novak makes a similar argument in his recent article, “Public Economy and the Well-ordered Market,” 18 Law B Social Inquiry 1, 3 (1993). As Novak explains, “The first hurdle confronting a reconstruction of the notion of ‘public economy’ in early America is a 20th-century historiography that conspicuously separates public and private and understands ‘economics’ as an autonomous force in history.”CrossRefGoogle Scholar

28 I am drawing here on legal scholar J. M. Balkin's “Ideology as Constraint,” 43 Stan. L. Rev. 1133 (1991). Balkin describes social structures that both inhere in explicit, stated rules and those that “are not consciously articulated by individuals. They are simply lived.” As he explains, the latter are embodied in the way individuals define or perceive social events. He notes that in some cases, we know social norms are in place, not because they are written down anywhere, but because people behave according to some unarticulated norm.CrossRefGoogle Scholar

29 Alexis de Tocqueville, Democracy in America 211–14 (New York: J. & H. G. Langley, 1840).Google Scholar

30 Ellen Carol Dubois, “Outgrowing the Compact of the Fathers: Equal Rights, Woman Suffrage, and the United States Constitution, 1820–1878,” 74 J. Am. Hist. 836, 848 (1987); Nancy F. Cott, The Grounding of Modem Feminism 19 (New Haven, Conn.: Yale University Press, 1987). For example, as Cott notes, women relied, in part, on the image of women as more moral than men to proclaim the specific need of the country to include women in the electorate. Women's influence would curb the “excess of masculinity.”CrossRefGoogle Scholar

31 Muller v. Oregon, 208 US. 412, 421–22 (1908); Judith Baer, The Chains of Protection: The Judicial Response to Women's Labor Legislation (Westport, Conn.: Greenwood Press, 1978). For discussions of other ways in which the lives of women were carefully bound to the sphere of motherhood and family, see Michael Grossberg, Governing the Hearth: Law and the Family in Nineteenth-Century America 301 (Chapel Hill: University of North Carolina Press, 1985) (“Grossberg, Governing the Hearth”); Carroll Smith-Rosenberg, “Puberty to Menopause: The Cycle of Femininity in Nineteenth-Century America,” in id., Disorderly Conduct 183 (cited in note 5); Morton Keller, Affairs of State: Public Life in Late Nineteenth Century America 470 (Cambridge, Mass.: Belknap Press, 1977).Google Scholar

32 Lee Hall, Common Threads: A Parade of American Clothing 1 (Boston: Little, Brown & Co., 1992).Google Scholar

33 id. at 125–26, 138, 203, 237, 253; Evelyn Ackerman, Dressed for the Country: 1860-1900 (Los Angeles: Los Angeles County Museum of Art, 1984); Robert E. Riegel, “Women's Clothes and Women's Rights,” 15 Am. Q. 390 (Fall 1963). See also Helene Roberts, “The Exquisite Slave: The Role of Clothes in the Making of the Victorian Woman,” 2 Signs 554 (1977); David Kunzle, “Dress Reform as Antifeminism: A Response to Helene E. Roberts's ‘The Exquisite Slave,” 2 Signs 570 (1977).Google Scholar

34 “Economic Theory of Women's Dress,” 46 POQUIT Sci. Monthly, Dec. 1894, at 198, 205.Google Scholar

35 Id. Google Scholar

36 I am not unaware of, nor do I intend to suggest, that the dramatic new educational, professional, and civic opportunities open to some women were irrelevant. But these opportunities were not shared by most women. And for the women who enjoyed them, they came in addition to, not in place of, women's “natural” obligations. Women who eschewed their “natural” obligations bore a high cost as social outcasts. See Carroll Smith-Rosenberg, “The Hysterical Woman: Sex Roles and Role Conflict in Nineteenth-Century America,” in id., Disorderly Conduct (cited in note 5); Kate Chopin, The Awakening (New York: Random House, 1981).Google Scholar

37 Randolph E. Bergstrom, Courting Danger: Injwy and Law in New York City, 1870–1910 at 31 (Ithaca, N.Y.: Cornell University Press, 1992) (“Bergstrom, Courting Danger”).Google Scholar

38 Consider similar trial court studies of Boston, Mass., and Alameda County, Cal., for this period. Robert A. Silverman, Law and Urban Growth: Civil Litigation in the Boston Trial Courts, 1880–1900 at 99–101 (Princeton, N.J.: Princeton University Press, 1981) (“Silverman, Law and Urban Growth”); Friedman, 1987 A.B.F. Res. 1. at 351 (cited in note 21).Google Scholar

39 Commonwealth of Massachusetts, Second Annual Report of the Board of Railroad Commissioners, January, 1871 at app., cxxy (Boston: Wright & Potter, 1871) (“Massachusetts, Second Annual Report”); Commonwealth of Massachusetts, Thirty-first Annual Report of the Board of Railroud Commissioners, January, 1900 at 134 (Boston: Wright & Potter Printing CO., 1900) (“Massachusetts, Thirty-first Annual Report”).Google Scholar

40 For example, railroads in Ohio reported 50 passengers and 95 “others” (non-employees) injured or killed in 1868. For the year 1884, Ohio railroads reported 53 passengers and 421 “others” (non-employees) killed or injured. Annual Report of the Commissioner of Railroads and Telegraphs of Ohio, for the Year Ending June 30, 1884 at 32-33 (Columbus, Ohio: Myers Bros., State Printers, 1885).Google Scholar

41 Friedman, History of American Law 468 (cited in note 2). There is a danger, though, in suggesting that accidental injury and fatality are an unavoidable cost of new technologies. For example, Christopher Tomlins graphically and persuasively explains that management's desire to minimize costs and maximize productivity bore a large share of responsibility for the dramatic rise in employment injuries and fatalities in the 1840s and 1850s. See Tomlins, 6 Law B Hist. Reu. at 386–92 (cited in note 8).Google Scholar

42 Massachusetts, Second Annual Report app., cxxviii; Massachusetts, Thirty-first Annual Report 77.Google Scholar

43 For example, in the nine-month period from December 1869 through September 1870, Massachusetts horse cars reported no injuries to employees (Massachusetts, Second Annual Report app., cxxvii), and for the year 1899, streetcars operating in Massachusetts reported only 72 employees injured or killed (Massachusetts, Thirty-first Annual Report 77).Google Scholar

44 The ratio of men and women injured and killed, as one would expect, depended significantly on the surrounding circumstances. For example, trespassers hitching free rides on the railroads were exclusively men. But for accidents to passengers, accidents to individuals at crossings, and accidents to individuals walking along railroad tracks, women were frequent victims. For just accidents alighting from streetcars, for example, in 1908, the Chicago City Railway Company reported that 145 women had fallen alighting from cars during the year compared to only 99 men. In 1912, the company reported 317 women falling, compared to 256 men. Chicago City Ry. Co., Station Record of Accidents, 1908, 1912 (Chicago Transit Authority, West Branch Storage Facility, Chicago).Google Scholar

45 For most women, railroads and streetcars broadened the geographic scope of visits to family and friends and personal errands. As Elaine S. Abelson has described, the streetcar facilitated the socializing routines of urban, middle-class, white women. When Ladies Go A-thieving: Middle-Class Shoplifters in the Victorian Department Store 19–21 (New York: Oxford University Press, 1989). Even for working-class women employed in the homes of others as domestics, streetcars were a means for socializing with friends. See, e.g., Transcript of Record in North Chicago St. R.R. v. Brown, 178 Ill. 187 (1899) (Illinois State Archives, Springfield). In contrast, for men, railroads and streetcars were a daily part of their business routine. For example, John Kohler, the founder of a manufacturing business in Wisconsin, traveled as much as two-thirds of the year making contacts for the glass globes his business manufactured. Testimony of John M. Kohler, Transcript of Record in Kohler v. West Side R.R., 99 Wis. 33 (1898) (University of Wisconsin Law Library, Madison). For field laborers like Alexander Kingsley, hitching a free ride on the railroad was part of their regular routine-a trip “anywhere to strike work.” Testimony of Alexander Kingsley, Transcript of Record in Wabash R.R. v. Kingsley, 177 Ill. 558 (1899) (Illinois State Archives, Springfield).Google Scholar

46 Although both Silverman and Friedman include a breakdown by sex of injury suits brought by men, compared to women, their numbers are not very helpful here because they include employment-related injuries. See Silverman, Law and Urban Growth 20 (cited in note 38); Friedman, 1987 A.B.F. Res. J. at 360 (cited in note 21).Google Scholar

47 For example, between, 1860 and 1920, the Supreme Judicial Court of Massachusetts considered 51 cases involving injury to men and women alighting from streetcars. Of these, 38 involved injury to women; only 13 involved injury to men. The record in Illinois was much the same, where 25 of 30 cases involved injury to women.Google Scholar

48 Recently female legal scholars have become increasingly sensitive to the role women have played in shaping legal doctrines. In her original work on the Lumley doctrine (the rule that an employee breaking an employment contract could be enjoined from working elsewhere), Lea VanderVelde shows that the doctrine arose from cases involving the services of women. In similar cases involving men, courts refused to enjoin the men from performing elsewhere. VanderVelde, Lea S., “The Gendered Origins of the Lumley Doctrine: Binding Men's Consciences and Women's Fidelity,” 101 Yak L.J. 775 (1992). The tort of negligent infliction of emotional distress also began with cases brought by women. Martha Chamallas & Linda K. Kerber, “Women, Mothers, and the Law of Fright: A History,” 88 Mich. L. Rev. 884 (1990).CrossRefGoogle Scholar

49 Record in Eichom v. Missouri, Kansas & Texas Ry. Co. (Missouri State Archives, Jefferson City). Many of the facts are restated in the Missouri Supreme Court's opinion in Eichom v. Missouri, Kansas & Texas Ry., 130 Mo. 575 (1895).Google Scholar

50 130 Mo. 588–39.Google Scholar

51 See, e.g., Jury Instructions, p. 65, Record in Lake St. Elevated R.R. v. Shaw, 203 Ill. 39 (1903) (Illinois State Archives, Springfield) (“‘due care and caution for her own safety,’ as used in the court's instructions, means that degree of care and caution for her own safety which might reasonably be expected to be exercised by a person of ordinary care and caution in the physical condition and in the situation the plaintiff is shown by the evidence to have been in at the time of and just prior to the time she was injured”). See also Jury Instructions, pp. 175–76, Record in Boone v. Oakland Transit Co. (California State Library, Sacramento). Bergstrom, Courting Danger 134–36 (cited in note 37), describes ordinary care, as used in New York City trial courts in these years, as entirely relative. He stresses the extent to which courts encouraged jurors to define care according to “everyday” community norms.Google Scholar

52 Denver & Rio Grande R.R. v. Lorenaen, 79 F. 291, 292–93 (C.C.A. & lo. 1897).Google Scholar

53 Id. Google Scholar

54 Minard v. Boston & M.R. 184 F. 211 (C.C.A. 1st Cir. 1910).Google Scholar

55 See, e.g., Foster v. Seattle Elec. Co., 35 Wash. 177 (1904) (Azoa Foster was boarding a streetcar; verdict for defendant affirmed); Behling v. Seattle Elec. Co., 50 Wash. 150 (1908) (streetcar on which Cecelia A. Behling was riding started up before she was seated; verdict for defendant affirmed); Moshier. City of New York, 190 A.D. 111 (N.Y. 1919) (Annie Thierer was injured walking along a sidewalk at night where she knew subway construction was taking place; verdict for plaintiff affirmed against one defendant, reversed against other). The fact that one only finds such cases because they were appealed for other reasons suggests that there were any number of such cases in which prudent or reasonable woman instructions were given that the parties did not appeal.Google Scholar

56 Daniels v. Clegg, 28 Mich. 32, 41-42 (1873).CrossRefGoogle Scholar

57 Hickman v. Missouri Pac. Ry., 91 Mo. 433, 434-38 (1886).Google Scholar

58 Id. Google Scholar

59 See, e.g., City of Bloomington v. Perdue, 99 Ill. 329 (1881). The plaintiff in Perdue was unmarried, 28 years old, a student at Wesleyan, and living in a ladies' boarding hall. She was injured when a board in the sidewalk on which she was walking with another lady tipped up, causing her to trip and fall.Google Scholar

60 Jury instructions originated with plaintiffs and defendant's attorneys. The quality of lawyers varied enormously from the unschooled to the Harvard trained, from the inarticulate to the socially sawy. One cannot compare cases in which plaintiff or defendant argued for some kind of explicitly gendered instruction of due care and conclude that gender was relevant only in some cases. Nonetheless, as has been noted in other contexts, the particular legal approach an attorney takes can have a profound impact on the resulting law. See, e.g., Tomlins, 6 Law B Hist. Rev. at 375, 405-11 (cited in note 8).Google Scholar

61 See, e.g., Record and Briefs in Snow v. Town of Provincetown, 120 Mass. 580 (1876) (Social Law Library, Boston).Google Scholar

62 Hickman v. Missouri Pac. Ry., 91 Mo. 433, 438 (1886). Affirming the judgment for Mrs. Hickman on appeal, Judge Thayer of the Missouri Supreme Court said of her, “She belonged to that class of fleshy old ladies, many of whom are travelers, and necessarily so, who can and do, move with reasonable celerity, but not so quickly as many who are younger, stronger, and more active.”Google Scholar

63 Surprisingly, the examples 1 have found are not limited to young women. See, e.g., Plaintiff's Brief, Record in Snow v. Town of Provincetown, 120 Mass. 580 (1876) (Social Law Library, Boston); Defendant's [female plaintiff at trial] Brief, p. 2, Record in Daniels v. Clegg, 28 Mich. 32 (1873) (University of Michigan Law Library, Ann Arbor); Plaintiffs Brief, pp. 1-3, Record in Chenery v. Fitchburg R.R., 160 Mass. 211 (1893) (Social Law Library, Boston). The vast majority of courts refused to find children contributorily negligent based on the standard of conduct that bound adult men. In its place, they applied a flexible standard which required only that the child have exercised that degree of caution which could be expected of a child of his age. Ironically, most of these cases involved injury to boys. In varying language, the juries were told that they should judge the plaintiff not by the standard of a mature man but as a boy. For a statement of the general standard of care applied to the conduct of children in negligence, see Edward B. Thomas, Negligence 383 (New York: Banks & Bros., 1895).Google Scholar

64 Memorandum and Brief of the Plaintiff in Error, pp. 67, Record in Daniels v. Clegg, 28 Mich. 32 (1873) (State Law Library, Lansing, Mich.).Google Scholar

65 See, e.g., Cobb v. Inhabitants of Standish, 14 Me. 198 (1837).Google Scholar

66 See, e.g., Eichorn, 130 Mo. 575 (1895); Jury Instructions Requested by Defendant, Record in Eichorn, pp. 10-12 (Missouri State Law Library, Jefferson City); Oliver v. Town of La Valle, 36 Wis. 592, 595-97 (1875); Jury Instructions Requested by Defendant, Record in Oliver, pp. 18-19 (Wisconsin State Law Library, Madison).Google Scholar

67 Asbury v. Charlotte Elec. Ry., Light & Power Co., 125 N.C. 568 (1899).Google Scholar

68 id.Google Scholar

69 Lake Shore & Mich. S. R.R. v. Miller, 25 Mich. 274 (1872) (Christiancy, J.). Judge Christiancy went on to affirm the verdict in favor of the plaintiff, a girl. As he explained, where the engineer could see a child, “or other persons known to him to be incompetent or deprived of any of their faculties necessary to their safety under such circumstances,” he was obligated to manage his train in such a way as to avoid injury to the person.Google Scholar

70 G. Edward White, Tort Law in America: An Intellectual History (New York: Oxford University Press, 1980); Horwitz, Morton J., “The Rise of Legal Formalism,” 19 Am. J. Legal Hist. 251 (1975).CrossRefGoogle Scholar

71 For example, in Barry v. Boston h Albany R.R., 172 Mass. 109, 115 (1898), the reporter extracted the legal rule from the case as “[i]n an action against a railroad corporation for personal injuries sustained by a passenger while alighting from a train, a ruling requested by the defendant, … is fairly covered by the ruling that ‘he was bound to use due care to ascertain whether the train reached the place designed for passengers to alight, and had no right to assume it, simply because the brakeman had announced the station, and the train had stopped; he must use his senses.’” The plaintiff was a woman, not a man, and the court in its instructions to the jury, from which the reporter appears to be quoting, in fact used feminine pronouns–“she was bound to use due care,”“she must use her senses.” See also Nashville, C. & St. L. Ry. v. Newsome, 141 Tenn. 8 (1918).Google Scholar

72 Treatises of the period varied in their organizational format; some organized the cases according to the large doctrinal categories, others further grouped cases involving similar fact patterns together. See, e.g., Thomas G. Shearman & Amasa A. Redfield, A Treatise on the Law of Negligence (5th ed. New York: Baker, Voorhis & Co. 1898) (“Shearman & Redfield, Treatise on Negligence”); Seymour D. Thompson, 3 Commentaries on the Law of Negligence 345-46 (2d ed. Indianapolis: Bowen-Merrill Co., 1902) (“Thompson, Commentaries”).Google Scholar

73 Although the first treatise on torts was published in 1859, only after Justice Cooley of the Michigan Supreme Court published the second edition of his influential treatise on the law of torts in 1888 did other treatise writers even begin to cite cases on the appropriate standard of care where a woman had been injured. Thomas M. Cooley, A Treatise on the Law of Torts or the Wrongs Which Arise Independent of Contract 791-829 (2d ed. Chicago: Callaghan & Co., 1888); Thompson, Commentaries 319-20.Google Scholar

74 Moreover, many treatise writers never cited any of the leading cases on the appropriate standard of care involving injury to women. See, e.g., Francis M. Burdick, The Law of Torts (New York: Banks & Co., 1905 (1st ed.), 1910 (2d ed.), 1913 (3d ed.)). For those who did, a litany of five or six cases, most of which had originally been cited by Justice Cooley in Hassenyer, became the standard citations on the standard of care required of women. See, e.g., Charles Fisk Beach, Jr., A Treatise on the Law of Contributory Negligence 270 (New York: Baker, Voorhis & Co., 1885); Shearman & Redfield, Treatise on Negligence 125-27 (cited in note 72).Google Scholar

75 48 Mich. 205 (1882).Google Scholar

76 Id. at 208. He notes some of these differences: crude language or conduct-offensive and in bad taste in the presence of men, criminal in the presence of women; a crime of violence against a woman punished more severely than one against a man.Google Scholar

77 Id. Google Scholar

78 Id. at 20kL11.Google Scholar

79 My comments here are based on reading more than 500 cases involving alighting injuries decided by state supreme courts between 1860 and 1920.Google Scholar

80 Consider, e.g., Dixon v. Mobile & Girard R.R., 80 Ga. 212 (1887) (nonsuit affirmed where male passenger jumped from moving train); Western & Ad. R.R. v. Burnham, 123 Ga. 28 (1905) (verdict for female plaintiff affirmed where flagman negligently lifted her off train as it started rather than stopping train again for her to alight).Google Scholar

81 See Leo Kanowitz, Women and the Law, The Unfinished Revolution 28-31 (Albuquer. que; University of New Mexico Press, 1968). As late as 1962, only 21 states permitted women to serve on juries on the same basis as men. And not until 1966 did a federal court hold that absolute exclusion of women from juries violated the Fourteenth Amendment's equal protection clause.Google Scholar

82 Fox v. Town of Glastenbury, 29 Conn. 204 (1860); Hickman v. Missouri Pac. Ry., 91 Mo. 433 (1886).Google Scholar

83 Susan Glaspell's short story, “A Jury of her Peers,” in Edward J. OBrien, ed., The Best Short Stories of 1917 at 256-82 (Boston: Small, Maynard & Co., 1917), provides an insightful glance at what this might mean in terms of guilt and innocence.Google Scholar

84 Daniels v. Clegg, 28 Mich. 32 (1873).CrossRefGoogle Scholar

85 Hickman v. Missouri Pac. Ry., 91 Mo. 433 (1886).Google Scholar

86 Eichom, 130 Mo. 589 (1895).Google Scholar

87 Charge to Jury, p. 71, Record in Piper v. Minneapolis St. Ry., 52 Minn. 269 (1893) Cases and Briefs, [Minn.] Supreme Court, Oct. Term, 1892. Cal. No. 196 (Minnesota State Law Library, St. Paul); Hickman v. Missouri Pac. Ry., 91 Mo. 433 (1886).Google Scholar

88 For example, in a case before the Washington Supreme Court in 1913, the court held that “elevators, intended for the use principally of women and children, which have no regular elevator operator, and have no gate or door by which to close the entrance to the elevator cage, are negligently constructed and operated.” Atkeson v. Jackson Estate, 72 Wash. 233 (1913). In his turn-of-the-century study of New York City, Bergstrom, Courting Danger 172-79 (cited in note 37), explained the rise in negligence suits by arguing that New Yorkers were increasingly assuming that those who increased the risk of injury should bear responsibility for the increased risk.Google Scholar

89 Minard v. Boston & M.R., 184 F. 211 (C.C.A. 1st Cir. 1910); Colorado Springs & I. Ry. v. Cohun, 66 Colo. 149 (1919). See also Wicker v. North States Constr. Co., 183 Minn. 79 (1931); Graves v. Mickel, 176 Wash. 329 (1934).Google Scholar

90 See, e.g., Poulin v. Broadway & Seventh Ave. R.R., 61 N.Y. 621 (1874) (trial court properly refused to instruct jury that a woman wearing a hoopskirt was bound to use extra caution to avoid accidents in attempting to alight from a streetcar); Foss v. Boston & Me. R.R., 66 N.H. 256, 259-60 (if the female plaintiff failed to look ahead as she was alighting because she was in a “flustered state of… mind” caused by the train passing the station before stopping, it was appropriate for the jury to find no contributory negligence); Bass v. Concord St. Ry. 70 N.H. 170 (1899) (alighting female passenger “preoccupied” by her “wraps and bundles” not contributorily negligent).Google Scholar

91 See, e.g., Missouri Pac. Ry. v. Watson, 72 Tex. 631 (1889).Google Scholar

92 Compare, e.g., Record in Chenery v. Fitchburg R.R., 160 Mass. 211 (1893) (Social Law Library, Boston), with Lake Shore & Mich. S. R.R. v. Miller, 25 Mich. 274 (1872), and Hassenyer v. Michigan Central R.R., 48 Mich. 205 (1882).Google Scholar

93 See, e.g., Railway Co. v. Tankersley, 54 Ark. 25 (1890); McDermott v. Chicago & Nw. Ry., 82 Wis. 246 (1892); Brief of Appellant, pp. 29-35; Brief of Respondent, p. 12, Record in Blakney v. Seattle Elec. Ry. (Washington State Law Library, Seattle); Blakney v. Seattle Elec. Ry., 28 Wash. 607 (1902).Google Scholar

94 Melvin Urofsky and Aviam Soifer have both explored the paternalistic rationales that underlay laws limiting working hours and regulating working conditions for women. See Melvin 1. Urofsky, “State Courts and Protective Legislation during the Progressive Era: A Reevaluation,” 73 J. Am. Hist. 63, 71-75 (1985); Aviam Soifer, ‘The Paradox of Paternalism and Laissez-Faire Constitutionalism: United States Supreme Court, 1888-1921,” 5 Law & Hist. Rev. 249 (1987).Google Scholar

95 For example, in Chenery u. Fitchburg R.R., among other facts, the evidence showed that Mary Chenery, a 40-year old woman, had been accustomed to driving for many years, that her horse was gentle, that travelers on business and pleasure regularly had used the private way which crossed over the railroad's tracks for more than 25 years with the railroad's knowledge, and that though it was past the time for the scheduled train, Mary Chenery stopped the buggy she was driving twice along the private way to listen for the sound of the train. Nonetheless, the court strongly suggested to the jury that she had been negligent, saying that the jurors should not consider whether a woman would think she was entitled to treat this road as a public way, but must consider whether a “reasonably intelligent and prudent man” would have thought it a public way. Moreover, the court said the defendant should only have to consider what such a prudent man would have done. Record in Chenery v. Fitchburg R.R. Co. (Social Law Library, Boston, Mass.). The Massachusetts high court affirmed the verdict for the defendant railroad in 160 Mass. 211 (1893). See also Blakney v. Seattle Elec. Ry., 28 Wash. 607 (1902).Google Scholar

96 Central R.R. v. Whitehead, 74 Ga. 441 (1885); Record in Whitehead (Dep't of Archives & History, Atlanta, Ga.).Google Scholar

97 Whitehead, 74 Ga. 450 (Hall, J., dissent). The majority insisted that the trial “court did not charge or intimate that the conductor's duty was to help the colored woman off theGoogle Scholar

98 Fox v. Town of Glastenbury, 29 Conn. 204 (1860).Google Scholar

99 Daniels v. Clegg, 28 Mich. 32 (1873).CrossRefGoogle Scholar

100 Denver & R.G.R. v. Lorentzen, 79 F. 291 (C.C.A. Colo. 1897).Google Scholar

101 Thompson, Commentaries 319-20 (cited in note 72).Google Scholar

102 Raymond v. Hill, 168 Cal. 473, 483 (1914).Google Scholar

103 See, e.g., Chicago & Alton R.R. v. Fisher, 141 Ill. 614 (1892) (affirming verdict for male plaintiff who fell from streetcar platform after giving up place inside the crowded car for lady passengers); Blakney v. Seattle Elec. Ry., 28 Wash. 607 (1902) (order to enter judgment for defendant where woman stepped from slowly moving streetcar); Larson v. Minn. & St. Louis R.R., 85 Minn. 387 (1902) (affirming verdict for female plaintiff who grew dizzy and jumped or fell as train from which she was alighting started forward).Google Scholar

104 Bradwell v. State, 83 U.S. (16 Wall.) 130, 14142 (1872) (Bradley, J., conc.).Google Scholar

105 Id. Google Scholar

106 Muller v. Oregon, 208 U.S. 412, 421-23 (1908).Google Scholar

107 Id. It is important not to lose sight of where Muller was situated historically and constitutionally. Three years before, the Supreme Court had decided Lochner v. New York, 198 U.S. 45 (1905), in which the court struck down a New York statute limiting the working hours of bakers. As Justice Peckham explained, “There is no contention that bakers as a class are not equal in intelligence and capacity to men in other trades or manual occupations, or that they are not able to assert their rights and care for themselves without the protecting arm of the State, interfering with their independence of judgment and of action. They are in no sense wards of the State.”Id. at 57. See also the discussion of Bradwell and M in Nadine Taub & Elizabeth M. Schneider, “Women's Subordination and the Role of Law,” in David Kairys, ed., The Politics of Law: A Progressive Critique (New York: Pantheon Books, 1982).Google Scholar

108 His words are worth repeating: “[The law will expect and require of her the same diligence to avoid mischief to others which men must observe. The rule of prudent regard for the rights of others knows nothing of sex.”Hassenyer, 48 Mich. 210-11.Google Scholar

109 Eventually courts would face women drivers who were responsible for automobile accidents, but in 1920, even this seemed a distant possibility. In her book on women and the automobile, Virginia ScharFf notes, in 1920 “women comprised at most a small minority of drivers.” As she shows, the same image of women 1 have described here surrounded women as drivers. Scharff, Taking the Wheel: Wm and the Coming of he Motor Age 5-6 (New York: Free Press, 1991).Google Scholar

110 Feminist legal scholars like Catharine MacKinnon might argue that the image remained constant over time because a male-dominated judiciary and society had a vested interest in women's dependence. See Catharine A. MacKinnon, Feminism Unmodified: Discourses on Life and Law (Cambridge: Harvard University Press, 1987) (“MacKinnon, Feminism Unmodified”).Google Scholar

111 See, e.g., Norma Basch, “The Emerging Legal History of Women in the United States: Property, Divorce, and the Constitution,” 12 Signs 97 (1986); Grossberg, Governing the Hearth (cited in note 31); Hendrik Hartog, “Mrs. Packard on Dependency,” 1 Yak J.L. H Humanities 74 (1988); Chamallas & Kerber, 88 Mich. L. Rev. (cited in note 48); Balkin, 43 Stun. L. Rev. (cited in note 28); MacKinnon, Feminism Unmodified. Google Scholar

112 For a brief review of social history as a distinct approach to the study of the past, see Alice Kessler-Harris, “Social History,” in Eric Foner, ed., The New American History 163 (Philadelphia: Temple University Press, 1990).Google Scholar