Big Dogs and Deep Pockets
A year ago I had a group of my research students going deep into the records of the Cass County District Court, records conveniently lodged in North Dakota State University Archives. They investigated every case where a citizen brought suit against one of the region’s great railroad corporations, the Northern Pacific or the Great Northern. The question was, in the Age of Railroads, could a citizen get justice in an action against a great corporation?
We started out with what I called the Big Dog hypothesis—the obvious presumption that the railroads had all the advantages and were likely to roll over the interests of ordinary citizens. Sometimes, indeed, that seems to have been the case.
On the other hand, there soon emerged a rival interpretation, what I called the Deep Pockets thesis. During hard times, if you were going to sue someone, who you gonna go after? Somebody with deep pockets. So the railroads were legal targets, and sometimes they would pay plaintiffs something just to go away.
In the course of investigations it became clear, too, there was another circumstance in play. During the Populist 1890s and the Progressive early 1900s, anti-monopoly sentiment was powerful. In a jury trial with a great railroad as defendant, anything could happen.
Farmers were frequent litigants against railroads, and their cases often involved livestock. As the historian Earl Hayter once observed, nothing increased the value of a farmer’s livestock so much as crossing it with a railroad locomotive.
So in 1908 Lorenzo Abraham Parker, who had some land alongside the agricultural college, sued the Great Northern Railway for the loss of two of his horses. It turns out Parker was deeply in debt, and he had a history of suing his neighbors. His case was not strong, but no way was the Great Northern going to let this matter go to a jury of farmers. The railroad got a third party to pay off Parker to drop his case and move away to Stark County.
A legal problem owing to the state of transportation technology had to do with sparks flying from the stacks of steam locomotives, setting nearby properties ablaze. To be safe from suit, railroads needed to do prescribed burning of their rights of way and equip their engines with the latest and best spark arrestors.
In November 1903 farmer Richard Titus sued the Northern Pacific Railway Company for setting fire to two stacks of hay he valued at $460, plus he wanted interest for every day since the loss. The railroad defense was weak in that employees allowed that in burning the right of way, they had missed some spots. The railroad admitted maybe it had caused the fire, but said Parker had noticed the blaze, could have stopped it, but let it burn into his stacks so he could sue for damages. The jury split the difference—finding the railroad at fault, but awarding Parker only about half the amount he sought.
The Solomon-like logic of the award smacks of political realities. Hold the railroad accountable, give the farmers some relief, but don’t let the tort actions get out of hand.
I need to thank researchers Brock Nagel and Sam Vogel for their work on these two cases, which in the end restored by faith that ordinary citizens empaneled to consider thorny issues could arrive at reasonable conclusions.