The Ballad of Harry James Tompkins

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At about 2:30 a.m. on Friday, July 27, 1934, William Colwell of Hughestown, Pennsylvania was awakened by two young men banging on his front door. When he went downstairs, they told him that someone had been run over by a train. Colwell looked out his side window. In the moonlight, he saw someone lying on the ground near the railroad tracks. He went back upstairs and told his wife that there had been an accident. She told him “not to go out, that them fellows was crazy,” but he dressed and went out to help anyway. Colwell's house was at the stub-end of Hughes Street, where it ran into the railroad tracks. When he reached the tracks, he discovered his neighbor Harry James Tompkins, about 6 or 10 feet south of Hughes Street. Tompkins had a deep gash on his right temple, and his severed right arm was in between the tracks. Colwell told the young men to go to Mrs. Rentford's house down the street and call an ambulance. After calling the ambulance, they disappeared. Colwell also yelled to his neighbor, Aloysius Thomas McHale, who dressed and came out to help. Colwell and McHale stayed with Tompkins until the ambulance arrived at about 2:45 a.m. and took him to Pittston Hospital. After the accident, Tompkins regained consciousness in the hospital receiving room. The doctors sedated him, stitched up the wound on his face, and amputated the remainder of his right arm. He spent about three weeks in the hospital, during which time he developed an infection in his shoulder, which became an abscess. The doctors drained the abscess, and the wound eventually healed, but Tompkins experienced persistent phantom limb pain in his missing fingers. His surgery cost about $350, and his hospital stay cost about $89. The train that injured Tompkins was the Ashley Special No. 2499, a freight train operated by the Erie Railroad Company. Tompkins filed a diversity action against Erie in federal court, because the relevant federal common law rule on people injured by trains was more favorable to him than the Pennsylvania rule. While Tompkins won at trial and on appeal, the Supreme Court reversed in Erie Railroad Company v. Tompkins, holding that federal courts sitting in diversity must apply state substantive law. The Supreme Court's decision in Erie Railroad Company v. Tompkins “was completely unheralded and unexpected.” For almost a century, the Court had followed its opinion in Swift v. Tyson, holding that federal courts sitting in diversity should apply “general” common law, which gradually became “federal” common law. But after Erie, “federal general common law” was no more. Initially, lawyers were unsure what to make of Erie. But legal scholars immediately recognized its significance, which has only become more pronounced over time. Today, it is widely considered both one of the most important Supreme Court decisions, and one of the most enigmatic, in part because it touches on so many different issues. Among other things, it implicates philosophical questions about the nature of law, constitutional questions about federalism and the separation of powers, normative questions about access to justice, and practical questions about litigation strategy. For law professors, the Erie doctrine is the gift that keeps on giving. But for law students it is a curse, often dubbed the “Eerie doctrine,” presumably because it always appears when least expected. And yet, in the judicial and scholarly retelling, the facts of the case become almost irrelevant. Erie was a case about what law to apply, not what happened in Hughestown on July 27, 1934. But for both Tompkins and the Erie Railroad, it was a case about what actually happened, who was at fault, and why. Over the years, a smattering of journalists, lawyers, and legal scholars have told the story of Erie, relying on the record and an assortment of primary and secondary sources. But all have accepted Tompkins's account at face value: An unsecured refrigerator car door hit him while he was walking on the path next to the railroad track. Apparently, the jury believed Tompkins, or at least voted in his favor. But was he actually telling the truth? Ultimately, it is impossible to know for sure. Everyone involved is now long dead. But there are reasons to be suspicious. The defense strategy was primarily to question the credibility of Tompkins and his witnesses. Apparently, it failed to convince the jury. But it exposed many curious cracks in Tompkins's story. According to Tompkins, he was walking home from his mother-in-law's house at about 2 a.m., when friends driving home from a lake resort 20 miles away happened to pass by and give him a ride to a railroad crossing a block away from his house. While he walked the rest of the way home on a path next to the railroad track, an oncoming train passed at about 30 miles per hour. Something projecting from the train, probably an unsecured refrigerator car door, struck him in the head and knocked him unconscious. When he fell to the ground, his right arm fell under the wheels of the train, and was severed just below his shoulder. Luckily, only minutes after he was injured, two unidentified young men just happened to stumble upon him, alert Colwell, and then disappear without a trace. I find Tompkins's story implausible. And so did Erie's lawyer, who repeatedly asked Tompkins and his witnesses if they were serious. Of course, it is impossible to know for sure what really happened. But I think Tompkins and his witnesses were lying. I suspect that Tompkins was actually trying to board the Ashley Special and ride it to Wilkes-Barre, presumably to look for work, when he slipped and fell. The two young men who found him were probably also trying to catch the train, or perhaps were already riding it, and jumped off when they saw Tompkins fall. And Tompkins's friends simply concocted a cover story about dropping him off at the railroad crossing, in order to substantiate his claim. Does it matter? After all, Erie was ultimately a case about the authority of the federal courts, not what actually happened to Tompkins. I think it does. For one thing, knowing the truth is valuable for its own sake. But for another, knowing the truth about Erie may help us better understand the social context in which the case was litigated and decided. For example, scholars have assumed that Tompkins filed his action in the Southern District of New York in order to choose the more favorable general common law rule. And it is certainly the case that the general common law rule was better for him than the Pennsylvania common law rule. But what if that was not the only reason? What if he also chose the Southern District of New York in the hopes of getting a more favorable jury? Moreover, conventional wisdom casts the story of Erie v. Tompkins as the Supreme Court sacrificing Tompkins in order to achieve the progressive goal of overruling Swift v. Tyson. But maybe the progressive Supreme Court justices were willing to use Erie v. Tompkins as a vehicle in part because they knew Tompkins was lying? In any case, I offer the following critical account of Erie v. Tompkins for your consideration.

Original languageAmerican English
Pages (from-to)531-605
JournalAkron law review
StatePublished - Jan 1 2018


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