The Responsible Judge: Readings in Judicial Ethics

By John T. Noonan Jr.; Kenneth I. Winston | Go to book overview
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B. The Mask of Impartiality

1. "The Passengers of Palsgraf"

The following is from an exploration of how legal historians, legal educators, and legal philosophers cheerfully perpetuate the view that the personality of the judge is a zero in the equations of justice. The source is John T. Noonan Jr. "The Passengers of Palsgraf," from his Persons and Masks of the Law ( 1976):

The most famous tort case of modern times--"the most discussed and debated," as Dean Prosser put it--is Palsgraf v. Long Island Railroad Company, decided in 1928 by the most excellent state court in the United States with an opinion by the most justly celebrated of American common-law judges, Benjamin N. Cardozo. The facts of the case as stated by Cardozo were these:

Plaintiff was standing on a platform of defendant's railroad after buying a ticket to go to Rockaway Beach. A train stopped at the station bound for another place. Two men ran forward to catch it. One of the men reached the platform of the car without mishap, though the train was already moving. The other man, carrying a package, jumped aboard the car, but seemed unsteady as if about to fall. A guard on the car, who had held the door open, reached forward to help him in, and another guard on the platform pushed from behind. In this act, the package was dislodged, and fell upon the rails. It was a package of small size, about fifteen inches long, and was covered by a newspaper. In fact it contained fireworks, but there was nothing in its appearance to give notice of its contents. The fireworks when they fell exploded. The shock of the explosion threw down some scales at the other end of the platform many feet away. The scales struck the plaintiff, causing injuries for which she sues.

Cardozo held that the plaintiff could not recover. No negligence to her by the railroad had been shown. "The risk reasonably to be perceived," Cardozo wrote, "defines the risk to be avoided, and risk imports relation; it is risk to another

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