U.S. Supreme Court ERIE R. CO. v. TOMPKINS, 304 U.S. 64 (1938)

Argued January 31, 1938

Decided April 25, 1938

304 U.S. 64

CERTIORARI TO THE CIRCUIT COURT OF APPEALS

FOR THE SECOND CIRCUIT

Syllabus

1. The liability of a railroad company for injury caused by negligent operation of its train to a pedestrian on a much-used, beaten path on its right-of-way along and near the rails depends, in the absence of a federal or state statute, upon the unwritten law of the State where the accident occurred. Pp. 304 U. S. 71 et seq.

2. A federal court exercising jurisdiction over such a case on the ground of diversity of citizenship, is not free to treat this question as one of so-called "general law," but must apply the state law as declared by the highest state court. Swift v. Tyson, 16 Pet. 1, overruled. Id.

3. There is no federal general common law. Congress has no power to declare substantive rules of common law applicable in a State whether they be local in their nature or "general," whether they be commercial law or a part of the law of torts. And no clause in the Constitution purports to confer such a power upon the federal courts. Except in matters governed by the Federal Constitution or by Acts of Congress, the law to be applied in any case is the law of the State. And whether the law of the State shall be declared by its legislature in a statute or by its highest court in a decision is not a matter of federal concern. P. 304 U. S. 78.

4. In disapproving the doctrine of Swift v. Tyson, the Court does not hold unconstitutional § 34 of the Federal Judiciary Act of 1789 or any other Act of Congress. It merely declares that, by applying the doctrine of that case, rights which are reserved by the Constitution to the several States have been invaded. P. 304 U. S. 79.

90 F.2d 603, reversed.

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CERTIORARI, 302 U.S. 671, to review the affirmance of a judgment recovered against the railroad company in an action for personal injuries. The accident was in Pennsylvania. The action was in New York, jurisdiction being based on diversity of citizenship

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MR. JUSTICE BRANDEIS delivered the opinion of the Court.

The question for decision is whether the oft-challenged doctrine of Swift v. Tyson [Footnote 1] shall now be disapproved.

Tompkins, a citizen of Pennsylvania, was injured on a dark night by a passing freight train of the Erie Railroad Company while walking along its right of way at Hughestown in that State. He claimed that the accident occurred through negligence in the operation, or maintenance, of the train; that he was rightfully on the premises as licensee because on a commonly used beaten footpath which ran for a short distance alongside the tracks, and that he was struck by something which looked like a door projecting from one of the moving cars. To enforce that claim, he brought an action in the federal court for southern New York, which had jurisdiction because the company is a corporation of that State. It denied liability, and the case was tried by a jury.

[Page 304 U. S. 70]

The Erie insisted that its duty to Tompkins was no greater than that owed to a trespasser. It contended, among other things, that its duty to Tompkins, and hence its liability, should be determined in accordance with the Pennsylvania law; that, under the law of Pennsylvania, as declared by its highest court, persons who use pathways along the railroad right of way - that is, a longitudinal pathway, as distinguished from a crossing - are to be deemed trespassers, and that the railroad is not liable for injuries to undiscovered trespassers resulting from its negligence unless it be wanton or willful. Tompkins denied that any such rule had been established by the decisions of the Pennsylvania courts, and contended that, since there was no statute of the State on the subject, the railroad's duty and liability is to be determined in federal courts as a matter of general law.

The trial judge refused to rule that the applicable law precluded recovery. The jury brought in a verdict of $30,000, and the judgment entered thereon was affirmed by the Circuit Court of Appeals, which held, 90 F.2d 603, 604, that it was unnecessary to consider whether the law of Pennsylvania was as contended, because the question was one not of local, but of general, law, and that, "upon questions of general law, the federal courts are free, in the absence of a local statute, to exercise their independent judgment as to what the law is, and it is well settled that the question of the responsibility of a railroad for injuries caused by its servants is one of general law. . . . Where the public has made open and notorious use of a railroad right of way for a long period of time and without objection, the company owes to persons on such permissive pathway a duty of care in the operation of its trains. . . It is likewise generally recognized law that a jury may find that negligence exists toward a pedestrian using a permissive path on the railroad right of way if he is hit by some object projecting from the side of the train. "

[Page 304 U. S. 71]

The Erie had contended that application of the Pennsylvania rule was required, among other things, by § 34 of the Federal Judiciary Act of September 24, 1789, c. 20, 28 U.S.C. § 725, which provides:

"The laws of the several States, except where the Constitution, treaties, or statutes of the United States otherwise require or provide, shall be regarded as rules of decision in trials at common law, in the courts of the United States, in cases where they apply."

Because of the importance of the question whether the federal court was free to disregard the alleged rule of the Pennsylvania common law, we granted certiorari.

First. 41 U. S. 18, held that federal courts exercising jurisdiction on the ground of diversity of citizenship need not, in matters of general jurisprudence, apply the unwritten law of the State as declared by its highest court; that they are free to exercise an independent judgment as to what the common law of the State is - or should be, and that, as there stated by Mr. Justice Story:

"the true interpretation of the thirty-fourth section limited its application to state laws strictly local, that is to say, to the positive statutes of the state, and the construction thereof adopted by the local tribunals, and to rights and titles to things having a permanent locality, such as the rights and titles to real estate, and other matters immovable and intraterritorial in their nature and character. It never has been supposed by us that the section did apply, or was intended to apply, to questions of a more general nature, not at all dependent upon local statutes or local usages of a fixed and permanent operation, as, for example, to the construction of ordinary contracts or other written instruments, and especially to questions of general commercial law, where the state tribunals are called upon to perform the like functions as ourselves, that is, to ascertain upon general reasoning and legal analogies what is the true exposition of the contract or

[Page 304 U.S. 64, 72]

instrument, or what is the just rule furnished by the principles of commercial law to govern the case.'

The Court in applying the rule of section 34 to equity cases, in Mason v. United States, 260 U.S. 545, 559, 43 S.Ct. 200, 204, said: 'The statute, however, is merely declarative of the rule which would exist in the absence of the statute.' [Footnote 2] The federal courts assumed, in the broad field of 'general law,' the power to declare rules of decision which Congress was confessedly without power to enact as statutes. Doubt was repeatedly expressed as to the correctness of the construction given section 34,3 and as to the soundness of the rule which it introduced. [Footnote 4] But it was the more recent research of a competent scholar, who examined the original document, which established that the construction given to it by the Court was erroneous; and that the purpose of the section was merely to make certain that, in all matters except those in which some federal law is controlling,

[Page 304 U.S. 64, 73]

the federal courts exercising jurisdiction in diversity of citizenship cases would apply as their rules of decision the law of the state, unwritten as well as written. [Footnote 5]

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was sustained by the Court of Appeals; and this Court, citing many decisions in which the doctrine of Swift & Tyson had been applied, affirmed the decree.

Second. Experience in applying the doctrine of Swift v. Tyson, had revealed its defects, political and social; and the benefits expected to flow from the rule did not accrue. Persistence of state courts in their own opinions on questions of common law prevented uniformity;7 and the impossibility of discovering a satisfactory line of demarcation between the province of general law and that of local law developed a new well of uncertainties. [Footnote 8]

[Page 304 U.S. 64, 75]

or in the federal court; and the privilege of selecting the court in which the right should be determined was conferred upon the noncitizen. [Footnote 9] Thus, the doctrine rendered impossible equal protection of the law. In attempting to promote uniformity of law throughout the United States, the doctrine had prevented uniformity in the administration of the law of the state.

[Page 304 U.S. 64, 76]

bility depended upon the scope of a property right conferred by the state; 13 and the right to exemplary or punitive damages. [Footnote 14] Furthermore, state decisions construing local deeds,15 mineral conveyances,16 and even devises of real estate, 17 were disregarded. [Footnote 18]

In part the discrimination resulted from the wide range of persons held entitled to avail themselves of the federal rule by resort to the diversity of citizenship jurisdiction. Through this jurisdiction individual citizens willing to remove from their own state and become citizens of another might avail themselves of the federal rule. [Footnote 19] And, without even change of residence, a corporate citizen of

[Page 304 U.S. 64, 77]

the state could avail itself of the federal rule by reincorporating under the laws of another state, as was done in the Taxicab Case.

The injustice and confusion incident to the doctrine of Swift v. Tyson have been repeatedly urged as reasons for abolishing or limiting diversity of citizenship jurisdiction. [Footnote 20] Other legislative relief has been proposed. 21 If only a question of statutory construction were involved, we should not be prepared to abandon a doctrine so widely applied throughout nearly a century. [Footnote 22] But the uncon-

[Page 304 U.S. 64, 79]

pendence in their judicial departments. Supervision over either the legislative or the judicial action of the states is in no case permissible except as to matters by the constitution specifically authorized or delegated to the United States. Any interference with either, except as thus permitted, is an invasion of the authority of the state, and, to that extent, a denial of its independence.'

The fallacy underlying the rule declared in Swift v. Tyson is made clear by Mr. Justice Holmes. [Footnote 23] The doctrine rests upon the assumption that there is 'a transcendental body of law outside of any particular State but obligatory within it unless and until changed by statute,' that federal courts have the power to use their judgment as to what the rules of common law are; and that in the federal courts 'the parties are entitled to an independent judgment on matters of general law': 'But law in the sense in which courts speak of it today does not exist without some definite authority behind it. The common law so far as it is enforced in a State, whether called common law or not, is not the common law generally but the law of that State existing by the authority of that State without regard to what it may have been in England or anywhere else. ... 'The authority and only authority is the State, and if that be so, the voice adopted by the State as its own (whether it be of its Legislature or of its Supreme Court) should utter the last word.'

[Page 304 U.S. 64, 80]

unconstitutional section 34 of the Federal Judiciary Act of 1789 or any other act of Congress. We merely declare that in applying the doctrine this Court and the lower courts have invaded rights which in our opinion are reserved by the Constitution to the several states.

Fourth. The defendant contended that by the common law of Pennsylvania as declared by its highest court in Falchetti v. Pennsylvania R. Co., 307 Pa. 203, 160 A. 859, the only duty owed to the plaintiff was to refrain from willful or wanton injury. The plaintiff denied that such is the Pennsylvania law. [Footnote 24] In support of their respective contentions the parties discussed and cited many decisions of the Supreme Court of the state. The Circuit Court of Appeals ruled that the question of liability is one of general law; and on that ground declined to decide the issue of state law. As we hold this was error, the judgment is reversed and the case remanded to it for further proceedings in conformity with our opinion.

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before stated, and does not extend to contracts and other instruments of a commercial nature, the true interpretation and effect whereof are to be sought, not in the decisions of the local tribunals, but in the general principles and doctrines of commercial jurisprudence. Undoubtedly, the decisions of the local tribunals upon such subjects are entitled to, and will receive, the most deliberate attention and respect of this court; but they cannot furnish positive rules or conclusive authority, by which our own judgments are to be bound up and governed.' (Italics added.)

The doctrine of that case has been followed by this Court in an unbroken line of decisions. So far as appears, it was not questioned until more than 50 years later, and then by a single judge. [Footnote 1] Baltimore & O. Railroad Co. v. Baugh, 149 U.S. 368, 390, 13 S.Ct. 914. In that case, Mr. Justice Brewer, speaking for the Court, truly said (, at page 373, 13 S.Ct. 914, 916): 'Whatever differences of opinion may have been expressed have not been on the question whether a matter of general law should be settled by the independent judgment of this court, rather than through an adherence to the decisions of the state courts, but upon the other question, whether a given matter is one of local or of general law.'

[Page 304 U.S. 64, 92]

that conclusion also seems questionable. The line between procedural and substantive law is hazy, but no one doubts federal power over procedure. Wayman v. Southard, 10 Wheat. 1. The Judiciary Article, 3, and the 'necessary and proper' clause of article 1, 8, may fully authorize legislation, such as this section of the Judiciary Act.

In this Court, stare decisis, in statutory construction, is a useful rule, not an inexorable command. Burnet v. Coronado Oil & Gas Co., , dissent, page 406, note 1, 52 S.Ct. 443, 446. Compare Read v. Bishop of Lincoln, (1892) A.C. 644, 655; London Street Tramways v. London County Council, (1898) A.C. 375, 379. It seems preferable to overturn an established construction of an act of Congress, rather than, in the circumstances of this case, to interpret the Constitution. Cf. United States v. Delaware & Hudson Co., 213 U.S. 366, 29 S.Ct. 527.

There is no occasion to discuss further the range or soundness of these few phrases of the opinion. It is sufficient now to call attention to them and express my own non-acquiescence. Footnotes

[Footnote *] Mandate conformed to 98 F.2d 49.

Footnote 1 1842, 16 Pet. 1. Leading cases applying the doctrine are collected in Black & White Taxicab, etc., Co. v. Brown & Yellow Taxicab, etc., Co., 276 U.S. 518, 530, 531 S., 48 S.Ct. 404, 407, 408, 57 A.L.R. 426. Dissent from its application or extension was expressed as early as 1845 by Mr. Justice McKinley (and Mr. Chief Justice Taney) in Lane v. Vick, 3 How. 464, 477. Dissenting opinions were also written by Mr. Justice Daniel in Rowan v. Runnels, 5 How. 134, 140; by Mr. Justice Nelson in Williamson v. Berry, 8 How. 495, 550, 558; by Mr. Justice Campbell in Pease v. Peck, 18 How. 595, 599, 600; and by Mr. Justice Miller in Gelpcke v. City of Dubuque, 1 Wall. 175, 207, and U.S. ex rel. Butz v. City of Muscatine, 8 Wall. 575, 585. Vigorous attack upon the entire doctrine was made by the Mr. Justice Field in Baltimore & Ohio R.R. Co. v. Baugh, 149 U.S. 368, 390, 13 S.Ct. 914, and by Mr. Justice Holmes in Kuhn v. Fairmont Coal Co., 215 U.S. 349, 370, 30 S.Ct. 140, and in the Taxicab Case, , at page 532, 48 S.Ct. 404, 408, 57 A.L.R. 426.

Footnote 2 In Hawkins v. Barney's Lessee, 5 Pet. 457, 464, it was stated that section 34 'has been uniformly held to be no more than a declaration of what the law would have been without it: to wit, that the lex loci must be the governing rule of private right, under whatever jurisdiction private right comes to be examined.' See, also, Bank of Hamilton v. Dudley's Lessee, 2 Pet. 492, 525. Compare Jackson v. Chew, 12 Wheat. 153, 162, 168; Livingston v. Moore, 7 Pet. 469, 542, 8 l.Ed. 751.

Footnote 3 Pepper, The Border Land of Federal and State Decisions (1889) 57; Gray, The Nature and Sources of Law (1909 ed.) 533, 534; Trickett, Non- Federal Law Administered in Federal Courts (1906) 40 Am.L.Rev. 819, 821- 824.

Footnote 4 Street, Is There a General Commercial Law of the United States ( 1873) 21 Am.L.Reg. 473; Hornblower, Conflict between State and Federal Decisions (1880) 14 Am.L.Rev. 211; Meigs, Decisions of the Federal Courts on Questions of State Law (1882) 8 So.L.Rev. (n.s.) 452, (1911) 45 Am.L. Rev. 47; Heiskell, Conflict between Federal and State Decisions (1882) 16 Am.L.Rev. 743; Rand, Swift v. Tyson versus Gelpcke v. Dubuque (1895) 8 Harv.L.Rev. 328, 341-343; Mills, Should Federal Courts Ignore State Laws ( 1900) 34 Am.L.Rev. 51; Carpenter, Court Decisions and the Common Law (1917) 17 Col.L.Rev. 593, 602, 603.

Footnote 5 Charles Warren, New Light on the History of the Federal Judiciary Act of 1789 (1923) 37 Harv.L.Rev. 49, 51-52, 81-88, 108.

Footnote 6 Shelton, Concurrent Jurisdiction-Its Necessity and its Dangers ( 1928) 15 Va.L.Rev. 137; Frankfurter, Distribution of Judicial Power Between Federal and State Courts (1928) 13 Corn.L.Q. 499, 524-530; Johnson, State Law and the Federal Courts (1929) 17 Ky.L.J. 355; Fordham, The Federal Courts and the Construction of Uniform State Laws (1929) 7 N.C.L. Rev. 423; Dobie, Seven Implications of Swift v. Tyson (1930) 16 Va.L.Rev. 225; Dawson, Conflict of Decisions between State and Federal Courts in Kentucky, and the Remedy (1931) 20 Ky.L.J. 1; Campbell, Is Swift v. Tyson an Argument for or against Abolishing Diversity of Citizenship Jurisdiction (1932) 18 A.B.A.J. 809; Ball, Revision of Federal Diversity Jurisdiction (1933) 28 Ill.L.Rev. 356, 362-364; Fordham, Swift v. Tyson and the Construction of State Statutes (1935) 41 W.Va.L.Q. 131.

Footnote 7 Compare Mr. Justice Miller in Gelpcke v. City of Dubuque, 1 Wall. 175, 209. The conflicts listed in Holt, The Concurrent Jurisdiction of the Federal and State Courts (1888) 160 et seq. cover twenty-eight pages. See, also, Frankfurter, supra note 6, at 524-530; Dawson, supra note 6; Note, Aftermath of the Supreme Court's Stop, Look and Listen Rule (1930) 43 harv.L.Rev. 926; cf. Yntema and Jaffin, Preliminary Analysis of Concurrent Jurisdiction (1931) 79 U. of Pa.L.Rev. 869, 881-886. Moreover, as pointed out by judge Augustus N. Hand in Cole v. Pennsylvania R. Co., D.C., 43 F.2d 953, 956, 957, 71 A.L.R. 1096, decisions of this Court on common-law questions are less likely than formerly to promote uniformity.

Footnote 8 Compare 2 Warren, The Supreme Court in United States History, Rev. Ed. 1935, 89: 'Probably no decision of the Court has ever given rise to more uncertainty as to legal rights; and though doubtless intended to promote uniformity in the operation of business transactions, its chief effect has been to render it difficult for business men to know in advance to what particular topic the Court would apply the doctrine. ...' The Federal Digest through the 1937 volume, lists nearly 1,000 decisions involving the distinction between questions of general and of local law.

Footnote 9 It was even possible for a nonresident plaintiff defeated on a point of law in the highest court of a State nevertheless to win out by taking a nonsuit and renewing the controversy in the federal court. Compare Gardner v. Michigan Cent. R.R. Co., 150 U.S. 349, 14 S.Ct. 140; Harrison v. Foley, 8 Cir., 206 F. 57; Interstate Realty & Inv. Co. v. Bibb County, 5 Cir., 293 F. 721; see Mills, supra note 4, at 52.

Footnote 10 For a recent survey of the scope of the doctrine, see Sharp & Brennan, The Application of the Doctrine of Swift v. Tyson since 1900 ( 1929) 4 Ind.L.J. 367.

Footnote 11 Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co., 276 U.S. 518, 48 S.Ct. 404, 57 A.L.R. 426; Rowan v. Runnels, 5 How. 134, 139; Boyce v. Tabb, 18 Wall. 546, 548; Johnson v. Chas. D. Norton Co., 6 Cir., 159 F. 361; Keene Five Cent Sav. Bank v. Reid, 8 Cir., 123 F. 221.

Footnote 12 New York Railroad Co. v. Lockwood, 17 Wall. 357, 367, 368; Liverpool & G. W. Steam Co. v. Phenix Ins. Co., 129 U.S. 397, 443, 9 S.Ct. 469; Eells v. St. Louis, K. & N.W. Ry. Co., C.C.S.D. Iowa, 52 F. 903; Fowler v. Pennsylvania R.R. Co., 2 Cir., 229 F. 373.

Footnote 13 Chicago v. Robbins, 2 Black 418, 428. Compare Yates v. Milwaukee, 10 Wall. 497, 506, 507; Yeates v. Illinois Cent. Ry. Co., C.C.N.D.Ill., 137 F. 943; Curtis v. Cleveland, C.C. & St. L. Ry. Co., C.C.E.D.Ill., 140 F. 777. See, also, Hough v. Texas Railway Co., , 226; Baltimore & Ohio R.R. Co. v. Baugh, 149 U.S. 368, 13 S.Ct. 914; Gardner v. Michigan Cent. R.R. Co., 150 U.S. 349, 358, 14 S.Ct. 140; Beutler v. Grand Trunk Junction Ry. Co., , 32 S.Ct. 402; Baltimore & Ohio R.R. Co. v. Goodman, 275 U.S. 66, 48 S.Ct. 24, 56 A.L.R. 645; Pokora v. Wabash Ry. Co., 292 U.S. 98, 54 S.Ct. 580. 91 A.L.R. 1049; Cole v. Pennsylvania R.R. Co., D.C., 43 F.2d 953, 71 A.L.R. 1096.

Footnote 14 Lake Shore & M.S. Ry. Co. v. Prentice, 147 U.S. 101, 106, 13 S.Ct. 261; Norfolk & P. Traction Co. v. Miller, 4 Cir., 174 F. 607; Greene v. Keithley, 8 Cir., 86 F.2d 238, 239.

Footnote 15 Foxcroft v. Mallet, 4 How. 353, 379; Midland Valley Ry. Co. v. Sutter, 8 Cir., 28 F.2d 163; Midland Valley Ry. Co. v. Jarvis, 8 Cir., 29 F.2d 539, 61 A.L.R. 1064.

Footnote 16 Kuhn v. Fairmont Coal Co., , 30 S.Ct. 140; Mid-Continent Petroleum Corporation v. Sauder, 10 Cir., 67 F.2d 9, 12, reversed on other grounds 292 U.S. 272, 54 S.Ct. 671, 93 A. L.R. 454.

Footnote 17 Lane v. Vick, 3 How. 464, 476; Barber v. Pittsburg, F.W. & C. Ry. Co., 166 U.S. 83, 99, 100 S., 17 S.Ct. 488; Messinger v. Anderson, 6 Cir., 171 F. 785, 791, 792, reversed on other grounds , 32 S.Ct. 739; Knox & Lewis & Alwood, D.C.S.D.Ga., 228 F. 753.

Footnote 18 Compare, also, Williamson v. Berry, 8 How. 495; Watson v. Tarpley, 18 How. 517; Gelpcke v. City of Dubuque, 1 Wall. 175.

Footnote 19 See Cheever v. Wilson, 9 Wall. 108, 123; Robertson v. Carson, 19 Wall. 94, 106, 107; Morris v. Gilmer, 129 U.S. 315, 328, 9 S.Ct. 289; Dickerman v. Northern Trust Co., 176 U.S. 181, 192, 20 S.Ct. 311; Williamson v. Osenton, 232 U.S. 619, 625, 34 S.Ct. 442.

Footnote 20 See, e.g., Hearings Before a Subcommittee of the Senate Committee on the Judiciary on S. 937, S. 939, and S. 3243, 72d Cong., 1st Sess. ( 1932) 6-8; Hearing Before the House Committee on the Judiciary on H.R. 10594, H.R. 4526, and H.R. 11508, 72d Cong., 1st Sess., ser. 12 (1932) 97- 104; Sen.Rep.No. 530, 72d Cong., 1st Sess. (1932) 4-6; Collier, A Plea Against Jurisdiction Because of Diversity (1913) 76 Cent.L.J. 263, 264, 266; Frankfurter, supra note 6; Ball, supra, note 6; Warren, Corporations and Diversity of Citizenship (1933) 19 Va.L.Rev. 661, 686.

Footnote 21 Thus, bills which would abrogate the doctrine of Swift v. Tyson have been introduced. S. 4333, 70th Cong., 1st Sess.; S. 96, 71st Cong., 1st Sess.; H.R. 8094, 72d Cong., 1st Sess. See, also, Mills, supra, note 4, at 68, 69; Dobie, supra, note 6, at 241; Frankfurter, supra, note 6, at 530; Campbell, supra, note 6, at 811. State statutes on conflicting questions of 'general law' have also been suggested. See Heiskell, supra, note 4, at 760; Dawson, supra, note 6; Dobie, supra, note 6, at 241.

Footnote 22 The doctrine has not been without defenders. See Eliot, The Common Law of the Federal Courts (1902) 36 Am.L.Rev. 498, 523-525; A. B. Parker, The Common Law Jurisdiction of the United States Courts (1907) 17 Yale L.J. 1; Schofield, Swift v. Tyson: Uniformity of Judge-Made State Law in State and Federal Courts (1910) 4 Ill.L.Rev. 533; Brown, The Jurisdiction of the Federal Courts Based on Diversity of Citizenship (1929) 78 U. of Pa.L.Rev. 179, 189-191; J. J. Parker, The Federal Jurisdiction and Recent Attacks Upon It (1932) 18 A.B.A.J. 433, 438; Yntema, The Jurisdiction of the Federal Courts in Controversies Between Citizens of Different States (1933) 19 A.B.A.J. 71, 74, 75; Beutel, Common Law Judicial Technique and the Law of Negotiable Instruments-Two Unfortunate Decisions (1934) 9 Tulane L.Rev. 64.

Footnote 23 Kuhn v. Fairmont Coal Co., , 370-372, 30 S.Ct. 140; Black & White Taxicab, etc., Co. v. Brown & Yellow Taxicab, etc ., Co., 276 U.S. 518, 532-536, 48 S.Ct. 404, 408, 409, 57 A. L.R. 426.

Footnote 24 Tompkins also contended that the alleged rule of the Falchetti Case is not in any event applicable here because he was struck at the intersection of the longitudinal pathway and a transverse crossing. The court below found it unnecessary to consider this contention, and we leave the question open.

[Footnote 1] Mr. Justice Field Filed a dissenting opinion, several sentences of which are quoted in the decision just announced. The dissent failed to impress any of his associates. It assumes that adherence to section 34 as construed involves a supervision over legislative or judicial action of the states. There is no foundation for that suggestion. Clearly, the dissent of the learned Justice rests upon misapprehension of the rule. He joined in applying the doctrine for more than a quarter of a century before his dissent. The reports do not disclose that he objected to it in any later case. Cf. Oakes v. Mase, 165 U.S. 363, 17 S.Ct. 345.

[Footnote 2] In Salem Co. v. Manufacturers' Co., 264 U.S. 182, at page 200, 44 S. Ct. 266, 271, 31 A.L.R. 867, Mr. Justice Holmes and Mr. Justice Brandeis concurred in the judgment of the Court upon a question of general law on the ground that the rights of the parties were governed by state law.