Sometimes Even the Best Get it Wrong

In my last post I was discussing how challenging it was to read with a critical eye the legal opinions of some of the most celebrated jurists in American history. What seemed like an impossibility last week (finding flaws in the arguments of geniuses) became reality today. 

In Torts today, we discussed a legal opinion from Oliver Wendell Holmes from 1927. He was in his 80s at the time and was perhaps losing it, but it turned out to be the most bizarre and stunningly incoherent opinion I have read since starting law school. One of the fundamental concepts of torts is determining what is the reasonable standard of care in a given situation. The courts have found that the reasonable standard of care is an issue of fact that should be decided by a jury. But Ollie, perhaps old and cynical at the time, decided that this particular case was one where he didn't need a jury to tell him what reasonable behavior should be, because he thought he had the answer for himself. 

The case involved a man who while in his automobile was hit by a train while driving across railroad tracks. There was no denying the railroad's negligence, but the law of torts states that if the plaintiff was in any way responsible for his injury, there is no liability. Holmes decided as a universal principle that in order for a driver not to be negligent in a case such as this, he had to get out of his car and look both ways down the tracks before driving over them. If the driver failed to do this, he was creating unnecessary risk, and was negligent.  Hmmm.....

The silliness of this opinion was proven by the fact that it was overturned less than 5 years later when Benjamin Cardozo stepped in and corrected the obvious error. Cardozo correctly observed that getting out of the car to look to see if a train was coming clearly would not increase safety, and in fact would make the situation even more dangerous. By the time a driver got out of his car and looked down the tracks, by the time he turned around, got back in his car, started it up again, and began to drive... it was very possible that a train, not visible to the naked eye when the driver originally checked could have come speeding towards the intersection and hit the driver who was now driving across confident that the coast was clear. Cardozo, respectful to his predecessor on the court (ironically Cardozo took Holmes' seat), politely changed the law back to the infinitely more sane policy of letting juries, not judges, decide what is reasonable care.

The moral of the story I guess, is that even sometimes the greats (and Oliver Wendell Holmes is certainly one of if not the greatest) get it wrong on occasion. So, I guess all law students can take some solace in the fact that even the very best legal minds have struggled with this material.