Dalby Revisited: A New Look at Lincoln's "Most Far-Reaching Case" in the Illinois Supreme Court

By: William D. Beard

William Henry Herndon argued the Dalby case for the firm of Lincoln & Herndon. On April 4, 1857, Joseph A. Dalby and his wife, Sarah, planned to ride the St. Louis, Alton, and Chicago Railroad from Elkhart to Lincoln, in Logan County, Illinois. They hastened to the station, intending to purchase their tickets there. If they bought tickets at the station, they would pay three cents per mile. William Rankin, the station agent, informed the Dalbys that, regrettably, tickets had been in great demand that day, and he was sold out. Dalby, wanting the lowest price, requested and received a memorandum from Rankin documenting his attempt to purchase tickets at the lower fare. Dalby reasoned that the conductor would acknowledge his good intentions and sell him two three-cent-per-mile fares.	1
Dalby and his wife boarded the train and seated themselves near the front of the passenger car. The conductor requested their tickets, and Dalby presented Rankin’s memorandum and gave the conductor money for the lower fare. The conductor threw the note on the floor and said that “it was not worth a damn.”¹ He collected tickets from the other passengers, then returned to Dalby and demanded that he pay the balance. When Dalby refused, the conductor attempted to return his money, but Dalby refused to accept it. Agitated, the conductor warned that he would put Dalby and his wife off the train at the Broadwell stop.² As the train approached [End Page 1] Broadwell, the conductor returned with two brakemen and ordered them to escort the Dalbys off the car. The three men grabbed Dalby and tried to pull him out of the seat. A fight ensued with two men holding Dalby and the third punching him in the face. Mrs. Dalby tried to stop the fight by promising to pay the extra fare, but one of the men demanded fifty cents. The fight continued, and when Dalby tore the jacket of one of the men, the infuriated man yelled he would “tear your hide.”³ Dalby was left badly beaten—his eyes black and swollen, his face bruised, cut, and bleeding. He had suffered enough. He paid the fifty cents, which was more than full fare, and proceeded on to Lincoln aboard the train.	2
Soon thereafter, Dalby retained the law firm of Abraham Lincoln and William H. Herndon in Springfield and attorney Samuel C. Parks in Lincoln, Illinois, to represent him in his case against the St. Louis, Alton, and Chicago Railroad. Dalby had received personal injuries from the beating and sued to collect damages for those injuries. The primary question in the case was who was responsible, or liable, for Dalby’s injuries—the conductor and brakemen, or the railroad company?	3
Significant to Lincoln historiography is the question of who argued the Dalby case at the trial and appellate levels. The prevailing understanding is that Lincoln may have argued the case in circuit court, and did argue it before the Illinois Supreme Court. In fact, Herndon, Lincoln’s third law partner, handled the case from beginning to end.	4
Herndon and Parks filed an action of trespass in the Logan County Circuit Court at the September term in 1857 and sought $10,000 in damages. The Dalbys charged the railroad’s employees with violently beating, kicking, and bruising Sarah Dalby, with holding Joseph Dalby by the arms and hair, which they “plucked, pulled, and tore” in “large quantities,” and striking him “a great many violent blows … about his head, face, and eyes” until he was “bruised, wounded, … lame, bald and disordered.”⁴	5
John Todd Stuart, Lincoln’s first law partner, and Benjamin S. Edwards, attorneys for the railroad, tried to dismiss the case by filing a demurrer stating that the allegations supporting the action of trespass were insufficient in law to maintain the case against the railroad. In nineteenth-century common law pleading, if the facts in the case supported an action at law other than the one that the plaintiff’s lawyer selected, the court would dismiss the case. The [End Page 2] defendant’s attorneys pleaded that Herndon’s and Parks’s facts failed to support an action of trespass and that the proper action was trespass on the case. The line between trespass and trespass on the case was very fine.⁵ Trespass applied to any direct and immediate wrong committed by the defendant against the plaintiff, and trespass on the case applied to an indirect and consequential, or accidental, injury. Judge David Davis, of Illinois’s Eighth Judicial Circuit, overruled the demurrer and ordered the defendant to file his pleas.⁶	6
The railroad first entered a plea of not guilty. Stuart and Edwards then filed two special pleas. The second plea stated that since the Dalbys refused to pay the fare, the conductor, using “no more force than necessary,” was justified by prior law and the company’s charter to remove them from the train. The third plea stated that the railroad’s agents acted in self-defense—the conductor asked the Dalbys to pay the fare; they refused, became belligerent, and “made an assault upon the servants” of the railroad.⁷ Stuart and Edwards tried to prove that the Dalbys were at fault, guilty of contributory negligence, and that the railroad was not liable for injuries since the plaintiff had not shown ordinary care.	7
Exhibit of the ticket purchasing notice used in the Dalby case. [End Page 3]
Herndon and Parks countered by filing a pleading denying the truth of the pleas. The replication stated that the railroad’s servants had not acted properly in attempting to remove the Dalbys from the train, nor had they acted in self-defense. Next, they presented their evidence. First, they introduced the memorandum of William Rankin, the station agent at Elkhart, that Dalby had tried, with all his power, to acquire the lower fare tickets before boarding the train. By proving that he had abided by the company’s rules for purchasing tickets, Dalby hoped to demonstrate that he had taken ordinary care to avoid any injury. Stuart and Edwards objected to Rankin’s memorandum being admitted as evidence, but the court overruled the objection.⁸	8
Both sides called witnesses to testify before the court. The plaintiff’s counsel called William Miller, Charles Greer, Dr. Thomas Fowler, and William Snodgrass, all passengers and witnesses to the altercation, to testify for Dalby. They swore under oath that Dalby had paid the lower fare, yet refused to pay the additional charge. They further testified that the railroad men initiated the assault against which Dalby defended himself. After the beating, Dalby paid the extra fare, though the conductor had by then demanded fifty cents, not twenty cents, as originally requested. Stuart and Edwards called two witnesses for the railroad who were also passengers, J. M. Coddings and O. C. Hoff. Coddings testified that Dalby struck first. Hoff, a railroad fence inspector, also stated that Dalby was responsible for the incident.⁹	9
Stuart and Edwards then presented Judge Davis with their list of nine jury instructions.¹⁰ Davis allowed only the second and [End Page 4] fourth instructions, and gave his own instruction in lieu of the fifth instruction. Davis granted the defense instructions that if the railroad agents willfully and intentionally beat Dalby, using more than the “usual means of enforcing company regulations,” then they, not the railroad company, were responsible for the assault and battery.¹¹ Judge Davis instructed the jury that if the railroad had offered a lower fare ticket for pre-boarding purchase, and that Dalby tried to purchase such tickets but received a memorandum of good intention instead, then he had a right to travel over the railroad at the lower fare. And the conductor had no right to remove him.¹²	10
However, the jury rejected the defense’s argument and found the railroad responsible for the actions of its agents and liable for $1,000 in damages. Stuart and Edwards filed a motion for a new trial citing that the verdict contradicted the evidence and the law, that the court erred in refusing the defendant’s instructions and modifying the fifth instruction, and that the damages were excessive and exorbitant.¹³	11
Before the court ruled on the defendant’s motion for a new trial, Dalby remitted, or sent back to the court, $500 of the damages hoping to avoid a new trial or appeal. Later, Judge Davis overruled the motion for a new trial and granted Stuart and Edwards an appeal to the Illinois Supreme Court on the following errors: in admitting agent Rankin’s memorandum as evidence and in overruling the defendant’s motion to exclude that evidence; in changing the defendant’s jury instructions; in giving the plaintiff’s instruction; in ruling the railroad liable; and in overruling the motion for a new trial.¹⁴ The key issue in the appeal—the significant precedent that the railroad hoped to avoid—was the railroad company’s liability, rather than the agents themselves, for the assault and battery. [End Page 5] The major question in the appeal would be: Was the corporation, as prior law held before the Dalby case, an inanimate body, and thus incapable of receiving or committing an assault?¹⁵	12
Dalby made a good choice when he hired the firm of Lincoln and Herndon to help Parks with the appeal. Parks knew Lincoln well and had argued cases with him, and against him, while traveling the Eighth Judicial Circuit. Parks lacked experience before the Illinois Supreme Court, and the Dalby case presented a question not previously argued before that tribunal. Lincoln and Herndon had appeared before the justices many times, and they had a proven track record as capable appellate attorneys. Indeed, several of their arguments had helped establish important precedents in Illinois law.¹⁶ Preparing and arguing the case on appeal meant much hard work for the lawyers, both for those representing Dalby, and for Stuart and Edwards, who represented the railroad.	13
Following the firm’s usual practice, Herndon conducted the research for the appellate argument. Herndon searched English law, Illinois and other state cases, and legal treatises to find established legal points that would substantiate the strategy behind the Dalby appeal. Herndon’s efforts proved successful, because the supreme court, in a unanimous decision, affirmed the circuit court judgment. Chief Justice John Caton’s opinion closely followed Herndon’s written brief.¹⁷ The “great question in the case,” as Caton wrote in the opinion, was whether a private corporation could become liable for an assault and battery.¹⁸ That question, as all parties in the case recognized, would affect all railroad companies and eventually all corporations throughout the country.	14
Herndon presented seven citations to answer the question positively, citing cases from Vermont, Massachusetts, Florida, and England, as well as the following treatises: Edward L. Pierce’s American Railroad Law, Charles M. Smith’s Master and Servant, and James [End Page 6] Grant’s Corporations.¹⁹ From these citations Herndon concluded that plaintiffs could indeed sue corporations for assault and battery. The Illinois Supreme Court agreed with Herndon’s argument.	15
Stuart and Edwards argued that a corporation could not be sued for assault and battery, and used the previously accepted definition of a corporation to uphold their line of thought. Because a corporation was not a body, or person, it could not be beaten, and since it could not receive bodily harm, it could not inflict injury. Stuart and Edwards based that interpretation on Blackstone and four cases.²⁰ However, the court would accept none such “whimsical notions,” as Caton termed them. He rejected the defense assumption that no corporation could inflict an injury which it could not receive. Caton reasoned that under such distorted reasoning, it might as well “be said that a man cannot commit a rape because he cannot be the subject of one.”²¹	16
The court acknowledged the presence of new legal questions in the Dalby case. The question of responsibility for injuries caused by the recently chartered railroad corporations and their employees was likewise novel. Therefore, the objective of making the railroads truly beneficial to the public good and not an aberration of [End Page 7] uncontrolled power within a democratic-republican society, required regulation. Who then, would regulate them and exercise police power? Caton believed that the courts held such powers and wrote that experience had “enabled our law makers to more accurately judge what powers should be conferred upon a corporation….” Indeed, it had “become the duty of the courts to administer the law as to secure them [corporations] in the full enjoyment of those powers, and to protect the public and individuals against the abuse of those powers.”²²	17
Chief Justice Caton was aware of the great benefits that corporations could offer to the state and nation. Private corporations had existed since ancient times, but only during the past generation had they become so large and powerful as to be “found indispensable to the accomplishment of objects never before thought of, and which so eminently mark the rapidly advancing civilization of the present age.” Indeed, “they have become among the greatest means of state and national prosperity, and without them, that tide of national greatness and public prosperity which distinguishes this above all former times, would be rolled back, if society itself did not become disorganized.”²³	18
Invaluable to the nation, private corporations remained the sole institution available that could amass the financial capital and human energy necessary to accomplish the tasks of a nation determined to realize its manifest destiny. As Caton recognized, corporate growth had experienced a veritable explosion since more private corporations had been “created by our own legislature, at its last session, than existed in the whole civilized world at the commencement of the present century.”²⁴ Realizing the importance of the corporate institution, Caton understood the importance of establishing guidelines. The Illinois legislature had granted extraordinary powers to corporations, and the courts had to administer the law for the full benefit of the corporations while protecting the public against corporate abuse.²⁵	19
Caton’s views of the court’s regulatory power concerning corporations perfectly aligned with Herndon’s strategic approach in the Dalby case. In every case, the lawyer’s task is to find the legal remedy for a set of facts. This process is not especially difficult when known remedies apply to established facts. However, new [End Page 8] situations in developing cultures force the law to change as well if it is to remain a reliable institution of dispute resolution. Caton recognized that “this principle of applying known remedies to the exigencies of new cases as they arise, is one of the great pillars of strength of the common law, without which, it would have fallen and broken to pieces, by its own rigidity, centuries ago.”²⁶ Herndon argued and Caton agreed that this case presented a new fact; the St. Louis, Alton, and Chicago Railroad Company, a corporation, could be liable for assault and battery.	20
A central question remained: What was the proper remedy for the fact? Herndon believed that the action of trespass satisfied the question because the Dalbys suffered direct and immediate injuries from the railroad employees. Hence, the railroad must accept responsibility for the liable actions of its agents. The railroad’s attorneys disagreed and believed that the Dalbys suffered indirect and consequential injuries from the railroad; that any liability lay with the employees, not with the company. Stuart and Edwards hoped to win the appeal by proving that Herndon had filed an action that failed to fit the facts. Conversely, Herndon identified trespass as the proper remedy for suing both the railroad and its servants. Herndon considered it necessary to sue both master and servants under the same action in order to successfully hold the corporation responsible for its agents’ actions. The defense argued that only the agents might be sued if a common action failed to unite the two parties in one case. Herndon cited an 1855 Massachusetts Supreme Court case, Moore v. Fitchburg Railroad Company, to show that “There is no difficulty in joining the corporation with their servant in the same action,” specifically trespass and not trespass on the case.²⁷ Caton agreed with Herndon and cited the Moore case in his opinion.	21
Herndon also presented a second approach to verify trespass as the proper remedy, and again, introduced a new fact. Prior law acknowledged that when a master commanded a servant to perform a lawful act, and the servant performed it in an unlawful way so as to commit an injury, trespass on the case prevailed as the accepted remedy. Stuart and Edwards tried to persuade the court that the Dalby case presented no new facts, that a legal command—to remove the passengers for not paying their fare—preceded the illegal performance of the command. Therefore, the defense argued [End Page 9] to recognize trespass on the case as the proper action and cited an 1855 Illinois railroad case as authority.²⁸ The supreme court would uphold the appeal if it accepted the defense’s argument, thus rejecting Herndon’s contention that Stuart and Edwards were pleading an improper remedy. By maintaining their stand of corporate immunity against charges of assault and battery, the defense argued that the company agents were liable for damages if the supreme court ruled their action unlawful.	22
Herndon believed that trespass was the correct action for an illegal command. Prior law considered trespass the appropriate action if the command itself, and not the mode of performing it, proved unlawful. Thus, Herndon argued that the railroad agents could only lawfully remove the Dalbys if they had refused to pay their fare, but they had not. William Rankin’s testimony and his memorandum to Joseph Dalby proved the point. Since they had tried to purchase tickets by giving money to the conductor, the illegal command to expel them from the train breached the Dalbys’ rights, according to Chief Justice Caton.²⁹	23
Herndon had found a known remedy to a new set of facts: If the railroad offered a lower fare for tickets purchased prior to departing, and the ticket agent ran out of tickets and acknowledged the fact in a written document, then the conductor could not perform the legal act of removing a nonpaying passenger from the train. Herndon had successfully applied a known remedy to a new set of facts, which would be of vast importance in justifying the court’s ability to regulate corporations. The court fully agreed with Herndon and affirmed the lower court judgment.³⁰	24
The court accepted the two main points of Herndon’s argument: that an action of assault and battery could lie against a corporation, and that the legal remedy for suing the corporation for the injuries inflicted by their agents was trespass. The supreme court upheld the appeal and established a precedent regarding corporate liability for assault against persons.	25
Herndon was clearly responsible for preparing the argument in Dalby, but who argued the case before the court? Many Lincoln scholars have believed that Abraham Lincoln handled the case in the Logan Circuit Court, but he did not. Lincoln remained in Chicago for the duration of the federal court case, Hurd v. Rock Island Bridge Company, the famous “Effie Afton” trial, from September 1, [End Page 10] 1857, through September 26, 1857. Samuel C. Parks filed Dalby’s declaration on September 10, and the arguments and the jury’s verdict occurred on Friday, September 25, 1857.³¹	26
The mistaken identity of who argued the Dalby case began in 1911 when Judge Lawrence B. Stringer, in his History of Logan County, Illinois, wrote that Lincoln argued the case in the circuit court. He based his conclusion on the jury instructions he identified as being written by Lincoln; however, trial court judge David Davis clearly wrote the document.³² Stringer’s handwriting error and inference that Lincoln also argued the appeal, and the Illinois Reports‘ publication of “Lincoln & Herndon” as Dalby’s lawyers led numerous historians to believe that Lincoln argued the Dalby case in the Illinois Supreme Court.³³ In 1927, John W. Starr, Jr., in Lincoln and the Railroads, noted that Lincoln “acted as opposing counsel in the famous Dalby case.”³⁴ In 1928, Albert J. Beveridge wrote that Lincoln “stoutly upheld” the jury instructions against the objections of the defense lawyers, and that the “Court sustained Lincoln’s contentions and established rules in such cases which remain the law to this day.” Beveridge concluded that “Lincoln conducted [Dalby] with all his power and exhausted the resources of the Supreme Court Library….”³⁵ Albert A. Woldman, in his 1936 Lawyer Lincoln, cited Stringer, and judged Dalby as “probably the most far-reaching case he (Lincoln) ever argued in the Illinois Supreme Court.”³⁶	27
David Herbert Donald cited Woldman in his 1948 biography of William H. Herndon, writing, “Lincoln made the argument in court, but he based his entire case on Herndon’s elaborate legal research.”³⁷ John J. Duff, in his 1960 work, A. Lincoln, Prairie Lawyer, came closest to discovering that Herndon had delivered the argument, but his vitriolic, almost pathological, attitude against Herndon made the notion “almost beyond belief.”³⁸ Duff first rec- [End Page 11] ognized Stringer’s mistake in identifying the author of the jury instructions. Duff also acknowledged that the supreme court abstract in Dalby contained penciled references to cases and treatises cited in arguments delivered by Benjamin S. Edwards and Herndon.³⁹ Intrigued by the possibility, or impossibility, that Herndon argued the case, Duff wrote Lincoln scholar Harry Pratt and Mrs. Faye I. Searcy, chief clerk of the Illinois Supreme Court, asking them to examine the supreme court records and identify who argued the case. Pratt and Searcy found nothing. Using that negative information, the acerbic Duff concluded that Lincoln, though the evidence provided “a slightly qualified ‘Yes,'” argued the case.⁴⁰ Not content to say only that Lincoln argued the case—Duff had to demolish the idea that Herndon could have. He wrote that “one cannot escape the feeling that the senior partner, with his high sense of responsibility, would not have entrusted the argument of this important appeal to Herndon, to whose defects Lincoln could not have been blind.”⁴¹ Rebuking Herndon’s abilities to create and articulate a cogent argument, Duff commended Lincoln for having a gifted mind that “never rattled or panicked.” He “thought straight and spoke clearly; he did not, like Herndon, traffic in subtleties. How very unlike Lincoln it would have been to have shirked the responsibility of arguing this case of extremely vital importance and abdicated in favor of the sometimes brilliant, but notoriously flighty and erratic Herndon!”⁴²	28
However passionately Duff dismissed the possibility that Herndon argued Dalby before the Illinois Supreme Court, records uncovered by staff members of the Lincoln Legal Papers indicate that Herndon, not Lincoln, prepared and presented the oral argument in Dalby. Nineteenth-century docket books, which listed the cases and lawyers appearing before the supreme court at each of its terms, lay undetected by historians in the basement of the Supreme Court Building in Springfield, Illinois, until September 1988. In the Journal Record for the January term in 1858, dated February 4, 1858, the clerk recorded that Dalby “was argued by Edwards for Plaintiff in Error and W. H. Herndon & Parks for Defendant in Error.”⁴³ [End Page 12]	29
Where was Lincoln? Oddly enough, in the same building, preparing to argue another supreme court case, Sprague v. Illinois River Railroad et al.⁴⁴ The same journal record, on the page following the Herndon-for-Dalby notation, includes the notation that the Sprague “cause was argued by Lincoln for Appellant….”⁴⁵ Why would Lincoln have preferred to argue the apparently insignificant Sprague, leaving his junior partner to argue the notable Dalby appeal? The answer lies, in part, in how lawyers themselves perceived their cases. Lincoln and Herndon viewed both Dalby and Sprague as “winnable” cases. They were in the business of winning cases for their clients, rather than focusing on establishing legal precedents. Herndon had prepared the Dalby argument in both trial and appellate jurisdictions, and Lincoln had argued Sprague since its inception. Of course, Herndon consulted senior partner Lincoln on Dalby; after all, Lincoln’s standing as a “rain maker” brought the Dalby case to the firm in the first place.	30
Lincoln argued the Sprague case on February 4, 1858, because he had been Sprague’s primary attorney from the beginning of the case. It is illogical to think that Lincoln and Herndon would “switch horses in mid-stream”—that Herndon would argue Sprague and Lincoln take over Dalby. It is improbable that Lincoln argued both cases on the same day, especially considering the new supreme court record book evidence. Indeed, if Lincoln doubted Herndon’s competence, he would have had the case continued until a later term of court.	31
Duff’s disapprobation of Herndon’s abilities is misleading; Herndon argued many cases, some of which were quite important, before the Illinois Supreme Court. To doubt Herndon’s legal talents as Duff had is to question Lincoln’s sagacity in selecting him as a partner. Many historians have criticized William Herndon’s personal habits and legal acumen, but not one shred of evidence has been uncovered to prove Lincoln ever doubted or regretted selecting Herndon as his junior partner.	32
Also, Sprague was far from insignificant. At the December 1851 term of the supreme court, Lincoln had won an important case, Barret v. Alton and Sangamon Railroad, involving the predecessor to the St. Louis, Alton, and Chicago Railroad.⁴⁶Barret had established [End Page 13] an important precedent that benefited Illinois railroads’ corporate management. The essential question won in Barret, that only profound alterations in a railroad company’s charter, such as constructing a canal instead of a railroad, would permit stock-subscribers to void their purchase contracts, served as the main point in Sprague. That Charles Sprague retained Lincoln to challenge the Barret case suggests Lincoln’s growing professional status. Sprague appeared to be a “winnable” case to Lincoln, and in the firm’s best interests, Lincoln argued Sprague and Herndon, who had argued the Dalby case in the Logan County Circuit Court, continued with its appeal before the Illinois Supreme Court. Incidentally, Lincoln was unable to beat the Barret precedent and lost the Sprague case.	33
Herndon’s efforts in Dalby yielded a decision that coincides with the modern interpretation that an employer is responsible for intentional injuries inflicted by its employees. During the remaining years of the nineteenth century, however, the conventional interpretation of intentional torts in England and America exempted the employer from liability for the willful wrong doings committed by employees.⁴⁷ Not until the 1930s did the courts begin to hold employers consistently liable for injuries caused by their employees. Many historians have argued that this reasoning demonstrates that the legal and economic elite employed legal principles to facilitate modern market and industrial development, regardless of the often tragic consequences of those doctrines on the working class.⁴⁸ The Dalby message, as expressed by Chief Justice John Caton, sounded a less conspiratorial tone. In a growing republican-democratic society, the costs of accidents should be distributed among the social interests benefiting from the new technology.⁴⁹	34
The development of tort law—a private or civil injury other than a breach of contract—during the nineteenth century has been controversial. Scholars such as Morton J. Horwitz and Lawrence M. Friedman contend that tort law remained immature until after the Civil War. However, Gary Schwartz and Robert J. Kaczorowski, [End Page 14] among others, disagree, and instead agree with Oliver Wendell Holmes, Jr., that the field, and the basis of tort liability—the fault principle, the belief that neglect, lack of prudence, or careless performance caused injury—had been important since the seventeenth century and did not experience a major transformation until after 1865.⁵⁰	35
One case cannot substantiate either the Horwitz or Schwartz school of tort development, but the Dalby case suggests that the concept of the fault principle remained undeveloped in antebellum Illinois law. Clearly, both sides in the case viewed the distinction between the actions of trespass and trespass on the case as procedural. Did the Dalbys sustain direct or indirect injuries? If indirect and consequential, the proper action was trespass on the case; if direct and immediate, trespass prevailed. The lawyers for Dalby and the railroad strove to plead the better case and win on the merits of competent common law pleading, and not on the issue of contributory negligence.⁵¹	36
The Dalby case also suggests the role of judicial activism in promoting and protecting the economic interests of society in general, not just the upper classes, by “encouraging individuals to behave in a reasonable manner, to engage in economic relationships [End Page 15] with honesty and fairness, and use due care in avoiding injuries to others.”⁵² Chief Justice John Caton’s opinion in the case confirmed the high court’s conviction that the law must distribute equitably the costs and benefits of economic expansion.	37
In sum, the Dalby case represented a continuation of the age-old interaction of established law with new social conditions that allowed the common law, as Lincoln stated, to “follow, and conform to, the progress of society.”⁵³ The lawyers involved presented new facts, which arose from the new technological innovation—the railroad—within the existing common law forms of action. Indeed, Lawrence M. Friedman has observed that railroad law and tort law grew up together and were essentially the same.⁵⁴ Accidents associated with the advent of new technology, such as railroads and steamboats, created potentially debilitating costs, and one way to reduce costs in an already capital-scarce economy was to relieve risk-taking entrepreneurs of strict liability for them. Thus, judges developed such doctrines as contributory negligence, the fellow-servant rule, and the assumption of risk to aid the corporations. These legal innovations greatly benefited the railroads and advanced the notion that corporate enterprise should be immune from actions for personal injuries. However, the Illinois Supreme Court in the Dalby case demonstrated that there were limits to their willingness to distribute the costs of accidents away from the railroad corporations.	38
Herndon’s success in the Dalby case also illustrates the establishment of the Lincoln and Herndon firm as a leading practitioner of railroad law. Lincoln had participated in several significant railroad cases before Dalby, including the Barret case, the McLean County tax case, and the litigation involving the steamboat, the Effie Afton. Indeed, Lincoln’s reputation earned by arguing causes for and against the railroads encouraged New York Central Railroad president, Erastus Corning, to offer Lincoln the position of general counsel for the company.⁵⁵ Though Lincoln did not argue the important Dalby case, his success in other railroad litigation and his confidence in Herndon’s abilities ensured that their partnership would benefit financially and professionally from the coming of the iron horse to the Illinois prairies. [End Page 16]	39
Notes^1. Abstract, December Term 1857, St. Louis & Chicago RR v. Dalby case file, Lincoln Legal Papers, 6 (case file hereafter cited as Dalby, LLP). For the quotation in the title, see Albert A. Woldman, Lawyer Lincoln (Boston: Houghton Mifflin, 1936), 164.^2. Section 34 of the General Railroad Incorporation Act granted conductors and the corporations’ servants the right to remove from the cars any passenger refusing to pay his fare or toll “at any usual stopping place the conductor shall select.” Laws of Illinois, 16 G.A., 2 Sess. Nov. 5, 1849, 31.^3. Declaration, September 10, 1857, Dalby, LLP.^4. Copy of Record, December Term 1857, Dalby, LLP, 2–3.^5. Joseph Chitty, A Treatise on Pleading and Parties to Actions, ed. J. C. Perkins, 3 vols. (Springfield, Mass.: G. and C. Merriam, 1844), 1:132–33, 167.^6. Abstract, Dalby, LLP, 1.^7. Ibid., 1–2.^8. Ibid., 9–10, 2.^9. Ibid., 6–10.^10. Stuart and Edwards offered nine jury instructions: 1) That the railroad, as a common carrier, had no obligation to provide tickets for less than four cents per mile, and that the railroad maintained the right to remove non-paying passengers, with no unnecessary force, without becoming liable. 2) The railroad shared no responsibility for assault and battery if the conductor and his assistants willfully and intentionally beat Dalby for not paying the full fare. 3) Agent Rankin’s certificate lacked the authority of a ticket purchased at the station, and the conductor bore no obligation to accept it in lieu of a ticket. 4) That the railroad authorized its servants to use only the usual means in enforcing company regulations, and that the company shared no liability if the servants used unusual, unnecessary, or unjustifiable measures. 5) The railroad shared no responsibility for an intentional or willful assault and battery upon Dalby even if the conductor followed the general orders of the company in putting him off the cars for non-payment. 6) To make the company responsible in any form of action, the jury must be satisfied from the evidence that the assault and battery resulted from the company’s orders, and that the order cannot be implied from any general orders to collect the four-cents-per-mile fare when a ticket was not presented to the conductor, or from the action of removing a non-passenger from the cars. 7) That if the company had been obligated to furnish tickets in their Elkhart office, but that unusual heavy passenger traffic exhausted the supply, then the jury must acknowledge those circumstances as a legal excuse for not giving the Dalbys tickets. 8) That the company was not responsible for Dalby’s failure to procure tickets earlier in the day. 9) That the action of trespass on the case and not trespass applied to the company if judged responsible for failing to supply Dalby with tickets. See jury instructions, Dalby, LLP, and 13 Ill. 353, 355–56.^11. Jury instruction number four, Dalby, LLP.^12. Abstract, Dalby, LLP, 4–5.^13. Ibid., 5.^14.Dalby, 19 Ill. 353, 362 (1857).^15. Ibid., 366.^16. Precedent-setting railroad cases that Lincoln and Herndon won included: Barret v. Alton & Sangamon RR, 13 Ill. 504 (1851); Alton & Sangamon RR v. Carpenter, 14 Ill. 190 (1852); Illinois Central RR v. County of McLean et al., 17 Ill. 290 (1855); State v. Illinois Central RR, 27 Ill. 64 (1861). See Dan W. Bannister, Lincoln and the Illinois Supreme Court (Springfield, Ill.: Dan W. Bannister, 1994), passim.^17. Herndon brief, December Term 1857, Dalby, Herndon-Weik Collection, Library of Congress.^18. 19 Ill. 353, 366 (1857).^19.Jones & Richardson v. Western Vermont RR, Estes v. Same, Richardson v. Same, and Welling v. Same, 27 Vt. 399 (1855); Moore v. Fitchburg RR, 4 Gray (MA) 465 (1855); Edwards v. Union Bank of Florida, 1 Florida 136 (1846); Eastern Counties Railway and Richardson v. Broom, 6 Escheq. (Welsby, Hurlston & Gordon) 314 (1851). Edward L. Pierce, A Treatise on American Railroad Law (New York: J. S. Voorhies, 1857), 232–34, 254; Charles M. Smith, A Treatise on the Law of Master and Servant (London: S. Sweet, 1852), 151–52; and James Grant, A Practical Treatise on the Law of Corporations (Philadelphia: T. & J. W. Johnson, 1854), 278. Pierce’s 1857 treatise was the first American work on the subject.^20. Brief, December Term 1857, Dalby, LLP. William Blackstone, Commentaries on the Laws of England, 4 vols. (Chicago: University of Chicago Press, 1979), 1:464. Orr v. Bank of the United States, 1 Ohio 36 (1821); State v. Great Works Milling & Manufacturing, 20 Maine 44 (1841); Philadelphia, Germantown & Norristown RR v. Wilt, 4 Wharton (PA) 143 (1839); Childs v. Bank of Missouri, 17 Missouri 213 (1852). In his treatise, Isaac F. Redfield acknowledged the novelty of the legal question in the Dalby case by stating that the “extent of the liability of railways for the acts of their servants and agents, both negative and positive, seems not very fully settled in many of its incidents.” Redfield’s treatise also confirmed that Stuart’s and Edwards’s selection of case precedents represented the “old view of the liability of corporations, for the acts of their servants, where the act proves unlawful”—that the servants were liable for damages. Isaac F. Redfield, A Practical Treatise upon the Law of Railways, 2nd ed. (Boston: Little, Brown and Company, 1858), 380 and 383.^21. 19 Ill. 353, 374 (1857).^22. Ibid., 366–67.^23. Ibid., 366.^24. Ibid.^25. Ibid., 367.^26. Ibid.^27.Moore v. Fitchburg RR, 4 Gray (Mass.) 465, 467 (1855).^28. 19 Ill. 353, 375 (1857). Illinois Central RR v. Reedy, 17 Ill. 580 (1855).^29. Ibid.^30. Ibid., 376.^31. Court Record, December Term 1857, Dalby, LLP, 274.^32. Lawrence B. Stringer, History of Logan County, Illinois, 2 vols. (Chicago: Pioneer Publishing, 1911), 1:219, 369.^33. 19 Ill. 353, 362 (1857).^34. John W. Starr, Jr., Lincoln and the Railroads: A Biographical Study (New York: Dodd, Mead & Company, 1927), 83–84, 123–24.^35. Albert J. Beveridge, Abraham Lincoln, 1809–1858, 2 vols. (New York: Houghton Mifflin, 1928), 1:574.^36. Woldman, Lawyer Lincoln, 164.^37. David Herbert Donald, Lincoln’s Herndon (New York: Knopf, 1948), 48. See also Bannister, Lincoln and the Illinois Supreme Court, 90–94.^38. John J. Duff, A. Lincoln: Prairie Lawyer (New York: Rinehart, 1960), 271.^39. Abstract, December Term 1857, Dalby, LLP.^40. Duff, A. Lincoln: Prairie Lawyer, 271. John J. Duff to Harry E. Pratt, 12 July 1958, John J. Duff Papers, Illinois State Historical Library, Springfield, Illinois.^41. Duff, A. Lincoln: Prairie Lawyer, 271.^42. Ibid.^43. Journal Record, Illinois Supreme Court, Second Grand Division, 1855–1864, Illinois State Archives, 148.^44.Sprague v. Illinois River RR et al., 19 Ill. 174 (1857).^45. Journal Record, 1855–1864, 149.^46.Barret v. Alton and Sangamon RR, 13 Ill. 504 (1851). For an analysis of the Barret case, see William D. Beard, “‘I have labored hard to find the law’: Abraham Lincoln for the Alton and Sangamon Railroad,” Illinois Historical Journal 85 (1992): 209–20.^47. F. D. Rose, “Liability for an Employee’s Assaults,” The Modern Law Review 40 (1977): 436.^48. Morton J. Horwitz, The Transformation of American Law, 1780–1860 (Cambridge: Harvard University Press, 1977), 211.^49. Ralph L. Brill, “The Liability of an Employer for the Willful Torts of His Servants,” Chicago-Kent Law Review 45 (1968): 34. The Dalby case was subsequently cited thirty-six times as a precedent. Shepard’s Illinois Citations, Cases, 7th ed., 2 vols. (Colorado Springs: Shepard’s/McGraw-Hill, 1993), 1:114.^50. Horwitz, The Transformation of American Law, 1780–1860, 85–101; Lawrence M. Friedman, A History of American Law, 2nd ed. (New York: Simon & Schuster, 1985), 299–302; Gary T. Schwartz, “The Character of Early American Tort Law,” UCLA Law Review 36 (1989): 641; Schwartz, “Tort Law and the Economy in Nineteenth-Century America: A Reinterpretation,” The Yale Law Journal 90 (1981): 1717–18; Robert J. Kaczorowski, “The Common-Law Background of Nineteenth-Century Tort Law,” Ohio State Law Journal 51 (1990): 1127–28; Oliver W. Holmes, Jr., The Common Law (Cambridge: Harvard University Press, 1963), 63–103. For support of the Horwitz-Fried-man thesis, see Charles O. Gregory, “Trespass to Negligence to Absolute Liability,” Virginia Law Review 37 (1951): 359–97. For support of the Schwartz-Kaczorowski thesis, see Robert L. Rabin, “The Historical Development of the Fault Principle: A Reinterpretation,” Georgia Law Review, 15 (1981): 925–61. See also Alfred S. Konefsky and Andrew J. King, eds., The Papers of Daniel Webster: Legal Papers, 2 vols. (Hanover, N.H.: University Press of New England, 1982), 1:421; Thomas D. Russell, “Historical Study of Personal Injury Litigation: A Comment on Method,” Georgia Journal of Southern Legal History 1 (1991): 109–34; Wex S. Malone, “The Formative Period of Contributory Negligence,” Illinois Law Review 41 (1946): 151–82; and Leon Green, “Illinois Negligence Law,” Illinois Law Review 39 (1944): 36–54, 116–30, 197–215, 40 (1945): 1–28. Green identified Aurora Branch RR v. Grimes, 13 Ill. 585 (1852) as the first common law negligence case reported in the Illinois Supreme Court reports.^51. Horwitz, The Transformation of American Law, 1780–1869, 89–90.^52. Kaczorowski, “The Common-Law Background of Nineteenth-Century Tort Law,” 1199.^53. “Notes of Argument in Law Case,” [June 15, 1858?], in Roy P. Basler, ed., and Marion Dolores Pratt and Lloyd A. Dunlap, asst. eds., The Collected Works of Abraham Lincoln, 8 vols. (New Brunswick: Rutgers University Press, 1953–55), 2:459.^54. Friedman, A History of American Law, 468.^55. Starr, Lincoln and the Railroads, 126–31.

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