State Bar of Wisconsin

Imperia in Imperiis:
Law and Railroads in Wisconsin, 1847-1910

Railroads had as large an impact on Wisconsin law, especially in administrative and tort law, as they did on other aspects of Wisconsin life in the late 19th century.

by Joseph A. Ranney

In 1847, when the first Wisconsin railroad was chartered,¹ the southern half of the state was a primitive agricultural area connected by a tenuous system of dirt roads and waterways; the northern half was wilderness. By 1860 Wisconsin had 905 miles of track; 2,950 miles by 1880 and 6,592 miles by 1900. The railroads quite literally transformed Wisconsin. They provided reliable all-weather transportation to every part of the state. They made Wisconsin's cities and rural areas interdependent, and they enabled Wisconsin to move from a frontier subsistence economy to a diversified agricultural and industrial economy. Railroads and related businesses provided employment for about 6 percent of the state's workforce, second only to the lumber industry, and they were part of the daily life of virtually everyone in the state.²

Railroads had as large an impact on Wisconsin law as they did on other aspects of Wisconsin life in the late 19th century. They were so new, their development was so rapid, and their importance was so great that it took a long time for both public opinion and the law to come to terms with them.³ The heyday of the railroads made a permanent impact on Wisconsin law, particularly in the areas of administrative law and tort law.

The wide open years, 1847-1872

During the first quarter century of the railroad era, the interaction between Wisconsin railroads and the law was plagued by three major problems: ignorance of how radically railroads differed from any business entity that had preceded them; a major political scandal; and a deep-rooted reluctance to involve government in the state's economic development.

The slow evolution of railroad incorporation law. Wisconsin's ability to adjust to the railroad age was hampered at first by the state's Jacksonian sentiments, which included a distrust of large organizations of any sort. The state constitution permitted the Legislature to enact general incorporation laws, but did not require it to do so.⁴ For many years legislators believed that enacting a general incorporation law would allow corporations to dominate the state. They believed that they could best control railroads by granting individual charters. A general railroad incorporation law was not enacted until 1872.⁵

Regrettably, the individual charter system proved to be more conducive to confusion than to control. Scores of railroads were chartered between 1847 and 1872. Many of the railroads never existed except on paper. Many of the railroad charters were copied verbatim from charters for eastern railroads and English canal companies, with little thought for the fact that building a transportation system in a large, sparsely settled frontier state would pose much different challenges than building such systems in compact, thickly settled regions.⁶ The Legislature made no effort to use its charter powers to coordinate and systematize railroad building. It did little or nothing to ensure that the railroads it chartered would operate on a sound financial basis or that potential railroad investors would get enough information to make intelligent investment decisions.

In fairness, the Legislature should not be blamed too much for these failures. In the mid-19th century, corporation law was in its infancy everywhere, not just in Wisconsin. The ideas that corporate directors owe fiduciary duties to investors and that railroads are quasi-public in nature, so that they require closer regulations than other corporations, had not yet taken hold.⁷ It took many years for the Legislature, the courts and the public to appreciate that railroads were truly unlike any business entity the world had seen before, and that much energy would have to be devoted to adapting Wisconsin law to fit the railroad era.⁸

The 1857 land grant scandal. In 1856 Wisconsin received its first federal railroad land grant from Congress. The federal land grant system provided that when the state selected a railroad to develop a line along a route specified by Congress, that railroad would receive alternate sections of public land in a strip extending six miles along either side of the route. The land would be granted to the railroad in installments as the state certified that successive portions of the road were completed; in the meantime, the railroad could obtain financing on the strength of the grant.⁹

A fierce struggle for the 1856 land grant took place between Byron Kilbourn's La Crosse & Milwaukee Railroad and several competing companies. The La Crosse & Milwaukee won, but shortly afterwards it came out that Kilbourn had engaged in wholesale bribery to win the grant. A special committee of the 1858 Legislature, chaired by Assemblyman James Knowlton of Janesville, discovered that Governor Coles Bashford had received $50,000 worth of La Crosse & Milwaukee stock; supreme court Justice Abram Smith had received $10,000 and other state officials and more than half the members of the 1857 Legislature had received lesser amounts of stock.¹⁰ The 1858 Legislature rescinded the La Crosse & Milwaukee grant and enacted stringent lobbying restrictions and reporting requirements for railroads, but the damage was done. Wisconsin's reputation was damaged throughout the United States, making it more difficult for state railroads to secure outside capital, and it was many years before the state was able to use the 1856 land grant effectively to finance its railroad system.¹¹

The farm mortgage leagues and the perils of railroad financing. Another Jacksonian feature of the Wisconsin Constitution was Article VIII, section 10, which prohibited the state from financing or supporting public improvements of any sort. Because state aid was not available, early railroads had to look to private investors and municipalities for the huge sums of capital they needed to build and operate their lines.¹² The Milwaukee & Mississippi Railroad developed the device, copied by many other railroads, of issuing stock in return for municipal bonds or individual promissory notes that were secured by mortgages.¹³ A large portion of the notes and mortgages passed into the hands of eastern financiers.¹⁴

The depression of 1857 forced every railroad in Wisconsin into bankruptcy. Most farmers who had purchased railroad stock had relied on railroad dividends to pay their promissory notes; when the dividends dried up, the easterners who held the notes foreclosed on thousands of farms throughout Wisconsin. Farm mortgage leagues were formed to resist the foreclosure threat, and they became a force in state politics. Between 1857 and 1868 the Legislature passed a series of laws giving farm debtors various substantive and procedural defenses in foreclosure actions; however, the Wisconsin Supreme Court struck down all of the laws, in most cases because they impaired the obligation-of-contracts clause of the U.S. Constitution. Throughout the 1860s the leagues tried to defeat the supreme court justices at the polls and obtain a more sympathetic court, but they failed narrowly at each election.¹⁵

Despite the depression, the land grant scandal and the Legislature's failure to adequately control railroad chartering and financing, the demands of a growing economy and the sheer economic advantages of rail transport over rivers and plank roads kept Wisconsin's rail system growing. Most railroads kept operating through receiverships. Much of the Wisconsin federal district court's caseload consisted of administering the receiverships. Receiver appointments often triggered fierce struggles between rival factions of investors and creditors of the bankrupt railroads, and the court frequently was criticized for appointing receivers without evaluating competing applications closely enough. Receivership proceedings often involved protracted, complex litigation over the relative rights of creditors to the railroads' assets and land grant rights; several Wisconsin receivership cases went to the U.S. Supreme Court.¹⁶

In the late 1860s a consolidation process began. By 1880 the Chicago & Northwestern Railroad and the Chicago, Milwaukee & St. Paul Railroad (Milwaukee Road) between them controlled most of Wisconsin's railroad mileage and had put railroading on a sounder financial basis.¹⁷ However, the troubles of the 1850s and the trend to consolidation contributed to a growing public unease over railroads. Wisconsin shippers and passengers had a long memory for the land grant scandal and they grew increasingly irritated with railroad freight and passenger rate schedules, which were complex and often appeared discriminatory. By the early 1870s this unease and irritation had grown into a general conviction that the time had come for systematic regulation of the railroads.¹⁸

The Granger movement and its aftermath, 1872-1910

The first effort to systematically regulate the railroads came in 1865 and 1866, when bills were introduced in the Legislature to create a state railroad commission with rate-making powers.¹⁹ In 1874 the constitution was amended to provide that a municipality could obligate itself to railroad subscriptions for no more than five percent of the value of the property within its limits.²⁰

In the 1873 state elections, a coalition of Democrats and reform Republicans elected William Taylor governor and took control of the Legislature. The coalition was not as rabidly anti-business as it often has been painted; in fact, it actually enjoyed mild support from the Milwaukee Road, which usually supported the Democratic Party and viewed Taylor's predecessor, Cadwallader Washburn, as no friend of the railroads.²¹ However, rate regulation was a centerpiece of the coalition's platform and in 1874 it enacted the Potter Law, named after state senator Robert Potter of Waupaca. The law created a three-member commission that had power to set schedules of maximum railroad freight rates between points within Wisconsin. The Legislature rejected a demand that the commission be given the power to establish rates from scratch rather than merely to put a ceiling on them.²²

The railroads challenged the Potter Law almost immediately on the ground that it changed the terms of their charters and thus constituted an unconstitutional impairment of contract. John C. Spooner, who was to become a three-term U.S. Senator and perhaps Wiconsin's greatest railroad lawyer, persuaded a state circuit court to hold the law unconstitutional.²³ However, the law was upheld in two cases brought in the Wisconsin federal courts,²⁴ and in 1874 the Wisconsin Supreme Court upheld the law in Attorney General v. Chicago & Northwestern R.R. Co.²⁵

The court, in an opinion by Chief Justice Edward Ryan, pointed out that Article XI, section 1 of the Wisconsin Constitution reserved to the Legislature the right to amend corporate charters at any time. The court held that this provision gave the Legislature broad power over the railroads, short of destroying their essential identity, and that the Potter Law constituted an amendment of every railroad charter in the state. Ryan expressed concern that law in general was not changing to keep pace with the growth of the railroads and other technological changes in society. He noted that "the difficulty arises probably from applying old names to new things; applying the ancient definition of private corporations to corporations of a character unknown when the definition arose," and that it was essential for the state to preserve its right to control "great corporations [which were] independent powers within the states, a sort of imperia in imperiis, baffling state order, state economy, state policy."²⁶

The reformers' triumph was short-lived. At the 1875 election the coalition and Governor Taylor were defeated. The next year, the Legislature replaced the Potter Law with the Vance Law, which stripped the railroad commission of its regulatory powers. The Vance Law required rates to be "reasonable," but did not create any mechanism by which the state could enforce this provision. It made the railroad commission little more than an agency for collecting statistics and information.²⁷

The next 15 years constituted "a period of relatively unspectacular growth and development" of the railroads in Wisconsin.²⁸ However, Congress's creation of the Interstate Commerce Commission in 1887 triggered a new wave of efforts to form state railroad commissions throughout the United States. During the 1890s a new rate regulation movement arose in Wisconsin. It was led by Albert Hall, an assemblyman from Dunn County, who devoted his life to the study of railroad management, and by Edward P. Bacon of the Milwaukee Chamber of Commerce, who represented the growing concern of many large shippers in Wisconsin that rate discrimination was affecting them as well as small shippers.²⁹ Railroad supporters in the Legislature staved off rate regulation by invoking the Potter Law as a bogeyman, but after Robert LaFollette became governor in 1900 the pressure for regulation grew difficult to resist.³⁰

LaFollette did not make rate regulation a top priority in his first term, but immediately after his reelection in 1902 he urged that a new railroad commission be established with the power not just to void unreasonable rates but to set rates on its own initiative. LaFollette's efforts to push such a bill through the 1903 Legislature failed, mainly because he had not made rate reform an issue in the 1902 campaign and the Legislature was unsure if the public as a whole felt strongly about rate reform.³¹ Stung by this setback, LaFollette made railroad regulation a top priority. He put the Vance Law to good use, relying heavily on statistics collected since the 1870s by the old railroad commission to buttress his argument that the current rate system was discriminatory and that a more powerful commission was needed.³²

LaFollette's reelection in 1904 put an end to any chance that rate regulation could be avoided further. The railroads recognized this and responded by organizing a vigorous campaign to make the new commission more of a judicial than a legislative body-that is, one that would have power to adjust individual rates upon receiving specific complaints from shippers but would not have power to set rates on its own initiative. This strategy was successful.³³ The railroads' position was further strengthened when the state senate rejected LaFollette's choice of Nils Haugen, an ardent reformer, to head the commission. LaFollette then appointed John Barnes, a Rhinelander railroad lawyer, in Haugen's place.³⁴

Barnes and the other new commissioners interpreted the new commission's powers very narrowly and were reluctant to use those powers to take any active role in systematically regulating railroad rates. In 1907 the commission was urged to reduce passenger fares from 3 cents to 2 cents per mile, in line with a nationwide movement toward that goal. After leisurely study, the commission reduced the rate to 2-1/2 cents. A disgusted Legislature overrode the commission and passed a statute reducing the rate to 2 cents; Barnes then resigned in protest and shortly thereafter successfully ran for election to the state supreme court. By now, the railroads had become firm supporters of the commission.³⁵ The railroad commission eventually became the Wisconsin Public Service Commission, and its constitution as a judicial, reactive body rather than a legislative, proactive body has continued to this day.³⁶

The railroads and Wisconsin tort law

The advent of railroads had little effect on contract law in Wisconsin. A large number of contract disputes involving railroads came before the Wisconsin Supreme Court in the late 19th century, but "when [the court] decided the cases that came before it in monotonous profusion, it merely reasserted principles of law laid down during the formative period."³⁷

Such was not the case with tort law. Wisconsin's transition to a society in which machines were a pervasive part of everyday life led to a dramatic increase in the number of personal injuries with which society had to deal and in the nature of those injuries. Railroads played a prominent role in creating the age of the machine and in influencing the early development of modern tort law in Wisconsin.³⁸

Like the public's attitude toward railroads, the law's attitude toward railroad tort liability was ambivalent. The courts generally guided the development of tort law so as to encourage business growth, in line with the general sentiment of mid-19th century Americans that their mission was to conquer the wilderness and replace it with a comprehensive network of commerce and civilization for the good of all. Wisconsin, like other jurisdictions, tried to achieve this mainly through three separate doctrines: contributory negligence, assumption of risk and the fellow-servant doctrine.³⁹ But in Wisconsin as elsewhere, "the law of torts was never quite so harsh and unyielding as its rules may have made it appear. Almost from the very first, juries, judges, and legislatures took away with their left hand what had been built up with their right."⁴⁰

The Wisconsin Supreme Court first articulated the rule of contributory negligence in Chamberlain v. Milwaukee & Mississippi R.R. Co. (1858).⁴¹ The rule stated that a plaintiff could not recover damages if he or she had been negligent in any way and that negligence had contributed to the injury, regardless of how negligent the railroad might have been. Under the rule of assumption of risk, which the supreme court first addressed in Stucke v. Milwaukee & Mississippi R.R. Co. (1859),⁴² if a plaintiff knew or should have known of the danger inherent in a situation before becoming involved in it, the railroad was not liable even if its negligence had contributed to the situation and the plaintiff had not acted negligently.⁴³

The fellow-servant doctrine stated that railroads were not liable for injuries to their employees that were caused by the negligence of a fellow employee: in other words, the railroad was not to be held vicariously liable for the fellow employee's negligence. The doctrine was first articulated in England in 1837. The first American state to adopt it was Massachusetts in 1842 and it quickly won almost universal acceptance.⁴⁴

Wisconsin, however, had prolonged misgivings about the doctrine. In 1858 the Wisconsin Supreme Court discussed the doctrine for the first time in Chamberlain, with approval.⁴⁵ But when Chamberlain came up again on appeal in 1860, the court stated that it had not decided the validity of the doctrine in its first decision. In an eloquent opinion, Justice Byron Paine demolished the rationale adopted by most courts that the rules would protect railroad passengers by promoting safety consciousness on part of railroad employees. Paine pointed out that in fact, the rule would leave safety-conscious employees no practical remedy for injuries caused by careless employees, and would give railroads no incentive to weed out careless employees. Furthermore, he saw no reason why railroads should owe less of a duty to their employees than to their passengers.⁴⁶ A year later, the court reversed itself again in Moseley v. Chamberlain (1861). Paine held fast to his position, but Justice Orsamus Cole denied that he had meant to vote on the fellow-servant doctrine in the second Chamberlain decision. The third justice, Luther Dixon, noted that all states except Wisconsin had now adopted the doctrine, and he stated candidly that "I recede more from that deference and respect which is always due to the enlightened and well-considered opinions of others, than from any actual change in my own views."⁴⁷

The Legislature also had extensive doubts about the fellow-servant doctrine. It repealed the doctrine in 1875, reenacted it in 1880, and passed a law creating numerous exceptions to it in 1889.⁴⁸ In Ditberner v. Chicago, Milwaukee & St, P. R.R. Co. (1879),⁴⁹ the supreme court upheld the Legislature's right to abolish or modify the doctrine. Repeating its line of reasoning in the Potter Law case, the court held that any modification of the common law as it applied to corporations constituted a modification of the corporation's charter as permitted by Article XI, section 1 of the Wisconsin Constitution.

Joseph A. Ranney, Yale 1978, is a trial lawyer with DeWitt Ross & Stevens S.C., Madison. He is the author of several articles on legal and historical topics.

Case reports of the mid- and late 19th century suggest that juries were just as ambivalent about these rules as the supreme court and the Legislature. Juries were reluctant to find contributory negligence, assumption of risk or negligence of a fellow employee except in cases where the plaintiff's culpability far exceeded that of the railroad. Contributory negligence and assumption of risk functioned as tools judges could use to overturn verdicts that they felt were motivated purely by emotion and flew in the face of the facts, but both the trial courts and the supreme court used these tools very sparingly indeed.⁵⁰

Conclusion

During the late 19th century Wisconsin's Legislature and courts were slow and erratic in modifying the law to accommodate the great new institution of the age, the railroads. The easy explanation for this is that the railroads went from nonexistence to a preeminent position in Wisconsin's society and economy within a 30-year period. However, the events recounted in this article suggest that there was another, more important reason. In essence, the people of Wisconsin asked the law to perform a very difficult task: to reconcile their occasional anxiety and resentment over railroads and rail rates with their day-to-day need of the railroads and their deeply held belief that the country could best be developed by giving the railroads as free a hand as possible, rather than having the Legislature and the courts actively control them.

The courts met the task by articulating tort rules that honored the ideal of free development and by counterbalancing those rules with narrow construction and strong deference to jury decisions. The Legislature generally shied away from systematic regulation and chose to address railroad problems and abuses on an ad hoc basis. Its few gestures at comprehensive railroad regulation were failures. The demise of the Potter Law was an embarrassing defeat for the supporters of systematic regulation; the railroad commission law of 1905 also ultimately was a disappointment for them. However, if the way in which the Legislature and the courts struck the balance was a disappointment to reformers, it was probably the balance which not just the railroads but a majority of Wisconsin's citizens preferred.

Photo: State Historical Society of Wisconsin

Endnotes

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¹ R.S. Hunt, Law and Locomotives (Madison, 1958), 4. The first Wisconsin railroad was the Milwaukee & Waukesha Railroad Co., later known as the Milwaukee & Mississippi. The Milwaukee & Waukesha line reached Waukesha in 1851, Madison in 1854, and the Mississippi River at Prairie du Chien in 1857.

² R.N. Current, The History of Wisconsin, Vol. II: The Civil War Era, 1848-1873 (Madison, 1976), 437-45; R. Nesbitt, The History of Wisconsin, Vol. III: Urbanization and Industrialization, 1873-1893 (Madison, 1985), 72, 87-128, 475-77. The railroad mileage statistics are found at Blue Book of the State of Wisconsin, 1881 (Madison, 1881), 432; Blue Book of the State of Wisconsin, 1901 (Madison, 1901), 655; and Blue Book of the State of Wisconsin, 1958, 136. With respect to railroad employment statistics, see J.W. Hurst, Law and Economic Growth: The Legal History of the Lumber Industry in Wisconsin, 1836-1915 (Cambridge, Mass., 1964), 206-08. It is not easy to find reliable employment statistics for the railroad industry and other industries in Wisconsin during the late 19th century. Wisconsin's bureau of labor statistics compiled employment figures from 1884 on, but the figures were compiled irregularly and different reporting categories were used from year to year. The figures do make clear, however, that lumber-related jobs employed the most workers in the state and that railroad-related jobs were second, both well ahead of other categories of jobs. See, e.g., First Biennial Report of the Bureau of Labor Statistics of Wisconsin (Madison, 1884), 36-38; Fourth Biennial Report (1890), 126a; Tenth Biennial Report (1902), 33, 40, 53.

³ See R.S. Hunt, Law and Locomotives (Madison, 1958), 66, 90, 132; S.P. Caine, The Myth of a Progressive Reform: Railroad Regulation in Wisconsin, 1903-1910 (Madison, 1970), 3.

⁴ Wis. Const. art. XI, § 1. For a general discussion of the influence that the Jacksonian movement had on the Wisconsin Constitution, see the first article in this series: Ranney, The Making of the Wisconsin Constitution, 65 Wis. Law. 14, 15-17 (Sept. 1992).

⁵ L. 1872, c. 119; Hunt, Law and Locomotives, 30-31, 138-39.

⁶ Hunt, Law and Locomotives, 29.

⁷ Id. at 35-36.

⁸ On the Wisconsin Supreme Court, probably only justices Byron Paine and Edward Ryan saw early on that new law would have to be made. See Paine's opinion in Whiting v. Sheboygan & Fond du Lac R.R. Co., 25 Wis. 167, 219-20 (1870) (criticizing the idea that municipal aid to railroads was not a "public purpose" so as to allow municipalities to levy taxes to pay holders of municipal railroad bonds), and Ryan's opinion in Attorney General v. Chicago & Northwestern R.R. Co., 35 Wis. 425, 567-68 (1874) (criticizing early 19th century rule that legislative alteration of corporate charter would constitute impairment of contract). Unfortunately, their vision was not matched by their ability to persuade others to see it.

⁹ 11 U.S. Stats. at Large 20 (1856); Hunt, Law and Locomotives at 18; L. Friedman, A History of American Law (New York, 1973), 361.

¹⁰ Hunt, Law and Locomotives, 8-15; K. Duckett, Frontiersman of Fortune: Moses M. Strong of Mineral Point (Madison, 1955), 127-42. In addition to being a prominent legislator and lumber and railroad entrepreneur, Strong was Kilbourn's chief lieutenant and was deeply involved in the land grant scandal.

¹¹ L. 1858, c. 91; Hunt, Law and Locomotives at 116-26; Current, The History of Wisconsin, Vol. II: The Civil War Era, 1848-1873, 243-50.

¹² By contrast, some states actively subsidized railroads and participated in their management. The Pennsylvania Railroad was at one time the state railroad of Pennsylvania. Maryland at one time subsidized the Baltimore & Ohio Railroad and appointed about one-quarter of its directors. Friedman, A History of American Law, 158-60, 169-76.

¹³ In the 1850s almost every town in southern Wisconsin felt that its future depended on getting a rail connection. Many counties and towns obtained permission from the Legislature to issue bonds for railroad construction; in many cases, the bond indebtedness was far higher than the population could ever repay. Most of the individual investors were farmers. Between 1850 and 1857, about 6,000 farmers purchased approximately $6 million of railroad stock. Hunt, Law and Locomotives, 44-48.

¹⁴ Current, The History of Wisconsin, Vol. II: The Civil War Era, 1848-1873, 243-50; Hunt, Law and Locomotives, 44-47.

¹⁵ For a more detailed discussion of the laws the Legislature enacted to try to help debtors and the cases in which the Wisconsin Supreme Court reviewed those laws, see the second article in this series: Ranney, Molders and Shapers of Wisconsin Law: Chief Justices Dixon and Ryan, 66 Wis. Law. 24-27, 51-52 (March 1993). See also J.B. Winslow, The Story of a Great Court (Chicago, 1912), 202-17, 253-59. Despite their losses in the Wisconsin Supreme Court, the debtors gained at least a measure of success in that many creditors chose to settle with them at a discount rather than go through protracted litigation. Hunt, Law and Locomotives, 64.

¹⁶ E.B. Thompson, Matthew Hale Carpenter: Webster of the West (Madison, 1954), 53-61; Hunt, Law and Locomotives, 158. Much of the litigation involved the hapless La Crosse & Milwaukee Railroad. See, e.g., Bronson v. La Crosse & Milwaukee R.R. Co., 1 Wall. 441 (1863) and 2 Wall. 283 (1865), which involved the evaluation of priorities of competing creditors to the railroad's assets.

¹⁷ Hunt, Law and Locomotives, 80; G.H. Miller, Railroads and the Granger Laws (Madison, 1971), 147-49.

¹⁸ Hunt, Law and Locomotives, 80.

¹⁹ Miller, Railroads and the Granger Laws, 147.

²⁰ Wis. Const. art. XI, § 3; Miller, Railroads and the Granger Laws, 140-43.

²¹ Hunt, Law and Locomotives, 99.

²² L. 1874, c. 273.

²³ D.G. Fowler, John Coit Spooner: Defender of Presidents (New York, 1961), 43. The case Spooner won is an unreported 1874 case before the county judge of St. Croix County; it was reversed in In re Langley, 37 Wis. 377 (1875).

²⁴ Bondholders v. Railroad Comm'rs, 3 Fed. Cas. 847, No. 1625 (C.C.W.D. Wis. 1874); Piek v. Chicago & Northwestern R.R. Co., 19 Fed. Cas. 625, No. 11, 138 (C.C.W.D. Wis. 1874), aff'd, 94 U.S. 164 (1876).

²⁵ 35 Wis. 425 (1874).

²⁶ 135 Wis. at 567-68.

²⁷ L. 1876, c. 57; Hunt, Law and Locomotives, 90.

²⁸ Hunt, Law and Locomotives, 131.

²⁹ Caine, The Myth of a Progressive Reform, 11-20.

³⁰ Id. at 10-11, 25-26.

³¹ Id. at 27-48.

³² Id. at 49-69.

³³ L. 1905, c. 362; Caine, The Myth of a Progressive Reform, 77-79, 108-12.

³⁴ Caine, The Myth of a Progressive Reform, 122-129.

³⁵ Id. at 137-45, 175-85; L. 1907, c. 654.

³⁶ Regulation of power companies and other public utilities was added to the Railroad Commission's functions in 1907. L. 1907, c. 183. The commission was renamed the Public Service Commission (PSC) in 1931. L. 1931, c. 183. In 1933 regulation of motor carriers was added to the PSC's duties, and in 1977 the PSC's duties with respect to railroads and motor carriers were transferred to the state Transportation Commission, See 1991-92 Wisconsin Blue Book (Madison, 1991), 372.

³⁷ Hunt, Law and Locomotives, 138.

³⁸ Friedman, A History of American Law, 262. The importance of railroads to the development of tort law is supported by the fact that the number of laws enacted and supreme court cases decided that pertained to railroad-related personal injuries rose rapidly from a total of two during the six-year period 1858-1863, to an average of about two per year from 1865 to 1890. Hunt, Law and Locomotives, 68, 133.

³⁹ Friedman, A History of American Law, 412-14.

⁴⁰ Id. at 264 n.37.

⁴¹ 7 Wis. *425, *430 (1858). Chamberlain is the first case in which the court articulated the rule, but there is no reason to believe that the rule represented a change from prior law. The rule had been developed in England as early as 1809; it was not widely considered by American courts until the 1850s simply because the volume of personal injury litigation had been insignificant before the coming of the railroads. Friedman, A History of American Law, 412; Malone, The Formative Era of Contributory Negligence, 41 Ill. L. Rev. 151 (1946).

⁴² 9 Wis. *202, *208-09.

⁴³ In 1907 the Wisconsin Legislature enacted a comparative negligence law, limited to railroad employees, which provided that an employee could recover from the railroad if the negligence of the railroad or its agents was greater than the employee's negligence. L. 1907, c. 254. In 1913 a provision was added reducing the employee's recovery by the percentage of negligence attributed to the employee. L. 1913, c. 644. In 1931 the Legislature extended these comparative negligence rules to all negligence cases. L. 1931, c. 242. In 1971 the law was amended to provide that a plaintiff could recover from a defendent where both were equally negligent. L. 1971, c. 47.

⁴⁴ The English case is Priestly v. Fowler 3 M & W. 1 (K.B. 1837); the Massachusetts case is Farwell v. Boston & Worcester R.R. Co., 4 Met. (45 Mass.) 49 (1842).

⁴⁵ 7 Wis. at *432.

⁴⁶ Chamberlain v. Milwaukee & Mississippi R.R. Co., 11 Wis. *238, *248-55 (1860).

⁴⁷ 18 Wis. *700, *705 (1861).

⁴⁸ L. 1875, c. 173; L. 1880, c., 232; L. 1889, c. 438 (railroads liable where injury caused by certain fellow employees operating signals, points, blocks or switches).

⁴⁹ 47 Wis. 138 (1879).

⁵⁰ The Wisconsin Supreme Court also indicated in several cases that it would define contributory negligence and assumption of risk narrowly. For example, in Ward & Butterfield v. Milwaukee & St. P. R.R. Co., 29 Wis. 144 (1871), the court defined contributory negligence as "lack of ordinary care" and held that "slight negligence" did not constitute contributory negligence.

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