Erie Railroad Co. v. Tompkins, 304 U.S.

64 (1938)
Overview Opinions

Argued: Decided: Argued: Decided:

January 31, 1938 April 25, 1938 January 30, 1938 April 24, 1938

Annotation

PRIMARY HOLDING

Federal courts sitting in diversity jurisdiction generally should apply substantive state law
and federal procedural law.

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Syllabus

U.S. Supreme Court

Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938)

Erie Railroad Co. v. Tompkins

No. 367
:
 Argued January 31, 1938

Decided April 25, 1938

304 U.S. 64

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Opinions

Opinions & Dissents

U.S. Supreme Court

Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938)
Erie Railroad Co. v. Tompkins

No. 367

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.

Page 304 U. S. 65

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

Page 304 U. S. 69

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. Swift v. Tyson, 16 Pet. 1, 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. 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 § 34 to equity cases, in Mason v. United States, 260 U. S.
545, 260 U. S. 559, 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 § 34, [Footnote 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
:
 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. 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]

Criticism of the doctrine became widespread after the decision of Black & White Taxicab Co.
v. Brown & Yellow Taxicab Co., 276 U. S. 518. [Footnote 6] There, Brown and Yellow, a
Kentucky corporation owned by Kentuckians, and the Louisville and Nashville Railroad, also
a Kentucky corporation, wished that the former should have the exclusive privilege of
soliciting passenger and baggage transportation at the Bowling Green, Kentucky, railroad
station, and that the Black and White, a competing Kentucky corporation, should be
prevented from interfering with that privilege. Knowing that such a contract would be void
under the common law of Kentucky, it was arranged that the Brown and Yellow reincorporate
under the law of Tennessee, and that the contract with the railroad should be executed there.
The suit was then brought by the Tennessee corporation in the federal court for western
Kentucky to enjoin competition by the Black and White; an injunction issued by the District
Court

Page 304 U. S. 74

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

Second. Experience in applying the doctrine of Swift v. Tyson had revealed it 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; [Footnote 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]

On the other hand, the mischievous results of the doctrine had become apparent. Diversity of
citizenship jurisdiction was conferred in order to prevent apprehended discrimination in
state courts against those not citizens of the State. Swift v. Tyson introduced grave
discrimination by noncitizens against citizens. It made rights enjoyed under the unwritten
"general law" vary according to whether enforcement was sought in the state
:
 "general law" vary according to whether enforcement was sought in the state

Page 304 U. S. 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.

The discrimination resulting became, in practice, far-reaching. This resulted in part from the
broad province accorded to the so-called "general law" as to which federal courts exercised an
independent judgment. [Footnote 10] In addition to questions of purely commercial law,
"general law" was held to include the obligations under contracts entered into and to be
performed within the State, [Footnote 11] the extent to which a carrier operating within a
State may stipulate for exemption from liability for his own negligence or that of his
employee; [Footnote 12] the liability for torts committed within the State upon person
resident or property located there, even where the question of liability

Page 304 U. S. 76

depended upon the scope of a property right conferred by the State [Footnote 13] and the
right to exemplary or punitive damages. [Footnote 14] Furthermore, state decisions
construing local deeds, [Footnote 15] mineral conveyances, [Footnote 16] and even devises of
real estate [Footnote 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
citizen 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. 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]
:
 urged as reasons for abolishing or limiting diversity of citizenship jurisdiction. [Footnote 20]
Other legislative relief has been proposed. [Footnote 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 unconstitutionality

Page 304 U. S. 78

of the course pursued has now been made clear, and compels us to do so.

Third. 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. 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," be they 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. As stated by Mr.
Justice Field when protesting in Baltimore & Ohio R. Co. v. Baugh, 149 U. S. 368, 149 U. S.
401, against ignoring the Ohio common law of fellow servant liability:

"I am aware that what has been termed the general law of the country -- which is often little
less than what the judge advancing the doctrine thinks at the time should be the general law
on a particular subject -- has been often advanced in judicial opinions of this court to control
a conflicting law of a State. I admit that learned judges have fallen into the habit of repeating
this doctrine as a convenient mode of brushing aside the law of a State in conflict with their
views. And I confess that, moved and governed by the authority of the great names of those
judges, I have, myself, in many instances, unhesitatingly and confidently, but I think now
erroneously, repeated the same doctrine. But, notwithstanding the great names which may be
cited in favor of the doctrine, and notwithstanding the frequency with which the doctrine has
been reiterated, there stands, as a perpetual protest against its repetition, the Constitution of
the United States, which recognizes and preserves the autonomy and independence of the
States -- independence in their legislative and independence

Page 304 U. S. 79

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."
:
 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."

Thus, the doctrine of Swift v. Tyson is, as Mr. Justice Holmes said,

"an unconstitutional assumption of powers by courts of the United States which no lapse of
time or respectable array of opinion should make us hesitate to correct."

In disapproving that doctrine, we do not hold

Page 304 U. S. 80

unconstitutional § 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
:
 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.

Reversed.

MR. JUSTICE CARDOZO took no part in the consideration or decision of this case.

[Footnote 1]

16 Pet. 1 (1842). Leading cases applying the doctrine are collected in Black & White Taxicab
Co. v. Brown & Yellow Taxicab Co., 276 U. S. 518, 276 U. S. 530, 276 U. S. 531. 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, 44 U. S. 477. Dissenting opinions were also
written by Mr. Justice Daniel in Rowan v. Runnels, 5 How. 134, 46 U. S. 140; by Mr. Justice
Nelson in Williamson v. Berry, 8 How. 495, 49 U. S. 550, 49 U. S. 558; by Mr. Justice
Campbell in Pease v. Peck, 18 How. 595, 59 U. S. 599, 59 U. S. 600, and by Mr. Justice Miller
in Gelpcke v. City of Dubuque, 1 Wall. 175, 68 U. S. 207, and Butz v. City of Muscatine, 8
Wall. 575, 75 U. S. 585. Vigorous attack upon the entire doctrine was made by Mr. Justice
Field in Baltimore & Ohio R. Co. v. Baugh, 149 U. S. 368, 149 U. S. 390, and by Mr. Justice
Holmes in Kuhn v. Fairmont Coal Co., 215 U. S. 349, 215 U. S. 370, and in the Taxicab Case,
276 U.S. at 276 U. S. 532.

[Footnote 2]

In Hawkins v. Barney's Lessee, 5 Pet. 457, 30 U. S. 464, it was stated that § 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, 27 U. S. 525. Compare Jackson v.
Chew, 12 Wheat. 153, 25 U. S. 162, 25 U. S. 168; Livingston v. Moore, 7 Pet. 469, 32 U. S.
542.

[Footnote 3]

Pepper, The Border Land of Federal and State Decisions (1889) 57; Gray, The Nature and
Sources of Law (1909 ed.) §§ 533-34; Trickett, Non-Federal Law Administered in Federal
Courts (1906) 40 Am.L.Rev. 819, 821-24.
:
 [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,
341-43; 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, 524-30; 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, 362-64; 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, 68 U. S. 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, 881-86. Moreover, as pointed out by Judge Augustus N. Hand
in Cole v. Pennsylvania R. Co., 43 F.2d 953, 956-57, decisions of this Court on common law
questions are less likely than formerly to promote uniformity.
:
 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 1000 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. Co., 150 U. S. 349; Harrison v. Foley,
206 Fed. 57 (C.C.A. 8); Interstate Realty & Inv. Co. v. Bibb County, 293 Fed. 721 (C.C.A. 5);
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 Co. v. Brown & Yellow Taxicab Co., 276 U. S. 518; Rowan v. Runnels,
5 How. 134, 46 U. S. 139; Boyce v. Tabb, 18 Wall. 546, 85 U. S. 548; Johnson v. Chas. D.
Norton Co., 159 Fed. 361 (C.C.A. 6); Keene Five Cent Sav. Bank v. Reid, 123 Fed. 221 (C.C.A.
8).

[Footnote 12]

Railroad Co. v. Lockwood, 17 Wall. 357, 84 U. S. 367-368; Liverpool & G. W. Stearn Co. v.
Phenix Ins. Co., 129 U. S. 397, 129 U. S. 443; Eels v. St. Louis, K. & N.W. Ry. Co., 52 Fed. 903
(C.C.S.D. Iowa); Fowler v. Pennsylvania R. Co., 229 Fed. 373 (C.C.A. 2).

[Footnote 13]
:
 [Footnote 13]

Chicago v. Robbins, 2 Black 418, 67 U. S. 428. Compare 77 U. S. Milwaukee, 10 Wall. 497, 77

U. S. 506-507; Yeates v. Illinois Cent. R. Co., 137 Fed. 943 (C.C.N.D.Ill.); Curtis v. Cleveland,
C.C. & St. L. Ry. Co., 140 Fed. 777 (C. G. E.D.Ill.). See also Hough v. Railway Co., 100 U. S.
213, 100 U. S. 226; Baltimore & Ohio R. Co. v. Baugh, 149 U. S. 368; Gardner v. Michigan
Cent. R. Co., 150 U. S. 349, 150 U. S. 358; Beutler v. Grand Trunk Junction Ry. Co., 224 U. S.
85; Baltimore & Ohio R. Co. v. Goodman, 275 U. S. 66; Pokora v. Wabash Ry. Co., 292 U. S.
98; Cole v. Pennsylvania R. Co., 43 F. (2d) 953 (C.C.A. 2).

[Footnote 14]

Lake Shore & M. S. Ry. Co. v. Prentice, 147 U. S. 101, 147 U. S. 106; Norfolk & P. Traction Co.
v. Miller, 174 Fed. 607 (C.C.A. 4); Greene v. Keithley, 86 F. (2d) 239 (C.C.A. 8).

[Footnote 15]

Foxcroft v. Mallet, 4 How. 353, 45 U. S. 379; Midland Valley R. Co. v. Sutter, 28 F. (2d) 163
(C.C.A. 8); Midland Valley R. Co. v. Jarvis, 29 F. (2d) 539 (C.C.A. 8).

[Footnote 16]

Kuhn v. Fairmont Coal Co., 215 U. S. 349; Mid-Continent Petroleum Corp. v. Sauder, 67 F.
(2d) 9, 12 (G. C.A. 10), reversed on other grounds, 292 U. S. 272.

[Footnote 17]

Lane v. Vick, 3 How. 464, 44 U. S. 476; Barber v. Pittsburgh, F. W. & C. R. Co., 166 U. S. 83,
166 U. S. 99-100; Messinger v. Anderson, 171 Fed. 785, 791-792 (C.C.A. 6), reversed on other
grounds, 225 U. S. 225 U.S. 436; Knox & Lewis v. Alwood, 228 Fed. 753 (S.D.Ga.).

[Footnote 18]

Compare, also, 49 U. S. Berry, 8 How. 495; Watson v. Tarpley, 18 How. 517; Gelpcke v. City
of Dubuqe, 1 Wall. 175.

[Footnote 19]

See Cheever v. Wilson, 9 Wall. 108, 76 U. S. 123; Robertson v. Carson, 19 Wall. 94, 86 U. S.
106-107; Morris v. Gilmer, 129 U. S. 315, 129 U. S. 328; Dickerman v. Northern Trust Co.,
176 U. S. 181, 176 U. S. 192; Williamson v. Osenton, 232 U. S. 619, 232 U. S. 625.
:
 176 U. S. 181, 176 U. S. 192; Williamson v. Osenton, 232 U. S. 619, 232 U. S. 625.

[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, 523-25; 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, 189-91;
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., 215 U. S. 349, 215 U. S. 370-372; Black & White Taxicab Co. v.
Brown & Yellow Taxicab Co., 276 U. S. 518, 276 U. S. 532-536.

[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.

MR. JUSTICE BUTLER.

The case presented by the evidence is a simple one. Plaintiff was severely injured in
Pennsylvania. While walking on defendant's right of way along a much-used path at the end
of the crossties of its main track, he came into collision with an open door swinging from the
side of a car in a train going in the opposite direction. Having been warned by whistle and
headlight, he saw the locomotive

Page 304 U. S. 81

approaching and had time and space enough to step aside and so avoid danger. To justify his
failure to get out of the way, he says that, upon many other occasions he had safely walked
there while trains passed.

Invoking jurisdiction on the ground of diversity of citizenship, plaintiff, a citizen and resident
of Pennsylvania, brought this suit to recover damages against defendant, a New York
corporation, in the federal court for the southern district of that State. The issues were
whether negligence of defendant was a proximate cause of his injuries and whether
negligence of plaintiff contributed. He claimed that, by hauling the car with the open door,
defendant violated a duty to him. The defendant insisted that it violated no duty and that
plaintiff's injuries were caused by his own negligence. The jury gave him a verdict on which
the trial court entered judgment; the circuit court of appeals affirmed. 90 F (2d) 603.

Defendant maintained, citing Falchetti v. Pennsylvania R. Co., 307 Pa. 203, 160 A. 859, and
Koontz v. B. & O. R. Co., 309 Pa. 122, 163 A. 212, that the only duty owed plaintiff was to
refrain from willfully or wantonly injuring him; it argued that the courts of Pennsylvania had
so ruled with respect to persons using a customary longitudinal path, as distinguished from
one crossing the track. The plaintiff insisted that the Pennsylvania decisions did not establish
the rule for which the defendant contended. Upon that issue, the circuit court of appeals said
(p. 604):

"We need not go into this matter since the defendant concedes that the great weight of
:
 authority in other states is to the contrary. This concession is fatal to its contention, for upon
questions of general law the federal courts are free, in 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.

Page 304 U. S. 82

Upon that basis the court held the evidence sufficient to sustain a finding that plaintiff's
injuries were caused by the negligence of defendant. It also held the question of contributory
negligence one for the jury."

Defendant's petition for writ of certiorari presented two questions: whether its duty toward
plaintiff should have been determined in accordance with the law as found by the highest
court of Pennsylvania, and whether the evidence conclusively showed plaintiff guilty of
contributory negligence. Plaintiff contends that, as always heretofore held by this Court, the
issues of negligence and contributory negligence are to be determined by general law against
which local decisions may not be held conclusive; that defendant relies on a solitary
Pennsylvania case of doubtful applicability and that, even if the decisions of the courts of that
State were deemed controlling, the same result would have to be reached.

No constitutional question was suggested or argued below or here. And as a general rule, this
Court will not consider any question not raised below and presented by the petition. Olson v.
United States, 292 U. S. 246, 292 U. S. 262. Johnson v. Manhattan Ry. Co., 289 U. S. 479,
289 U. S. 494. Gunning v. Cooley, 281 U. S. 90, 281 U. S. 98. Here it does not decide either of
the questions presented but, changing the rule of decision in force since the foundation of the
Government, remands the case to be adjudged according to a standard never before deemed
permissible.

The opinion just announced states that

"the question for decision is whether the oft-challenged doctrine of Swift v. Tyson [1842, 16
Pet. 1] shall now be disapproved."

That case involved the construction of the Judiciary Act of 1789, § 34:

"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
:
 Page 304 U. S. 83

the United States in cases where they apply."

Expressing the view of all the members of the Court, Mr. Justice Story said (p. 18):

"In the ordinary use of language it will hardly be contended that the decisions of Courts
constitute laws. They are, at most, only evidence of what the laws are, and not of themselves
laws. They are often reexamined, reversed, and qualified by the Courts themselves, whenever
they are found to be either defective, or ill-founded, or otherwise incorrect. The laws of a state
are more usually understood to mean the rules and enactments promulgated by the
legislative authority thereof, or long established local customs having the force of laws. In all
the various cases, which have hitherto come before us for decision, this Court have
uniformly supposed that 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 designed 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 instrument, or what is the just
rule furnished by the principles of commercial law to govern the case. And we have not now
the slightest difficulty in holding that this section, upon its true intendment and
construction, is strictly limited to local statutes and local usages of the character

Page 304 U. S. 84

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."
:
 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 2/1] Baltimore & Ohio R. Co. v. Baugh, 149 U. S. 368, 149 U. S. 390. In that
case, Mr. Justice Brewer, speaking for the Court, truly said (p. 149 U. S. 373):

"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."

And since that decision, the division of opinion in this Court has been one of the same
character as it was before. In 1910, Mr. Justice Holmes, speaking for himself and two other
Justices, dissented from the holding that a

Page 304 U. S. 85

court of the United States was bound to exercise its own independent judgment in the
construction of a conveyance made before the state courts had rendered an authoritative
decision as to its meaning and effect. Kuhn v. Fairmont Coal Co., 215 U. S. 349. But that
dissent accepted (p. 215 U. S. 371) as "settled" the doctrine of Swift v. Tyson, and insisted (p.
215 U. S. 372) merely that the case under consideration was, by nature and necessity,
peculiarly local.

Thereafter, as before, the doctrine was constantly applied. [Footnote 2/2] In Black & White
Taxicab Co. v. Brown & Yellow Taxicab Co., 276 U. S. 518, three judges dissented. The writer
of the dissent, Mr. Justice Holmes, said, however (p. 276 U. S. 535):

"I should leave Swift v. Tyson undisturbed, as I indicated in Kuhn v. Fairmont Coal Co., but I
would not allow it to spread the assumed dominion into new fields."

No more unqualified application of the doctrine can be found than in decisions of this Court
speaking through Mr. Justice Holmes. United Zinc Co. v. Britt, 258 U. S. 268. Baltimore &
Ohio R. Co. v. Goodman, 275 U. S. 66, 275 U. S. 70. Without in the slightest departing from
that doctrine, but implicitly applying it, the strictness of the rule laid down in the Goodman
case was somewhat ameliorated by Pokora v. Wabash Ry. Co., 292 U. S. 98.
:
 Whenever possible, consistently with standards sustained by reason and authority
constituting the general law, this Court has followed applicable decisions of state courts.
Mutual Life Ins. Co. v. Johnson, 293 U. S. 335, 293 U. S. 339. See Burgess v. Seligman, 107
U. S. 20, 107 U. S. 34. Black & White Taxicab Co. v. Brown & Yellow Taxicab Co., supra, 276
U. S. 530. Unquestionably the issues of negligence and contributory negligence upon which
decision of this case

Page 304 U. S. 86

depends are questions of general law. Hough v. Railway Co., 100 U. S. 213, 100 U. S. 226.
Lake Shore & M. S. Ry. Co. v. Prentice, 147 U. S. 101. Baltimore & Ohio R. Co. v. Baugh,
supra. Gardner v. Michigan Central R. Co., 150 U. S. 349, 150 U. S. 358. Central Vermont
Ry. Co. v. White, 238 U. S. 507, 238 U. S. 512. Baltimore & Ohio R. Co. v. Goodman, supra.
Pokora v. Wabash Ry. Co., supra.

While amendments to § 34 have from time to time been suggested, the section stands as
originally enacted. Evidently Congress has intended throughout the years that the rule of
decision as construed should continue to govern federal courts in trials at common law. The
opinion just announced suggests that Mr. Warren's research has established that, from the
beginning, this Court has erroneously construed § 34. But that author's "New Light on the
History of the Federal Judiciary Act of 1789" does not purport to be authoritative, and was
intended to be no more than suggestive. The weight to be given to his discovery has never
been discussed at this bar. Nor does the opinion indicate the ground disclosed by the
research. In his dissenting opinion in the Taxicab case, Mr. Justice Holmes referred to Mr.
Warren's work, but failed to persuade the Court that "laws" as used in § 34 included varying
and possibly ill-considered rulings by the courts of a State on questions of common law. See,
e.g., Swift v. Tyson, supra, 117 [argument of counsel -- omitted]. It well may be that, if the
Court should now call for argument of counsel on the basis of Mr. Warren's research, it would
adhere to the construction it has always put upon § 34. Indeed, the opinion in this case so
indicates. For it declares:

"If only a question of statutory construction were involved, we should not be prepared to
abandon a doctrine so widely applied throughout a century. But the unconstitutionality of the
course pursued has now been made clear, and compels us to do so."

This means that, so far as concerns the rule of decision now condemned, the Judiciary Act of
1789, passed to establish judicial
:
 1789, passed to establish judicial

Page 304 U. S. 87

courts to exert the judicial power of the United States, and especially § 34 of that Act as
construed, is unconstitutional; that federal courts are now bound to follow decisions of the
courts of the State in which the controversies arise, and that Congress is powerless otherwise
to ordain. It is hard to foresee the consequences of the radical change so made. Our opinion
in the Taxicab case cites numerous decisions of this Court which serve in part to indicate the
field from which it is now intended forever to bar the federal courts. It extends to all matters
of contracts and torts not positively governed by state enactments. Counsel searching for
precedent and reasoning to disclose common law principles on which to guide clients and
conduct litigation are, by this decision, told that, as to all of these questions, the decisions of
this Court and other federal courts are no longer anywhere authoritative.

This Court has often emphasized its reluctance to consider constitutional questions, and that
legislation will not be held invalid as repugnant to the fundamental law if the case may be
decided upon any other ground. In view of grave consequences liable to result from
erroneous exertion of its power to set aside legislation, the Court should move cautiously,
seek assistance of counsel, act only after ample deliberation, show that the question is before
the Court, that its decision cannot be avoided by construction of the statute assailed or
otherwise, indicate precisely the principle or provision of the Constitution held to have been
transgressed, and fully disclose the reasons and authorities found to warrant the conclusion
of invalidity. These safeguards against the improvident use of the great power to invalidate
legislation are so well grounded and familiar that statement of reasons or citation of authority
to support them is no longer necessary. But see, e.g.: 36 U. S. Warren Bridge, 11 Pet. 420, 36
U. S. 553; Township of Pine Grove v. Talcott, 19 Wall. 666, 86 U. S. 673; Chicago & G. T. Ry.
Co. v. Wellman, 143 U. S. 339, 143 U. S. 345;

Page 304 U. S. 88

Baker v. Grice, 169 U. S. 284, 169 U. S. 292; Martin v. District of Columbia, 205 U. S. 135,
205 U. S. 140.

So far as appears, no litigant has ever challenged the power of Congress to establish the rule
as construed. It has so long endured that its destruction now without appropriate
deliberation cannot be justified. There is nothing in the opinion to suggest that consideration
of any constitutional question is necessary to a decision of the case. By way of reasoning, it
contains nothing that requires the conclusion reached. Admittedly, there is no authority to
:
 contains nothing that requires the conclusion reached. Admittedly, there is no authority to
support that conclusion. Against the protest of those joining in this opinion, the Court
declines to assign the case for reargument. It may not justly be assumed that the labor and
argument of counsel for the parties would not disclose the right conclusion and aid the Court
in the statement of reasons to support it. Indeed, it would have been appropriate to give
Congress opportunity to be heard before divesting it of power to prescribe rules of decision to
be followed in the courts of the United States. See Myers v. United States, 272 U. S. 52, 272
U. S. 176.

The course pursued by the Court in this case is repugnant to the Act of Congress of August
24, 1937, 50 Stat. 751. It declares:

"That whenever the constitutionality of any Act of Congress affecting the public interest is
drawn in question in any court of the United States in any suit or proceeding to which the
United States, or any agency thereof, or any officer or employee thereof, as such officer or
employee, is not a party, the court having jurisdiction of the suit or proceeding shall certify
such fact to the Attorney General. In any such case, the court shall permit the United States
to intervene and become a party for presentation of evidence (if evidence is otherwise
receivable in such suit or proceeding) and argument upon the question of the
constitutionality of such Act. In any such suit or proceeding, the United States shall, subject
to the applicable provisions of law, have all the rights of a

Page 304 U. S. 89

party and the liabilities of a party as to court costs to the extent necessary for a proper
presentation of the facts and law relating to the constitutionality of such Act."

That provision extends to this Court. § 5. If defendant had applied for and obtained the writ
of certiorari upon the claim that, as now held, Congress has no power to prescribe the rule of
decision, § 34 as construed, it would have been the duty of this Court to issue the prescribed
certificate to the Attorney General in order that the United States might intervene and be
heard on the constitutional question. Within the purpose of the statute and its true intent and
meaning, the constitutionality of that measure has been "drawn in question." Congress
intended to give the United States the right to be heard in every case involving
constitutionality of an Act affecting the public interest. In view of the rule that, in the absence
of challenge of constitutionality, statutes will not here be invalidated on that ground, the Act
of August 24, 1937, extends to cases where constitutionality is first "drawn in question" by the
Court. No extraordinary or unusual action by the Court after submission of the cause should
:
 Court. No extraordinary or unusual action by the Court after submission of the cause should
be permitted to frustrate the wholesome purpose of that Act. The duty it imposes ought here
to be willingly assumed. If it were doubtful whether this case is within the scope of the Act,
the Court should give the United States opportunity to intervene and, if so advised, to present
argument on the constitutional question, for undoubtedly it is one of great public importance.
That would be to construe the Act according to its meaning.

The Court's opinion in its first sentence defines the question to be whether the doctrine of
Swift v. Tyson shall now be disapproved; it recites (p. 304 U. S. 72) that Congress is without
power to prescribe rules of decision that have been followed by federal courts as a result of
the construction of § 34 in Swift v. Tyson, and since; after discussion, it declares (pp. 304 U.
S. 77-78) that "the unconstitutionality of the course pursued [meaning the rule of decision

Page 304 U. S. 90

resulting from that construction] compels" abandonment of the doctrine so long applied, and
then near the end of the last page the Court states that it does not hold § 34 unconstitutional,
but merely that, in applying the doctrine of Swift v. Tyson construing it, this Court and the
lower courts have invaded rights which are reserved by the Constitution to the several States.
But, plainly through the form of words employed, the substance of the decision appears; it
strikes down as unconstitutional § 34 as construed by our decisions; it divests the Congress of
power to prescribe rules to be followed by federal courts when deciding questions of general
law. In that broad field it compels this and the lower federal courts to follow decisions of the
courts of a particular State.

I am of opinion that the constitutional validity of the rule need not be considered, because
under the law, as found by the courts of Pennsylvania and generally throughout the country,
it is plain that the evidence required a finding that plaintiff was guilty of negligence that
contributed to cause his injuries and that the judgment below should be reversed upon that
ground.

MR. JUSTICE McREYNOLDS concurs in this opinion.

[Footnote 2/1]

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 § 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
:
 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.

[Footnote 2/2]

In Salem Trust Co. v. Manufacturers' Finance Co., 264 U. S. 182, Mr. Justice Holmes and
Mr. Justice Brandeis concurred (p. 264 U. S. 200) 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.

MR. JUSTICE REED.

I concur in the conclusion reached in this case, in the disapproval of the doctrine of Swift v.
Tyson, and in the reasoning of the majority opinion except insofar as it relies upon the
unconstitutionality of the "course pursued" by the federal courts.

The "doctrine of Swift v. Tyson," as I understand it, is that the words "the laws," as used in §
34, line one, of the Federal Judiciary Act of September 24, 1789, do not include in their
meaning "the decisions of the local tribunals." Mr. Justice Story, in deciding that point, said
(16 Pet. 41 U. S. 19):

Page 304 U. S. 91

"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."

To decide the case now before us and to "disapprove" the doctrine of Swift v. Tyson requires
only that we say that the words "the laws" include in their meaning the decisions of the local
tribunals. As the majority opinion shows, by its reference to Mr. Warren's researches and the
first quotation from Mr. Justice Holmes, that this Court is now of the view that "laws"
includes "decisions," it is unnecessary to go further and declare that the "course pursued" was
"unconstitutional," instead of merely erroneous.

The "unconstitutional" course referred to in the majority opinion is apparently the ruling in
Swift v. Tyson that the supposed omission of Congress to legislate as to the effect of decisions
:
 Swift v. Tyson that the supposed omission of Congress to legislate as to the effect of decisions
leaves federal courts free to interpret general law for themselves. I am not at all sure whether,
in the absence of federal statutory direction, federal courts would be compelled to follow state
decisions. There was sufficient doubt about the matter in 1789 to induce the first Congress to
legislate. No former opinions of this Court have passed upon it. Mr. Justice Holmes evidently
saw nothing "unconstitutional" which required the overruling of Swift v. Tyson, for he said in
the very opinion quoted by the majority, "I should leave Swift v. Tyson undisturbed, as I
indicated in Kuhn v. Fairmont Coal Co., but I would not allow it to spread the assumed
dominion into new fields." Black & White Taxicab Co. v. Brown & Yellow Taxicab Co., 276 U.
S. 518, 276 U. S. 535. If the opinion commits this Court to the position that the Congress is
without power to declare what rules of substantive law shall govern the federal courts, 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 and the "necessary and proper" clause of Article One 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. Burnett v. Coronado Oil & Gas Co., 285 U. S. 393, dissent, p. 285 U. S. 406, note
1. Compare Read v. Bishop of Lincoln, [1892] A.C. 644, 655; London Street Tramways Co. 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.

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 nonacquiescence.

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