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Evidence thus has force beyond any linear scheme of reasoning, and as its pieces come together a narrative gains momentum, with power not only to support conclusions but to sustain the willingness of jurors to draw the inferences, whatever they may be, necessary to reach an honest verdict. This persuasive power of the concrete and particular is often essential to the capacity of jurors to satisfy the obligations that the law places on them. (653)It is almost as if Souter had been reading literary "narratology" (which he may have been, since he appears to be the most erudite and curious of the current justices) and been persuaded by the argument that narrative is a different kind of organization and presentation of experience, a different kind of "language" for speaking the world. In conclusion to this section of his opinion, he writes:
A syllogism is not a story, and a naked proposition in a courtroom may be no match for the robust evidence that would be used to prove it. People who hear stories interrupted by gaps of abstraction may be puzzled at the missing chapters . . . A convincing tale can be told with economy, but when economy becomes a break in the natural sequence of narrative evidence, an assurance that the missing link is really there is never more than second best. (654)Here Souter turns back to the case of Old Chief, to argue that the prosecution's claim of the need to tell the story of the earlier crime is unwarranted because that is another story, it is "entirely outside the natural sequence of what the defendant is charged with thinking and doing to commit the current offense." Old Chief's stipulation does not result in a "gap" in the story, it does not displace "a chapter from a continuous sequence" (655).
Plaintiff was standing on a platform of defendant's railroad after buying a ticket to go to Rockaway Beach. A train stopped at the station, bound for another place. Two men ran forward to catch it. One of the men reached the platform of the car without mishap, though the train was already moving. The other man, carrying a package, jumped aboard the car, but seemed unsteady as if about to fall. A guard on the car, who had held the door open, reached forward to help him in, and another guard on the platform pushed him from behind. In this act, the package was dislodged, and fell upon the rails. It was a package of small size, about fifteen inches long, and was covered by a newspaper. In fact, it contained fireworks, but there was nothing in its appearance to give notice of its contents. The fireworks when they fell exploded. The shock of the explosion threw down some scales at the other end of the platform, many feet away. The scales struck the plaintiff, causing injuries for which she sues. (340-41)Legal commentators for decades clucked admiringly over the laconic clarity of Cardozo's presentation here. More recently, Judge John Noonan has pointed to some of the relevant ancillary facts we don't get, such as the nature of Helen Palsgraf's injuries, her income and family status, the financial resources of the Long Island Railroad, the number of injuries annually resulting from railway accidents, and so forth: facts that would tend to go into a modern torts settlement. But what interests me here is less those other facts than how the admirable concision of Cardozo's narrative of the accident controls that very narrative, limiting its reach as a story, keeping it within well-policed boundaries.
The conduct of the defendant's guard, if a wrong in its relation to the holder of the package, was not a wrong in its relation to the plaintiff, standing far away. Relatively to her it was not negligence at all. Nothing in the situation gave notice that the falling package had in it the potency of peril to persons thus removed. (341)The alliteration of this sentence gives it a kind of conclusive panache. After running through a brisk series of hypothetical narratives intended to show that "prevision so extravagant" as to include the remote consequences of acts cannot be a basis for a ruling in favor of the plaintiff, Cardozo writes, "Negligence, like risk, is thus a term of relation" (345). It has to do with a relation of a legal duty of care and foreseeable harm, which Cardozo cannot find here. His concise narrative of the incident on the railway platform is an antinarrative in that it seeks precisely to destroy relation, to show that certain linkages of cause and effect are "extravagant."
A chauffeur negligently collides with another car which is filled with dynamite, although he could not know it. An explosion follows. A, walking on the sidewalk nearby, is killed. B, sitting in a window of a building opposite, is cut by flying glass. C, likewise sitting in a window a block away, is similarly injured. And a further illustration. A nursemaid, ten blocks away, startled by the noise, involuntarily drops a baby from her arms to the walk. We are told that that C may not recover while A may. As to B, it is a question for court or jury. We will all agree that the baby might not. (353)In fact, says Andrews, there are no fixed rules to guide us here. "It is all a question of expediency" (354). The best guide he can offer is: "The court must ask itself whether there was a natural and continuous sequence between cause and effect."
Excerpted from Law'S Madness by Martha Merrill Umphrey Copyright © 2003 by Martha Merrill Umphrey. Excerpted by permission.
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