King v. Davis

• Decision Date: 03 March 1924
• Docket Number: 3994.
• Citation: 296 F. 986
• Parties: KING v. DAVIS, Agent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

296 F. 986

KING v. DAVIS, Agent.

No. 3994.

United States Court of Appeals, District of Columbia.

March 3, 1924

Submitted February 5, 1924.

Appeal from the Supreme Court of the District of Columbia.

Robert H. McNeill, of Washington, D.C., for appellant.

Frederick D. McKenney, John S. Flannery, and G. Bowdoin Craighill, all of Washington, D.C., for appellee.

Before SMYTH, Chief Justice, and ROBB and VAN ORSDEL, Associate justices.

SMYTH Chief Justice.

This is an action in tort to recover damages from James C. Davis statutory agent of the United States, designated as such by the President in pursuance of the act of Congress approved February 28, 1920 (41 Stat. 461 (Comp. St. Ann. Supp. 1923 Sec. 10071 1/4cc)), for injuries which the plaintiff, Dora Bristow King, claims she sustained while a passenger on one of the trains of the Pennsylvania Railroad Company running between Washington and New York. At the close of plaintiff's testimony the trial court sustained a motion to peremptorily instruct the jury to return a verdict in favor of the defendant, and the plaintiff appeals.

In her declaration Mrs. King averred that she, accompanied by her husband, on December 30, 1919, entered a dining car of the train on which she was traveling, and which was operated by the railroad company under the management of Davis, in response to a call made by the servants of the company, for the purpose of obtaining her luncheon. Different items of food, among them veal, were served to, and eaten by, them. The veal, she said, was corrupt and unfit for human consumption, and after eating it she became nauseated and violently ill from ptomaine poisoning, caused by the meat. She alleged that the company, through its servants, knew, or should have known by the exercise of reasonable care, that the veal at the time it was served was unfit for human consumption, but that, notwithstanding this, they intentionally and unlawfully served it, to the injury of the plaintiff, as just stated, and she asked for damages.

In passing on the motion for a directed verdict the learned justice went into the matter with great care. From his written opinion we learn that the sustained the motion on the ground that there was no proof that the defendant knew the food furnished to be tainted or unwholesome, and that to hold the defendant liable on the theory that it, by the exercise of ordinary care and prudence, could have discovered its condition before serving it, would be equivalent to saying that 'the defendant was an insurer of the wholesome character of the food furnished.'

We cannot agree to the proposition that to hold the defendant negligent, if by the exercise of reasonable care it should have known the condition of the meat, would make it an insurer of the character of the food supplied. If the defendant knew that the meat was contaminated, we think no one would say that it should not be held responsible for the consequent damages; but its failure to know does not excuse it, if the failure was due to want of reasonable care in ascertaining the truth. A person may be held, not only for what he knows, but also for what he would have known if he had exercised reasonable care in the premises. Market Co. v. Clagett, 19 App.D.C. 12, 26; Brown v. Savings Bank, 67 N.H. 54, 39 A. 336, 68 Am.St.Rep. 700; Patterson v. Jos. Schlitz Brewing Co., 16 S.D. 33, 91 N.W. 336. To hold the railroad company liable on the basis that it was negligent in not knowing the condition of the veal would not make it an insurer of its dining room patrons against tainted food. If by the exercise of reasonable care it could not have discovered that the meat was unwholesome, it would not be responsible. There is a wide difference between charging a defendant as an insurer and charging him on the score of his negligence.

Plaintiff called as a witness Dr. Ashworth, who stated that he had conducted a sanatorium for 18 years, and that it was a part of his responsibility and duty to purchase the foods and meats served there; that he had a large, roomy refrigerator for caring for the meat; and that he had made a study of the care, preservation, and service of foods, especially meats. He said he had heard the testimony of Mrs. King and her husband with respect to their having eaten the veal in the dining car, and he was then asked whether or not, based on his experience, 'it would have been reasonably easy to ascertain, by one experienced in that class of service, whether or not this particular meat at the time it was served * * * was in a fresh or tainted condition. ' Objection was made to the question on the ground that the witness had not qualified himself to answer it, and, besides, that it was something the jury knew as much about as the witness. The court sustained the objection. We think the witness had shown himself competent. If the matter was not a subject for expert testimony, because no special experience was necessary in order to judge correctly of it, then it was for the jury to say whether, from the facts disclosed, the railroad company was negligent in serving the food, and it was error to take the matter from the jury.

We recognize the rule that expert testimony is permissible only where the thing to which it relates is so far removed from ordinary human experience that a jury will presumably not possess the skill or knowledge requisite to draw...