296 F. 986 (D.D.C. 1924), 3994, King v. Davis

Docket Nº:3994.
Citation:296 F. 986
Party Name:KING v. DAVIS, Agent.
Case Date:March 03, 1924
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 986

296 F. 986 (D.D.C. 1924)

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.

Page 987

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

Page 988

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...

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