Fletcher v. Baltimore Co

• Decision Date: 01 November 1897
• Docket Number: No. 56,56
• Citation: 18 S.Ct. 35,42 L.Ed. 411,168 U.S. 135
• Parties: FLETCHER v. BALTIMORE & P. R. CO
• Court: U.S. Supreme Court

168 U.S. 135

18 S.Ct. 35

42 L.Ed. 411

FLETCHER

v BALTIMORE & P. R. CO.

No. 56.

November 1, 1897.

Franklin H. Mackey, for plaintiff in error.

Enoch Totten and William Henry Dennis, for defendant in error.

Mr. Justice PECKHAM delivered the opinion of the court.

This action was brought by the plaintiff in error to recover damages from the defendant corporation for personal injuries which he alleged he received by reason of the negligence of its agents and servants.

The evidence given upon the trial upon the part of the plaintiff tended to show that on or about the 16th day of May, 1890, the defendant was a railroad corporation doing business in the District of Columbia, and that on the day above mentioned, at the city of Washington, in that District, the plaintiff was in the employment of the defendant, and had been working at its workshop; that he had finished his work for the day at about a quarter of 6 in the evening, and, leaving the shop, had started for his home. When he reached the intersection of South Capitol street and Virginia avenue, he stopped for a moment, and, while standing on the pavement on the south side of the railway track, which was in the middle of Virginia avenue, a repair train of the defendant corporation passed by him on its return from work for the day. Some of the testimony showed that the train was passing at the rate of 20 miles an hour, while other testimony showed a much less rate of speed. As the train passed the plaintiff, one of the workmen on board threw from the car on which he was standing a stick of bridge timber about six inches square and about six feet long. It struck the ground and rebounded, striking the plaintiff, and seriously and permanently injuring him. The defendant had been in the daily habit for several years of running out of Washington and Alexandria a repair train of open flat cars, loaded with its employees; and the train returned every evening about 6 o'clock, and brought the workmen back to their homes. These men were allowed the privilege of bringing back with them, for their own individual use for firewood, sticks of refuse timber left over from their work after repairing the road, such as old pieces of bridge timber, cross-ties, etc. It was the constant habit of the men during all these years to throw off these pieces of firewood while the train was in motion at such points on the road as were nearest their homes, where the wood was picked up and carried off by some of the members of their families or other person waiting there for it. The only caution given the men on the part of the servants or agents of the company was that they should be careful not to hurt any one in throwing the wood off. The foreman of the gang was the man who usually gave such instruction.

This evidence having been given, the plaintiff rested, and the defendant then moved for the direction of a verdict in its favor, which motion was granted; and the judgment entered on the verdict, having been affirmed by the court of appeals (6 App. D. C. 385), is now before us for review.

In this ruling of the courts below we think there was error.

We are not called upon to say that the defendant was in fact guilty of negligence. The courts below have held as matter of law that the company was not liable, and hence a verdict in its favor was directed. On the contrary, we think the question whether the defendant was negligent was one which should have been submitted to the jury.

The plaintiff, at the time of the accident, had finished his employment for the day, and had left the workshop and grounds of the defendant, and was moving along a public highway in the city, with the same rights as any other citizen would have. The liability of the defendant to the plaintiff for the act in question is not to be gauged by the law applicable to fellow servants, where the negligence of one fellow servant by which another is injured imposes no liability upon the common employer. The facts existing at the time of the happening of this accident do not bring it within this rule. A railroad company is bound to use ordinary care and caution to avoid injuring persons or property which may be near its track. This is elementary. Shear. & R. Neg. (3d Ed.) § 477, and cases cited in notes. The duty to use ordinary care and caution is imposed, as we think, upon the company to the extent of requiring from it the use of reasonable diligence in the conduct and management of its trains, so that persons or property on the public highway shall not be injured by a negligent or dangerous act performed by any one on the train, either a passenger or an employ e acting outside and beyond the scope of his employment. The company does not insure against the performance of such an act, but it rests under an obligation to use reasonable diligence to prevent its occurrence. An act of such a nature, either by a passenger or by an employ e outside the scope of his duties and employment, is not to be presumed, and therefore negligence on the part of the company in failing to prevent the act could not probably be shown by proof of a single act of that kind, even though damage resulted, where there was nothing to show the company had any reason to suppose the act would be committed. Negligence on the part of the company is the basis of its liability, and the mere failure to prevent a single and dangerous act, as above stated, would not prove its existence. The persons on this train were employees in fact, and were being transported to their homes by the company, which had, during the time of such transportation, full control over their actions. Whether or not they were through with their work is not material.

If the act on the car were such as to permit the jury to find that it was one from which, as a result, injury to a person on the street might reasonably be feared, and if acts of a like nature had been and were habitually performed by those upon the car to the knowledge of the agents or servants of the defendant, who, with such knowledge, permitted their continuance, then, in such case, the jury might find the defendant guilty of negligence in having permitted the act, and liable for the injury resulting therefrom, notwithstanding the act was that of an employ e, and beyond the scope of his employment, and totally disconnected therewith. Knowledge on the part of the defendant, through its agents or servants, that passengers or employees upon its trains were in the habit of throwing out of the windows newspapers, or other...