Griffin v. The Baltimore

• Decision Date: 10 February 1925
• Docket Number: (No. 5225.)
• Parties: Benjamin C. Griffin v. The Baltimore & Ohio Railroad Company.
• Court: West Virginia Supreme Court

98 W.Va. 168

Benjamin C. Griffin

v.The Baltimore & Ohio Railroad Company.

(No. 5225.)

Supreme Court of Appeals of West Virginia.

Submitted February 4, 1925.

Decided February 10, 1925.

1. Master and Servant.

Point 1 in the syllabus of the former decision in this case, reported in 96 W. Va. 302, 122 S. E. 912, approved and applied, (p. 169.)

2. Same Railroad Not Liable to Employe Injured by Sport of

Co-employes.

Where employes of a railroad company indulged in a sport on its premises at the noon hour when they were not at work, which was not dangerous as practiced, and from which an injury to any one might not reasonably have been anticipated, the company cannot be held liable for an injury resulting to an employe from such sport. (p. 170.)

3. Same Injury in Carrier's Business Essential to Recovery Under Federal Act.

In an action under the Federal Elmployers' Liability Act, charging a carrier with negligence, the plaintiff cannot recover unless he was at the time of the injury doing some act required of him in the prosecution of the carrier's business, (p. 174).

4. Same Federal Act Does Not Cover Negligent Acts of Employe Unconnected With Work.

The Federal Employers' Liability Act was not intended to cover the negligent acts of an employe, in no way connected with the work he was engaged to perform. (p. 174.)

Error to Circuit Court, Harrison County.

Action by Benjamin C. Griffin against the Baltimore & Ohio Railroad Company. From judgment for defendant, plaintiff brings error.

Affirmed.

Goff man & Morris, for plaintiff in error. Hoffheimer & Templeman, for defendant in error.

Hatcher, Judge:

This is an action brought by the plaintiff under the Federal Employers' Liability Act, for permanent injury to an eye.

The plaintiff was employed as a laborer in a section gang of the defendant, At the noon hour, and while not engaged in any work for the defendant, he was struck in the eye by a rock thrown by one of his fellow employes. A freight train was passing at the time. The plaintiff was on one side of the train, and the foreman, with other members of the section crew, was on the other side. Several stones were thrown by the foreman and by one or two of the other laborers with him, under and between the ends of the moving cars, one of which struck the plaintiff and destroyed the sight of an eye.

Prior to that time, the members of the section gang had, on several occasions, engaged in target practice with rocks, such as throwing at a tobacco box, or at a tree over in the field, or "across the creek," etc., but never before had they thrown rocks in the direction of each other, or under or between the cars of a train. The foreman had the right to employ and discharge the men on his section, and to direct their labors. It seems that he initiated the sport of throwing rocks under and between the cars at the time of the injury, but did not cast the stone which struck the plaintiff.

At the close of the plaintiff's evidence, the Court sustained a motion of the defendant to strike out the evidence, and the plaintiff alleges error.

This case was here on a demurrer to the declaration. It is reported in 96 W. Va. 302, 122 S. E. 912. Basing our decision upon the case of Fletcher v. Baltimore & Potomac Railroad Company, we then held:

"Where a railroad company knowingly permits and encourages its employes to indulge in dangerous practices on its premises, although the acts of such employes are beyond the scope of their employment and totally disconnected therewith, it will be liable to one injured thereby lawfully on its premises at the time of the injury."

The reasoning which underlies this holding is, as stated in the opinion:

"The negligence here alleged is not that of a fellow seiwant, but the negligence of the master, in that it permitted, encouraged and participated in dangerous acts of the same character as that which caused plaintiff's injury, and in the particular act complained of, and on its own premises surrounded plaintiff with dangers."

Having heretofore determined the law applicable to this case, as alleged in the declaration, our task now is to ascertain whether or not the proof in the case supports the declaration. The exact question is, could a jury fairly say that the occasional throwing of rocks at targets by the fellowservants of the plaintiff, constituted such acts as were dangerous, and from a continuation of which, an injury to someone should have reasonably been apprehended?

There is no evidence in the case that anyone prior thereto had ever been injured or even endangered by this target practice. Most of the throwing was done by young men, several of whom were under the age of 21. Recollections of our boyhood bring to mind the impression that most boys were then fairly accurate in throwing rocks. The squall of a cat and yelp of a dog, heard occasionally now, indicate that the youth of this day are equally proficient. With no evidence to the contrary, we do not see how the jury could fairly say that the throwing of rocks at a tobacco box, or at a tree, or similar object, with no one in range of the rocks, could be a practice inherently dangerous, and which presaged injury, to some one.

The father does not usually stop his boys engaged in ordinary target practice with rocks, so long as the target is worthless, and not one another, and no danger can be apprehended from the range of the rocks. Why demand more care of a railroad company than a father exhibits toward his children! Throwing rocks, under proper circumstances, is a wholesome and commendable sport of boyhood. The accuracy with which a stone was cast upon one occasion brought deliverance to a nation, and commenced the career of one of the great characters of history. A bullet discharged from a rifle is ordinarily more dangerous than a rock thrown by a youth, yet target practice with rifles, under proper circumstances, is not considered inherently dangerous. Therefore, so long as the target practice with rocks, which preceded the injury to the plaintiff, was done under such circumstances as indicated no danger either to the members of the section crew, or to others, how can we say that the defendant should have anticipated that a whim of youth would find sport in throwing rocks under and between moving cars? We had as well say that the plaintiff should have anticipated such an occurrence and kept out of the way of the stones as to charge the defendant with such prescience.

We held also in this case, when it was here before, that:

'' The master is not compelled to foresee and guard against an accident which reasonable and prudent men would not expect to happen, nor to warn his servant of dangers not reasonably to be anticipated."

The inferences in this case may be clearly differentiated from those in the Fletcher case. There, the plaintiff had paused momentarily at the intersection of two streets in the city of Washington, when a repair train passed him on its return from work for the day. The facts surrounding the injury, as stated in the opinion, are as follows:

"Some of the testimony showed that the train was passing at the rate of twenty 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 employes, and the train returned every evening about six 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 or 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...