Seymoure v. Director General of Railroads

• Decision Date: 04 June 1923
• Docket Number: 3912.
• Citation: 290 F. 291
• Parties: SEYMOURE v. DIRECTOR GENERAL OF RAILROADS.
• Court: U.S. Court of Appeals — District of Columbia Circuit

290 F. 291

SEYMOURE v. DIRECTOR GENERAL OF RAILROADS.

No. 3912.

United States Court of Appeals, District of Columbia.

June 4, 1923

Submitted May 1, 1923.

Appeal from the Supreme Court of the District of Columbia.

Alvin L. Newmyer and Milton W. King, both of Washington, D.C. for appellant.

George E. Hamilton and John J. Hamilton, both of Washington, D.C for appellee.

Before SMYTH, Chief Justice, ROBB, Associate Justice, and SMITH Judge of the United States Court of Customs Appeals.

ROBB Associate Justice.

Appeal from a judgment in the Supreme Court of the District upon a directed verdict for the defendant at the close of plaintiff's evidence, in an action to recover damages for personal injuries sustained by the plaintiff as the result of an assault upon him by a special officer employed by the Southern Railway Company. The facts, as disclosed by plaintiff's evidence, are to the following effect:

Plaintiff was employed by the Union News Company to vend magazines fruit, and candy on trains. His run, at the time of the occurrence giving rise to this action, was from Washington, D.C., to Danville, Va., where he would wait for a return train. Just what was the arrangement between the news company and the railroad does not appear, but it does appear that the railroad company recognized plaintiff's right to be on the train.

On the occasion in question, it was nearly midnight when the train arrived at Danville. Plaintiff, as was his custom, engaged a porter to take his stock to the baggage room. The porter placed the stock on a truck, and plaintiff followed the truck. When plaintiff had reached a point opposite one of the coaches, a gentleman whom he had met on the train trip, and whose wife was with him, and to whom plaintiff had loaned magazines, raised a window and informed plaintiff that he had forgotten his magazines. Thereupon plaintiff went back to get the magazines, receiving them through a window. He shook hands with the gentleman and started back toward the baggage room, whereupon Special Officer Regan came up from behind and seized him and said, 'What do you mean by flirting? ' Plaintiff replied, 'You are mistaken, sir; I was not flirting. ' Regan then said, 'What do you mean? Do you mean to call me a liar? ' Thereupon, according to plaintiff's testimony, Regan viciously and brutally assaulted him, inflicting serious injuries upon him. Regan was a large and powerful man, while plaintiff was 4 feet 9 inches tall and weighed only 86 pounds. Regan threatened to lock plaintiff up, but released him before they reached the baggage room, and plaintiff, as was his custom, returned to Washington on the next train.

Officer Regan was called as a witness for the plaintiff and testified as follows:

'I live at Danville, Va., and lived there in 1918. I was employed in 1918 by the Southern Railway Company as a special officer. My duties were police duties of the railway company, and also of the city of Danville. My police duties with the railway company covered the Danville division, between Monroe, Va., and Salisbury, N.C. I was paid by the Southern Railway Company. I have a badge as special officer. In doing police duty for the railway company I would patrol the railroad property. That included the station where trains came in and went out. I was supposed to keep order among passengers, employees, and other persons at the station.' Cross-examination:

' * * * I receive my salary for police duty for protecting the railroad properties from the Southern Railway Company, and I was also special officer for the city of Danville, operating with the police department there, and was authorized to arrest anybody for violations of the state laws, both as police officer of Danville and as special officer of the railway company. I would take prisoners to the city jail.'

The learned trial judge, in disposing of defendant's motion for a directed verdict, among other things said:

'There is no question, from the evidence so far submitted, that the plaintiff was subjected to an unwarranted and brutal assault by Regan, and that, if Regan can be said to have been at the time an agent, servant, or employee of defendant, acting within the scope and performance of his duties as such, and acting for and on behalf of the defendant, the latter would be liable.'

Being of the view, however, that the decision of the general term in Wells v. Washington Market Co., 19 D.C. 385, was applicable, the court felt constrained to follow the ruling in that case.

That the plaintiff sustained the relation of passenger, we think, is not open to serious question. Under the evidence he was rightfully on the train, and was not confined to any particular part of it. Apparently he was engaged in furnishing a service with which the railroad company desired its passengers to be supplied. B. & O.R. Co. v. Voigt, 176 U.S. 498, 20 Sup.Ct. 385, 44 L.Ed. 560, relied upon by the defendant, is not in point, for there Voigt was an express messenger, whose duties confined him to the express car, and his relation to the railroad company was governed by the contract between that company and the express company. If the defendant in this case desired to challenge plaintiff's status as a passenger, it should have introduced evidence upon which to base such a contention. This it did not do, and the court is not at liberty to assume that he was other than what the record indicates, namely, a passenger.

We will now review the decisions in other jurisdictions in which the question here in issue was considered.

In Sharp v. Erie R. Co., 184 N.Y. 100, 76 N.E. 923, 6 Ann.Cas. 250, a boy 17 years old, with companions, was stealing a ride on one of defendant's freight trains. Being warned that there were detectives in the railroad yard which the train was approaching, they jumped from the train and were pursued by a special officer named Wheeler, who, after they had reached a point about 100 feet from the railroad premises, fatally shot the boy. The question, as stated by the court, was whether the railroad company could be held responsible for the act of Wheeler in killing the boy. The claim there, as here, was that the officer acted in a dual capacity, 'that while he was the servant of the defendant for certain purposes, he was also a public officer, and that he killed the boy while acting in the capacity of such officer and not as the servant of the defendant. ' He was paid by the defendant, and his duties were to protect the company's interests on the right of way, to keep tramps from trains and look after robberies that might occur at stations and on freight cars in the yards and stations, 'and generally to look after crimes committed against the railroad company on the right of way. It was part of his duty to drive off and keep off trespassers from the company's property. ' The court said:

'A railroad company, employing a servant who happens to be a public officer, acquires no immunity from such employment. Constables and policemen are often employed by corporations in the same capacity as Wheeler was. It is not beyond the province of a jury in such a case to find that the official acts of the employee are to be used for the benefit of the defendant and in protection of its interests or property. And hence in such a case the character of the servant's act is to be determined in the same way and upon the same principles as if he was not a public officer at all. If he acts maliciously, or in pursuit of some purpose of his own, the defendant is not bound by his conduct; but if, while acting within the general scope of his employment, he simply disregards his master's orders or exceeds his powers, the master will be responsible for his conduct.'

It was ruled that under the evidence it was a question for the jury whether Wheeler, when he fired the fatal shot, was acting as defendant's servant or as a public officer.

In Brewster v. Interborough Rapid Transit Co., 68 Misc.Rep. 348, 123 N.Y.Supp. 992, the plaintiff, while standing on one of defendant's platforms to board a car, was admonished by a special officer to stop pushing and told that unless he did so the officer would 'smash his head off.' Plaintiff answered, 'Go ahead and do it.' Thereupon the officer assaulted the plaintiff. It appeared that the officer sustained substantially the same relation to the transit company as did the special officer in Sharp v. Erie R. Co., just discussed, and the court said:

'The defendant, as a common carrier, owed a duty to its passengers that its employes should treat them in a decent manner and protect them from attack. * * * Nor does the fact that Kellerman was a 'special officer' in any way alter the situation or relieve the defendant from its liability. It would be preposterous to hold that, because the defendant caused its employe to be designated as a 'special officer,' it was thereby relieved of responsibility for his acts. If, by virtue of his designation as a special officer, Kellerman became a public official, his duty to the public was thereby increased; but the defendant was not relieved from the same responsibility for his acts that it would be under for the acts of any other of its employes. It would, indeed, be an anomaly if the fact that, because the public power had been used to designate the employe of the defendant a public officer, the defendant should on that account be relieved of responsibility for the acts which its employe performs in attempting to discharge his duties to it.'

Deck v....