St Francisco Ry Co v. Mills

• Decision Date: 24 May 1926
• Docket Number: LOUIS-SAN,No. 264,264
• Citation: 46 S.Ct. 520,271 U.S. 344,70 L.Ed. 979
• Parties: ST.FRANCISCO RY. CO. v. MILLS
• Court: U.S. Supreme Court

271 U.S. 344

46 S.Ct. 520

70 L.Ed. 979

ST. LOUIS-SAN FRANCISCO RY. CO.

v MILLS.

No. 264.

Argued April 22 and 23, 1926.

Decided May 24, 1926.

Messrs. W. R. C. Cocke, of Birmingham, Ala., Forney Johnston, of Washington, D. C., and E. T. Miller, of St. Louis, Mo., for petitioner.

Messrs. G. R. Harsh, of Birmingham, Ala. (Harsh & Harsh, of Birmingham, Ala., on the brief), for respondent.

Mr. Justice STONEdelivered the opinion of the Court.

Respondent's intestate was employed in interstate and intrastate commerce by the petitioner, as a car inspector in its yards in Birmingham, Ala.During the railroad shopmen's strike, on the night of August 3, 1922, decedent, while returning from work to his home, on a street car, was shot to death by strikers who fired upon him, a fellow workman and a duputy sheriff employed by petitioner to guard decedent and his companion.Respondent brought suit in the circuit court of Jefferson county, Alabama, to recover for intestate's death, under the Federal Employers' Liability Act, c. 149,35 Stat. 65(Comp. St. §§ 8657-8665).The cause was removed to the District Court for Northern Alabama on the gound of diversity of citizenship.Judgment for the plaintiff, the respondent here, was affirmed by the Circuit Court of Appeals for the Fifth Circuit.3 F.(2d) 882.This court granted certiorari.267 U. S. 589, 45 S. Ct. 354, 69 L. Ed. 802.

The trial judge withdrew from the jury the question whether the guard was negligent in the performance of his duty, but left it to them to say whether upon the evidence, defendant was employed in interstate commerce at the time and place of the shooting; whether there was a duty of due care on the part of the defendant to protect decedent from violence by strikers while going from his place of employment to his home; and whether the failure of respondent to send more than a single guard to protect decedent was negligence causing his death.The instructions so given, and the refusal to direct a verdict for the defendant, are assigned as error.

Petitioner argues that the evidence did not warrant the submission of any of these questions to the jury, and contends, among other objections, that there is no evidence of a breach of any duty owing by petitioner to respondent.The question of law thus raised goes directly to the right to recover under the act upon which the action was based.SeeSt. Louis Iron M. Ry. v. McWhirter, 229 U. S. 265, 277, 33 S. Ct. 858, 57 L. Ed. 1179.

It is not contended that any duty growing out of the relationship of employer and employee required the employer to guard the employee against violence by strikers.CompareDavis v. Green, 260 U. S. 349, 351, 43 S. Ct. 123, 67 L. Ed. 299;Manwell v. Durst, 178 Cal. 752, 174 P. 881, 1 A. L. R. 669;Roebuck v. Railway Co., 99 Kan. 544, 162 P. 1153, L. R. A. 1917E, 741;Lewis v. Taylor Coal Co., 112 Ky. 845, 66 S. W. 1044, 57 L. R. A. 447;Rourke's Case, 237 Mass. 360, 129 N. E. 603, 13 A. L. R. 546;Matter of Lampert v. Siemons, 235 N. Y. 311, 139 N. E. 278.Nor is there any evidence of such an undertaking in the contract of employment.Hence the duty, if it existed, must be predicated upon the voluntary assumption of it by petitioner.

Taken in the aspect most favorable to respondent, the evidence shows that decedent was first employed on the Monday preceding his death, which occurred on Thursday.The strike had been in progress for some time, and 6 or 7 employees were on strike in the yard where decedent was employed.The number of strikers elsewhere does not appear.Seven guards were employed by petitioner in the yard where decedent worked, and from 50 to 75 were employed elsewhere in the city.There was some evidence that, during decedent's employment, guards had been provided for employees while at work during the day, and to accompany decedent and some others to and from their homes.There was no evidence that petitioner had ever furnished decedent or any other employee with more than one guard in going to or from work, or any other evidence from which it could be inferred that petitioner had undertaken, or held itself out as undertaking, to furnish more...