St. Louis-San Francisco Ry. Co. v. Mills

• Decision Date: 09 February 1925
• Docket Number: No. 4366.,4366.
• Parties: ST. LOUIS-SAN FRANCISCO RY. CO. v. MILLS.
• Court: U.S. Court of Appeals — Fifth Circuit

3 F.2d 882 (1924)

ST. LOUIS-SAN FRANCISCO RY. CO. v. MILLS.

No. 4366.

Circuit Court of Appeals, Fifth Circuit.

December 17, 1924.

Dissenting Opinion, February 9, 1925.

W. R. C. Cocke, of Birmingham, Ala. (Cabaniss, Johnston, Cocke & Cabaniss, of Birmingham, Ala., on the brief), for plaintiff in error.

G. R. Harsh, of Birmingham, Ala. (Harsh, Harsh & Harsh, of Birmingham, Ala., on the brief), for defendant in error.

Before WALKER and BRYAN, Circuit Judges, and ESTES, District Judge.

WALKER, Circuit Judge.

This was an action under the federal Employers' Liability Act (Comp. St. §§ 8657-8665) to recover damages for the death of Ira S. Mills, an employee of the plaintiff in error, a railway company; the death of the employee being attributed to negligence chargeable against his employer. In the trial there was evidence to the following effect:

The employee entered the service of the employer on the Monday next preceding the Thursday night when he was shot, as stated below. His work was that of a car inspector at the employer's East Thomas yards, in Birmingham, Ala., and included the inspection of both intrastate and interstate trains. Prior to and at the time the employee entered upon his service, and while he was engaged therein, a strike of the employer's former employees was in progress, and during all that time the employer furnished guards to guard the men who took the places of the strikers; the men being guarded while they were coming from their places of residence to their place of work, while they were at work, and while they were returning to their places of residence. Between 10 and 11 o'clock Thursday night the employee and another car inspector got through inspecting a train that was going to Amory, Miss. They did no work after inspecting that train, except to put in their proper place the lanterns and other articles they had been using, and make and turn in to the office their reports. Soon thereafter the two car inspectors, accompanied by a guard, who had been assigned to take them to their homes in the city of Birmingham, left the yards, walked a distance of about a half a mile to where they were to take a street car, and got on a car at that place. Soon after they got on the car, one of several men who were on the rear platform came into the car, put his hand on the shoulder of Weathers, one of the two car inspectors, and, with an oath, told him to get off. About that time several shots were fired from the rear platform, some of which struck Mills, and he died from the wounds the next day. Prior to the shooting threats of personal violence to the men who were working were made by strikers, and the fact that such threats were made was reported to the employer's employee, Wilkins, who was in charge or command of the guards. The assignment of a guard to take the two car inspectors to their homes was made by Wilkins, the boss of the guards, after such boss had been informed during the same Thursday that the person so assigned, while acting as a guard, had been nervous and scared when there were some pickets near the place where an employee he was guarding was at work, and had left the employee he was guarding and gone back to the employer's office. When that guard got on the street car with the two car inspectors, the butt of his pistol was showing from under his coat. One of the men who did the shooting looked at the guard, and at the butt of his pistol, and at one of his companions, and laughed.

The court's charge to the jury contained instructions to the following effect: If there was a duty on the employer to furnish protection to the employee while he was on his way home from doing interstate work on the employer's premises, a violation of that duty would be a violation of the employer's duty to an interstate employee. If by custom the employer had been furnishing protection to its employees for such length of time as would induce the employees to believe that they would be protected, then it would be a question of fact for the jury to determine whether out of that custom or habit a duty would or would not spring up to furnish protection, not only on the employer's premises, but on the journey of the employee to his home. If you believe that the reports testified to were made to Wilkins and that those reports were of such a character as would have made a reasonably prudent man reinforce the guard, and if you believe, from all the circumstances and situation of the strike, that a reasonably prudent man would have reasonably anticipated that the danger was of so great an extent that he would have sent more guards than one, then you might find that there was negligence on the part of Wilkins. If you are reasonably satisfied from the evidence that the assault would have been prevented, had a greater guard been furnished, if you also find that a greater guard should have been furnished in the exercise of due care, then that could show that there was a causal relation between the failure to furnish a greater guard and the accident resulting in the death of the intestate. The court refused to give the following charge requested by the defendant: "If the jury believe the evidence your verdict must be for the defendant." The above-mentioned rulings are presented for review.

The employee's day's work being in both intrastate and interstate commerce, while, after finishing his day's work, he was making a trip which was a necessary incident of that work as a whole, he was employed in interstate commerce. Erie R. Co. v. Winfield, 244 U. S. 170, 37 S. Ct. 556, 61 L. Ed. 1057, Ann. Cas. 1918B, 662. Though, when the employee was shot, he had left his employer's premises and was on a vehicle operated by a third party, it fairly may be said that he was still an employee, if the trip he was making was in immediate connection with his employment, and during that trip the employer owed him a duty, the performance of which was part of the consideration by which he was induced to enter upon and continue in the employment. Wilson v. Banner Lumber Co., 108 La. 590, 32 So. 460; Doyle v. Fitchburg R. Co., 162 Mass. 66, 37 N. E. 770, 25 L. R. A. 157, 44 Am. St. Rep. 335. The evidence as to the circumstances under which the employee entered upon and remained in the employer's service furnished support for an inference that the employer's undertaking to furnish the employee protection during the trip from his home to the place of work and from the place of work back to his home was part of the consideration moving to the employee for the service he rendered. It might be inferred that such protection had to be furnished to obtain labor at the place needed, and that the relation of employer and employee still continued while the employee was on his way from his place of work to his home, accompanied by a guard furnished by the employer pursuant to an implied obligation to protect the employee from perils to which he was exposed in consequence of his employment. There was evidence furnishing support for a finding that there was negligence...