1. This Court will not reexamine the order of the circuit court
refusing to set aside the verdict upon the ground that the jury
awarded excessive damages.
2. The same degree of care which a railroad company should take
in providing and maintaining its machinery must be observed in
selecting and retaining its employees, including telegraphic
operators. Ordinary care on its part implies, as between it and its
employees, not simply the degree of diligence which is customary
among those entrusted with the management of railroad property, but
such as, having respect to the exigencies of the particular
service, ought reasonably to be observed. It is such care as, in
view of the consequences that may result from negligence on the
part of employees, is fairly commensurate with the perils or
dangers likely to be encountered.
This was an action by McDaniels against the Wabash Railway
Company to recover damages for injuries he sustained by reason of a
collision of two of its freight trains, which took place on the
night of Aug. 17, 1877, near Wabash, Indiana. There was a verdict
in his favor. The court refused to set it aside, and, judgment
having been rendered thereon, the company brought this writ of
error.
The company was a common carrier, and the plaintiff a brakeman
in its service at and before that date. When injured, he was at his
post of duty on one of the colliding trains. The collision, it is
conceded, was the direct result of negligence on the part of
McHenry, a telegraphic night operator of the defendant assigned to
duty at a station on the line of its road, who was asleep when a
train passed that station. Being ignorant for that reason that it
had passed, he misled the train dispatcher at Fort Wayne as to
where it was at a particular hour of the night. In consequence of
the erroneous information thus conveyed, the trains were brought
into collision, whereby the plaintiff lost his leg, and was
otherwise seriously and permanently injured.
The action proceeded mainly upon the ground that McHenry, a
telegraphic operator in the service of the company, was incompetent
for the work in which he was engaged, and that the
Page 107 U. S. 455
fact, was known to the company at, before, and during the time
of his employment.
The essential facts bearing upon the question of the company's
negligence in employing McHenry are summarized in one of the
paragraphs of the charge to the jury. They are:
"The tenth night after McHenry went on duty as night operator,
he went to sleep at his post of duty, with the result already
stated. He was seventeen years old but a few weeks before his
employment. In June, 1876, he went into the service of the
defendant at Wabash, as a messenger boy, and continued in that
service some twelve months, during which time he was instructed by
Waldo, the day operator, in the art of telegraphy. For this
instructed Waldo exacted and received, as compensation, McHenry's
wages, $10 per month. For a month or more before McHenry's
employment as night operator, he worked in the country, harvesting.
The only knowledge that he had of telegraphy was what he acquired
under Waldo, and before taking charge as night operator he had
never been employed anywhere or in any capacity as operator. He was
not competent, as he told you, to take press reports, but was
competent, as he thought, and as Waldo and Wade (the latter his
predecessor as night operator) thought, to do ordinary business,
and to discharge the duty of night operator at Wabash; his habits
were good, and he was bright and industrious. Waldo had recommended
McHenry to Simpson, the chief train dispatcher at Fort Wayne, as
capable and faithful, and without knowing McHenry personally, or
even seeing him, and, on Waldo's recommendation and what Simpson
knew of McHenry's skill from having occasionally noticed at Fort
Wayne his fingering the key at Wabash, Simpson directed Waldo to
employ McHenry at $50 a month; or, according to Waldo's testimony,
he was directed by Mr. Simpson to put McHenry in charge of the
office. McHenry's father told Waldo, before the son entered on the
discharge of his duties, that Waldo should have $10 a month of the
son's wages if Waldo would continue to give the son attention, to
which Waldo assented. This is the father's testimony. Waldo admits
that the father made the proposition to him as stated, but says
Page 107 U. S. 456
he replied that the son was competent to take charge of the
office and run it without assistance. Boys no older than McHenry
had successfully discharged the duties of day and night dispatcher
on this and other roads, and it teems to have been the custom of
the company to educate its telegraph operators while serving as
messenger boys. Other railroad companies, it seems from the
evidence have pursued the same course with satisfactory
results."
MR. JUSTICE HARLAN, after stating the facts, delivered the
opinion of the court.
That we are without authority to disturb the judgment upon the
ground that the damages are excessive cannot be doubted. Whether
the order overruling the motion for new trial, based upon that
ground, was erroneous or not, our power is restricted to the
determination of questions of law arising upon the record.
Railroad Company v. Fraloff, 100 U. S.
24.
We also remark, before entering upon the consideration of the
matters properly presented for determination, that it is
unnecessary to express any opinion upon the question whether the
plaintiff and McHenry were fellow servants within the meaning of
the general rule that the servant takes the risks of dangers
ordinarily attending or incident to the business in which he
voluntarily engages for compensation, including the carelessness of
his fellow servants. The plaintiff took no exception to the
instructions, which proceeded upon the ground that plaintiff and
McHenry were fellow servants, and that in accepting employment from
the company, they risked the negligence of each other in the
discharge of their respective duties. As no such question can arise
upon the present writ of error, we pass to the examination, as well
of the instructions to which the defendant excepted, as of those
asked by it which the court refused to give.
The court charged the jury in substance that the position of a
telegraphic night operator upon the line of a railroad was one of
great responsibility, the lives of passengers and employees on
trains depending upon his skill and fidelity; that
Page 107 U. S. 457
the company "was bound to exercise proper and great care to get
a person in all respects fit for the place;" that while the
defendant did not guarantee to its servants the skill and
faithfulness of their fellow servants, its duty was "to use all
proper diligence in the selection and employment of a night
operator," and to discharge him, after being employed, if it
learned or had reason to believe he was incompetent or negligent;
that the plaintiff had a right to suppose that the company
"would use proper diligence in the selection of its telegraphic
operators and all other employees whose incapacity or negligence
might expose him to dangers, in addition to those which were
naturally incident to his employment;"
that
"what will amount to proper diligence on the part of the master
in the selection of a servant for a particular duty will in part
depend on the character and responsibility of that duty;"
that "the same degree of diligence which is required in the
employment of a locomotive engineer would not be required in the
employment of a fireman;" that
"sound sense and public policy require that railroad companies
should not be exempt from liability to their employees for injuries
resulting from the incompetency or negligence of co-employees,
when, by the exercise of proper diligence, such injuries might be
avoided;"
that the presumption is that the defendant "exercised proper
diligence in the employment of McHenry, and the burden of proof of
showing the contrary is upon the plaintiff;" but
"if from any cause McHenry was not a fit person to be entrusted
with the responsible duties of night operator, and the defendant
knew that fact, or by reasonable diligence might have known it, it
is liable, for it is admitted that the plaintiff's injuries were
the direct result of McHenry's negligence, and there is no proof
that the plaintiff contributed to the accident by his own
negligence."
To each of these instructions the defendant excepted at the
time, and in proper form.
Among those asked by the company, and for the refusal to give
which error is assigned, is one which presents the distinction
between the propositions of law presented to the jury for its
guidance, and those which the railroad company requested to be
given.
Page 107 U. S. 458
It is as follows:
"Although McHenry may have been and was guilty of negligence,
and that negligence may have caused and did cause the collision
which resulted in the injury to the plaintiff complained of, still
the plaintiff cannot recover in this action unless it appears from
the evidence that the defendant was guilty of negligence, either in
the appointment of said McHenry, or in retaining him in his
position, and to establish such negligence on the part of the
defendant, not only the incompetency of said McHenry must be shown,
but it must be shown that defendant failed to exercise ordinary
care or diligence to ascertain his qualifications and competency
prior to his appointment, or failed to remove him after his
incompetency had come to the notice of the defendant, or to some
agent or officer of defendant having power to remove said
McHenry."
The court modified this instruction by striking out the word
"ordinary" in the only place where it occurred, and inserting in
lieu thereof the word "proper." Thus modified, the instruction was
granted, the defendant excepting at the time to the refusal to give
the instruction in the form presented.
The main contention of the defendant is that the jury were
instructed that the duty of the company was to observe "proper and
great care," when they should have been instructed that only
ordinary care was required in the appointment and retention of its
employees. The former degree of care, it is contended, is matter of
opinion upon a question of law, while the latter is a question of
fact. And the argument of counsel is that the question of ordinary
care is to be determined by the usages or custom which obtain in
railroad management, and therefore the proper inquiry is not what
ought to be, but what is, the general practice in that business;
that what the servant is presumed to know, and to have accepted as
the basis of his employment, is the practice or custom as it is
when, in hiring his services, he risks the dangers incident to his
employment; that the law presumes that master and servant alike
contract with reference to that which is equally within their
observation and inquiry. Consequently the company was required, in
the selection of plaintiff's fellow servants, whose negligence
might endanger his personal safety, not to observe "proper and
great"
Page 107 U. S. 459
(which counsel insists mean peculiar) care, but only that degree
of diligence which the general practice and usage of railroad
management sanctioned as sufficient.
In
Hough v. Railway Company, 100 U.
S. 213, it was decided that among the established
exceptions to the general rule as to nonliability of the common
employer to one employee for the negligence of a co-employee in the
same service, is one which arises from the obligation of the
master, whether a natural person or a corporate body, not to expose
the servant, when conducting the master's business, to perils or
hazards against which he may be guarded by proper diligence upon
the part of the master; that the master is bound to observe all the
care which prudence and the exigencies of the situation require, in
providing the servant with machinery or other instrumentalities
adequately safe for use by the latter, and that it is implied in
the contract between the master and the servant that, in selecting
physical means and agencies for the conduct of the business, the
master shall not be wanting in proper care. It was further said
that the obligation of a railroad company, in providing and
maintaining, in suitable condition, machinery and apparatus to be
used by its employees, is the more important, and the degree of
diligence in its performance the greater, in proportion to the
dangers which may be encountered, and that
"its duty in that respect to its employees is discharged when,
but only when, its agents, whose business it is to supply such
instrumentalities, exercise due care as well in their purchase
originally, as in keeping and maintaining them in such condition as
to be reasonably and adequately safe for use by employees."
These observations, as to the degree of care to be exercised by
a railroad corporation in providing and maintaining machinery for
use by employees, apply with equal force to the appointment and
retention of the employees themselves. The discussion in the
adjudged cases discloses no serious conflict in the courts as to
the general rule, but only as to the words to be used in defining
the precise nature and degree of care to be observed by the
employer. The decisions, with few exceptions, not important to be
mentioned, are to the effect that the corporation must exercise
ordinary care. But according to the
Page 107 U. S. 460
best-considered adjudications, and upon the clearest grounds of
necessity and good faith, ordinary care, in the selection and
retention of servants and agents, implies that degree of diligence
and precaution which the exigencies of the particular service
reasonably require. It is such care as, in view of the consequences
that may result from negligence on the part of employees, is fairly
commensurate with the perils or dangers likely to be encountered.
In substance, though not in words, the jury were so instructed in
the present case. That the court did not use the word "ordinary" in
its charge is of no consequence, since the jury were rightly
instructed as to the degree of diligence which the company was
bound to exercise in the employment of telegraphic night operators.
The court correctly said that that was a position of great
responsibility, and, in view of the consequences which might result
to employees from the carelessness of telegraphic operators, upon
whose reports depended the movement of trains, the defendant was
under a duty to exercise "proper and great care" to select
competent persons for that branch of its service. But that there
might be no misapprehension as to what was in law such care, as
applicable to this case, the court proceeded, in the same
connection, to say that the law presumed the exercise by the
company of proper diligence, and unless it was affirmatively shown
that the incapacity of McHenry when employed, or after his
employment and before the collision, was known to it, or by
reasonable diligence could have been ascertained, the plaintiff was
not entitled to recover. Ordinary care, then -- and the jury were,
in effect, so informed -- implies the exercise of reasonable
diligence, and reasonable diligence implies, as between the
employer and employee, such watchfulness, caution, and foresight
as, under all the circumstances of the particular service, a
corporation controlled by careful, prudent officers ought to
exercise.
These observations meet, in part, the suggestion made by
counsel, that ordinary care in the employment and retention of
railroad employees means only that degree of diligence which is
customary, or is sanctioned by the general practice and usage which
obtains among those entrusted with the management and control of
railroad property and railroad employees.
Page 107 U. S. 461
To this view we cannot give our assent. There are general
expressions in adjudged cases which apparently sustain the position
taken by counsel. But the reasoning upon which those cases are
based is not satisfactory, nor, as we think, consistent with that
good faith which at all times, should characterize the intercourse
between officers of railroad corporations and their employees. It
should not be presumed that the employee sought or accepted service
upon the implied understanding that they would exercise less care
than that which prudent and humane managers of railroads ought to
observe. To charge a brakeman, when entering the service of a
railroad company, with knowledge of the degree of care generally or
usually observed by agents of railroad corporations in the
selection and retention of telegraphic operators along the line
traversed by trains of cars -- a branch of the company's service of
which he can have little knowledge, and with the employee specially
engaged therein he can ordinarily have little intercourse -- is
unwarranted by common experience. And to say as matter of law that
a railroad corporation discharged its obligation to an employee --
in respect of the fitness of co-employees whose negligence has
caused him to be injured -- by exercising, not that degree of care
which ought to have been observed, but only such as like
corporations are accustomed to observe, would go far toward
relieving them of all responsibility whatever for negligence in the
selection and retention of incompetent servants. If the general
practice of such corporations in the appointment of servants is
evidence which a jury may consider in determining whether, in the
particular case, the requisite degree of care was observed, such
practice cannot be taken as conclusive upon the inquiry as to the
care which ought to have been exercised. A degree of care
ordinarily exercised in such matters may not be due or reasonable
or proper care, and therefore not ordinary care, within the meaning
of the law.
It is further objected to the charge that the court below
confounded the degree of care owed as a duty to passengers with the
degree of care to be observed in the case of employees. This
objection necessarily rests upon the assumption that the
instruction as to the exercise of "proper and great care" in
the
Page 107 U. S. 462
selection of telegraphic night operators, accurately stated the
degree of diligence to be observed as between the railroad company
and passengers. But clearly the statement in the charge that the
lives both passengers and employees depended upon the skill and
fidelity of telegraphic operators employed by the corporation in
connection with the movement of its trains, was not for the purpose
of indicating, with legal precision, the degree of care upon which
passengers could rely in all matters affecting their safety. They
at least have the right to expect the highest or utmost, not simply
a great, degree of diligence on the part of passenger carriers and
all persons employed by them. The reference therefore to
passengers, in the instructions alluded to, was not calculated to
make the impression that employees could count upon the same degree
of care that is required by law toward passengers. Whether, in the
selection and retention of telegraphic operators, upon whose
capacity and watchfulness largely depends the personal safety of
employees on trains, a corporation should or not exercise the same
degree of care which must be observed in the case of passengers, it
is not necessary now to consider or determine. It is sufficient to
say that the corporation was bound, in the appointment and
retention of such operators, to observe, as between it and its
employees at least the degree of care indicated in the charge to
the jury.
Among the instructions asked in behalf of the company, the
refusal to give which is the basis of one of the assignments of
error, is the following:
"To render the carelessness of said McHenry the carelessness of
the defendant, or to render the defendant liable for the same, it
is incumbent on the plaintiff to prove that said McHenry was
appointed to or retained in his position as telegraph operator with
knowledge on the part of the company, or some officer or agent of
the company having the power of appointment or removal, that he was
incompetent, or that such knowledge might have been obtained by the
use of reasonable diligence on the part of the defendant or of such
officer or agent of the defendant."
It is now complained that the refusal to give this instruction
was practically a declaration to the jury that the company was
Page 107 U. S. 463
responsible for knowledge which it had through any of its agents
or through its agents generally; whereas it was liable only for the
negligence or omission of those of its agents who were charged with
the duty of selecting and controlling its employees and its general
business. It is sufficient to say that this point -- assuming the
instruction in question to be correct -- was covered by the last
clause of the instruction to which our attention was first
directed, and in terms quite as favorable to defendant as it was
entitled to under the law. The court, in that instruction,
expressly said that to establish the alleged negligence, not only
the incompetency must be shown,
"but it must be shown that the defendant failed to exercise
proper care or diligence to ascertain his qualifications and
competency prior to his appointment, or failed to remove him after
his incompetency had come to the notice of defendant, or to some
agent or officer of defendant having power to remove said
McHenry."
It is not necessary to further extend the discussion of the
questions pressed upon our consideration. We are of opinion that
the case, in all of its aspects, was fairly placed before the jury
in the instructions given by the court. No substantial error of law
was committed to the prejudice of the company
Judgment affirmed.