The plaintiff in error was a workman employed by the defendant
in error at its workshop in Washington. Returning from his day's
labor, he stopped at the intersection of South Capitol Street and
Virginia Avenue to enable a repair train to pass him. It was and
for a long time had been the custom of the railroad company to
allow its workmen, who went out on the repair train in the morning
to bring back with them on their return in the evening sticks of
refuse timber for their individual use as firewood, and these men
were in the habit of throwing their pieces off the train while in
motion at the points nearest their own homes, being cautioned on
the part of the company not to injure anyone in doing it. As the
train passed the plaintiff in error, such a piece of refuse wood
was thrown from it by one of the men. It struck the ground,
rebounded, struck the plaintiff in error, and injured him seriously
and permanently. He sued the company to recover damages. After the
plaintiff's evidence was in and he rested, the defendant moved for
a verdict in its favor, which motion was granted.
Held
that this was error, that the question whether the defendant was
negligent should have been submitted to the jury, and that it was
for the jury to say whether the custom on the part of the workmen
was known to the company, whether,
Page 168 U. S. 136
if known, it was acquiesced in, whether it was a dangerous
custom from which injury should have been apprehended, and whether
there was a failure on the part of the defendant to exercise
reasonable care, in view of all the circumstances, to prohibit the
custom and prevent the performance of the act.
The duty to use ordinary care and caution is imposed upon a
railroad company to the extent of requiring from it the use of
reasonable diligence in the conduct and management of its trains so
that persons or property on the public highway shall not be injured
by a negligent or dangerous act performed by anyone on the train,
either a passenger or an employ, acting outside of and beyond the
scope of his employment.
A railroad company owes a duty to the general public, and to
individuals who may be in the streets of a town through which its
tracks are laid, to use reasonable diligence to see to it that
those who are on its trains shall not be guilty of any act which
might reasonably be called dangerous and liable to result in
injuries to persons on the street where such act could have been
prevented by the exercise of reasonable diligence on the part of
the company.
If, through and in consequence of its neglect of such duty, an
act is performed by a passenger or employee which is one of a
series of the same kind of acts, and of which the company had
knowledge and in which it acquiesced, and the act is in its nature
dangerous, and a person lawfully on the street is injured as a
result of it, the railroad company is liable.
The fact that the custom had existed for some time without any
injuries' having been received by any one is not a legal bar to the
liability of the company.
The case is stated in the opinion.
MR. JUSTICE PECKHAM delivered the opinion of the court.
This action was brought by the plaintiff in error to recover
damages from the defendant corporation for personal injuries which
he alleged he received by reason of the negligence of its agents
and servants.
The evidence given upon the trial upon the part of the plaintiff
tended to show that, on or about the 16th day of May, 1890, the
defendant was a railroad corporation doing
Page 168 U. S. 137
business in the District of Columbia, and that, on the day above
mentioned, at the City of Washington, in that District, the
plaintiff was in the employment of the defendant, and had been
working at its workshop; that he had finished his work for the day
at about a quarter of six in the evening, and, leaving the shop,
had started for his home. When he reached the intersection of South
Capitol Street and Virginia Avenue, he stopped for a moment, and,
while standing on the pavement on the south side of the railway
track, which was in the middle of Virginia Avenue, a repair train
of the defendant corporation passed by him on its return from work
for the day. 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 employees, 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 of 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 train was in motion at such points on the
road as were nearest their homes, where the wood was picked up and
carried off by some of the members of their families or other
person waiting there for it. The only caution given the men on the
part of the servants or agents of the company was that they should
be careful not to hurt anyone in throwing the wood off. The foreman
of the gang was the man who usually gave such instruction.
This evidence having been given, the plaintiff rested, and the
defendant then moved for the direction of a verdict in its
Page 168 U. S. 138
favor, which motion was granted, and the judgment entered on the
verdict, having been affirmed by the court of appeals, 6 App.D.C.
385, is now before us for review.
In this ruling of the courts below we think there was error.
We are not called upon to say that the defendant was in fact
guilty of negligence. The courts below have held as matter of law
that the company was not liable, and hence a verdict in its favor
was directed. On the contrary, we think the question whether the
defendant was negligent was one which should have been submitted to
the jury.
The plaintiff, at the time of the accident, had finished his
employment for the day and had left the workshop and grounds of the
defendant, and was moving along a public highway in the city, with
the same rights as any other citizen would have. The liability of
the defendant to the plaintiff for the act in question is not to be
gauged by the law applicable to fellow servants, where the
negligence of one fellow servant by which another is injured
imposes no liability upon the common employer. The facts existing
at the time of the happening of this accident do not bring it
within this rule. A railroad company is bound to use ordinary care
and caution to avoid injuring persons or property which may be near
its track. This is elementary. Shearman & Redfield on
Negligence (3d ed.) ยง 477, and cases cited in notes. The duty to
use ordinary care and caution is imposed, as we think, upon the
company to the extent of requiring from it the use of reasonable
diligence in the conduct and management of its trains so that
persons or property on the public highway shall not be injured by a
negligent or dangerous act performed by anyone on the train, either
a passenger or an employee acting outside and beyond the scope of
his employment. The company does not insure against the performance
of such an act, but it rests under an obligation to use reasonable
diligence to prevent its occurrence. An act of such a nature,
either by a passenger or by an employee outside the scope of his
duties and employment, is not to be presumed, and therefore
negligence on the part of the company in failing to prevent the act
could not probably be shown by proof
Page 168 U. S. 139
of a single act of that kind, even though damage resulted, where
there was nothing to show the company had any reason to suppose the
act would be committed. Negligence on the part of the company is
the basis of its liability, and the mere failure to prevent a
single and dangerous act, as above stated, would not prove its
existence. The persons on this train were employees in fact, and
were being transported to their homes by the company, which had,
during the time of such transportation, full control over their
actions. Whether or not they were through with their work is not
material.
If the act on the car were such as to permit the jury to find
that it was one from which, as a result, injury to a person on the
street might reasonably be feared, and if acts of a like nature had
been and were habitually performed by those upon the car to the
knowledge of the agents or servants of the defendant, who, with
such knowledge, permitted their continuance, then, in such case,
the jury might find the defendant guilty of negligence in having
permitted the act, and liable for the injury resulting therefrom,
notwithstanding the act was that of an employee, and beyond the
scope of his employment, and totally disconnected therewith.
Knowledge on the part of the defendant, through its agents or
servants, that passengers or employees upon its trains were in the
habit of throwing out of the windows newspapers, or other light
articles, not in their nature dangerous, would not render the
company liable on the ground of negligence, although on some one
occasion an individual might be injured by such act. The result in
that case would be so unexpected, so extraordinary, and so
unnatural that a failure to prevent the custom could not be said to
be negligence. But if a passenger upon a train, or an employee of
the company upon one of its cars, should supply himself with a
quantity of stones for the purpose of throwing them off the train
as it passed through a city, can it be possible that, under such
circumstances, if this intended use of the stones came to the
knowledge of those who had the conduct of the train, it would not
be their duty to prevent the act? And would it be any answer for
the company, when charged with negligence in knowingly or
negligently permitting
Page 168 U. S. 140
such passenger or employee to throw the stones, to say that the
person throwing them was a passenger, or, if an employee, that he
had completed his work for the day, and was being transported to
his home on the car of the company, and that the act was without
the scope of his employment? Surely not. It is not a question of
scope of employment, or that the act of the individual is performed
by one who has ceased, for the time being, to be in the employment
of the company. The question is does the company owe any duty
whatever to the general public, or, in other words, to individuals
who may be in the streets through which its railroad tracks are
laid, to use reasonable diligence to see to it that those who are
on its trains shall not be guilty of any act which might reasonably
be called dangerous, and liable to result in injuries to persons on
the street, where such act could by the exercise of reasonable
diligence on the part of the company have been prevented? We think
the company does owe such a duty, and if, through and in
consequence of its neglect of that duty, an act is performed by a
passenger or employee which is one of a series of the same kind of
acts, and which the company had knowledge of, and had acquiesced
in, and if the act be, in its nature, a dangerous one, and a person
lawfully on the street is injured as a result of such an act, the
company is liable. Any other rule would, in our opinion, be most
disastrous, and would be founded upon no sound principle.
We feel quite clear that, from the evidence in this case, it was
for the jury to say whether the custom was sufficiently proved, and
whether the act was of a nature from which injury to a person on
the street might reasonably be expected, and also whether such acts
had theretofore been performed with the knowledge and consent of
the agents and servants of the defendant, and whether the company
was guilty of an omission of the duty which it owed to the
plaintiff as one of the public, lawfully using the street where the
track was. We do not say that the jury should be instructed to find
that the defendant was guilty of negligence in case they found from
the evidence that this custom was known to its officers or agents,
but we do say that, the custom being known,
Page 168 U. S. 141
whether it was negligence or not for the company to permit it
under all the circumstances was a question to be decided by the
jury, and not by the court. The company, of course, is not an
insurer of the safety of the public in the highway along or near
which its road may run; but it is bound, as we have stated, to use
reasonable diligence to see to it that no dangerous acts which may
result in injury to persons lawfully on the highway shall be
committed by persons who are on its trains, whether as passengers
or employees. If it neglect that duty, then there is a liability on
its part to respond in damages for the injury resulting from that
neglect.
The fact that this custom had existed for some time without any
injuries having been received by anyone is not a legal bar to the
liability. It may be addressed to the jury as an argument upon the
question whether the act was, in its nature, dangerous and whether,
under all the circumstances, the company was guilty of any
negligence in permitting its continuance, but if the character of
the act complained of is such that a jury might upon the evidence
fairly say that injury to others might reasonably be apprehended,
the fact that none such had theretofore occurred is not an answer,
as matter of law, to the charge of negligence in continuously
permitting acts of that nature. As against the contention that this
act was not in its nature dangerous, it might be urged to the jury
that the caution given to be careful showed that there might be
danger in the performance of the act itself. It would be for the
jury to answer the question.
We are not able to see the bearing upon this case of the case of
Walton v. New York Central Sleeping Car Co., 139 Mass.
556. In that case, there was but a single act -- that of throwing
the bundle from the train by the porter of the parlor car. There
was no evidence that any officer of the company on the train had
the least reason to suppose the porter intended to do the act, or
that it had been habitually done before; no evidence of any custom
known to the defendant by which at that or any other particular
point the porter of the car habitually and frequently threw bundles
from the moving train. Acquiescence on the part of the
defendant
Page 168 U. S. 142
after knowledge of the custom could not, from the one act, be
imputed to it. Very probably, a single act so performed by the
porter without the knowledge or assent of the defendant --
performed for his own purposes, and not in the scope of his
employment, unexpected, and wholly disconnected from his duties --
would not render the defendant liable for the injuries resulting to
a third person from such act. If, however, it had been proven in
that case that it was the custom on the part of the porters on that
car to throw these bundles off while the train was in motion, and
that this custom was known to the officers of the company, and was
permitted by them, with the simple injunction that the porters
should take care, and not hurt anybody, and if the jury found that
the act was one dangerous in its nature, we think there is no doubt
that the defendant would be liable for the injuries resulting from
any one of such acts.
The court in the case cited, while holding the defendant not
responsible, said:
"The defendant is not responsible if the injury to the plaintiff
was done by Maxwell (the servant of the defendant) without the
authority of the defendant, and not for the purpose of executing
defendant's orders or doing the defendant's work, and not while
acting as such servant in the scope of his employment."
The important point was, it is to be observed, that the act of
Maxwell, although the servant of the defendant, was without its
authority, knowledge, or acquiescence. In this case, upon the
evidence submitted, the jury might be asked to infer knowledge on
the part of the defendant of the existence of the custom and
acquiescence on its part in such custom, and that therefore the
acts of the individuals in throwing the timber were acts which were
performed with the authority of the defendant. The act would be
performed with the authority of the defendant if, being aware of
the custom, the defendant or its agents permitted such acts and
made no effort to prevent their performance, and issued no orders
forbidding them. If the jury should also find that the act was one
of a dangerous nature, from which injury to an individual on the
roadside might reasonably be expected, then the jury
Page 168 U. S. 143
might find the defendant guilty of a neglect of duty in
permitting its performance.
We do not think the case of
Snow v. Fitchburg Railroad,
136 Mass. 552, can be distinguished from this case by reason of the
simple fact that the person injured was a passenger who was at the
station, and upon the platform, where the mail bag was thrown. It
may be true the defendant owes a higher duty to its passengers, in
the shape of a greater degree of care, than it does to the public
generally, but it is a question only of degree. It owes a duty to
the public not to injure anyone negligently, and the facts in this
case make it a question for the jury to say whether it has not been
guilty of negligence resulting in plaintiff's injury.
Considerable stress was laid upon the case of
Walker v.
Hannibal & St. Joseph Railroad, 121 Mo. 575, as an
authority against the principle which we have above referred to. We
have examined that case, and regard the facts therein set forth as
so materially different that the case cannot be regarded, as
opposed to the views we have stated. The baggage master, in
gratuitously taking in his car the drills (not properly baggage)
which he threw out at the station as he passed through, was held
not to have been acting within the scope of his employment, and as
there was no proof of knowledge on the part of the railroad
authorities, it was held that the railroad company was not
responsible for this act of the baggage master not done in the
scope of his employment, and of which they had no notice. It is
stated in the opinion that the train master, the superintendent of
the defendant, and also the general agent were all ignorant that
the drills were being carried by the baggage man on the passenger
train, and, in speaking of the act and the arrangement under which
it was performed, the court said:
"The arrangement seems to have been one between plaintiff for
the lime company and James, the train baggage man, with reference
to something not in the line of his employment, and of which his
employer had no knowledge and gave no consent."
Upon the whole, we think it was a question for the jury to say
whether the custom was proved; whether, if proved, it
Page 168 U. S. 144
was known to and acquiesced in by those in charge of the train
as servants of the company; whether it was a dangerous act, from
which injury to a person on the street might reasonably be
apprehended; and, if so, whether there was a failure on the part of
the defendant to exercise reasonable care, in view of all the
circumstances, to prohibit the custom and prevent the performance
of the act.
For these reasons, we are of the opinion that the judgment
should be
Reversed and the cause remanded to the Court of Appeals of
the District of Columbia with directions to reverse the judgment of
the Supreme Court of the District of Columbia, and to remand the
case to that court, with directions to grant a new trial.