1. An employer, by voluntarily furnishing a guard for employees
as a protection against strikers, does not become bound to furnish
more to make the protection adequate. P. 271 U. S.
2. Assuming that the railroad in this case was under a duty to
furnish protection to plaintiff's intestate (an employee who was
shot by strikers), held,
on the facts, that there was no
evidence of negligence in failure to furnish more than one guard,
and that the jury should not have been allowed to conjecture what
would have happened if another guard had been present.
3 F.2d 882 reversed.
Certiorari to a judgment of the circuit court of appeals which
affirmed a judgment of the District Court for the plaintiff, Mills,
in an action against the railway under the Federal Employers'
Liability Act, removed from a state court.
Page 271 U. S. 345
MR. JUSTICE STONE delivered 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, Alabama. 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 deputy 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. The cause was removed to the District Court for
Northern Alabama on the ground 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.
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
Petitioner argues that the evidence did not warrant the
submission of any of these questions to the jury, and
Page 271 U. S. 346
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. See St. Louis Iron M. Ry.
v. McWhirter, 229 U. S. 265
229 U. S.
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. Compare Davis
v. Green, 260 U. S. 349
260 U. S. 351
Manwell v. Durst,
178 Cal. 752; Roebuck v. Railway
99 Kan. 544; Lewis v. Taylor Coal Co.,
845; Rourke's Case,
237 Mass. 360; Matter of Lampert
235 N.Y. 311. 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
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 six or seven 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 protection to the decedent or
its other workmen than it actually did furnish.
Page 271 U. S. 347
The respondent here asserts that the defendant, having assumed
to do something, should have done more. But the bare fact that the
employer voluntarily provided some protection against an
apprehended danger, by undertaking to do something which involved
no special knowledge or skill, can give rise to no inference that
it undertook to do more. Respondent therefore relies on the breach
of a duty which does not exist at common law, and of whose genesis
in fact it offers no evidence.
There is a similar absence of evidence of negligent failure by
petitioners to fulfill this supposed duty of protection. The burden
of proving negligence rested on the respondent. Patton v. Texas
& Pacific Ry. Co., 179 U. S. 658
whether a supply of guards sufficient to meet the emergency was
obtainable, what demands were made upon them, and whether there
were other guards available for the particular journey when the
decedent was killed are questions on which the record is
Nor is there evidence from which the jury might infer that
petitioner's failure to provide an additional guard or guards was
the proximate cause of decedent's death. Whether one or more
additional guards would have prevented the killing is in the
highest degree speculative. The undisputed evidence is that the
shooting was done by one or more of three men standing of the rear
platform of the car. They had come there after decedent and his
companions had seated themselves in the car. Without warning, they
fired a volley into the car and fled. Decedent and his guard were
armed, but had no opportunity to defend themselves. On such a state
of facts, the jury should not have been permitted to conjecture
what might have happened if an additional guard had been present.
See Patton v. Texas & Pacific Ry., supra; Reading Co. v.
6 F.2d 185; Midland Valley R. Co. v. Fulgham,
181 F. 91; Laidlaw v. Sage,
158 N.Y. 73.
Page 271 U. S. 348
The evidence must at least point to the essential fact which the
jury is required to find in order to sustain the verdict.
We need not inquire whether decedent was employed in interstate
commerce at the time of his death, or whether the rule laid down in
Erie R. Co. v. Winfield, 244 U. S. 170
be extended, as the court below held, so as to support the judgment
of the district court.
Judgment of the circuit court of appeals is reversed, and the
cause remanded for further proceedings not inconsistent with this