1. When contractors for building a railroad, running a
construction train, consent to take a passenger for hire on their
train, they are private carriers for hire, and are only bound to
exercise such care and skill in the management and running of the
train as prudent and cautious men, experienced in that business,
are accustomed to use under similar circumstances.
2. The passenger in such case takes upon himself the risks
incident to the mode of conveyance.
3. Where an accident occurs to a passenger carried on such a
train by the car in which he was carried being thrown off the
track, the contractors are not responsible unless the accident is
directly attributable to their negligence or unskillfulness in that
particular -- that is to say in the management and running of the
train. Accordingly, an instruction that it is incumbent on the
defendants to prove that the agents and servants in charge of the
train were persons of competent skill, of good habits, and in every
respect qualified and suitably prepared for the business in which
they were engaged, and that they acted on this occasion with
reasonable skill, and with the utmost prudence and caution, was
held erroneous, in that it turned the attention of the jury from
the question at issue for their determination, and directed it to
the skill, habits, and attainments for their business of the agents
and servants of the defendants, as well as to their conduct on the
occasion of the accident.
In 1867, Shoemaker and another were contractors for building the
Eastern Division of the Union Pacific Railway in Kansas; and in
October of that year, they ran a construction train over a portion
of the road, carrying material for it. To this train was attached
what was called a "caboose car" -- a car for the accommodation of
the men connected with the train, who had their "sleeping bunks" in
this car, and who stored their tools there, as also the lamps used
on the cars. The road was not yet delivered over to the Pacific
Railway Company, and the contractors did not wish to carry
passengers. Persons, however, were sometimes carried on the caboose
car, and sometimes fare had been charged for their passage, but not
always.
Page 79 U. S. 370
In this state of things, one Kingsbury, a sheriff in Kansas, and
a deputy marshal wanted to make an arrest on the line of the road,
and he applied for passage as far as to a place called Wilson's
Creek, asking the conductor to stop the train there in order that
he might make the arrest. He was accordingly taken on the train,
and the train stopped until he had made the arrest.
A part of the fare charged was paid by Kingsbury on the cars,
and the balance afterwards. The train ran from Ellsworth to
Walker's Creek in Kansas. In going towards Walker's Creek, the
train was made up and ran in the usual way of making up and running
railway trains, the engine being in front, with the caboose and
flatcars attached in regular order. But on the return from Walker's
Creek, as there was, as yet, no turntable on the road, the usual
order for making up such trains was reversed, and both engine and
tender were backed over the road a distance of more than fifty
miles, the tender being ahead, the engine next, the caboose and
other cars attached, and following in regular order. When about
three miles from Ellsworth, on this return trip, both the engine
and tender were thrown from the track and upset. At the time this
accident occurred, Kingsbury was riding in the caboose car with the
conductor of the train, and either jumped out or was thrown out,
which of the two did not exactly appear. Whichever of the two
things was true he was hurt, and for the injuries which he received
he brought the action below.
The accident was occasioned by the engine's running against a
young ox which leaped on to the track about twenty feet in front of
the advancing train from grass or weeds five or six feet high
growing on the sides of the road. The train was running at its
usual rate of speed. The accident occurred just after dark, but it
was a moonlight night, and the engineer testified that he could
have seen an animal two hundred yards distant on the track; that
the animal was only about twenty feet from the engine when first
seen. He continued his testimony thus:
"As soon as I saw the animal, I shut off the steam and
seized
Page 79 U. S. 371
the lever to reverse the engine, and had it about half over when
the engine went off the track. Something struck me on the head, and
I did not know anything more. I was injured. I did what I thought
was best to be done to stop the train. The whistle lever was in the
top of the cab. I did not whistle for brakes. I had no time to do
so after I saw the animal and before the engine went off the track.
The train could have been stopped in about one hundred and fifty
yards. When danger appears, the first thing to be done is to
reverse the engine and then sound the whistle for brakes. Both
could not be done at the same time. In order to reverse and blow
the whistle two motions are necessary -- first, to cut off the
steam, and then take hold of the lever to throttle valve and move
it over. It takes both hands to reverse. The whistle is sounded by
a lever in the top of the cab. Brakemen would know, by shutting off
steam and reversing, that something was the matter. It would take
about ten seconds to do all this. I did it as quick as I could. I
could have done nothing more than I did do."
There was no fence on the sides of the road. The plaintiff had
been several times before over the road and knew its condition and
the manner in which the trains were made up and run.
The court, among other instructions, gave the following as a
fifth to the jury, to which the defendants excepted:
"
When it is proved that the car was thrown from the track,
and the plaintiff injured, it is incumbent on the defendants to
prove that the agents and servants in charge of the train were
persons of competent skill, OF GOOD HABITS, and in every respect
qualified and suitably prepared for the business in which they were
engaged, AND that they acted on this occasion with reasonable
skill and with the
utmost prudence and caution, and if the
disaster in question was occasioned by the
least
negligence
or want of skill or prudence on their part,
then the defendants are liable in this action."
There was no evidence in the case in relation to the skill,
habits, or qualifications of the agents and servants of the
defendants except what arose from the fact that the engineer had
been employed on a railroad about four years and had been engineer
for more than two years and that the fireman had been on a railroad
for about eighteen months.
Page 79 U. S. 372
Verdict and judgment having gone for the plaintiff, the
defendants brought the case here on error.
Page 79 U. S. 375
MR. JUSTICE FIELD delivered the opinion of the Court.
From the whole evidence in this case it is plain that the
defendants were not common carriers of passengers at the time the
accident occurred which has led to the present action. They were
merely contractors for building the Eastern Division of the Union
Pacific Railway, and were running a construction train to transport
material for the road. The entire train consisted, besides the
engine and its tender, of cars for such material and what is called
in the testimony a "caboose car." This latter car was intended
solely for the accommodation of the men connected with the train;
it contained their bunks and mattresses; they slept in it, and
deposited in it the lamps of the cars, and the tools they used. It
was not adapted for passengers, and, according to the testimony of
the conductor, the defendants did not wish to carry passengers,
although when persons got on to ride, the defendants did not put
them off, and sometimes, though not always, fare was charged for
their carriage.
The plaintiff, who was sheriff of a county in Kansas and deputy
marshal of the district, desired to arrest a person on the line of
the road, and, to enable him to accomplish this purpose, he applied
to the conductor for passage on the train as far as Wilson's Creek,
and requested that the train would stop there until the arrest
could be made. His wishes were granted in both respects, and for
the services rendered he
Page 79 U. S. 376
paid at the time a portion of the fare charged, and the balance
subsequently.
In the rendition of these services for the plaintiff, the
defendants were simply private carriers for hire. As such carriers,
having only a construction train, they were not under the same
obligations and responsibilities which attach to common carriers of
passengers by railway. The latter undertake, for hire, to carry all
persons indifferently who apply for passage, and the law, for the
protection of travelers, subjects such carriers to a very strict
responsibility. It imposes upon them the duty of providing for the
safe conveyance of passengers so far as that is practicable by the
exercise of human care and foresight. They are bound to see that
the road is in good order; that the engines are properly
constructed and furnished; that the cars are strong and fitted for
the accommodation of passengers, and that the running gear is, so
far as the closest scrutiny can detect, perfect in its character.
If any injury results from a defect in any of these particulars
they are liable.
They are also bound to provide careful and skillful servants,
competent in every respect for the positions to which they are
assigned in the management and running of the cars, and they are
responsible for the consequences of any negligence or want of skill
on the part of such servants.
They are also bound to take all necessary precautions to keep
obstructions from the track of the road, and although it may not be
obligatory upon them, in the absence of legislative enactment, to
fence in the road so as to exclude cattle, it is incumbent upon
them to use all practical means to prevent the possibility of
obstruction from the straying of cattle on to the track as well as
from any other cause. As said by the Supreme Court of Pennsylvania,
in speaking of the duty of railway companies in this particular:
*
"Having undertaken to carry safely, and holding themselves out
to the world as able to do so, they are not to suffer cows to
endanger the life of a passenger any more than a defective
Page 79 U. S. 377
rail or axle. Whether they maintain an armed police at
crossroads, as is done by similar companies in Europe, or fence, or
place cattle guards within the bed of their road, or by any other
contrivance exclude this risk is for themselves to consider and
determine. We do not say they are bound to do the one or the other,
but if by some means they do not exclude the risk, they are bound
to respond in damages when injury accrues."
It is evident that the defendants in this case were not subject
to any such stringent obligations and responsibilities as are here
mentioned. They did not hold themselves out as capable of carrying
passengers safely; they had no arrangements for passenger service,
and they were not required to make provisions for the protection of
the road such as are usually adopted and exacted of railroad
companies. They did not own the road, and had no interest in it
beyond its construction. It was no part of their duty to fence it
in or to cut away the bushes or weeds growing on its sides.
The plaintiff knew its condition and the relation of the
defendants to it when he applied for passage. He had been
previously over it several times, and was well aware that there
were no turntables on a portion of the route -- a fact which
compelled the defendants to reverse the engine on the return of the
train from Walker's Creek. He therefore took upon himself the risks
incident to the mode of conveyance used by the defendants when he
entered their cars. All that he could exact from them under these
circumstances was the exercise of such care and skill in the
management and running of the train as prudent and cautious men
experienced in that business are accustomed to use under similar
circumstances. Such care implies a watchful attention to the
working of the engine, the movement of the cars and their running
gear, and a constant and vigilant lookout for the condition of the
road in advance of the train. If such care and skill were used by
the defendants, they discharged their entire duty to the plaintiff,
and if an accident notwithstanding occurred by which he was
injured, they were not liable. They were not insurers of his
Page 79 U. S. 378
safety, nor responsible for the consequences of unavoidable
accident.
The question should have been put to the jury whether the
defendants did in fact exercise such care and skill in the
management and running of the train at the time the accident
occurred. They were not responsible to the plaintiff, unless the
accident was directly attributable to their negligence or
unskillfulness in that particular.
The evidence in the case shows that the accident was occasioned
by the tender and engine running against a steer. The train was
proceeding at its usual rate of speed when the steer suddenly, from
a mass of high weeds or grass growing on the sides of the road,
leaped upon the track directly in front of the advancing train at a
distance from it of about twenty feet. This distance was so short
and the movement of the animal was so sudden that it was impossible
to arrest the train, and a collision followed which threw the
engine and tender from the track. The plaintiff, on the happening
of the collision, either leaped from the "caboose car," in which he
was at the time sitting, or was thrown from it, it is immaterial
which, and was injured.
The fifth instruction given by the court turned the attention of
the jury from the simple question at issue for their determination,
and directed it to the skill, habits, and attainments for their
business of the agents and servants of the defendants, as well as
to their conduct on the occasion of the accident. It held proof
that the agents and servants were possessed of competent skill, of
good habits, and in every respect qualified and suitably prepared
for the business in which they were engaged, as essential as proof
that they acted on the occasion with skill, prudence, and caution.
And it made the occurrence of the accident presumptive evidence
that they were destitute of such skill, habits, and
qualifications.
We are of opinion that the court erred in this instruction, and
that it misled the jury. On this ground, the judgment of the court
below must be
Reversed and the cause remanded for a new trial.
*
Sullivan v. Philadelphia & Reading Railroad
Company, 30 Pa.St. 234.
