Fletcher v. Baltimore & Potomac Railroad, 6 App. D.C. 385

Fletcher v. Baltimore & Potomac Railroad

6 App. D.C. 385 | D.C. Cir. | 1895

Mr. Chief Justice Alvey

delivered the opinion of the Court:

On this single assignment of error the question is, whether the facts disclosed such case of negligence on the part of the defendant as entitled the plaintiff to recover; for if, conceding the truth of the testimony, and all fair inferences deducible therefrom, the court could not perceive that there was rational ground upon which to base a verdict for the plaintiff, it was its duty to direct a verdict for the defendant, and not to subject the case to groundless and unrestrained speculation by the jury, as to the liability of the defendant, on insufficient proof.

In what, then, did the supposed negligence of the defendant consist ? The defendant was not in the exercise of its ordinary business of common carrier, and the plaintiff bore no such relation to it as that of the passenger. He stood simply in the relation to the defendant of a stranger rightfully on the public way or street. Nor was the relation of master and servant existing at the time of the accident, as to the running and conduct of the repair train, as between the defendant and the day laborers, who were allowed to ride home on the train after finishing their day’s work. There is nothing in the evidence to show upon what terms or conditions the men were allowed to ride upon the train to and from their work, as in the case of Vick v. N. Y. Central Railroad Co., 95 N. Y. 267, and the other cases cited. It is not contended that there was negligence in the humane indulgence of allowing the laborers the privilege of bringing in on the train the refuse wood or timber gathered up along the road, to be used as fuel. Assuming knowledge on the part of the defendant, the only act of which negligence could be predicated was in allowing the men to drop or throw off from the moving train along the street, the wood brought in by them, to be taken to their homes for fuel. This, as *392the evidence shows, had been a practice indulged for several years, and there had never been an accident resulting therefrom before, and there had been no complaint of the habit either by the police of the city or by others ; at least there is no evidence of such complaint. Under the circumstances, we do not think the mere allowing the wood to be thrown from the moving train was culpable negligence on the part of the defendant, per se ; though, of course, the manner of throwing off the wood in a particular instance might constitute negligence. The person who threw off the piece of wood that injured the plaintiff was not in the performance of any duty required of him by the defendant, but his act was wholly independent of any duty imposed upon him by his employment to work for the defendant. In other words, his act was not within any limit or scope of authority derived from the defendant, as agent or servant in the performance of duty. If the injury was not one of pure accident, but was the result of negligence in the manner of throwing off the log, the party doing the act would be responsible therefor. It would certainly be exceedingly hard to hold the defendant company responsible, and to do so would seem to be justified by no well settled principle of law.

There are not many cases to be found in the books that have any direct bearing upon the facts of this case. But we think the case of Walton v. New York Central Sleeping Car Co., 139 Mass. 556, has a close analogy to it, and in principle goes far in the direction, if not quite to the extent, of being decisive of this case.

In that case the plaintiff was in the employ of the B. & A. Railroad Company, as a laborer and track repairer, and, on the day of the injury received, was, under the direction of the railroad company, rightfully on its tracks, engaged in the performance of his duties, and in the exercise of due care, when an express train passed rapidly by, on an adjoining track, and a bundle thrown from the passing train hit the plaintiff, and caused the injuries complained of. In this express train was a parlor car, owned by the defend*393ant, the sleeping-car company, carried on special terms. The defendant employed on the car a conductor, who collected the fares for seats, and had general charge and management of the car; and a porter, one Maxwell, whose business it was to take charge of the car, keep it clean and in order, serve the passengers, and remove rubbish from the car, and who was under the conductor. He was allowed by the defendant to bring in, and keep in a closet in the car, where articles of the defendant were also kept, a satchel and other articles of his own, to which closet he had a key. As this car was passing through Newton on the day of the accident, Maxwell went out upon the platform of this car, and threw off a paper bundle, containing soiled clothing belonging to himself, together with a paper box containing some articles of his own. It appeared that Maxwell, the evening before, had arranged with a woman, living near by, to throw the bundle at this point from the train, so that she could get it and to wash the soiled linen. This bundle so thrown struck the plaintiff and inflicted the injury. Maxwell had never thrown a bundle in that way before. He had no duty in regard to the washing of the linen used in the car, which was washed in Boston, and attended to by other servants than Maxwell.' Maxwell testified that no person directed him to throw off the bundle, and that he threw it off for his own convenience solely.

The plaintiff asked the trial judge to rule that, on the facts stated, he was entitled, to recover. But the judge refused so to rule, and, instead thereof, ruled as follows:

“The defendant is not responsible, if the injury to the plaintiff was done by Maxwéll, the servant of the defendant, without the authority of the defendant, and not for the purpose of executing the defendant’s orders, or doing the defendant’s work, and not while acting as such servant, in the scope of his employment. If Maxwell was employed by the defendant as a porter upon its parlor car, and, wholly for a purpose of his own, and disregarding the object for which he was employed, and not intending by his *394act to execute it, negligently threw a bundle, his own property, from the platform of the parlor car, and thereby the plaintiff, 'who was not a passenger, was hit and injured while in the exercise of due care, and if this injury was done by Maxwell not within the scope of his employment, then the defendant is not liable. If, however, Maxwell negligently threw the bundle in the execution of the authority given him by the defendant, and for the purpose of performing what the defendant had directed,-or if the injury to the plaintiff was done by Maxwell while acting within the scope of his employment, then the defendant would be liable.”

The judge also ruled, that, upon the whole evidence, the plaintiff was not entitled to recover. And upon a review by the Supreme Court of the State, it was held that these rulings were correct; and in a brief opinion by the Supreme Court, it was said :

“ The rulings and instructions of the court were correct. There was no evidence that Maxwell was employed by the defendant to take care of his own clothing and personal effects. The act complained of was not within the scope of his employment; and it is wholly immaterial that he was, at the moment, riding in a car of the defendant in which he was employed by it for other purposes.”

That case, it seems to us, was rightly decided, and decided upon principle that is applicable here. If the owner of the parlor or sleeping car in that case was properly exempt from liability, it is difficult to perceive why, or upon what principle, the defendant in this case should be held liable.

The case mostly relied upon by the plaintiff in the case of Snow v. Fitchburg Railroad Co,, 136 Mass. 552. But that case presents features quite distinguishable from the case before us. There the plaintiff was a passenger on the defendant’s road ; and while waiting in a proper place and using due care, on the platform at the station of the defendant, to make a necessary change from one train to another, *395the plaintiff was struck and injured by a mail bag thrown from a rapidly passing train by a United States mail agent. And, as declared by the court, “ there was evidence in the case tending to show that mail bags had not unfrequently been thrown from that car, in such a way as to strike upon the platform where the plaintiff stood; and if such evidence was believed, the court was justified in inferring that the defendant knew, or, in the exercise of proper care, ought to have known this.” That, therefore, was simply a negligent and dangerous manner of performing a duty owing to a passenger by a railroad company. The company was bound to exercise towards the plaintiff in that case, “ such care and diligence as could reasonably be exercised to protect her from such injuries as human foresight could anticipate and prevent.” And though the mail bag was thrown out by the United States mail agent, yet it was the duty of the railroad company to provide for and see to the safe and proper delivery of the mail bag from the train, so that it should not imperil the life or limbs of the passengers on its trains. That case, we think, does not in any manner control in the decision of the present case.

We are of opinion that the court below, upon the facts before it, was correct in directing the verdict for the defendant ; and the judgment must therefore be affirmed.

Judgment affirmed.