US SUPREME COURT DECISIONS

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, chanrobles.com-red

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.