UNITED STATES SUPREME COURT DECISIONS ON-LINE

1. This Court will not reexamine the order of the circuit court refusing to set aside the verdict upon the ground that the jury awarded excessive damages.

2. The same degree of care which a railroad company should take in providing and maintaining its machinery must be observed in selecting and retaining its employees, including telegraphic operators. Ordinary care on its part implies, as between it and its employees, not simply the degree of diligence which is customary among those entrusted with the management of railroad property, but such as, having respect to the exigencies of the particular service, ought reasonably to be observed. It is such care as, in view of the consequences that may result from negligence on the part of employees, is fairly commensurate with the perils or dangers likely to be encountered.

This was an action by McDaniels against the Wabash Railway Company to recover damages for injuries he sustained by reason of a collision of two of its freight trains, which took place on the night of Aug. 17, 1877, near Wabash, Indiana. There was a verdict in his favor. The court refused to set it aside, and, judgment having been rendered thereon, the company brought this writ of error.

The company was a common carrier, and the plaintiff a brakeman in its service at and before that date. When injured, he was at his post of duty on one of the colliding trains. The collision, it is conceded, was the direct result of negligence on the part of McHenry, a telegraphic night operator of the defendant assigned to duty at a station on the line of its road, who was asleep when a train passed that station. Being ignorant for that reason that it had passed, he misled the train dispatcher at Fort Wayne as to where it was at a particular hour of the night. In consequence of the erroneous information thus conveyed, the trains were brought into collision, whereby the plaintiff lost his leg, and was otherwise seriously and permanently injured.

The action proceeded mainly upon the ground that McHenry, a telegraphic operator in the service of the company, was incompetent for the work in which he was engaged, and that the clubjuris

Page 107 U. S. 455

fact, was known to the company at, before, and during the time of his employment.

The essential facts bearing upon the question of the company's negligence in employing McHenry are summarized in one of the paragraphs of the charge to the jury. They are:

"The tenth night after McHenry went on duty as night operator, he went to sleep at his post of duty, with the result already stated. He was seventeen years old but a few weeks before his employment. In June, 1876, he went into the service of the defendant at Wabash, as a messenger boy, and continued in that service some twelve months, during which time he was instructed by Waldo, the day operator, in the art of telegraphy. For this instructed Waldo exacted and received, as compensation, McHenry's wages, $10 per month. For a month or more before McHenry's employment as night operator, he worked in the country, harvesting. The only knowledge that he had of telegraphy was what he acquired under Waldo, and before taking charge as night operator he had never been employed anywhere or in any capacity as operator. He was not competent, as he told you, to take press reports, but was competent, as he thought, and as Waldo and Wade (the latter his predecessor as night operator) thought, to do ordinary business, and to discharge the duty of night operator at Wabash; his habits were good, and he was bright and industrious. Waldo had recommended McHenry to Simpson, the chief train dispatcher at Fort Wayne, as capable and faithful, and without knowing McHenry personally, or even seeing him, and, on Waldo's recommendation and what Simpson knew of McHenry's skill from having occasionally noticed at Fort Wayne his fingering the key at Wabash, Simpson directed Waldo to employ McHenry at $50 a month; or, according to Waldo's testimony, he was directed by Mr. Simpson to put McHenry in charge of the office. McHenry's father told Waldo, before the son entered on the discharge of his duties, that Waldo should have $10 a month of the son's wages if Waldo would continue to give the son attention, to which Waldo assented. This is the father's testimony. Waldo admits that the father made the proposition to him as stated, but says

Page 107 U. S. 456

he replied that the son was competent to take charge of the office and run it without assistance. Boys no older than McHenry had successfully discharged the duties of day and night dispatcher on this and other roads, and it teems to have been the custom of the company to educate its telegraph operators while serving as messenger boys. Other railroad companies, it seems from the evidence have pursued the same course with satisfactory results."