MISSOURI PACIFIC RAILROAD CO.
v.
DAVID, ADMINISTRATRIX

U.S. | 1932-02-15
No. 365
284 U.S. 460 Supreme Court of the United States (1932) Positive Treatment
Also reported at: 76 L. Ed. 399 · 52 S. Ct. 242 · SCDB 1931-131 · 1932 U.S. LEXIS 886
Cited by 10 cases

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Synopsis

A railroad employee hired as a train guard to protect against robberies was murdered during an attempted robbery, and his administratrix sued under the Federal Employers' Liability Act. The Supreme Court reversed the judgment in favor of the employee, holding that he had assumed the risk of the dangers inherent in his position, including the risk that the railroad's informant might fail to provide advance warning of criminal activity, because he understood the nature of his employment, the dangers involved, and received no explicit promise of special protection or warning.

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Opinion of the Court
Mr. Justice McReynolds

Mr. Justice McReynolds delivered the opinion of the Court.

While employed by petitioner, Railroad Company, and charged with the duty of protecting its trains against rob-. bers, James Lee David was murdered in the night of May 17th, 1923. His administratrix sued for damages under the Federal Employers’ Liability Act in the Circuit Court, Jackson County,'Missouri, and obtained á favorable verdict. Judgment thereon was affirmed by the Supreme Court. The cause is here upon writ of.certiorari.

Often during the months prior to April, 1923; the petitioner suffered losses through depredations by organized bands of robbers upon freight trains in and near Kansas City, -Missouri. It determined to make special efforts to frustrate further attacks by the culprits and, if possible, cause their apprehension. To this end, on April 1st, 1923, it employed David' to act as a “ train rider ” or guard for its cars. He had had experience in similar undertakings. Also, he was carefully advised concerning the probable danger. He was told that the robbers were desperate men who “would shoot him just as quick as they saw him.” He carried a pistol and sawed-off shotgun “ for the purpose of defending himself and the company’s property.” When asked “Whether you will fight these fellows or not? ” he replied “ I will fight them until I die.”

Subsequent to David’s employment, in order to strengthen-its efforts towards frustration and to secure arrests, petitioner employed McCarthy, known to be associated with one of the criminal bands, who agreed, when possible, to furnish advance information of intended depredations, aid in locating stolen goods, etc. • “ His instructions were that he was to get us word [through the telephone] before the robbery was .committed, if he could, if not, to give us information as soon as he could after the robbery had been committed.”

The theory upon which respondent recovered below is that, while acting for petitioner, McCarthy knew of a plan to rob the train to which David was assigned on May 17th, and in violation, of his duty negligently failed to notify his superior officer, — that because of such negligence, David received no notice of the plan, although he had the right to rely upon being supplied with such information in order to prepare to cope with the brigands on. equal terms. As a .consequence, he failed to take the necessary precautions and exposed himself to being shot.

The established rule is that in proceedings Under the Federal Employers’ Liability Act assumption of the risk is an adequate defense. Seaboard Air Line Ry v. Horton, 233 U. S. 492; Boldt v. Pennsylvania R. Co., 245 U. S. 441, 445; Chesapeake & Ohio Ry. Co. v. Nixon, 271 U. S. 218; St. Louis-San Francisco Ry. Co. v. Mills, 271 U. S. 344; Atlantic Coast Line R. Co. v. Southwell, 275 U. S. 64; Toledo, St. Louis & Western R. Co. v. Allen, 276 U. S. 165. Under the circumstances disclosed by the record, clearly, we think, David assumed the risk of the default which, it is said, resulted in his death. He understood the nature of his employment and the incident dangers. He well knew that he was subjecting himself to murderous attacks by desperadoes, There was no promise to give him special warning or protection. Even if he had knowledge of McCarthy’s employment (and this is far from certain), he must have appreciated the utter unreliability of the man and the probable inability of the master to obtain timely information through such a medium. He could not properly expect to be protected against criminals, whom he was employed to fight, through treachery by one of their associates. The common employer, notwithstanding efforts to obtain warning, actually knew nothing of the criminal plan. If we accept respondent’s view of the facts, David assumed the risk of the negligent action of which complaint is now made.

We-need not consider any other point advanced in behalf of the petitioner. The judgment of the court below must be reversed. The cause will be remanded for further proceedings not inconsistent with this opinion.

Reversed.

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  • Ferguson v. Moore-McCormack Lines, Inc., 352 U.S. 521 (U.S. 1957)
    …versed. 1931 Term. Chesapeake & O. R. Co. v. Kuhn, 284 U. S. 44; affirmance of judgment for plaintiff reversed. Atchison, T. & S. F. R. Co. v. Saxon, 284 U. S. 458; affirmance of judgment for plaintiff reversed. Missouri Pacific R. Co. v. David, 284 U. S. 460; affirmance of judgment for plaintiff reversed. [*555] Atlantic Coast Line R. Co. v. Temple, 285 U. S. 143; affirmance of judgment for plaintiff reversed. Southern R. Co. v. Youngblood, 286 U. S. 313; affirmance of judgment for plaintiff reversed.…
  • Thomson v. Downey, 78 F.2d 487 (7th Cir. 1935)
    …46 S. Ct. 495, 70 L. Ed. 914; Toledo, St. Louis & Western Railroad Co. v. Allen, 276 U. S. 165, 48 S. Ct. 215, 72 L. Ed. 513; Chesapeake & Ohio Railway Co. v. Mihas, 280 U. S. 102, 50 S. Ct. 42, 74 L. Ed. 207; Missouri Pacific Railroad Co. v. David, 284 U. S. 460, 52 S. Ct. 242, 76 L. Ed. 399; Bernola v. Pennsylvania Railroad Co. (C. C. A.) 68 F.(2d) 172; Kansas City Southern Railroad Co. v. Williford (C. C. A.) [*490] 65 F.(2d) 223; Sweeney v. Boston & Maine Railroad Co. (N. H.) 174 A. 676. The Federal Emp…
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  • Keys v. Pa. R. Co., 104 F.2d 663 (2d Cir. 1939)
    …eceased assumed as a matter of law. This principle of law is applicable to suits brought under the Employer’s Liability Act whenever Sec. 4 of the Act, 45 U.S.C.A. § 54, does not apply; and it does not in this case. Missouri Pacific R. Co. v. David, 284 U.S. 460, 52 S.Ct. 242, 76 L.Ed. 399; Boldt v. Pennsylvania R. Co., 245 U.S. 441, 38 S.Ct. 139, 62 L.Ed. 385. [6] Such negligence on the part of the defendant as was here shown in causing the fire may not, perhaps, have been the breach of any duty it owed an…

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