Lindsay v. Baltimore & Ohio Rd. , 98 Ohio App. 63 ( 1954 )

Railroads are not primarily liable for the negligence of postal employees. They are in no sense servants or employees of the railroad. The only ground upon which the railroad is held liable for their acts is that they travel on the railroad's cars, and by reason of that fact have it in their power, by dangerous practices, to injure those who may lawfully be in close proximity to the railroad, and to whom the company owes a duty of exercising ordinary care to protect from injury by reason of the passage of its trains, and that the railroad has without objection suffered such mail clerks to indulge in dangerous practices. The basis of liability of the railroad as disclosed by the so-called "mail bag cases" is not the doctrine ofrespondeat superior but is the sufferance of a practice dangerous to those in proximity to its tracks and to whom it owes the duty of protection from injury. Huddleston v. St.Louis, Iron Mountain Southern Ry. Co., 90 Ark. 378,119 S.W. 280; Missouri Pacific Rd. Co. v. Angus, 188 Ark. 300,65 S.W.2d 543; Missouri Pacific Rd. Co. v. Newton, 205 Ark. 353,168 S.W.2d 812; Pittsburgh, Cincinnati, Chicago St. LouisRy. Co. v. Warrum, 42 Ind. App. 179, 82 N.E. 934, and 84 N.E. 356; Lewis v. Pennsylvania Rd. Co.,95 Ind. App. 19, 165 N.E. 774, and 169 N.E. 68; Louisville N. R. Co. v. Daniels, 135 Miss. 33, 99 So. 434, 34 A. L. R., 516; Newberry v. Minneapolis, St. Paul S. S. Marie Ry. Co.,214 Wis. 547, 252 N.W. 579. Cf. annotation, 34 A. L. R., 520;Norris v. Chicago, M., St. P. P. R. Co., 74 S.D. 271,51 N.W.2d 792; and Missouri Pacific Rd. Co. v. Shores,209 Ark. 539, 191 S.W.2d 580 (cake of ice falling from troop train). 75 Corpus Juris Secundum, 351, Section 932; 44 American Jurisprudence, 701, Section 467.

The "mail bag cases" adopt the principle that to passengers and others lawfully upon railroad premises such as the platform, the railroad has the duty to protect such persons from injury by warning or otherwise of a dangerous practice actually or constructively known to the railroad. The principle has been extended to persons lawfully on the streets and highways in the proximity to the tracks. Pittsburgh, Cincinnati, Chicago St.Louis Ry. Co. v. Warrum, supra; Missouri, Pacific Rd. Co. v.Newton, supra; Missouri, Kansas, R. Co. v. Ashlock (Texas, 1940), 136 S.W.2d 943; 75 Corpus Juris Secundum, 434, Section 986. The principle has also been applied to injury received by a person from a bundle of newspapers thrown from a moving train by an employee of a news company, on proof of the existence of a custom known to the railroad of throwing newspapers at the place where the injury occurred. Dwyer v.President, 17 A.D. 623, 47 N. Y. Supp., 1135; Clifford v.New York Central Hudson Rd. Co., 111 A.D. 809, 97 N. Y. Supp., 954.

In the instant case there is no evidence tending to show that the defendant took any measures by remonstrance or otherwise to prevent the continued practice of throwing mailbags down the embankment and into the street. Although a carrier is required to exercise the highest degree of practical care toward passengers on its trains as well as upon its premises made available for passengers (Jones v. Youngstown Municipal Ry. Co., 133 Ohio St. 118,12 N.E.2d 279; contra, Taylor v. Pennsylvania Co., 50 F., 755) and ordinary care toward persons other than passengers lawfully upon its premises, upon reason and logic the same duty to exercise ordinary care should be imposed upon the railroad toward persons upon a street in proximity to its tracks.

The evidence fails to disclose that either the speed of the train or the failure to provide an adequate receptacle to catch the mailbags had any causal connection with injury. Neither of these alleged items of negligence should have been submitted to the jury. In my opinion, the jury should have been instructed that if it found from the evidence that the mailbag alleged to have injured the plaintiff was thrown from the mail car by a postal employee, then the defendant would not be liable for any negligent act of such postal employee, but if it should find by a preponderance of the evidence that the mail clerks had been for some time accustomed to throw mailbags from the mail cars in such manner that they would roll into the street and that the defendant, through its agents and employees, had actual knowledge of such practice, or that such practice had continued for such length of time, prior to the injury alleged to have been sustained by the plaintiff, that the defendant could or should have known of such practice, and that the defendant made no objection thereto, and if it further find that such conduct was the proximate cause of plaintiff's injury, in such event its verdict should be for the plaintiff. Cf. Missouri Pacific Rd.Co. v. Newton, supra.

In the light of the evidence of the continuance of the dangerous practice without remonstrance on the part of the defendant, the defendant's special request to charge was properly refused.