by John Marshall Harlan

“ And the argument of counsel is that the question of ordinary care is to be determined by the usages or custom which obtain in railroad management, and therefore the proper inquiry is not what ought to be, but what is, the general practice in that business; that what the servant is presumed to know, and to have accepted as the basis of his employment, is the practice or custom as it is when, in hiring his services, he risks the dangers incident to his employment ”

“ But the reasoning upon which those cases are based is not satisfactory, nor, as we think, consistent with that good faith which, at all times, should characterize the intercourse between officers of railroad corporations and their employes. It should not be presumed that the employe sought or accepted service upon the implied understanding that they would exercise less care than that which prudent and humane managers of railroads ought to observe. ”

“ It was further said that the obligation of a railroad company, in providing and maintaining, in suitable condition, machinery and apparatus to be used by its employes, is the more important, and the degree of diligence in its performance the greater, in proportion to the dangers which may be encountered ”

“ Whether, in the selection and retention of telegraphic operators, upon whose capacity and watchfulness largely depends the personal safety of employes on trains, a corporation should or not exercise the same degree of care which must be observed in the case of passengers, it is not necessary now to consider or determine. ”

“ If the general practice of such corporations in the appointment of servants is evidence which a jury may consider in determining whether, in the particular case, the requisite degree of care was observed, such practice cannot be taken as conclusive upon the inquiry as to the care which ought to have been exercised. ”

“ That we are without authority to disturb the judgment upon the ground that the damages are excessive cannot be doubted. Whether the order overruling the motion for new trial, based upon that ground, was erroneous or not, our power is restricted to the determination of questions of law arising upon the record. ”

“ The court, in that instruction, expressly said that to establish the alleged negligence, not only the incompetency must be shown, 'but it must be shown that the defendant failed to exercise proper care or diligence to ascertain his qualifications and competency prior to his appointment, or failed to remove him after his incompetency had come to the notice of defendant, or to some agent or officer of defendant having power to remove said McHenry.'
It is not necessary to further extend the discussion of the questions pressed upon our consideration. ”

“ Consequently, the company was required, in the selection of plaintiff's fellow-servants, whose negligence might endanger his personal safety, not to observe 'proper and great' (which counsel insists mean peculiar) care, but only that degree of diligence which the general practice and usage of railroad management sanctioned as sufficient. ”