Is a railroad company liable in damages for tbe killing of an employee by trespassers and thieves who come upon a freight train to steal coal therefrom ?
The plaintiff plants the right of recovery upon two grounds: First, that the engineer of the train did not blow the whistle, stop the train or jostle the cars and thus prevent the thieves from climbing upon the train; second, that thieves had been stealing coal from the defendant and climbing upon its freight trains for such purposes for thirty years, and that the defendant had failed and neglected to take proper precaution to prevent the stealing of coal. The engineer testified that he did not have time to do anything to save plaintiff’s intestate after the Negroes crawled upon the train and began to throw coal therefrom. There was no evidence to the contrary, and consequently this ground of liability disappears.
The basis for the second contention is that the defendant had negligently permitted and allowed thieves to steal its property, and that such negligent custom was the proximate cause of the death of plaintiff’s intestate.
It is a familiar principle of law that if an employer permits a dangerous custom to exist in the operation of his business and acquiesces therein that he must answer in damages for all foreseeable consequences resulting therefrom. However, it would not ordinarily be supposed that a carrier would approve or acquiesce in the larceny of its property by thieves, and there is no evidence that the defendant invited or approved the various thefts. Moreover, there was no' evidence that any other employee of the. defendant had ever been injured by the acts of coal thieves, and consequently if such acts were dangerous, there was no notice of the previous hazard of personal injury to trainmen.
In the final analysis, the ease presents an injury inflicted by the criminal act of a third person, and one in nowise connected with the operation of the train or the ordinary prosecution of the defendant’s business.
Assuming, but not deciding, that the defendant was negligent in not taking proper precaution against the coal thieves, nevertheless the general rule of law is that if between the negligence and the injury there is the intervening crime or wilful and malicious act of a third person producing the injury but that such was not intended by the defendant, and could not have been reasonably foreseen by it, “the causal chain between the original negligence and accident is broken.” Burt v. Advertising Co., 28 N. E., 1; Chancey v. R. R., 174 N. C., 351; Green v. Atlanta & C. A. L. Ry. Co., 148 S. E., 633; Green v. R. R., 279 U. S., 821, 73 L. Ed., 976; Davis v. Green, 260 U. S., 349; St. Louis R. R. Co. v. Mills, 271 U. S., 343, 70 L. Ed., 979; Strong v. Granite Furniture Co., 294 Pac., 303, 78 A. L. R., 465, and annotation.
*533Tbe plaintiff relies upon Fletcher v. R. R., 168 U. S., 134, 42 L. Ed., 411. It is to be observed, however, that the Fletcher case involved injury inflicted by the railroad company by reason of negligent operation of a train which was entirely under its control. Consequently this case is not determinative.
Affirmed.