Norfolk & Western Railroad v. Hoover

MgSherry, J.,

delivered the opinion of the Court.

This is an action brought to recover damages for personal injuries received by the appellee, an employé of the Norfolk and Western Railroad Company, as the result of alleged negligence on the part of his fellow-servants. The verdict and judgment were in his favor, and the Company has appealed. In the record there are three bills of exception upon which the questions to be considered arise. Two of these exceptions were reserved by the appellant and one by the appellee.

It appears that in May, 1891, an extra train of loaded freight cars was started from Shenandoah, Virginia, about eleven-thirty p. m., to run through to Hagerstown, Maryland. The crew consisted of a conductor, an engineman, a fireman, a flagman and two brakemen. Hoover, the appellee, was the engineman. As the train proceeded northward, it descended some heavy grades, and the engineman noticed that its speed was not kept under proper control by the brakemen. At Luray the train laid over for an hour, and the engineman requested the brakemen not to let him down the hills so rapidly, as the uight was quite foggy. After leaving Luray they ascended the grade to Vaughn’s Summit, turning that point at a speed of about ten miles an hour. Immediately upon passing the Summit, the appellee shut off the steam so that the train might descend by gravity alone, without aid from the engine. When about a train’s length over the hill he discovered that the train was increasing its speed, and he applied the tank brake; but this producing no effect, he blew for brakes, turned on the driver brakes and applied sand to the track. *261 TMs not checking the train, he again blew for brakes and reversed his engine. He repeated his signals for brakes at least once, and probably twice, afterwards, but they seem not to have been heeded by the brakemen, for the train moved rapidly onward down the grade. The packing blew out of the cylinder, and this caused the train to plunge forward, throwing the appellee back into the tender. At this juncture, as they were rapidly approaching, and were only some ten or twelve car-lengths distant from, Possum Hollow, which is crossed upon a trestle seventy-five or eighty feet high, the appellee saw that a collision with another freight train standing, or moving very slowly northward, on the trestle, was imminent and unavoidable; and to save himself, jumped from his engine and received the injuries for which he has brought the pending suit. There was evidence offered tending to prove that Huyett, one of the brakemen, had been drinking that night before the accident happened; and within thirty minutes prior to the collision his breath gave unmistakable evidence of it. In this state of the proof, a witness was asked whether he knew the general reputation of Huyett and Reese, the two brakemen, for sobriety for one or two years before the accident and following that; and if so, to state what that reputation was. To this question and the evidence sought to be elicited thereby, the appellant objected, but the Court permitted the question to be asked and answered, and this ruling forms the subject of the first exception.

It has been repeatedly held by this Court, and is the settled and established doctrine of Maryland, that in actions of this character, where a servant sues his master for injuries resulting from the negligence of a fellow-servant, the plaintiff, to succeed, must prove, not only that some negligence of the fehow-servant caused the injury, but also that the master had himself been guilty of negligence, either in the selection of the negligent fellow-servant in the first instance, or in retaining him in his service afterwards. *262 Mere negligence on the part of the fellow-servant, though resulting in an injury, will not suffice to support the action, because the master does not insure one employé against the carelessness of another. But he owes to each of his servants the duty of using reasonable care and caution in the selection of competent fellow-servants, and in the retention in his service of none but those who are. If he does not perform this duty, and an injury is occasioned by the negligence of an incompetent or careless servant, the master is responsible to' the injured employé, not for the mere negligent act or omission of the incompetent or careless servant, but for his own negligence in not discharging his own duty towards the injured servant. As this negligence of the master must be proved, it may be proved like any other fact, either by direct evidence or by the proof of circumstances from which its existence may, as a conclusion of fact, be fairly and reasonably inferred. That drunkenness on the part of a railroad employé renders him an incompetent servant will scarcely be disputed; nor can it be questioned that a master who knowingly employs such a servant, or who, knowing his habits, retains him in his service, would be guilty of a reckless and wanton breach of duty, not only to the public, but to every employé in his service. There is no evidence in the record, nor has there been a suggestion, that either the conductor, fireman or flagman of the train was negligent or incompetent. The negligence which directly caused the accident is attributed solely to the brakemen; and the appellant’s negligence which, as it is claimed, fixes its liability, lies in its employment of, or continuing to retain in its service, these dissipated or intemperate brakemen. But, as we have stated, it was necessary for the plaintiff to show not only their employment, but that the company had; not used due and ordinary care in selecting them. There was no direct evidence adduced to show the absence of such care; but the question excepted to, and the evidence elicited in response *263 to it, were designed to show by indirect or circumstantial evidence that the company had not used the degree of care and caution in the selection of these brakemen that its duty imperatively required it to use. So the question is, can you fix upon the master a failure to use due care in selecting careful servants by showing such notorious or general reputation respecting the servant’s unfitness or incompetency as that the master could not, without negligence on his part, have been ignorant of it when he employed the servant? About this there ought to be no difficulty. If the servant’s general reputation before employment is so notorious as to unfitness as that it must have been known to the master but for his the master’s negligence in not informing himself — if he could have been ignorant of it only because he failed to make investigation — ■ then, it is obvious that he has not used the care and caution which the law demands of him in selecting his employes. Hence, “the servant’s general reputation for unfitness may be sufficient to overcome the presumption that the master used due care in Ms selection, even though actual knowledge of such reputation for unfitness on the master’s part is not showm.” Wood, Mas. and Ser., sec. 420. In Davis vs. The Detroit & Milwaukee R. R. Co., 20 Mich., 124 , Cooley, J., speaking for the Court, adopts the case of Gilman vs. Eastern Railroad Corporation, 10 Allen, 233 , which puts upon the employer the responsibility of negligently employing an unfit person, generally known and reputed to be such, notwithstanding the employer may in fact have been ignorant of such unfitness. Continuing, he said: “The ignorance itself is negligence in a case in which any proper enquiry would have obtained the necessary information, and where the duty to enquire was plainly imperative.” So in Hilts vs. Chicago & Grand Trunk Ry., 55 Mich., 437 , where a track hand was killed by an engine backing rapidly along a switch, and the engineman was drunk, the .Court said:- “When, how *264 ever, as in this case, it is shown that the accident occurred through the negligent act of the servant, who was in an intoxicated condition, and when it was shown further that he was in the habit of drinking intoxicating liquors to excess, and such habit had extended over a period of nine months while in defendant’s employ, and no actual knowledge or notice ever reached any superior officer of the engineer, we think the jury may be justified in concluding from such evidence that the defendant was negligent in failing to learn such habit, and in retaining the engineer in its employment.” See also, Gilman vs. Eastern Railroad Co., 13 Allen, 433 ; Wright vs. New York Central Railroad Company, 25 N. Y, 566; Chicago & Alton R. R. Co. vs. Sullivan, 63 Ill., 293 ; Chapman vs. Erie Railway Co., 55 N. Y., 579 .

The evidence offered and admitted had no relation to specific, or isolated acts of negligence. These, unless brought home to the knowledge of the master, would not have been admissible as reflecting on the question of the master’s care. Baltimore Elevator Co. vs. Neal, 65 Md., 438 . We think, for the reasons we have given, and upon the authorities we have cited, there was no error committed in allowing the question! excepted to in the first bill of exception, to be put and answered.

Under this ruling quite a number of witnesses testified to Huyett’s general reputation for intemperance, extending from a period long anterior to his employment by the appellant up to and after the accident. One witness, Eyler, gave evidence as to Reese’s general reputation. With respect to Huyett, the evidence, if credited by the jury, showed a general reputation covering many years uninterruptedly, and of such a notorious character that a jury might well have inferred it was known to the master when Huyett was employed, or else that the master failed to know it only because of neglecting to make proper inquiry. There was, consequently, evidence legally sufficient to go *265 to the jury upon the subject of the company’s negligence; and, therefore, there was no error in rejecting the appellant’s first and fifth prayers which sought to take the case from the consideration of the jury; nor in rejecting its fourth prayer which sought to exclude this evidence from the case.

There was error in rejecting the second prayer of the appellant. It asked the Court to say to the jury that if the injury to the plaintiff was caused by the intoxication or negligence of the brakemen, or either of them; that the brakemen were employed by Shull, the train dispatcher, and were sent out by him on the train in question; and further that Shull was guilty of negligence in sending out these brakemen, or either of them, on the train, “yet the jury are further instructed that Shull and the plaintiff were co-employés of the defendant in the sending out of said brakemen, and the defendant is not responsible to the plaintiff for the neglect or want of care of the said Shull, unless they shall further find that there was negligence on the part of the defendant in the employment of Shull, and there is no legally sufficient evidence in the cause from which the jury can so find.” Row, whether Shull was a deputy master, or vice-principal, or only a fellow-servant of the plaintiff, is a question of law to be determined by the Court, if the facts be undisputed or conceded. Yates vs. McCollough Iron Co., 69 Md., 382 . Shull was a mere dispatcher of trains, with power to employ and discharge flagmen and brakemen, and having general charge of the trainmen of the first division of the road and the movement of trains thereon. He was employed by the Division Superintendent, who had the general management of the division. The engineman and firemen are also under the instructions of the Division Superintendent. This is all the evidence (and it is entirely undisputed) to show that Shull was a vice-principal and not a fellow-servant. In Wonder vs. Baltimore *266 & Ohio R. R. Co., 32 Md., 418 , the general rule was laid down, that all who serve the same master, work under the same control, deriving authority and compensation from the same source, and are engaged in the same general business, though it may be in different grades and departments of it, are fellow-servants, each taking the risk of the other’s negligence. In that case a brakeman who was injured whilst using a defective brake, was held to be a fellow-servant with the mechanics in the shops, the inspector of machinery and rolling stock, and the superintendent of the movement of trains. And so in State, use of Hamelin vs. Malster & Reaney, 57 Md., 287 , it was held that a superintendent or manager is a fellow-servant within the rule which exonerates the master. In Balto. Elevator Co. vs. Neal, 65 Md., 438 , the captain of a steam tug owned by the company was held to be a fellow-servant of a laborer who was injured in the company’s service. This Court said in that case: “Nor is the liability of the master enlarged or made different by the fact that the servant who had suffered the injury occupied a grade in the common service inferior to that of the servant whose misconduct caused the injury complained of.” And in Yates vs. McCollough Iron Co., 69 Md., 370 , the authorities were all reviewed, and it was held that the chief manager of the Carbon Works, who hired and discharged the hands, kept their time, &c., was only a fellow-servant of a laborer who was injured whilst operating the machinery. Mayor, &c., of Baltimore vs. War, 77 Md., 593. In the face of these decisions it is impossible to treat Shull as anything more than a fellow-servant. The management of the division upon which he was train dispatcher was not committed to him. He was a subordinate appointed by the superintendent, and though he had charge of the trainmen and of the movement of trains on his division, and could employ and discharge flagmen and brakemen, it is far from being shown *267 that the master had relinquished all supervision of the work on that division, and entrusted its direction as well as the procuring of materials and machinery and other instrumentalities necessary for the service, to his judgment and discretion. The engineman and fireman were not employed by him, but by the Division Superintendent, and if the grade of his position was superior to that of the engineman, that fact did not make him a vice-principal as respects the latter. They were both engaged in the same common work, employed by the same agent of the common master, and were performing duties pertaining to the same general business; and unless the whole current of the Maryland decisions is to be reversed, they were fellow-servants of the railroad company, upon the evidence now before us. If this be so, then, even if Shull had been negligent in sending out these brakemen, and if that negligence caused the injury sued for, still the plaintiffi could not recover, unless the company had not used due care in the selection of Shull, and of this there was not a particle of evidence offered.

The appellant’s sixth prayer was properly rejected. There was no necessity to prove that the company had been incorporated. That fact was averred in the declaration, and was not denied by the pleas, and, under sec. 108, Art. 75 of the Code, must be taken to be admitted.

This brings us to the prayers presented by the appellee. Under a local law of Washington County, Art. 22, secs. 69, 70, Code of Public Local Laws, we are required to consider the rejected prayers of the plaintiff if he has excepted; and this he has done. By the defendant’s exception the plaintiff’s granted prayers and the defendant’s rejected prayers are brought before us. By the plaintiff’s exception his rejected prayers as well as the defendant’s granted ones are presented for review.

The Court granted the plaintiff’s first, seventh and eighth prayers. We do not understand that the seventh and *268 eighth are seriously questioned. Without discussing them, we need only say they are not open to substantial objection.

The appellee’s first prayer, however, ought not to have been granted. It was objected in the argument that there was no evidence to support some of the hypotheses it contained, but as no special exception based upon that objection, and signed and sealed, by the Judge, appears in the record, we are not at liberty to consider it. Albert vs. State, use of Ryan, 66 Mel., 334. The prayer, after setting forth the facts, proceeds: “ Then, if the said injury to the plaintiff was caused by the want of ordinary skill and experience, or other unfitness on the part of the other hands, or any of them, in charge of said train, to manage and conduct the same, by reason of the intemperate state or condition of either of them,” the plaintiff using due diligence, “ the plaintiff is entitled to recover, provided the jury further find from the evidence that the defendant did not use reasonable care in the selection and employment of the brakemen or other hands or employees engaged with the plaintiff in conducting said cars.” That is to say, if the injury resulted from negligence caused by the intemperance of any of the train-hands, the defendant would be liable, if it had failed to use due care in the selection of either of the employés on that train, even though that particular employé, thus carelessly selected, had been guilty of no negligence, and had in no way occasioned the accident. Consequently, if the jury thought the injury was caused by the drunkenness of the brakeman, and that the company had not used due care in the selection of the fireman, the company would be liable, notwithstanding the fact that the fireman had been guilty of no negligence, and had in no way produced or helped to produce the injury. Thus, the negligence of one servant and the independent negligence of the master in employing some other servant, who had no connection with the accident, established, un *269 der this instruction, the plaintiff’s right to recover. This is not the law. On the contrary, it is the negligence of a fellow-servant and the additional negligence of the master in employing that servant, whose negligence actually caused the injury, which must concur before a plaintiff can recover in a case, of this character. The instruction therefore announced an obviously erroneous proposition, and was calculated to mislead the jury, because there was evidence before them from which they might have inferred that due care had not been used in the selection of the fireman, though) there was no evidence from which they could have found that the fireman was responsible for the accident. The instruction should have clearly restricted the negligence of the defendant in selecting the plaintiff’s fellow-servants to the selection of such of them as by their incompetency, growing out of their intemperance, actually caused the injury.

The appellee’s second, third, fourth and fifth prayers were properly rejected. There was no legally sufficient evidence adduced to support them on the several hypotheses assumed in them; and if they had been free from other objections, this one was sufficient to justify the Court in refusing to grant them.

There remains the appellant’s third prayer, which the Court granted, but we think erroneously granted. It told the jury, in substance, that unless the brakeman, Huyett, was drunk at the time of the accident, and his negligence by reason of such drunkenness, produced or contributed to the accident, the evidence of general reputation as to his intemperance was not relevant, and could not be considered by the jury, “ unless such reputation was brought home to the knowledge of the defendant before the accident,” and there is no such evidence of such knowledge. Had the prayer omitted the words italicised it would have been correct, but those words superadded a condition which is manifestly inaccurate. Now, it is obvious that if Huyett *270 was not drunk and was not negligent when the accident happened, and therefore did not cause or contribute to it, the evidence of his general reputation for intemperance was wholly irrelevant, even though that reputation had been brought home to the knowledge of the appellant before the accident; because, if he did not occasion the injury by his negligence, the fact that the master had knowledge of his bad reputation would in no way have made the master liable for an injury not caused by Huyett at all. In other words, the master’s knowledge of Huyett’s bad reputation had nothing whatever to do with the case if Huyett did not cause or contribute to the accident; and if Huyett did, by his intemperance, cause the accident, then it was immaterial whether the master had knowledge of his bad reputation or not; because, as already stated, the master was negligent in not knowing it. So, in either view of the question, the prayer was wrong because of the addition of the words indicated.

(Decided 19th June, 1894.)

For the error in granting the appellee’s first instruction, and the appellant’s third, and for the error in rejecting the appellant’s second prayer, the judgment must be reversed, and a new trial will be ordered.

Judgment reversed, with costs above and below, and new trial aioarded.