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