20 Mich. 105 (Mich. 1870), Davis v. Detroit & M. R. Co.

Citation:20 Mich. 105
Opinion Judge:Cooley, J.
Party Name:George T. Davis v. The Detroit and Milwaukee Rail Road Company
Attorney:Wm. Jennison and A. D. Fraser, for plaintiff in error. Geo. V. N. Lothrop, for defendant in error.
Case Date:April 05, 1870
Court:Supreme Court of Michigan

Page 105

20 Mich. 105 (Mich. 1870)

George T. Davis

v.

The Detroit and Milwaukee Rail Road Company

Supreme Court of Michigan

April 5, 1870

Heard January 8, 1870

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Error to Wayne Circuit.

This was an action on the case brought by George T. Davis against the Detroit and Milwaukee Railroad Company, for injuries received by him while in the employ of the defendants as "head yardsman" at Detroit, alleged to be occasioned by the incompetency and carelessness of one Joseph Harris, an engine driver, also in the employ of defendants, and whose business it was to run a "pony engine" used for training cars, at the depot in Detroit.

The declaration contains three counts; each averring that the injury to the plaintiff was occasioned by the incompetency and carelessness of Harris. The first count avers that the defendants wrongfully and negligently employed Harris, well knowing that he was reckless and incompetent; and that the service in which he was engaged at the time of the injury was in obedience to a special order from the freight agent and depot master. The second avers that the incapacity of Harris became known to the defendants after his employment and before the injury, yet they retained him in their service after such knowledge; and the third avers that the defendants employed Harris without proper care and diligence.

The cause was tried by a jury, who, under the charge of the Court, found a verdict for the defendants. The questions to be reviewed in this Court arise upon the exceptions to the charge to the jury. Two requests were presented by the plaintiff, the second of which the judge refused to give and the plaintiff excepted. Six were asked by the defendants which were given; to the third, fourth, fifth and sixth, of which the plaintiff excepted. The request of the plaintiff which was refused is as follows:

2. If the jury find that there is evidence tending to show that the reputation of Harris was bad as an engineer, then this was notice to defendant.

The requests presented by the defendants and charged by the Court, to which the plaintiff excepted are as follow:

3. That there is no evidence in this case to show want of care or good faith on the part of the company, in the selection of Harris for his position.

4. That, if it is claimed that Harris, fell into habitual carelessness after he was employed, there is no evidence that knowledge of such fact was brought home to the officers of the company, or that the company continued him in employment after such knowledge.

5. That, as the plaintiff testifies that Harris was working with the plaintiff, and under his general direction as head yardsman, from July 16th to November 22d, this gave the plaintiff full opportunity to know if Harris were habitually careless; and, as plaintiff testified that he made no complaint whatever to the officers of the company, the plaintiff cannot recover in this case.

6. That there is no evidence in the case to show that the casual remarks made by unknown persons, testified to by Lewis and Sullivan, ever reached the knowledge of any officer of the company, and this evidence is to be excluded from the case.

In giving the fourth instruction as requested by the defendant's counsel, the Court said to the jury: "I am not aware of any evidence except as to reputation, and I don't think that there was reputation shown sufficient to bring it to the knowledge of the company. If Harris had a reputation of being careless, which was universally talked of, then, perhaps the company might be bound to know that reputation, without actual notice to the officers being shown. I am not aware of any evidence in this case of that nature which would be notice to the company, and I, therefore, charge you as requested."

And in reference to the fifth instruction asked by the defendant's counsel, the Court said to the jury: "That, gentlemen, of course, goes to the whole case, and I feel compelled, from the testimony, to charge you as requested. That is, simply, that if you believe that the plaintiff knew that Harris was careless, or worked with him knowing he was careless, he took the chances. Davis himself has testified that he worked with him, and that he had the general control, being head yardsman; and, also, that he never made any complaint; and I, therefore, charge you that he cannot recover."

Judgment of the Circuit Court affirmed with costs.

Wm. Jennison and A. D. Fraser, for plaintiff in error.

I. The Court erred in giving the 3d, 4th, 5th, and 6th requests of defendant with the modifications and qualifications of the 4th and 5th. The effect of these charges was to instruct the jury: 1. That there was no evidence to show a want of proper care on the part of the company in selecting Harris the engineer. 2. That there was no evidence that the defendant had any subsequent knowledge of his incompetency and recklessness. 3. That plaintiff knew of Harris' incompetency, and therefore he could not recover. The Court thus took the evidence away from the jury, and directed them to find for the defendant.

The action cannot be sustained without proof of negligence. Whether it be proven or not, is for the determination of the jury, and to whom it must be submitted. Whether there be evidence, it is for the Court. Whether it is sufficient, is for the jury.

The character of Harris' acts, through the earlier period of his employment to the day of his dismissal, is sufficient to raise a presumption of his incompetency when first employed, and hence a want of care in selecting him.

The testimony of John Sullivan is positive as to the reputation of Harris, and that too as it was understood in the yard of defendant--the very place where it would be best known; and the best judges would be the employees.

This reputation was notice of some sort, and the jury were entitled to consider it. See 38 Penn. St., p. 104, as to this point.

There was surely some evidence touching the question of negligence, and it was for the jury to say what its value was. The following authorities illustrate the mutual duties of Court and jury:--Wisner v. Davenport, 5 Mich. 501; Brooks v. G. T. R. R. Co., 15 Id. 332; D. & M. R. R. Co. v. Steinburgh, 17 Id. 99.--Whether the defendant or its agents were guilty of the negligence, was purely a question of fact and exclusively for the consideration of the jury.--Hall v. City of Lowell, 10 Cushing 260; Galena &c. R. R. Co. v. Yarwood, 17 Ill. 509.--An instruction which has the effect to withdraw from the jury, any matter of fact which is open on the evidence, is erroneous.--Jewell's Lessee v. Jewell, 1 How. 219.

To deduce facts from the evidence is the province of the jury. It is for them to weigh facts and circumstances.-- Brewer v. Orser, 2 Bosw. (N. Y.) 365; Clarke v. Cal. S. N. Co., 9 Calif. 251; Sawyer v. Nicholas, 40 Me. 212; Frazer v. Griffie, 8 Maryland, 50; Metropolis v. Guttschlich, 14 Peters 19; Greenlf. v. Birth, 9 Peters 292; Athens v. State, 16 Ark. 568.--It is error for the Court to instruct a jury that a part of the evidence in the cause does not warrant them in finding the negligence imputed, proved or otherwise. It shall be left for the jury on the whole evidence to draw their own inference.--Smith v. Coudry, 1 Howard, 28.

If there be any evidence tending to establish a fact in issue, it must be submitted to the jury.--Tisoon v. Yawn, 15 Geo. 491; Richardson v. Boston, 19 Howard, 263; Crofts v. Waterhouse, 11 E. C. N. 119; Graham on New Trials, 262, 266, 310, 312, 313, 314, 316 and 361; Brightley's Dig., 511; Curtis' Dig., 303.

II. It is claimed by the defence that were all the facts claimed by plaintiff true, the plaintiff cannot recover, because he remained in defendant's employment after he knew of the alleged incompetency of Harris. The charge of the Court (No. 5) assumes this fact to be true, and thereupon he directs the jury to find for the defendant. They were not even permitted to look at the evidence. If this be not error, then the vocation of the jury is gone.

But Mr. Malden, who had charge of the freight department, expressly directed the plaintiff to go and do the very thing which he attempted to do, viz: to take the freight car in question by means of the pony engine, to a certain point. He was bound to obey his superior officer.--See especially 3 Duer, p. 360.--And this would seem to take the case out of the rule, relieving corporations from liability for injuries committed by one fellow laborer upon another.--Sherman & Redfield on Negligence, pp. 115 and 116, and note.--A servant's knowledge of his master's habits of employing incompetent servants will not affect his right to recover.--Ibid. p. 114.

Geo. V. N. Lothrop, for defendant in error.

As to the errors alleged in the charge of the court:

1. The Court declined the second request of the plaintiff. This was framed with reference to what was called "reputation" in the plaintiff's evidence. And the effect of the request was that if the jury found there was such a reputation, this was constructive notice to the defendant. The prayer ignores all idea of general character or reputation.

2. It is now fully settled that the master is not liable to those in his employment for injuries arising entirely from the negligence, misconduct or unskillfulness of fellow servants. Nor does it make any difference that they are in different grades or departments of employment, so that they are engaged in the same general business. The cases now are too numerous to...

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