Hilts v. Chicago & G. T. Ry. Co.

• Decision Date: 07 January 1885
• Citation: 55 Mich. 437,21 N.W. 878
• Parties: HILTS v. CHICAGO & G.T. RY. CO.
• Court: Michigan Supreme Court

21 N.W. 878

55 Mich. 437

HILTS v. CHICAGO & G.T. RY. CO.

Supreme Court of Michigan

January 7, 1885

Error to Shiawassee.

A.R McBride, for plaintiff.

E.W Meddaugh, for defendant and appellant.

CHAMPLIN J.

George Jones was run over by defendant's engine and killed while in the employment of defendant, April 15, 1882. He was an ordinary laborer, engaged under a section boss at repairing the track, changing iron, shoveling dirt and gravel, raising low joints, etc. It was the duty of the section men to unload gravel trains, or do anything that the road-master told them to do. If an employe lost his tools, or they were carried off through his negligence, they were charged up to him and he was obliged to pay for them. On the day the deceased was killed, he, with a number of other section men, were taken in the caboose of the gravel train from Hamilton station to a distance of about two miles, to unload the gravel train. The gravel was unloaded by means of a plow operated by a cable connected with the engine. After it was removed by the plow the men were required to clear the gravel from the track between the cars. It appears that before this was fairly accomplished the train started, and there was considerable haste for the men to get upon the cars. Jones threw his shovel upon one of the flat cars and climbed upon the engine. The train was backing west. When it arrived at the switch the train-men cut off all the cars but the car with the gravel plow from the engine, and they were "kicked" down the main track. They then put the car with the gravel plow in upon the spur switch, and the engine and tender then passed upon a long switch, in order to pass to the west of the flat cars. In the mean time the deceased had left the engine and ran down the main track, with the intention of recovering his shovel. He followed down between the switch and the main track a short distance, until he came to a "washout," when he passed upon the switch track, still running and calling to some men near the cars to get his shovel. He had proceeded but a short distance when the engine, backing at the speed of 10 or 12 miles an hour, without warning ran him down and over him, killing him instantly.

The declaration contained different counts charging the death of Jones to the negligent act of the company; but the negligence upon which the case was submitted by the court to the jury was that complained of in the declaration, wherein it stated that the engineer in charge of the engine was at the time intoxicated, by reason of which, and through his carelessness and negligence in the running of the engine, Jones was killed, and that the habits of the engineer for intoxication were so notorious that defendant was guilty of such negligence in not ascertaining such fact as to charge it with the negligence of the engineer. The inquiry before the jury, therefore, as submitted by the learned judge, was confined to these three questions of fact: First. Did the deceased himself, by any negligence of his own, contribute to the injury complained of? Second. Was the injury to Jones caused by the negligent act of the engineer, which was due to his intoxicated condition? Third. Was the habit of intoxication of the engineer sufficiently notorious so that the company can be fairly held by implication to have known it, or be guilty of negligence in not knowing it?

The first question of contributory negligence was submitted to the jury under proper instructions; and the second and third subjects of inquiry were submitted under the following instructions:

"Now, I have told you that the injury must be caused by the negligent act of the parties controlling the engine. That is necessary. That must be shown by a preponderance of evidence on the part of the plaintiff in order to entitle him to a verdict. In this case the question whether or no the defendant is liable, it seems to me, turns upon this question, and that I submit to you to say as jurors whether it be true or not; whether or no the faults or vices, or whatever you call them, or the habits of this man, if they existed,--whether or no they were sufficiently notorious so that the company can be fairly held by implication to have known it, or guilty of negligence in not knowing it.

"Now, a railroad company, in law, is required to exercise ordinary care in knowing as to the habits of the individuals to whom they intrust their business, and with whom the public deal, and they cannot sit quietly down and make no inquiry when the facts become so notorious that, by the exercise of ordinary care, as ordinarily prudent, careful men, they should know it; and if the company continues in its employment an incompetent servant after his incompetency is known to its officers,--of that there is no evidence,--or is so manifest that its officers, by the use of due care, would have known it, such a continuance in its employment is as much a breach of duty and ground of liability as the original employment of an incompetent person.

"Now, then, had his habits become so notorious--was he so negligent of his duty--that you can say, as fair, candid men, that the company was negligent in not knowing of his habits? If the evidence is equally balanced upon that point, then the verdict must be for the defendant. It devolves upon the plaintiff to establish that proposition by a preponderance of evidence. If the jury find that the driver of the engine that ran over Jones was incompetent, then it was the duty of the defendant to discharge him as soon as they knew it, and if, by the use of due diligence to inform themselves of the competency of their employes, they ought to be informed of his incompetency, then they are chargeable with the consequences of his negligent acts. They were bound to exercise reasonable care in knowing as to the competency of their engineers. If the jury believe, from the evidence, that deceased came to his death through the engineer's negligence, caused by his intoxication, this will not justify them in finding for the plaintiff, unless they further find from the evidence that his habit in the use of intoxicating liquors was such, and of so long standing, that they ought to have known it. The evidence in the case will not justify the jury in finding that when deceased was killed he was engaged in work not within the terms of his contract, and therefore the jury cannot find a verdict for the plaintiff on this ground. There is no evidence in the case that will justify the jury in finding that the engineer used intoxicating liquors to excess when he

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