Cooney v. Commonwealth Ave. St. Ry. Co.
| Decision Date | 18 June 1907 |
| Citation | 196 Mass. 11,81 N.E. 905 |
| Parties | COONEY v. COMMONWEALTH AVE. ST. RY. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Vahey Innes & Mansfield, for plaintiff.
Walter I. Badger, George A. Drury, and Wm. Harold Hitchcock, for defendant.
By its contract the defendant impliedly undertook to provide the plaintiff with suitable appliances, to furnish a safe place in which he could perform his work according to the nature of the service, and to use reasonable diligence in employing competent fellow servants for the performance of their respective duties. Snow v. Housatonic R. R. Co., 8 Allen, 441, 85 Am. Dec. 720; Wabash Ry. Co. v McDaniels, 107 U.S. 454, 2 S.Ct. 932, 27 L.Ed. 605. If originally competent, but during service a servant becomes incompetent, and such incompetency either is known, or in the exercise of reasonable diligence should have been discovered then, where the employment is continued, the master's liability remains the same as if he knowingly, or negligently, had hired him in the beginning. Gillman v. Eastern R. R. Co., 13 Allen, 433, 441, 90 Am. Dec. 210. Upon the trial of such an issue single instances of inefficiency are inadmissible, but the servant's general reputation as a person deficient in skill in the performance of the service for which he was engaged is admissible. Hatt v. Nay, 144 Mass. 186, 10 N.E. 807; Connors v. Morton, 160 Mass. 333, 35 N.E. 860; Palmer v. Coyle, 187 Mass. 136, 139, 72 N.E. 844. While the previous experience of one Mead, whom the plaintiff claims to have been an unfit servant, is not disclosed, there was evidence that having been employed by the defendant, after receiving instructions from the assistant superintendent, he began as a motorman to operate cars independently. It presently was rumored among the employés, that he was incompetent, and the defendant's assistant superintendent, whose particular duty required him to supervise the proper operation of the cars, testified that, from observation, he had become satisfied that Mead 'would never be able to run a car properly.' The result of this observation having been reported by him to the superintendent, both of these agents of the defendant knew that by his conduct Mead had shown unfitness for the duties of his position, and their knowledge must be imputed to the defendant. O'Connor v. Adams, 120 Mass. 427; Palmer v. Coyle, ubi supra.
But while there was evidence of prior inefficiency, of which the defendant could have been found to have had knowledge, as well as the retention of an unfit servant, the plaintiff cannot recover unless it also appeared that the accident was occasioned by this incapacity. See Albro v. Agawam Canal Co., 6 Cush. 75; Curran v. Merchants' Mfg. Co., 130 Mass. 374, 375, 39 Am. Rep. 457. Upon this question the uncontroverted testimony makes it evident that, in the blasting of rock caused by the construction of a sewer in the vicinity, boulders had been thrown upon the track of the defendant's railway. Because of this obstruction the assistant superintendent directed Mead and the plaintiff, who respectively were acting as motorman and conductor, to change from the car they were running, and complete the transit by taking another car then waiting on the further side. The change was accordingly made, and, having proceeded to the end of the route, their positions were reversed, and the car started on the return trip. When it approached the place where under the arrangement it should have stopped, the car continued on its course, and ran directly into the boulder, causing the plaintiff's injuries. If of average intelligence, it must be presumed that the motorman, being aware that they were to change cars as before, knew if the car kept on there must be a collision, and that in its proper management to prevent this the motive power would have to be disconnected, and the brake applied, at a certain distance from the point where it should have been stopped. A failure to accomplish this object, with a straight track, which did not appear to have been otherwise than in good condition, and with a car the mechanical and electrical equipment of which was not shown to have been defective, when considered in connection with his reputation, was evidence that the accident was due to a lack of ordinary skill. Having introduced testimony from which on a single ground its negligence could be found, the plaintiff was under no obligation to go further, and if either the track or the car was defective, thereby causing the collision, as the defendant suggests, it offered in evidence no proof that such conditions existed. Melvin v. Pennsylvania Steel Co., 180 Mass. 196, 62 N.E. 379; Droney v. Doherty, 186 Mass. 205, 208, 71 N.E. 547.
It is further argued that the plaintiff, having heard of the disqualification of Mead, must...
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