Frazier v. The Pennsylvania Railroad Co.
| Decision Date | 06 May 1861 |
| Citation | 38 Pa. 104 |
| Parties | Frazier <I>versus</I> The Pennsylvania Railroad Company. |
| Court | Pennsylvania Supreme Court |
The fundamental averment here is, that it was because of the carelessness of the conductor that the brakesman was injured, and, in order to show that the company was responsible for this, it is averred that they were in fault in knowingly or negligently employing a careless conductor. The first count avers the duty of the company to have a careful and skilful conductor, and that this one was not so and they knew it. The third, fourth, and fifth counts aver, that the company might by proper care have known the conductor's character for care and skill, and that the plaintiff did not know it.
The question of character thus became an important one, and we are constrained to say that it was tried on improper evidence. Character for care, skill, and truth of witnesses, parties or others, must all alike be proved by evidence of general reputation, and not of special acts. The reasons for this have been so often given, that we need not repeat them: 1 Greenl. Ev. §§ 461-9; 7 Casey 67. Character grows out of special acts, but is not proved by them. Indeed, special acts do very often indicate frailties or vices that are altogether contrary to the character actually established. And sometimes the very frailties that may be proved against a man, may have been regarded by him in so serious a light, as to have produced great improvement of character. Besides this, ordinary care implies occasional acts of carelessness, for all men are fallible in this respect, and the law demands only the ordinary.
In the case of Ryan v. The C. V. Railroad Company, 11 Harris 384, we decided, that where several persons are employed as workmen in the same general service, and one of them is injured through the carelessness of another, the employer is not responsible. Many cases were there cited in support of this principle, and many more might be added now: 10 Mees. & W. 109; 5 Com. B. R. 599, 616; 9 Exch. 223; 11 Id. 832; 16 Queen's B. R. 326; 9 Cush. 112; 10 Id. 228; 3 Ellis & B. 402; 3 McQueen 266, 300; 3 Hurlst. & N. 648; Smith's Master and Servant (Eng. ed. 1860), 133, 146; 43 Maine 269 28 Vermont 59; 17 New York R. 134, 153; 8 Ohio State R. 249. We need not reconsider this question in its general aspect.
This rule was not disregarded on the trial, but if the company employ a...
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