Griffin v. Boston & M. R. R.

• Citation: 89 A. 220,87 Vt. 278
• Court: United States State Supreme Court of Vermont
• Decision Date: 16 December 1913
• Parties: GRIFFIN v. BOSTON & M. R. R.

89 A. 220

87 Vt. 278

GRIFFIN

v. BOSTON & M. R. R.

Supreme Court of Vermont. Windham.

Dec. 16, 1913.

[Copyrighted material omitted.]

Exceptions from Windham County Court; Frank L. Fish, Judge.

Action by James Griffin against the Boston & Maine Railroad. Judgment for plaintiff, and defendant brings exceptions. Reversed and remanded, with directions.

Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.

Robert C. Bacon and Herbert G. Barber, both of Brattleboro, for plaintiff.

William W. Stickney, John G. Sargent, and Homer L. Skeels, all of Ludlow, and George L. Hunt, of Montpelier, for defendant.

POWERS, J. The declaration contained several counts; but the case was submitted to the jury on the fifth only. This charged the defendant with negligence in the matter of furnishing the plaintiff with suitable fellow workmen.

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The work in which the plaintiff was engaged when injured consisted in raising the defendant's bridge over the West River, a mile or so north of Brattleboro station. This bridge, so far as we need to describe it, was about 300 feet long, and carried a single track laid on 12-foot ties set from 4 to 6 inches apart. There were three spans, of which the middle one only had overhead work; the two end spans afforded no opportunity for a workman to step aside to avoid trains which were being operated over the bridge during the work. There was evidence that a platform or runway should have been built alongside the bridge, wide enough to allow a workman to step off onto it when a train passed. The defendant had promulgated a rule that all trains should slow down to 4 miles per hour in crossing the bridge, and had erected "slow boards" about 1,100 feet from either end of the bridge, on which was inscribed, "Slow down to four miles per hour." All this was known to the plaintiff, and he expected that this rule Would be complied with, and did not know of any violations of it.

The plaintiff was a common laborer. His duties took him to different parts of the work, and required him to cross the bridge sometimes. On the morning of the accident, January 28, 1910, the plaintiff and another workman, Tom Griffin, were about their work under the track at the north end of the bridge. They were directed by the boss, Mike Dwyer, who, in the absence of the superintendent, was in authority, to go to the south end of the bridge to work; they climbed up onto the bridge, and, with Dwyer, started across on the ties; the plaintiff following the other two. When they were about midway of the south span, the plaintiff discovered train 73, which was being driven by engineer Frank Harvey, approaching from the south, and then nearly to the south end of the bridge. All three ran as fast as they could toward the south abutment. Dwyer made it all right; Griffin got far enough to jump off onto the sloping embankment; but the plaintiff, not having time to reach the embankment into about 25 feet, got out as far as he could on the east side of the track to avoid the train if possible. He was hit by the engine, and thrown off onto the frozen ground 25 or 30 feet below, and severely injured. There was evidence that the train was running at a speed of about 20 miles an hour, and that no whistle was sounded. The work going on at the time was making much noise, and there were no signalmen to give warning of approaching trains. Just south of the bridge was a curve in the track, and certain temporary structures were so erected there as to obstruct the view, so that one on the bridge was unable to see in that direction more than 40 feet.

One De Rosher was the superintendent of the work, and he was charged with the duty of keeping tab on the trains, and seeing to it that they came down to 4 miles per hour. This direction was given him by the assistant superintendent of the defendant's Connecticut & Passumpsic Division.

As we have already seen, the case was submitted on the theory that Harvey and the plaintiff were fellow servants, and they are to be so treated here. For the purpose of establishing the inefficiency of Harvey, as one step in the proof to charge the defendant, the plaintiff introduced as a witness Archie Livingston, a blacksmith on the job, who testified that on two occasions, one a few days before the accident, the other on the morning of January 26th, he had seen Harvey run a train at a fast rate of speed across this bridge; that on the first of these occasions Harvey was running train 90 across the bridge at a speed of 8 or 10 miles an hour; on the other he was running 73 northerly across the bridge at a speed of 12 or 15 miles an hour. The witness also testified to other trains on which he had seen Harvey. The defendant denied that Harvey was the engineer of 73 on January 26th, or of 90 on the other occasion referred to by the witness.

Subject to defendant's exception, the plaintiff was allowed to show that, when train 73 went over the bridge on January 26th at a speed of 12 or 15 miles per hour, De Rosher said, in substance, that Harvey had been driving carelessly across the bridge, and would be killing somebody, and, if he did not stop it, he would have to report him. The purpose of this evidence was to show De Rosher's knowledge of Harvey's habitual carelessness. The only objection to it was that De Rosher did not represent the company.

If De Rosher's knowledge of Harvey's fast running was pertinent to the issue, it could be proved by his statement. McAuley v. Western Vt. R. Co., 33 Vt. 311, 78 Am. Dec. 627. So De Rosher's relation to the company must be examined.

An employer is liable to an employe for injuries resulting from a failure to exercise reasonable care in selecting coemployes, or from retaining coemployes in the service after he knows of their incompetency, or by the exercise of reasonable care he might have known of it. Gulf, etc., Ry. Co. v. Hays, 40 Tex. Civ. App. 162, 89 S. W. 29; Hilts v. Chicago & G. T. Ry. Co., 55 Mich. 437, 21 N. W. 878; Jenson v. Great Northern Ry. Co., 72 Minn. 175, 75 N. W. 3, 71 Am. St. Rep. 475; Lake Shore & Mich. So. Ry. Co. v. Stupark, 123 Ind. 210, 23 N. E. 246; Murphy v. Hughes, 1 Pennewill (Del.) 250, 40 Atl. 187; Holland v. T. C, I. & R. Co., 91 Ala. 444, 8 South. 524, 12 L. R. A. 232; Gilman v. Eastern R. R. Co., 13 Allen (Mass.) 433, 90 Am. Dec. 210; Furlong v. N. Y., N. H. & H. R. Co., 83 Conn. 568, 78 Atl. 489, 21 Ann. Cas. 937; Wabash Ry. Co. v. McDaniels, 107 U. S. 454, 2 Sup. Ct. 932, 27 L. Ed. 605; So. Pac. Co. v. Heltzer, 135 Fed. 272, 68 C. C. A. 26, 1 L. R. A. (N. S.) 288; Giordano v. Brandy wine Granite Co., 3 Pennewill (Del.) 423, 52 Atl. 332.

The master's duty toward his employes does not end with the selection and engagement of proper and fit coservants. He must exercise a reasonable supervision over them, to the end that their subsequent incompetence may be discovered, and the hazards thereof eliminated from the service. We need not here analyze this requirement to determine the exact degree of care called for, or how it compares with that demanded by the law in the original engagement of coservants, of which it is a continuation, or in the supervision and inspection of machinery, to which it is closely akin. Nor need we inquire how far a master may rely upon a presumption of the continuance of competency and fitness. It is enough for present purposes to state the rule, and to say that the master is chargeable with all the knowledge which such supervision discovers or ought to discover.

The true significance of the term "incompetency" should not be overlooked. It embraces habitual carelessness. For, though a servant is equipped with sufficient technical knowledge and physical ability to discharge his duties properly, a reckless disposition may render him utterly unfit to be allowed to discharge duties which bring him into contact with others. The term, then, includes something more than physical and mental attributes; it includes temperament and disposition. Hamann v. Milwaukee Bridge Co., 127 Wis. 550, 106 N. W. 1081, 7 Ann. Cas. 458; Consolidated Coal Co. v. Seninger, 79 Ill. App. 456, affirmed 179 Ill. 370, 53 N. E. 733; Malay v. Mt. Morris Elec. Lt. Co., 41 App. Div. 574, 58 N. Y. Supp. 659; Simplex Ry. Appliance Co. v. Kameradt, (Ind.) 102 N. E. 129; Furlong v. N. Y., N. H. & H. R. Co., 83 Conn. 568, 78 Atl. 489, 21 Ann. Cas. 937.

The admission of De Rosher's statement was not error. It was competent for the plaintiff to show the notoriety of Harvey's carelessness as evidence tending to show that the company, through its proper officers, knew, or in the exercise of proper diligence ought to have known, of it.

Moreover, the exigencies of the situation demanded extra precautions. The undertaking of raising this bridge while at least 14 trains were running over it during working hours called upon the defendant for special rules to protect the workmen. The defendant appreciated this, and met the requirement, adequately so far as shown, by the promulgation of the rule already referred to. But here, again, its duty did not end. It was its duty to use reasonable care to see to it that this rule was observed and complied with, and its failure in this respect would make it responsible for injuries resulting from noncompliance therewith. Whittaker v. D. & H. Canal Co., 126 N. Y. 544, 27 N. E. 1042; Richmond & D. R. Co. v. Hissong, 97 Ala. 187, 13 South. 209; Texas & N. R. Co. v. Echols, 87 Tex. 339, 27 S. W. 60, 28 S. W. 517; Rutledge v. Mo. Pac. R. Co., 123 Mo. 121, 24 S. W. 1053, 27 S. W. 327; Gerrish v. New Haven Ice Co., 63 Conn. 9, 27 Atl. 235; Merrill v. Oregon Short Line R. Co., 29 Utah, 264, 81 Pac. 85, 110 Am. St. Rep. 695. This duty is personal to the master, and cannot be so delegated as to relieve him of liability, though the servant intrusted with it be ever so competent and faithful. While discharging that duty, the servant is the representative of the master, and his default is the master's default.

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