Huffman v. Chicago, Rock Island & Pacific Ry. Co.

• Decision Date: 30 April 1883
• Citation: 78 Mo. 50
• Parties: HUFFMAN v. THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

78 Mo. 50

HUFFMAN

v.THE CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

April Term, 1883.

Appeal from Grundy Circuit Court.--HON. G. D. BURGESS, Judge.

REVERSED.

Shanklin, Low & McDougal for appellant.

Notice of unfitness of an employe may be shown either by evidence tending to prove actual knowledge on the part of the employer of incompetency; or it may be shown that such unfitness was so general and patent, that not to take notice of it would be in itself evidence that the employer, if ignorant thereof, had not exercised due diligence in keeping himself advised as to the competency of his servant; but there was no such evidence in this case.

Geo. Hall for respondent.

The knowledge of the company need not be shown by direct or positive proof, but may be shown by evidence of particular acts of carelessness or negligence of the employe. Murphy v. St. Louis & I. M. R. R. Co., 71 Mo. 202; McKissock v. St. Louis, K. C. & N. R'y Co., 73 Mo. 456; Ohio & Miss. R'y Co. v. Collarn, 73 Ind. 261; s. c., 38 Am. Rep. 134, 137; Pittsburg, Ft. W. & C. R. R. Co. v. Ruby, 38 Ind. 294; s. c., 10 Am. Rep. 111; Louisville & N. R. R. Co. v. Collins, 2 Duvall (Ky.) 114; Wharton on Negligence, § 238 and note; Baulec v. R. R. Co., 50 N. Y. 356; s. c., 17 Am. Rep. 325: 1 Redfield on Railways, p. 552; Galena & Chicago Union R. R. Co. v. Yarwood, 17 Ill. 509; Quimby v. R. R. Co., 23 Vt. 387.

SHERWOOD, J.

Action by Nancy A. Huffiman to recover damages on account of the death of her husband. It was averred in the petition that Huffman, a brakeman on a freight train, received injuries causing his death, by reason of the negligence of one Isaac T. Smith, an engineer in the employ of the defendant, in the management of a locomotive. It was also averred among other things: That the defendant failed and neglected to exercise proper care and diligence in employing said Smith to run its engines on its said road, and negligently retained him in its employ, as such engineer, after his incompetency and lack of skill became known, or might have become known to defendant by proper inquiry. The plaintiff introduced evidence tending to prove that at the time hereinafter stated, she was the wife of Zachariah T. Huffman; that on or about the 23rd day of July, 1877, her said husband was thrown from the top of a freight car then being run on defendant's railroad, receiving injuries from the effects of which he afterward died; that her said husband was thrown from the car, as aforesaid, in consequence of the carelessness of the engineer, Isaac Smith, then in charge of the locomotive engine pulling the train; that on several other occasions before that time, said Isaac Smith, while in the employ of defendant as an engineer, had been guilty of acts of negligence in running his engine too fast.

This case hinges on the sufficiency of the evidence of the plaintiff, a brief recital of which has been given. We regard that evidence insufficient for these reasons: There is nothing in it which shows, or which, as set forth in the bill of exceptions, tends to shw, that defendant was blameworthy in retaining Smith in its employment. That he was originally competent; that he was highly commended as a careful, skillful and competent engineer, the evidence for the defendant very satisfactorily establishes. This shows that whatever may have been its subsequent derelictions of duty, the corporation, in the first instance, had done all that the law enjoined.

And the only evidence as to Smith's subsequent incompetency, is that already mentioned, that on the occasion in question he was careless and that several times prior thereto, he had been guilty of acts of negligence in running his engine too fast. It has frequently been ruled in this court, as well as elsewhere, that aside from some statutory provision, no rate of speed at which a train is run, is, as a matter of law, negligence per se. Wallace v. R. R. Co., 74 Mo. 594, and cases cited. And the circumstances and surroundings--the relative...