Huntingdon and Broad Top Railroad Co. v. Decker

• Decision Date: 01 October 1877
• Citation: 84 Pa. 419
• Parties: The Huntingdon and Broad Top Railroad, &c., Company <I>versus</I> Decker.
• Court: Pennsylvania Supreme Court

84 Pa. 419

The Huntingdon and Broad Top Railroad, &c., Company versus Decker.

Supreme Court of Pennsylvania.

May 30, 1877.

October 1, 1877.

May 30th 1877.

Before AGNEW, C. J., SHARSWOOD, GORDON, PAXSON, WOODWARD and STERRETT, JJ. MERCUR, J., absent

Error to the Court of Common Pleas of Huntingdon county: Of May Term 1877, No. 168.

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John Cessna and S. T. Brown, for plaintiff in error.—The evidence admitted under the first offer was not the best evidence of the fact sought to be proved, when the printed copies of the regulations of the company were available and would have shown the extent of McKillips's authority. The conversation had with Bowser was too remote from the place of accident to constitute part of the res gestæ and there was no evidence to show knowledge thereof by the company. Neither had it the means of knowing of the specific acts contained in the fourth offer.

If the children were entitled to a portion of the damages they should have been joined with the mother in the action, and not having been joined her recovery should have been restricted to one-third of the maximum allowed by law.

R. M. Speer and E. S. McMurtrie, for defendant in error.— The plaintiff alleged that McKillips was the superintendent of the road, with power to employ and discharge all the hands. How was this to be proved ? Clearly by showing that, with the knowledge and consent of the company, he in fact, exercised these powers, and was held forth to the world as the general superintendent.

The question being whether Bowser was in an unfit condition to run his train, his acts and declarations at the time were clearly evidence. It was undoubtedly competent also to show his habits of drunkenness, and that they were known to the superintendent, who had the control and management of the road. Such habits, in case of accident, raise a presumption of negligence: Huntingdon and Broad Top Railroad Co. v. Decker, 1 Norris 119; Pennsylvania Railroad Co. v. Books, 7 P. F. Smith 343; Gilman v. Railroad Corporation, 10 Allen 238.

The instruction in regard to the measure of damages was correct: Pennsylvania Railroad Co. v. Butler, 7 P. F. Smith 338. The limitation in the Act of 1855 is to the time within which the action shall be brought, and not as to when the declaration is to be filed.

Mr. Justice STERRETT delivered the opinion of the court, October 1st 1877.

The husband of the plaintiff, while engaged as engineer in running one of the company's trains, was killed in a collision with another train, of which Jacob Bowser was conductor. It was claimed, and evidence was offered to show, that Bowser was habitually intemperate, and unfit for the service in which he was engaged; that the collision was wholly the result of his general carelessness and incompetency, and that his bad habits and unfitness for the position were known to the superintendent by whom he was employed and retained in the service of the company.

The general principles of law, applicable to such a state of facts as was disclosed by the testimony, were very fully and clearly presented to the jury by the learned judge below. It cannot be doubted that one who engages in a general service in which others are employed, assumes the risks of such service, including those which arise from the negligence of his fellow-employees; but, while this is true, a duty devolves on the employer. He is bound to use ordinary care in the selection of his employees, and if he neglects to do so, or if he retains them after he becomes aware of their unfitness or incompetency, he is answerable to the fellow-servant for his negligence in this respect. Applying the principle to this case when it was here on a former writ of error, it was said that when a railroad company employs a conductor who is unfit for the business, and knows his unfitness, it is chargeable with the consequences of his negligence, even to one employed in the same general service, and that the knowledge of the superintendent, intrusted with the management of the road and the power of employing and discharging hands, is notice to the company: 1 Norris 119.

The testimony covered by the first four assignments of error was properly admitted. It tended to prove the incompetency of Bowser; that the collision was the result of his carelessness or reckless conduct, and that he was employed and retained in the service of the company by its superintendent with a knowledge of his character and unfitness for the position of conductor. The purpose of the first offer was to prove that McKillips was held out by the company, to the employees and the public, as the person in charge of its business. If his name appeared on the schedules and timetables of the road as its superintendent, and he acted as such in the management of its business, giving orders to conductors and other employees, hiring and discharging hands, &c., it was certainly competent as well as strong evidence of agency in these particulars. It is difficult to see how such agency could be more satisfactorily established than by showing that these acts were...