Michigan Cent. R. Co. v. Gilbert
| Decision Date | 08 June 1881 |
| Citation | 46 Mich. 176,9 N.W. 243 |
| Court | Michigan Supreme Court |
| Parties | MICHIGAN CENTRAL R. CO. v. GILBERT. |
In an action against a railway company for the death of an engineer in consequence of a collision resulting from the yard-master's negligence in sending him out when a coming train was past due, it was held that as bearing upon the competency of the yard-master, questions as to the number of tracks in the depot yard; the number of engines ordinarily employed in switching; the average number of freight trains in the yard, and similar questions, were relevant as tending to show the character and importance of the work the yard-master had charge of, and the need of experience and skill. The nature of the business determines whether the degree of care exercised by those employed in it is such as the law requires. The negligence of a servant in a particular instance cannot well be shown by testimony of his incompetency or carelessness on other occasions; but if it is also shown that the master knew of the cases or that they were of such a character and so frequent that he must have known of them, he, the master, may be chargeable with negligence in retaining such servant. Where an employer has shown due care in the choice of his servants, no presumption of the latter's unfitness arises afterwards; but if it appears that a servant has been repeatedly guilty of carelessness or incompetency it is for the jury to determine whether the master knew of it or would have known if he had exercised ordinary care. Evidence that a railroad employe was hasty, passionate and excitable does not of itself necessarily show that he is unfit for the post of yard-master; nor does the mere fact that he had sent an engine upon the track when a coming train was overdue conclusively show that the company was negligent in keeping him in its service, since he might have had information showing that the train wonld not arrive for some time. A locomotive engineer's opinion that if he had obeyed the order of the yard-master to place his engine on the main track when a coming train was past due, he would have gotten into trouble, is not admissible to show that the railroad company was negligent in keeping the yard-master in its employment unless the case had been brought to the knowledge of the company officers. Where the officers of a railroad company have had their attention directed to the intemperate habits of an employe, it is their duty to make careful and frequent investigation as to the fact if they retain him in their service. The weight and importance of evidence that they knew of it is for the jury to pass upon.
Error to Jackson. Defendant brings error.
Henry Russell and G.V.R. Lothrop, for plaintiff in error.
Edwin F. Conely and Conely & Lucking, for defendant in error.
On October 10, 1879, a collision occurred on the railroad company's road at Jackson junction, caused by the negligence of the company's yard-master in sending a switch-engine and train of cars upon the main track when the Pacific express train was past due, by which the engineer Milton Gilbert, in charge thereof, without negligence on his part, and while in the performance of his duty, was killed. Three principal questions are raised in this court, all relating to the sufficiency of the evidence introduced to establish the several propositions upon which alone the plaintiff would be entitled to recover, and these may be stated in the language adopted by counsel for plaintiff in error in the brief submitted, as follows: (1) That the sending out of the switch-engine upon the main track, whereby the collision occurred, was an act of negligence directly attributable to Evander T. Colwell, a co-employe with Gilbert, who was yard-master at the Jackson junction yard. (2) That Colwell was an unfit and incompetent person to perform the duties of yard-master. (3) That the railroad company knew, or might have known in the exercise of reasonable diligence, that Colwell was an unfit and incompetent person for that position.
The first proposition is not disputed, but the sufficiency of the evidence to establish either of the others is, and questions are also raised as to the competency of some of plaintiff's evidence to establish either. The questions asked witnesses as to the number of tracks in the yard at the junction; the number of engines ordinarily employed in switching; the number of freight trains there on an average and questions of similar import, were in my opinion relevant and proper, as tending to show the character and importance of the work Colwell was placed in charge of and that from its extent the character of the employment and the dangers incident to it, a man of corresponding ability and experience should be found in charge of it placed there by the company. While we may say as a general proposition that the degree of care required in all cases is that which men of ordinary care and prudence exercise, yet it is to the business itself that we must look when we desire to ascertain whether such care and prudence have...
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