Norfolk & W.R. Co. v. Hoover
| Decision Date | 19 June 1894 |
| Citation | 29 A. 994,79 Md. 253 |
| Parties | NORFOLK & W. R. CO. v. HOOVER. |
| Court | Maryland Court of Appeals |
Appeal from circuit court, Washington county.
Action by William Hoover against the Norfolk & Western Railroad Company for personal injuries. Judgment for plaintiff, and defendant appeals. Reversed.
Argued before ROBINSON, C.J., and BRYAN, BRISCOE, McSHERRY, FOWLER ROBERTS, PAGE, and BOYD, JJ.
Hy Kyd. Douglass, for appellant.
M. L Keedy and W. C. Griffith, for appellee.
This is an action brought to recover damages for personal injuries received by the appellee, an employé of the Norfolk & Western Railroad Company, as the result of alleged negligence on the part of his fellow servant. The verdict and judgment were in his favor, and the company has appealed. In the record there are three bills of exception, upon which the questions to be considered arise. Two of these exceptions were reversed by the appellant, and one by the appellee.
It appears that in May, 1891, an extra train of loaded freight cars was started from Shenandoah, Va., about 11:30 p. m., to run through to Hagerstown, Md. The crew consisted of a conductor, an engineman, a fireman, a flagman, and two brakemen. Hoover, the appellee, was the engineman. As the train proceeded northward, it descended some heavy grades, and the engineman noticed that its speed was not kept under proper control by the brakemen. At Luray the train laid over for an hour, and the engineman requested the brakemen not to let him down the hills so rapidly, as the night was quite foggy. After leaving Luray, they ascended the grade to Vaughn's Summit, turning the point at a speed of about 10 miles an hour. Immediately upon passing the summit the appellee shut off the steam, so that the train might descend by gravity alone, without aid from the engine. When about a train's length over the hill, he discovered that the train was increasing its speed, and he applied the tank brake; but, this producing no effect, he blew for brakes, turned on the driver brakes, and applied sand to the track. This not checking the train, he again blew for brakes, and reversed his engine. He repeated his signals for brakes at least once, and probably twice, afterwards, but they seem not to have been heeded by the brakemen, for the train moved rapidly onward down the grade. The packing blew out of the cylinder, and this caused the train to plunge forward, throwing the appellee back into the tender. At this juncture they were rapidly approaching, and were only some 10 or 12 car lengths distant from, Possum Hollow, which is crossed upon a trestle 75 or 80 feet high. The appellee saw that a collision with another freight train standing, or moving very slowly northward, on the trestle, was imminent and unavoidable, and, to save himself, jumped from his engine, and received the injuries for which he has brought the pending suit. There was evidence offered tending to prove that Huyett, one of the brakemen, had been drinking that night before the accident happened; and, within 30 minutes prior to the collision, his breath gave unmistakable evidence of it. In this state of the proof, a witness was asked whether he knew the general reputation of Huyett and Reese, the two brakemen, for sobriety for one or two years before the accident and following that, and, if so, to state what that reputation was. To this question and the evidence sought to be elicited thereby, the appellant objected, but the court permitted the question to be asked and answered, and this ruling forms the subject of the first exception.
It has been repeatedly held by this court, and is the settled and established doctrine of Maryland, that in actions of this character, where a servant sues his master for injuries resulting from the negligence of a fellow servant, the plaintiff, to succeed, must prove not only that some negligence of the fellow servant caused the injury, but also that the master had himself been guilty of negligence, either in the selection of the negligent fellow servant in the first instance, or in retaining him in his service afterwards. Mere negligence on the part of a fellow servant, though resulting in injury, will not suffice to support the action, because the master does not insure one employé against the carelessness of another; but he owes to each of his servants the duty of using reasonable care and caution in the selection of competent fellow servants, and in the retention in his service of none but those who are. If he does not perform this duty, and an injury is occasioned by the negligence of an incompetent or careless servant, the master is responsible to the injured employé, not for the mere negligent act or omission of the incompetent or careless servant, but for his own negligence in not discharging his own duty towards the injured servant. As this negligence of the master must be proved, it may be proved like any other fact,--either by direct evidence, or by the proof of circumstances from which its existence may, as a conclusion of fact, be fairly and reasonably inferred. That drunkeness on the part of a railroad employé renders him an incompetent servant will scarcely be disputed; nor can it be questioned that a master who knowingly employs such a servant, or who knowing his habits, retains him in his service, would be guilty of a reckless and wanton breach of duty, not only to the public, but to every employé in his service. There is no evidence in the record, nor has there been a suggestion, that either the conductor, fireman, or flagman of the train was negligent or incompetent. The negligence which directly caused the accident is attributed solely to the brakemen; and the appellant's negligence, which, as it is claimed, fixes its liability, lies in its employment of, or continuing to retain in its service, these dissipated or intemperate brakemen. But, as we have stated, it was necessary for the plaintiff to show, not only their employment, but that the company had not used due and ordinary care in selecting them. There was no direct evidence adduced to show the absence of such care; but the question excepted to, and the evidence elicited in response to it, were designed to show by indirect or circumstantial evidence that the company had not used the degree of care and caution in the selection of these brakemen that its duty imperatively required it to use. So the question is, can you fix upon the master a failure to use due care in selecting careful servants by showing such notorious or general reputation respecting the servant's unfitness or incompetency as that the master could not, without negligence on his part, have been ignorant of it when he employed the servant? About this there ought to be no difficulty. If the servant's general reputation before employment is so notorious as to unfitness as that it must have been known to the master but for his (the master's) negligence in not informing himself,--if he could have been ignorant of it only because he failed to make investigation,--then it is obvious that he had not used the care and caution which the law demands of him in selecting his employés. Hence "the servant's general reputation for unfitness may be sufficient to overcome the presumption that the master used due care in his selection, even though actual knowledge of such reputation for unfitness on the master's part is not shown." Wood, Mast. & Serv. § 420. In Davis v. Railroad Co., 20 Mich. 112, Cooley, J., speaking for the court, adopts the case of Gilman v. Railroad Co., 13 Allen, 433, which puts upon the employer the responsibility of negligently employing an unfit person, generally known and reputed to be such, notwithstanding the employer may in fact have been ignorant of such unfitness. Continuing, he said: "The ignorance itself is negligence in a case in which any proper inquiry would have obtained the necessary information, and where the duty to inquire was plainly imperative." So, in Hilts v. Railway, 55 Mich. 437, 21 N.W. 878, where a track hand was killed by an engine backing rapidly along a switch, and the engineman was drunk, the court said: "When, however, as in this case, it is shown that the accident occurred through the negligent act of the servant, who was in an intoxicated condition, and when it is shown, further, that he was in the habit of drinking intoxicating liquors to excess, and such habit had extended over a period of nine months while in defendant's employ, and no actual knowledge or notice ever reached any superior officer of the engineer, we think the jury may be justified in...
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