Southern Pac. Co. v. Hetzer

• Decision Date: 25 January 1905
• Docket Number: 2,039.
• Citation: 135 F. 272
• Parties: SOUTHERN PAC. CO. v. HETZER.
• Court: U.S. Court of Appeals — Eighth Circuit

135 F. 272

SOUTHERN PAC. CO. v. HETZER.

No. 2,039.

United States Court of Appeals, Eighth Circuit.

January 25, 1905

Syllabus by the Court

In actions for personal injury the plaintiff may recover for the bodily suffering and mental pain which are inseparable and which necessarily and inevitably result from the injury. But mortification and distress of mind from the contemplation of the crippled condition and of its effect upon the esteem of his fellows, that mental pain which is separable from the bodily suffering caused by the injury, is too remote indefinite, and intangible to constitute an element of the damages in such a case, and evidence of it is inadmissible.

Mental suffering as an element of damages, see note to Chicago R. L. & P. Ry. Co. v. Caulfield, 11 C.C.A. 556.)

It is the duty of the master to exercise reasonable care to employ competent servants, and, when he has exercised this care this duty is discharged.

Another duty of the master is to discharge a servant when he knows or by the exercise of reasonable diligence would have known that the servant has contracted the habit or character of negligence, of drunkenness, or of lack of skill, so that he is incompetent.

The diligence required of the master to learn the habits or characters of servants employed with due care is not of that degree demanded in his employment of servants or in his inspection of machinery, because careful and skillful men grow more careful and skillful, and the legal presumption is that servants once competent continue so. The master may rely upon the presumption of competency until he has notice or knowledge to the contrary.

The reasonable diligence and care which the master is required to exercise here is not that high degree of care which a prudent business man would use if the want of it endangered his own person. It is that degree of care which prudent railway officials exercise under like circumstances, that care which such officials charged with the duty of discharging servants employed with due care commonly exercise as soon as they know, or by the exercise of reasonable diligence would know, that such servants have become incompetent.

Servants assume the risk of the occasional acts of negligence of their fellow servants, and the master is not liable for them, but the servants may by notice cast the risk of the habitual negligence of their co-employes upon the master.

Assumption of risk incident to employment, see note to Chesapeake & O. Ry. Co. v. Hennessey, 38 C.C.A. 314.)

Evidence of specific acts of negligence known to the master, and of acts of negligence like those which cause the death of passengers, so notorious that the master must have known of them if he exercised reasonable diligence, is admissible to prove the habit or character for incompetence of a servant who is employed with due care.

Specific acts of negligence, of drunkenness, of lack of skill, or of incompetence, of which the master had no notice, are inadmissible to prove the incompetence of a servant employed with due care. The proper proof of habit and character, as of reputation, in such a case, is the testimony of witnesses qualified to speak of them, subject to proper cross-examination relative to the facts upon which their testimony is based.

After proof of the incompetence of a servant, his general reputation among those acquainted with him or his work is competent to prove notice of the habit of incompetence to the master. But reputation among a particular class, which obviously includes but a part of those who knew his character or work, is inadmissible for this purpose.

A single exception to a refusal to give a number of requests to submit to the jury several propositions of law and of fact is futile, if any of those propositions is erroneous or inapplicable.

Henry G. Herbel (Martin L. Clardy, on the brief), for plaintiff in error.

Herbert R. Macmillan (Hiram H. Henderson, on the brief), for defendant in error.

Before SANBORN and HOOK, Circuit Judges, and LOCHREN, District Judge.

SANBORN Circuit Judge.

About 5 o'clock in the afternoon of July 23, 1902, P. R. Hetzer, the plaintiff below, was the brakeman on the rear of a train of 22 cars which Tom Delano, one of the engineers of the Southern Pacific Company, was backing into a gravel pit. As this train approached a switch which it was Hetzer's duty to throw, he gave the slow signal, and his fellow brakeman gave the stop signal, to the engineer. Delano applied the air, Hetzer fell to the track, one of the wheels of the rear car passed over his leg, and the train stopped. The injury to the leg necessitated its amputation above the knee. He sued the company for casual negligence for employing and keeping in its employment an incompetent engineer. At the trial there was no evidence to sustain his averment that the company was guilty of negligence in selecting and employing Delano, this charge was withdrawn from the jury by the court, and the only issues submitted to them were the question whether or not the defendant was guilty of any want of ordinary care in continuing Delano in its employment at the time of the accident, and the amount of plaintiff's damages. There was a verdict and judgment against the company for $11,450.

It is assigned as error that at the trial of the action, more than 15 months after the accident, in answer to questions of his counsel relative to the effect upon his mind at that time of the injury to his leg, the plaintiff testified that the fact that other people looked down upon him because he was crippled, and seemed to shun him, made him feel very badly and distressed him mentally. There is a conflict of authority upon the question which this assignment presents. In some states, notably in Wisconsin and Michigan, evidence of mental pain caused by disfigurement, apart from the physical suffering produced by an injury, is admissible to enhance the damages in an action for personal injury. Heddles v. Chicago & N.W. Ry. Co. (Wis.) 46 N.W. 115, 116, 20 Am.St.Rep. 106, and cases there cited; Sherwood v. Chicago & W.M. Ry. Co. (Mich.) 46 N.W. 773, 776. The rule which has been adopted by this court, however, and the rule which seems to us the better one, is that in actions for personal injury the plaintiff may recover for the bodily suffering and the mental pain which are inseparable and which necessarily and inevitably result from the injury. But mortification or distress of mind from the contemplation of the crippled condition and of its effect upon the esteem of his fellows, that mental pain which is separable from the physical suffering caused by the injury, is too remote, indefinite, and intangible to constitute an element of the damages in such a case, and evidence of it is inadmissible. Chicago, R.I. & P. Ry. Co. v. Caulfield, 63 F. 396, 399, 11 C.C.A. 552, 555; Kennon v. Gilmer, 131 U.S. 22, 26, 9 Sup.Ct. 696, 33 L.Ed. 100; Bovee v. Danville, 53 Vt. 183; C., B. & Q.R. Co. v. Hines, 45 Ill.App. 299, 302, 303; City of Salina v. Trosper, 27 Kan. 544, 564; Dorrah v. Railway Co., 65 Miss. 14, 3 So. 36, 7 Am.St.Rep. 629; Railway Co. v. Stables, 62 Ill. 313, 321; Joch v. Dankwardt, 85 Ill. 331, 332; Johnson v. Wells, Fargo & Co., 6 Nev. 224, 236, 3 Am.Rep. 245. Mental pain of this character, the suffering from injured feelings, is intangible, incapable of test or trial. The evidence of it, like that which convicted the alleged witches, rests entirely in the belief of the sufferer, and it is not susceptible of contradiction or rebuttal. Many other causes, the education, temperament, and sentiment of the sufferer, the mental attitude, the acts and words, of his friends and acquaintances, concur with the accident to cause this mental distress, in such a way that it is impossible to separate and ascribe the proper part of it to the injury caused by the defendant. And the amount of the mental pain caused by any disfigurement necessarily varies so with the character, temperament, and circumstances of the injured person that no just measure of the damages from it can be found. Such mental suffering is too remote, intangible, and immeasurable to form the basis of any just adjudication, and the objections to the testimony of the plaintiff concerning it should have been sustained.

One of the counsel for the plaintiff asked him if there was any other occurrence of sudden stopping or jerking of the train while Delano was acting as engineer during the day of the accident. Defendant's counsel promptly objected to the testimony which the question was intended to elicit, upon the ground that it was evidence of a specific act other than the one pleaded. The witness testified that about three hours before the accident Delano stopped his train in a very rough manner, so that the plaintiff staggered around, but did not fall. Evidence of another act of Delano of a similar character was admitted, under a like objection, and these rulings of the court are assigned as error. The issue of law which these rulings present is not without importance, and it may be well, before entering upon its discussion, to place clearly before the mind the legal relation of the plaintiff and the defendant, and the exact question to be decided. It is the duty of the master to exercise reasonable care to employ competent servants to work with his employes. When he has exercised this care, he has fully discharged this duty. There is another duty of the master. It is to discharge a servant whom he has employed with due care when the employe has contracted the habit of negligence or of lack of skill so that he has become incompetent, and the master knows, or by the exercise of reasonable care would have known, of this habit. This duty, however, is not imposed until the habit has been formed,...