Malay v. Mount Morris Electric Light Co.

Ingraham, J.: The learned trial judge submitted to the jury five specific questions: (1) “Was the plaintiff injured on July 6, 1891, by any act of negligence on the part of Matthews ? ” To which the jury answered yes. (2) “Was the plaintiff guilty of any negligence which contributed to the accident?” To which the jury answered no. (3) “Was Matthews incompetent to act as a dynamo engineer in the station of the defendant company?” To which the jury answered yes. (4) “ Did the defendant company prior to the 6th day of July, 1891, have notice of, or could it by the exercise of reasonable diligence have discovered any facts which tended to show that Matthews was incompetent to perform the duties to which he had been assigned ? ” To which the jury answered yes. (5) “ What damages did the plaintiff suffer by reason of the injury ? ” To which the jury answered, $5,000. The court then directed the jury to find a verdict for the plaintiff for $5,000, to which direction the defendant excepted. Before the submission of these questions to the jury the defendant had made a motion to dismiss the complaint, and also a motion to direct a verdict in favor of the defendant. The decision of these motions was reserved by the court until the jury answered the specific questions submitted to them. After the verdict of the jury the motions were respectively denied, to which the defendant excepted. — 576 — The defendant upon this appeal insists that there was no evidence to sustain a finding by the jury that Matthews was incompetent to act as a dynamo engineer in the station of the defendant company or that the defendant company had notice of, or could have by the exercise of reasonable diligence discovered facts which would tend to show that Matthews was incompetent to perform the duties to which he had been assigned. The plaintiff’s evidence justified a finding that his injury was caused by negligence on the part of Matthews and the question of the plaintiff’s contributory negligence was properly submitted to the jury. The plaintiff was employed by the defendant as a lineman and inspector. It was a part of his duty to hang lamps for the defendant company and the wires connecting these lamps with the defendant’s power house. One Lowery was employed in the dynamo room of the defendant and was in charge of the dynamos during the daytime. He was required to be on duty from nine o’clock in the morning and until about seven forty-five in the evening, one Matthews then taking his place and remaining in charge until he was relieved by another employee. It ■was Lowery’s duty to remain in charge until the lights were turned on at night. Matthews would usually come to the power house of the defendant about four or five o’clock in the afternoon. He would then stay with Lowery until all the machines were turned on, between half-past seven and eight o’clock, when Lowery would report off and Matthews would take charge of the plant until one o’clock in the morning. A Mr. Fulton had general charge of the power house of the defendant company, having the power to employ the men and to discharge them, and a Mr. Young was the superintendent, having charge of everybody, including the linemen. It appeared from the plaintiff’s evidence that on July 6, 1891, the plaintiff was ordered to hang a lamp at 103 Park place; that he went to the station and got a lamp and there saw Matthews on duty ; that plaintiff told Matthews that he was going to hang a lamp at 103 Park place, and to be sure and not turn the current on until the plaintiff had notified him over the telephone that the lamp was hung, "when he could give the circuit a test. Matthews said : “ All right, Bill, starting time is not until seven forty-five,” to which "the plaintiff replied: “ I don’t know whether I will be done then or not, but I will telephone as soon as I get done.” Matthews had full charge of — 577 — the station at the time of this conversation, Lowery having been laid off that afternoon at one o’clock. The plaintiff went to the locality at which he was to hang the lamp, started to make the connection between the defendant’s wires on one of the defendant’s poles, standing on a ladder about ten feet from the ground, and while making this connection he received a charge of electricity over the wires. He fell backward from the ladder on which he was standing and struck upon the sidewalk, and sustained the injury to recover for which this action was brought. The accident happened some time between six and half-past six o’clock in the evening. Between six and half-past six o’clock, about twenty-five minutes after the plaintiff left the power house, Matthews started up the dynamos, closed the circuit upon circuit “ 15,” upon which the plaintiff was working, so as to turn the current on this circuit, and it was in consecpience of Matthews turning on this current while the plaintiff was at work connecting the wires that he received the shock which caused him to fall and sustain the injury. There was also evidence that during the six months before January first machines were burned up while in Matthews’ charge, of which fact Fulton, who had charge óf the power house for the defendant and who employed and discharged employees, had notice; that on March 7, 1891, before the accident, a converter was burned up, and Matthews’ arms and hands were burned half-way to the elbow; that some time before the accident a switchboard in charge of Matthews was burned; that Fulton had notice of that fact, and that he (Fidton) then said that Matthews was a fool; that Horahan, who was in the employ of the defendant as chief lineman, told Fulton that he had better get rid of Matthews or he would kill himself or somebody else; that Horahan informed Fulton that one of the linemen had made a complaint that Matthews had started the dynamo up on him, and the witness said to Fulton: “ If you don’t get rid of that fellow he will either kill himself or kill somebody else down there.” This lineman had said that Matthews started the dynamo up on him when he was out on an open circuit, and the witness told that to Fulton. Fulton said that Matthews had no right to do it; that Lowery was there and ought to have looked out for that. The witness further" testified to the interview with Fulton after the fire — 578 — which was caused by this switchboard being burned out and that Fulton’s attention was then called to Matthews’ negligence. The witness also told Young, the superintendent, that Matthews had started the circuit on Garber, a lineman, and came near killing him a night before; that Garber was out on an open circuit on One Hundred and Sixth street; that just as soon as he got the circuit and the wires were closed, “ up came the lights on him and didn’t give him any time to get off the pole or anything else.” In reply to this Young said: “You told Fulton about it?” The witness said: “Yes.” There is other evidence to show that in the six or eight months preceding this accident Matthews was constantly, from ignorance or inattention, making mistakes in the management of this machine. Cochran, who was in charge of the dynamo room during this period, testified that he spoke to Mr. May, the vice-president, about Matthews’ in competency; that Mr. May instructed him to talk to Fulton; that the witness told Fulton it was impossible for him 'to get along with the man; that the man was incompetent, and that. Fulton said : “Well, I don’t want to have any quarreling or contention here, and if you know of any young man you are acquainted with around New York, why get him;” that on several other occasions the witness told Mr. May (vice-president) that Matthews was a dangerous man to have around the place; and that on several occasions the witness told Fulton that Matthews was incompetent and that he would do damage there. On the part of the defendant Young was called as a witness and testified that several times reports were brought to him by Cochran as to Matthews’ in competency, but that he investigated each charge and found no reason to believe that Matthews was not a good man for the position and that while he was there he considered Matthews a perfectly competent man. To entitle the plaintiff to recover, there must be evidence sufficient to sustain a finding of the jury that the accident was caused by the negligence of Matthews; that Matthews was not a competent man to perform the duties required of him by the defendant, and that the defendant, before the accident, had knowledge or notice of Matthews’ incompetency. As was said by Judge Brown in Coppins v. N. Y. C. & H. R. R. R. Co. (122 N. Y. 564): “ The defendant’s duty to the plaintiff, so far as reasonable care would accomplish it, was to employ only competent men in the management — 579 — of its road. A competent man is a reliable man; one who may be relied upon to execute the rules of the master, unless prevented by causes beyond his own control. Hence, incompetency exists not alone in physical or mental attributes, but in the disposition with which, a servant performs his duties. If he habitually neglects these duties, he becomes unreliable, and although he may be physically and mentally able to do well all that is requested of him, his disposition toward his work and toward the general safety of the work of his employer and to his fellow-servants makes him an incompetent man.” And in Wright v. N. Y. C. R. R. Co. (25 N. Y. 565) it is. stated that ■“ The master is liable to his servant for any injury happening to him from the misconduct or personal negligence of the master; and this negligence may "consist in the employment of unfit and incompetent servants and agents. * * * The employer does not undertake with each or any of his employees for the skill and competency of the other employees engaged in and about the same •service, * * * since neglect and want of due care in the selection and employment of the agent or servant through whose want of skill or competency an injury is caused to a fellow-servant, must be shown in order to charge the master.” Applying this principle, we think the evidence justified the submission of the question as to the defendant’s negligence to the jury. The plaintiff was employed to perform for the defendant a hazardous operation. In joining these two wires together he subjected himself to the effect of a current passing from one wire to the other. It was the defendant’s duty to provide proper machinery, and to employ faithful and competent servants to prevent injury to the plaintiff when engaged in the performance of this duty. If the defendant employed an incompetent servant, and gave to him charge of the machinery by which the current would be turned on to these wires on which the plaintiff was sent to work, or if those servants that it had employed had shown by their previous conduct that they could not be relied upon to execute the rules of the master necessary for the protection of the other servants employed in their work, or that they recklessly and in disregard of ordinary rules of prudence and care exposed their fellow-servants to unnecessary danger, and notice of such neglect or incompetency was brought home to the master, and an injury resulted from the act of this incompetent servant so employed, the master is — 580 — liable. In this case, the evidence was sufficient to show that Matthews, either from ignorance or from recklessness, was an incompetent man and unfit to be intrusted with this dangerous machinery,, and that knowledge of the fact had been brought home to the master. It is true that the person charged with the duty of employing or discharging Matthews' testified that he had investigated complaints- and had satisfied himself that they were unfounded. That question was properly submitted to the jury to determine whether or not, osa. matter of fact, Matthews was a competent man for the work that he •was employed to do, and if he was incompetent, whether the defendant had such knowledge of his incompetency as made it negligent for it to retain him in its employ. The verdict of the jury is not unsupported by the evidence, arid we should not be justified in reversing it upon that ground. After an examination,of the whole record we see no reason for disturbing the verdict of the jury upon any question submitted to them. Nor do we think the verdict excessive. The injury was severe and there was evidence to show that it is permanent. It interferes with the plaintiff in the performance of his- work, and we do not think we should be justified in interfering with the verdict upon that ground. We have examined all the objections to testimony to which our attention has been called by the appellant, but we find that none of them would justify a reversal of the judgment. Upon the whole case we think the judgment was right and should be affirmed, with costs. • Barrett, Rumsey and McLaughlin, JJ., concurred. Judgment affirmed, with costs.