Cooney v. Commonwealth Avenue Street Railway Co.

Braley, J. By its contract the defendant impliedly undertook to provide the plaintiff with suitable appliances, to furnish a safe place in which he could perform his work according to the nature of the service, and to use reasonable diligence in employing competent fellow servants for the performance of their respective duties. Snow v. Housatonic Railroad, 8 Allen, 441. Wabash Railway v. McDaniels, 107 U. S. 454. If a servant, who originally was competent during his service becomes incompetent, and such incompetency either is known, or in the exercise of reasonable diligence should have been discovered, then, where the employment is continued, the master’s liability remains the same, as if he knowingly, or negligently, had hired him in the beginning. Gilman v. Eastern Railroad, 13 Allen, 433, 441. Upon the trial of such an issue single instances of inefficiency are inadmissible, but the servant’s general reputation as a person deficient in skill in the performance of the service for which he was engaged is admissible. Hatt v. Nay, 144 Mass. 186. Connors v. Morton, 160 Mass. 333. Palmer v. Coyle, 187 Mass. 136, 139. While the previous experience of Mead, who the plaintiff alleges to have been an unfit servant, is not disclosed, there was evidence that, having been employed by the defendant, after receiving instructions from the assistant superintendent, he began [15] as a motorman to operate cars independently. It presently was rumored among the employees that he was incompetent, and the defendant’s assistant superintendent, whose particular duty required him to supervise the proper operation of the cars, testified that from observation he had become satisfied that Mead “ would never be able to run a car properly.” The result of this observation having been reported by him to the superintendent, both of these agents of the defendant knew that by his conduct Mead had shown unfitness for the duties of his position, and their knowledge must be imputed to the defendant. O’Connor v. Adams, 120 Mass. 427. Palmer v. Coyle, ubi supra. But, while there was evidence of previous inefficiency, of which the defendant could have been found to have had knowledge, as well as the retention of an unfit servant, the plaintiff cannot recover unless it also appeared that the accident was occasioned by this incapacity. See Albro v. Agawam Canal Co. 6 Cush. 75 ; Curran v. Merchants’ Manuf. Co. 130 Mass. 374, 375. Upon this question the uncontroverted testimony makes it evident that, in the blasting of rock caused by the construction of a sewer in the vicinity, boulders had been thrown upon the track of the defendant’s railway. Because of this obstruction the assistant superintendent directed Mead and the plaintiff, who respectively were acting as motorman and conductor, to change from the car they were running, and complete the transit by taking another car then waiting on the farther side. The change accordingly was made, and, having proceeded to the end of the route, their positions were reversed, and the car started on the return trip. When it approached the place where under the arrangement it should have stopped, the car continued on its course and ran directly into the boulder, causing the plaintiff’s injuries. If of average intelligence, it must be presumed that the motorman, being aware that they were to change cars as before, knew that if the car kept on there must be a collision, and that, in its proper management to prevent this, the motive power would have to be disconnected, and the brake applied at a certain distance from the point where the car should have been stopped. The motorman’s failure to accomplish this object, with a straight track, which did not appear to [16] have been otherwise than in good condition and with a car the mechanical and electrical equipment of which was not shown to have been defective, when considered in connection with his reputation, was evidence that the accident was due to a lack of ordinary skill. Having introduced testimony from which on a single ground the defendant’s negligence could be found, the plaintiff was under no obligation to go further, and, if either the track or the car was defective, thereby causing the collision as the defendant suggests, it offered in evidence no proof that such conditions existed. Melvin v. Pennsylvania Steel Co. 180 Mass. 196. Droney v. Doherty, 186 Mass. 205, 208. It further is argued, that the plaintiff having heard of the disqualification of Mead, must be held to have assumed any risk of injury which might follow therefrom, while they were engaged in the prosecution of their common employment. After the plaintiff had been employed, the motorman was hired, and there being no assumption of risk by contract, if assumed at all it must have been by conduct. O'Maley v. South Boston Gas Light Co. 158 Mass. 135, 136. On the morning of the accident, after having ascertained that Mead was to accompany him, the plaintiff asked for another motorman, and, this request being refused by the “ starter ” in charge of the dispatching of cars, he then requested that some one else should go as conductor. This request also having been denied, the plaintiff then took his place on the car. But while the jury could find that he knew of the rumored incompetency of Mead, such knowledge alone would be insufficient, for they also could find that he had not been informed of the extent of his incapacity, and hence did not fully appreciate a danger whose existence was caused< solely by the defendant’s fault. An apprehension by the plaintiff that the motorman might be careless in the ordinary management of the car might be found not to include necessarily a forecast that after an explicit order to stop at a certain point to avoid an obstruction plainly visible on the track, he would be incapable of obedience, and heedlessly cause a collision. Under such circumstances it cannot be held as matter of law that a servant voluntarily takes the risk of the subsequent accident, as the conduct of the servant also must be found to have been accompanied by a voluntary purpose to expose [17] himself to a danger which he appreciates. It, therefore, became a question of fact for the jury to determine under proper instructions, whether the plaintiff voluntarily placed himself in this position. Mahoney v. Dore, 155 Mass. 513, 519. Wagner v. Boston Elevated Railway, 188 Mass. 437, 440, 441, and cases cited. Urquhart v. Smith & Anthony Co. 192 Mass. 257, 263. Williams v. Birmingham Battery & Metal Co. [1899] 2 Q. B. 338, 344, 345. The defendant’s first and second requests for rulings were properly denied, while the third was given although not in the language requested. The defendant’s exceptions to the instructions on the assumption of risk having been waived, the remaining exception relates to those given concerning the negligence of the motorman. The defendant construes this portion of the charge as stating that the plaintiff was to be considered a passenger in whose transportation the defendant as a common carrier must exercise the highest degree of diligence commensurate with its undertaking. But as a whole it is not susceptible of this meaning. The jury first were told that Mead was required to exercise the degree of care called for under all the circumstances of the case. The presiding judge then continued, “if there had been only one passenger, this plaintiff, . . . the duty imposed . . . would have been ordinary care, reasonable care with reference to all the circumstances of the case; but with reference to passengers, he was called upon to exercise the highest degree of care consistent with the performance of his duties; did he exercise reasonable care ? ” In referring to the plaintiff as if he had been the sole passenger, there was no modification of his first instruction, and having alluded to his further duty, the judge closed with a restatement of the rule previously given, that the burden was upon the plaintiff to satisfy them that at the time of the accident the motorman failed to exercise such reasonable care as the conditions demanded. Although the defendant would not be liable to the plaintiff for Mead’s negligence if caused solely by want of ordinary care, it was responsible when caused by unskilfulness, and his conduct at the time of the accident was material, for if due care was found the plaintiff could not recover. The entire charge is not reported, and if the defendant was apprehensive, as it now contends, that under the [18] portion of the charge already considered the jury might have deemed the question one of Mead’s due care, rather than of his incompetency, it should have asked for more specific instructions. Wright v. Wright, 139 Mass. 177. Exceptions overruled.