Lee v. Michigan Central Railroad

McGrath, J. Plaintiff had been employed as a brakeman for about one year. He had been at work in the yard as helper for only a month. He had had no other experience in switching. He did not know Seward, the yard-master, before the accident, except that he had seen him at work in the office. He knew nothing about Seward’s experience or knowledge; said- that he was incapable of giving any opinion as to that. Seward had been acting as yard-master two or three weeks before the accident. Plaintiff was injured while assisting in making up a freight-train, at about 7:30 a. m. This main was sometimes made up by the night men, and when plaintiff came on he supposed it was made up, except the cars which he was coupling to it. He had no notice from any source that a crew was at work,at the west end, or that the main part of the train would be moved. He did not know that the west part of the train was coming, and had no reason to expect that it would be moved. He was not present when the order was given by Seward — 576 — to Barry to couple on these cars. The track was a curved track, and there were 38 cars in the train. The adjoining tracks were full of cars. Up to the time of the injury, plaintiff had never worked at one end of a train while work was being done at the other end. Employes were usually notified by the yard-master When another train or engine was. expected on the same track. Several witnesses were examined in plaintiff's behalf. Staats had been at work for the company 11 years up to 1890. Began as foreman of a chain-gang, then worked as car inspector, then as brakeman, then as helper in the yard for two or three years, then as yard conductor, or switchman, and was extra yard-master when a vacancy occurred. Finch is yard-master for the Grand Trunk road. Had been in the employ of defendant for 16 years immediately before 1889. Was first switchman's helper, then had charge of an engine, then switchman for ' several years before he became yard-master. Wells has been railroading since 1869. Worked since 1881 for defendant. Was night yard-master in 1888, 1889, and part of 1890. Commenced as helper, was then switchman for four or five years, then became night yard-master. McAllister was conductor of this freight-train, and had been in the employ of defendant since 1881. Was at the time of the injury engaged in checking off the cars. Dyer had been in the employ of defendant from the fall of 1876 till March, 1890, as car-checker in the lower yard. These witnesses all testify that they had known Seward for years before he was appointed yard-master; that Seward had been messenger, car-checker or number-taker, and train-master’s clerk, and that his work had been office work only; that he had had no experience as helper, switchman, or assistant yard-master. — 577 — Staats, Wells, and Finch testify .that experience in a yard as switchman is essential to the proper performance of the duties as yard-master; that Seward was incompetent; that they based their statements as to his incompetencv upon their knowledge of diis inexperience, and their observation as to the way he set about doing his work; that an inexperienced man could not go to work and make up trains without 'great danger; that it was customary for the yard-master to notify the crews of the fact whenever men were to work at the other end of the train, or to signal them; that the movement of the body of the train would not be expected or looked for unless they were informed that such a movement was to be made; that, when there was a gap in a train, the closing of this gap would not be expected without notice; that there was a gap in this train; that plaintiff, from where he stood, could not see the engine or the front section of the train, because of the curved track, and the presence of cars on adjoining tracks. Defendant offered no testimony as to the diligence exercised by the company in the selection of the yardmaster or as to his competency for the position. Seward was personally directing the movements of the engine at the west end of the train. It was shown that, when he ordered Barry to put the cars on at the east end, he did not notify him of his intention to move the train from" the west end. He gave no warning or signal to any one. Barry testified that he was ordered by Seward to take the two cars, and put them on the east end, but that Seward did not notify him that he (Seward) intended to operate at the west end, or move the body of the train. On cross-examination, Barry said that he had been up at the west end that morning; that he knew there was an — 578 — engine there; that, as he moved towards the east end of the train, he could not see the engine at the west end, but he saw the whole train move from the west end, and he stopped his engine, and waited one or two minutes, until the body of the train had stopped, and then signaled his engineer to back, and he did so. This witness was the only one who claimed that there was any movement of that portion of the train to which plaintiff was coupling until just as he was in the act. Even if the testimony of this witness stood alone, it does not follow that either the witness or plaintiff was negligent. Witness waited until the train came to a full stop. Seward had ordered Barry to put on these cars at that point. Seward was directing the movement of the locomotive at the west end. Barry had a right to suppose, and act upon the supposition, that, knowing that they were at work there, Seward would not order the train to be backed down upon them while they were executing his orders. In the absence of any notice to them that the west end of the train would be moved, or of any signal or warning, Barry and plaintiff would naturally expect that Seward would refrain from doing that which would endanger their lives while in the execution of Seward’s orders. Their orders were to put on the cars, and, even conceding that the body of the train had moved, they did nothing until the train had stopped; and why was not this as opportune and proper a time to carry out the orders given them as any subsequent time would have been? If a signal had been agreed upon, and, without waiting for it, they had proceeded, the case would have been different. Something has been said about the discrepancy in the testimony of the witnesses as to the signals which should have been given. I presume that the nature of the sig — 579 — nal which should be given would depend very much upon conditions or surroundings. Under the facts disclosed here, it was clearly error to take the case from the jury. It- is unnecessary to determine here whether or not Seward was a fellow-servant. A master is liable for injuries to servants that spring from such negligent acts of fellow-servants as are due to their incompetency. Hilts v. Railway, 55 Mich. 437. There was evidence tending to show that Seward was incompetent, and that question was for the jury. Employers may be negligent in the selection of servants as well as in their retention. Hilts v. Railway, supra.; Quincy Mining Co. v. Kitts, 42 Mich. 34; Smith v. Potter, 46 Id. 258. In the absence of any evidence as to the exercise of care in his selection, proof that a servant who has been in that service but two or three weeks was incompetent when employed need not be supplemented by proof of the company’s knowledge of his incompetency. The presumption that defendant had done its duty is overcome by proof that the servant was incompetent when employed. Where one competent at the time of his employment becomes incompetent, or indulges in a habit which renders him incompetent during its indulgence, notice of the incompetency or of the habit must be brought home to the company, or the incompetency or habit must be so notorious as to charge the company with knowledge;, but when the incompetency does not arise after the employment, but existed at the time, proof of notice to the company is not necessary. There was no testimony tending to show that plaintiff had knowledge of Seward’s incompetency. He- was not qualified to pass upon that question, as he himself expressed it. The judgment is reversed, and a new trial ordered, • with costs. — 580 — Morse and Long, JJ., concurred with McGrath, J.