Jackson v. Schillinger Bros.

Brooke, J. (after stating the facts). The work to be performed by plaintiff and his helpers, including Weimer, was simple in character. It involved no particular hazard and required no particular skill. It was plaintiff’s duty to saw the forms himself, after which he and his helpers loosened and lowered them. Any one of reasonable intelligence and sufficient strength would be competent to perform such labor. And it is not contended that Weimer was lacking in either particular. Under such circumstances and for the performance of such labor the employer is not required by law to either give instructions in regard to the work or inquire into the experience of the laborer. Timm v. Railroad Co., 98 Mich. 226 (57 N. W. 116). In Kellogg v. Lumber Co., 125 Mich. 222 (84 N. W. 136), it is said (quoting from Baltimore Elevator Co. v. Neal, 65 Md. 438 [5 Atl. 338]): “Negligence, such as unfits a person for service, or such as renders it negligent in a master to retain him in his employ, must be habitual, rather than occasional, or of such a character as renders it imprudent to retain him in service. A single exceptional act of negligence will not prove a servant to be incapable or negligent.” The only evidence of Weimer’s incompetency is furnished by the witness Muchinsky. • When analyzed it amounts simply to this: That on various occasions witness saw Weimer smoking cigarettes on the scaffold within 10 or 12 feet of plaintiff, that he saw him laughing and giggling, and that he joked him about a bottle of beer, all of which took place in the presence of plaintiff. He further testifies that Weimer seemed to him to be careless and unattentive. This testimony [513] in our opinion falls far short of proving incompetency on the part of Weimer to perform the labor in hand. Many good workmen laugh and joke. Undoubtedly some good workmen even smoke cigarettes, but we have never before heard either act urged as a ground for claiming that a man who indulges in them is incompetent to perform hard labor. Moreover, the record fails to disclose that the defendant had any knowledge of even these acts on the part of Weimer. It is true Muchinsky testifies that he told the foreman he should take the boys from the platform and give Jackson a man to help him, otherwise there would be an accident, but he carefully refrained from assigning any reason for his request. If the foreman received the communication from Muchinsky exactly as testified to by Muchinsky (and he denies having received it), he would have been perfectly justified in disregarding it, in the absence of any statement of specific instances of misconduct or incompetency calling for the warning. Snodgrass v. Steel Co., 173 Pa. 228 (33 Atl. 1104). But the remarkable and controlling consideration is that the plaintiff himself worked within 10 feet of Weimer for upwards of 2% days, and he must have seen every act and heard every word uttered by Weimer during that time. The conduct of Weimer evidently did not impress plaintiff as either careless or as evidence of incompetency. On the contrary, assuming Muchinsky’s statements tobe true,that conduct did not afford any evidence to plaintiff that Weimer was either careless or incompetent. Where employer and employee have equal knowledge of the incompetency of a fellow-servant of the employee who is retained in service, each party takes the risk, unless the employer undertakes to give special directions. Davis v. Railroad Co., 20 Mich. 105 (4 Am. Rep. 364). [514] We must hold that there was no evidence introduced by the plaintiff warranting the submission of the question of defendant’s negligence to the jury. The judgment is reversed, and a new trial ordered. McAlvay, C. J., and Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.