Yazoo & Mississippi Valley Railroad v. Hare

Cook, J., delivered the opinion of the court. Bettie Hare and the seven children of James Hare, deceased, sued the Yazoo & Mississippi Valley Railroad Company, appellant here, in the circuit court of Warren county, for the alleged negligence of the night watchman of said company in causing the death of James Hare. James Hare, deceased, was employed by the railroad company as a sweeper in the roundhouse of the company at Vicksburg, and J. S. Grillis was employed as a night watchman in the yards of the company at the same place. After the completion of his work for the day, Hare was going through the yards of the company to his home,, when he was killed by J. L. Grillis the night watchman. Plaintiffs recovered a judgment for five thousand dollars,, and the railroad company appeals. It is assigned for error in this court that the court erred in some of its instructions to the jury. While the instructions may not be accurately and precisely correct,, yet we think, in the light of the facts of the case, no wrong was done the defendant by the instructions of the court. The instructions complained of in effect state to the jury that, if Grillis negligently killed the deceased while he was about the railroad company’s business the jury would find for plaintiffs. It is contended that what Grillis did must have been within the scope of his employment, and that this principle was “retired from sight, and is completely ignored. ’ ’ It seems to us that what Grillis did was [573] clearly within the scope of his authority as a night watchman ; and, this being true, no harm was done the defendant railroad company by the court’s failure to specifically charge the jury that the act done must have been within the scope of the servant’s authority. Again, it is contended that the court erred in permitting the plaintiffs in the court below to prove the bad character and reputation of the night watchman for peace' or violence, and that this reputation was well known to the defendant company. We find the following averment in the declaration: “Plaintiffs further aver that the-said "Grillis, while in the discharge of his said duties, was known to be oppressive and malicious in his conduct towards those with whom he came in contact; that this was well known to the defendant and to the community in general before the killing of Hare. Plaintiffs further aver that the said defendant retained the said G-illis in its employ, well knowing the facts aforesaid, relative to his said conduct. ’ ’ In Vicksburg & Jackson R. R. Co. v. Patton, 31 Miss. 194, 66 Am. Dec. 552, this court employed the following language: ‘ ‘ Upon' the question involving his character and fitness for his trust, and the consequent responsibility of the company for his delinquency in these respects; it is not only competent, but necessary, to inquire into his previous habits and conduct, in order to show that the alleged misconduct at the time of the injury was in keeping with his general character. Frequently it may be out of the power of a party to show positively the reasons of a delinquency of such an agent; and in such case it is proper and necessary to show his. general character, in order to explain his conduct at the time. ’ ’ This language was used by this court in a case where the railroad company was being sued for its alleged negligence in killing certain animals on its track, and evidence was introduced to show that the engineer in charge of the train had previously been in the habit of sounding the whistle when [574] there was no occasion for it, to frighten animals, and.to annoy the neighbors-on the road. In Magouirk v. Telegraph Co., 79 Miss. 636, 31 South. 207, 89 Am. St. Rep. 663, the court said: “The testimony as to the habits of a telegraph operator was addressed, as we understand it, to his fitness and suitableness for the place he held, and in that view should have been admitted”—citing Railroad Co. v. Patton, supra. In this case the telegraph operator had sent a bogus telegram to a gentleman, signing the plaintiff’s name thereto, and the evidence introduced to show the character of defendant’s agent was to the effect that he was in the habit of drinking excessively, and was boisterous and rough in his general deportment. In Railroad Co. v. Hicks, 91 Miss. 354, 46 South. 389, 124 Am. St. Rep. 679, the court said this: “We may say at once and so dismiss this matter, that the cause on the testimony is bottomed chiefly, if not exclusively, upon the negligence of the master in having in its employ a thoroughly incompetent and reckless engineer, and upon the wilful and reckless conduct of this engineer in running this first passenger coach over this new, rough, unballasted road at its excessive rate of speed. ’ ’ We think the reputation and character of defendant’s night watchman was peculiarly pertinent in this case, as, in our opinion, the evidence in the case justifies the assumption that James Hare was killed largely because defendant’s night watchman was a violent, dangerous and oppressive man; and it appears, also, from the evidence, that these characteristics of the watchman had been brought to the attention of the railroad company, and that afterwards this sort of man was continued in their employment. Affirmed.