Crew v. St. Louis, K. & N. W. Ry. Co.

Brewer, J., (orally.) The motion for a new trial in this case was argued before us the other day. In the examination and decision of this matter we are, naturally, under considerable embarrassment from the fact that the case was tried before another judge. While this is nominally a motion for a new trial, pending in the same court in which the trial took place, still, being unfamiliar with the testimony and having seen none of the witnesses, it really comes before us in the same way that it would come before an appellate court. The question in all such cases is not whether some technical error may not have crept into the instructions, but whether, taking the case as a'wholh, and looking at the instructions as a whole, it is apparent that the law was presented fairly and correctly to the jury. We are not in a position to review the testimony and say that it did prove this or that fact in the case. A single .objection was presented in the argument on the admission of testimony, but I do not think that that is of any significance. The common law prevails in this state, and in order to charge the railroad company for an injury to one employe by another it must [95] appear, not merely that the co-employo was guilty of negligence, but that the company was responsible l'or that negligence by reason of having employed, knowingly,.or continued knowingly in its employ, an incompetent servant. The judge who tried tho case presented the law to the jury very clearly in regard to that; that is, that before the company could be charged with this injury it must have retained in its employment an incompetent servant, knowing him to he incompetent. It was not seriously contended in the argument that tho testimony was not ample to show that the conductor of the way-freight train was not a habitual drunkard, and known to be such by the company. There wore two or three charges of negligence against him, — one of which was in failing to send out signals to the rear while stopping at the way station of Old Monroe; and another, in failing, as the rules of the company required, to have three red lights on the rear end of the caboose. Consequently, in presenting the questions to the jury, on the testimony, Judge McCrary placed it before them principally upon this man’s alleged dereliction in failing to have proper signals, — that is, such red lights as were necessary on the rear of the caboose, — in consequence of which failure tlie following train was deceived as to the location of the way-freight train, and ran into it, causing the accident. It seems to us that Judge McCrary stated the question fairly and fully l'or the instruction of the jury, and their verdict, which was substantially that the conductor, Childs, was guilty of negligence in failing to take the proper precautions by putting the requisite signals on the rear end of his train, must be sustained. There was also a question in this ease, as there is in almost every case of this kind, as to the alleged negligence of the plaintiff; and the instructions of the court were that if ho was guilty of contributory negligence which directly tended to cause the injury, he could not recover. In looking at these instructions, it seems to both of us that the court stated tho law fully and clearly to the jury, and, notwithstanding one or two technical criticisms that have been made upon some of the expressions in the instructions, it seems to us that tho law was presented to the jury correctly, and that their verdict upon the facts must be sustained. Tho motion for a new trial will therefore bo overruled.