Baltimore & O. R. v. Henthorne

TAFT, Circuit Judge (after stating tlie facts as above). We find no error in this record, and affirm the judgment. Defendant has stated 24 general assignments of errqr, which include many minor specifications, but we do not find it necessary to consider them in detail. The assignments of material points can be grouped under a few heads. The defendant complains of the action of the court below in permitting evidence of the general reputation of Harrison for drunkenness and consequent incojirpetency as an engineer. It should be premised that this was accompanied by evidence that Harrison’s drunken condition was the cause of the accident, and by further evidence that Harrison was in the habit of getting drank. It was entirely competent to show Harrison’s general reputation for [638] the purpose of showing that the defendant was negligent in retaining him in its employ. In Railway Co. v. McDaniels, 107 U.S. 454, 2 Sup. Ct. 932, the court held: “Tlie same degree of care which a railroad company should take in providing and maintaining its machinery must be observed in selecting and retaining its employes, including telegraphic operators. Ordinary care on its part implies, as between it and its employes, not simply the degree of diligence which is customary among those intrusted with the management of railroad property, but such as, having respect to the exigencies of the particular service, ought reasonably to be observed. It is such care as, in view of the consequences that may result from negligence on the part of employes, is fairly commensurate with the perils or dangers likely to be encountered.” This is one of the personal obligations of the master to the servant which he cannot rid himself of by delegating it to an agent to perform. Railway Co. v. Brow, 13 C. C. A. 222, 31 U. S. App. 192, and 65 Fed. 941; Railway Co. v. Daniels, 152 U. S. 684, 689, 14 Sup. Ct. 756; Railroad Co. v. Baugh, 149 U. S. 368, 386, 13 Sup. Ct. 914; Railroad Co. v. Herbert, 116 U. S. 642, 6 Sup. Ct. 590; Hough v. Railway Co., 100 U. S. 2.13, 218; Fuller v. Jewett, 80 N. Y. 46. Ner does he fully discharge all of the obligation to his servants by fully inquiring concerning the applicant’s fitness at the time lie takes him into the service. It is the master’s duty to exercise proper supervision over the work of his servants, and through such supervision to keep himself advised as to the continued fitness of those in his employ. It was therefore entirely proper to show that the company, through its proper agents, did know, or ought to have known from a due supervision of its employés, that Harrison was an unfit man for engineer, by showing that he had the general reputation of an habitual and excessive drinker of intoxicating liquors. This cohclusion is so fortified by authority that we content ourselves with citing the leading cases qu the subject: Davis v. Railway Co., 20 Mich. 105; Hilts v. Railway Co., 55 Mich. 437, 21 N. W. 878; Gilman v. Corporation, 10 Allen, 233; Gilman v. Railway Co., 13 Allen, 433; Railroad Co. v. Sullivan, 63 Ill. 293; Stone Co. v. Whalen, 151 Ill. 472, 38 N. E. 241; Driscoll v. City of Fall River, 163 Mass. 105, 39 N. E. 1003; Railway Co. v. Hoover, 79 Md. 253, 29 Atl. 994; Bailey, Mast. Liab. p. 55, and cases there cited. See, also, decision of this court in Railroad Co. v. Camp, 31 U. S. App. 213, 13 C. C. A. 233, and 65 Fed. 952. Counsel complains of the failure of the court to give the charge, as requested, that evidence as to the reputation of John Harrison in respect of his habit of drunkenness could not be considered by the jury as tending to prove that he was in fact a drunkard. The court did give this charge, but attempted to make' it a little more plain by applying it to the issue as to whether Harrison was drunk at the time of the accident, and stated to the jury that such evidence of general reputation did not tend to show that he was drunk at that time. Counsel for the railway insists that he requested the charge, not for the purpose of avoiding the use of evidence of reputation to show that Harrison was drunk at the time of the accident, but to avoid its use to show that he was in fact a drunkard. If counsel had [639] wished a further elaboration of the charge, he should have asked it from the court. The court gave one illustration, but did not attempt: to limit the application of the charge requested to that. We do not think there; was any error in this. Objection is made by counsel for the company also, that the plaintiffs contributory negligence was made out: so dearly that Hu1 case should have been taken from the jury. This objection cannot be sustained. The defendant swore that he did not know of Harrison's drunkenness, and the circumstances were such as to make this possible, and an issuable fact for the consideration of the jury. The court charged the jury that if he did know of Harrison's drunkenness, he could not recover. We do not wish to be understood affirming that it would necessarily have been contributory negligence on the part of a new torakexnan, which would bar him from recovery in this case, not to leave the engine when he found the engineer drunk. All that we hold is that the charge of the court upon this point and to this effect was not error prejudicial to the defendant below. The court instructed the jury that it was necessary for the plaintiff to show that the incoinpetency of Harrison, the engineer, was known, or ought to have been kno.wn, to those officers of the company who were given authority to employ, discharge, or suspend him in order to charge the company with the same knowledge; and one of the chief grounds of complaint of counsel' for the company is the ruling of the court that the power' to suspend an employé for incompetency vested an agent of the company with authority to receive notice of such incoinpetency. The contention of counsel is in this ca,se that knowledge must have been brought home either to P. C. Sneed, the division superintendent, or to W. H. Harrison, the superintendent of motive powrer. W. II. Harrison’s office was in Newark, Ohio, several hundred miles' distant from that part óf the' railroad upon which Harrison, the engineer, whose competency is here in question, was engaged: while Hneed’s duties carried him from Chicago to Chicago Junction. It would be exceedingly difficult to bring home in any way the knowledge of an engineer's incompetency to these two officers under the circumstances. For the safety of the road the company was obliged to intrust to many other agents than those mentioned the power to suspend incompetent servants in order that the company’s property, and the persons whose lives were in its custody, should not be exposed to extraordinary dangers. Clearly, the men whose duty to the company it: was to exercise this power were those through whom the company sought its knowledge of the manner in which its servants were discharging their duties. They were agents for the very purpose of discovering habitual negligence, and of preventing danger from its presence, when discovered, by immediate suspension. We entirely concur with the court below in hqlding that an officer entitled to suspend a servant of the company temporarily is an officer who has authority to receive notice for the company of the incoinpetency of the person to be suspended. If, as was testified to, Fitzgei-ald, the yard [640] master, had power to suspend the engineer from a further discharge ©if his duties when he found that he was intoxicated, if the master mechanic had the power to suspend an engineer pending inquiry for any dereliction of duty, if the train master had the same powrer, then all these officers were persons whose knowledge of the incompetency of empioyés under their supervision was the knowledge of the company, and the failure on their part to use due diligence in observing the competency and sobriety of those whom it was their duty to suspend for incompetency or inebriety was the negligence of the company. This obligation of a railway company to use due diligence in the selection and retention of its empioyés is one which, in ofiew of the assumption of risk by the empioyés of any casual negligence of their fellow servants, it is most important to maintain, and it should not be frittered away by limiting those whose knowledge shall be the knowledge of the company to one or two officers so far removed from possible knowledge as to make it a hopeless task to bring the incompetency of subordinate servants to their notice. The conclusion thus reached is not in harmony with the decision of the court of appeals of Maryland in Railroad Co. v. Hoover, 79 Md. 253, 29 Atl. 994, already cited, or with that of the supreme court of Michigan in Railroad Co. v. Dolan, 32 Mich. 509. It is held in these cases that the duty o,f a corporation as master to a servant of using due care in the selection of competent fellow servants is fully discharged when its general or representative officers have exercised due diligence in the selection and appointment of the subordinate officers whose duty it is to employ and discharge servants. These cases are based upon the same view as those in which it is held that a master sufficiently performs his duty to his servant of furnishing reasonably safe machinery and keeping the same in safe repair when he exercises proper and reasonable caution and diligence in the selection of those servants whose duty it is to make the repairs, and to supervise the condition of the machinery. Wonder v. Railroad Co., 32 Md. 418. The supreme court of the.United States, in a series of cases, has left nothing to be desired in the clearness with which it has drawn a line of distinction quite at variance with the views of the courts just referred to. Its holding is that, where the law recognizes a positive duty owing from the master to the servant, a violation of such duty creates a liability to the servant, whether it arises from the personal neglect of the master or from that of any subordinate, however inferior, to whom the discharge of such duty may have been delegated by the master. In the case of Railroad Co. v. Daniels, 152 U. S. 684, 14 Sup. Ct. 756, it was held that a railroad company was bound to see to it at the proper inspecting station that the wheels of the cars in a freight train about to be drawn out upon the road were in safe and proper condition, and that if the servants to whom it delegated this duty performed it so negligently as to permit a car to go into service, one of the wheels of which had a defect that might have been detected without difficulty, the company was liable for any injury to another of its servants caused by such defect. In Railroad Co. v. Baugh, 149 U. S. 369641 386, 13 Sup. Ct. 914, after, referring to the duty of the master to use due care in the selection and maintenance of safe machinery, Mr. Justice Brewer, in delivering the opinion of the court, said: “That positive duty does not go to the extent of a guaranty of safety, hut it does require that reasonable precautions be taken to secure safety, and it matters not to the employe) by whom that safety is secured, or the reasonable precautions therefor taken. He has a right to look to the master for the discharge of that duty; and if the master, instead of discharging it himself, sees lit to have it attended to by others, that does not change the measure of obligation to the employ?), or the iatter’s right to insist that reasonable precaution shall be taken to secure safety in these respects. Therefore 'it will be seen that the question turns rather on the character of the act than on the relation of the employés to each other. If the act is one done in the discharge of some positive duty of the master to the servant, then negligence in the act is the negligence of the master; but if it be not one in the discharge of such positive duty, then there should be some personal wrong on the part of the employer before he is held liable therefor. But it may be asked, is not the duty of seeing that competent and lit persons are in charge of any particular work as positive as that of providing safe places and machinery? Undoubtedly it is, and requires the same vigilance in its discharge. But the latter duty is discharged when reasonable care has been taken in providing- such safe place and machinery, and so the former is fully* discharged when reasonable precautions have been taken to place lit and competent persons in charge.'’ It is manifest from the foregoing passage that the duty of the master to select fit and competent persons is viewed by the supreme court in the same light as the duty of the master to provide reasonably safe machinery, and that neither duty can be so delegated as to relieve the master from liability for a failure on the part of his subordinate to whom the duty is delegated to exercise proper cart; in its discharge. See, also, Railroad Co. v. Herbert, 116 U. S. 642, 6 Sup. Ct. 590; Hough v. Railroad Co., 100 U. S. 213-218; Fuller v. Jewett, 80 N. Y. 46; Railway Co. v. Brow, 13 C. C. A. 222, 65 Fed. 941. It follows that to the officer who lias the power to suspend employés is delegated the discharge of that positive duty which the company owes to each of its servants, to wit, the duty of using reasonable care to retain in its service only competent persons, and of reasonably supervising the work of its servants for this purpose, and that a failure on the part of such officers to discharge this delegated duty to the other servants of the company, resulting in injury to one of them, renders the company liable. There remains to consider only the objection to the charge with respect to the measure of damages. The charge of the court, as we interpret it, directed the jury to consider as one element of damage the loss of the plaintiff in his earning capacity by reason of Ids bo.dily injuries, and to reach the loss of Ms earning capacity by estimating as near as they could his probable yearly earnings during his entire life, and to give to Mm a sum which would purchase Mm a life annuity equal to the difference between the amount which he would have earned each year if he had not been injured and that which he could earn each year in his injured condition. We see no objectiqn to this measure; indeed, we think it technically accurate. The assignment of error based on the refusal of the court to grant a new trial for newly-discovered evidence of course cannot be sus [642] tained. It is too well settled in tlie federal courts to need tlie citation of authority that motions for a new trial are addressed to the discretion of the trial court. Judgment affirmed, at the costs of the plaintiff' in error.