Commentaries on the Law of Negligence in All Relations

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reputation of incompetency, and not a reputation confined to a few of the fellow workmen of the negligent employé ;78 and it cannot be established by evidence that he bore such nicknames as "crazy" or "wild." On the question of want of care in the employment of a servant, evidence is admissible to show that he had been suspended,so or discharged for failure to perform his duty when previously employed elsewhere. Evidence of a general reputation for intemperance at the time of his employment may also be shown.82 But the mere fact of the carelessness and recklessness of an employé of proper skill and experience on the particular occasion inquired about, is not evidence that the employer was lacking in proper care in hiring or retaining such employé. Of course, previous negligence of an employé charged with negligence is not important unless he is shown to have been negligent at the time of the injury sued upon. In the master's behalf, evidence of general reputation of the employé for competency at the time and place of his employment is admissible to disprove negligence in employing such servant. Evidence of the reputation of the employé many years previous to his employment and in an entirely different community is not admissible, as the object sought in showing reputation is to show such a reputation as will charge the master with knowledge of the incompetency of the servant.86 Where incompetency is not claimed, evidence that an employé whose negligence upon a

Worcester, 150 Mass. 439; s. c. 23 N. E. Rep. 228; Davis v. Detroit &c. R. Co., 20 Mich. 105; s. c. 4 Am. Rep. 364; Park v. New York &c. R. Co., 155 N. Y. 215; s. c. 49 N. E. Rep. 674; rev'g s. c. 85 Hun (N. Y.) 184; Cincinnati &c. R. Co. v. Thompson, 21 Ohio C. C. 778; s. c. 12 Ohio C. D. 326; International &c. R. Co. v. Jackson, 25 Tex. Civ. App. 619; s. c. 62 S. W. Rep. 91; Galveston &c. R. Co. v. Davis, 4 Tex. Civ. App. 468; s. c. 23 S. W. Rep. 301, 1019; Galveston &c. R. Co. v. Henning (Tex. Civ. App.), 39 S. W. Rep. 302 (no off. rep.); s. c. aff'd, 99 Tex. 656; 40 S. W. Rep. 392.

78 Driscoll v. Fall River, 163 Mass. 105; s. c. 39 N. E. Rep. 1003; East Tennessee &c. R. Co. v. Kane, 92 Ga. 187; s. c. 22 L. R. A. 315; 18 S. E. Rep. 18.

79 St. Louis &c. R. Co. v. Corgan, 49 Ill. App. 229; Baird v. New York &c. R. Co., 16 App. Div. (N. Y.) 490; s. c. 44 N. Y. Supp. 926; Marrinan v. New York &c. R. Co., 13 App. Div. (N. Y.) 439; s. c. 43 N. Y. Supp. 606.

80 Baltimore &c. R. Co. v. Camp,

65 Fed. Rep. 952; s. c. 13 C. C. A. 233.

81 Mexican Nat. R. Co. v. Mussette, 7 Tex. Civ. App. 169; s. c. 24 S. W. Rep. 520; s. c. aff'd, 86 Tex. 708; 24 L. R. A. 642; 26 S. W. Rep. 1075.

82 Baltimore &c. R. Co. v. Henthorne, 73 Fed. Rep. 634; s. c. 43 U. S. App. 113; Wabash &c. R. Co. v. Brown, 65 Fed. Rep. 941; s. c. 13 C. C. A. 222; Norfolk &c. R. Co. v. Hoover, 79 Md. 253; s. c. 25 L. R. A. 710; 29 Atl. Rep. 994; Texas &c. R. Co. v. Rowlands, 3 Tex. Civ. App. 158; s. c. 22 S. W. Rep. 134. But see Stevens v. San Francisco &c. R. Co., 100 Cal. 554; s. c. 35 Pac. Rep. 165.

83 Hathaway v. Illinois &c. R. Co., 92 Iowa 337; s. c. 60 N. W. Rep. 651.

Thompson v. Lake Shore &c. R. Co., 84 Mich. 281; s. c. 47 N. W. Rep. 584.

85 Baltimore &c. R. Co. v. Camp, 81 Fed. Rep. 807; s. c. 54 U. S. App. 110; 26 C. C. A. 626; Illinois &c. R. Co. v. Morrissey, 45 Ill. App. 127. SG Baird v. New York &c. R. Co.,

given occasion is claimed to have caused the injury sued upon had always theretofore displayed the requisite skill and caution, is clearly inadmissible.87

§ 7782. Evidence of Competency of Foreman.-Evidence of the general reputation of the superintendent of work as a careful workman is irrelevant where the action is for the negligent act of a competent superintendent, and not for negligence in employing an incompetent superintendent.88 General evidence of the care and prudence of a foreman at other times and in respect to other things, is inadmissible as tending to prove care and prudence on his part in regard to a particular appliance, by a defect in which an employé has sustained personal injuries.9

§ 7783. Acts in Emergencies.-Evidence that one employed around dangerous machinery was called upon to act suddenly or in an emergency is admissible on the question whether he had notice of defects. therein and used reasonable care.90 Thus, evidence that an employer ordered a fellow servant of the plaintiff in a stern, repulsive and sharp manner to change the position of a heavy cross beam on the walls of an elevator in process of construction, was held admissible on the question whether such fellow servant was compelled to act so hurriedly as not to have sufficient time to execute the order carefully and consider the danger to others from prying the beam off the wall.1

§ 7784. Inspection of Cars and Appliances.-Evidence of an official inspection of the appliance causing the injury is competent as showing an exercise of some degree of care by an employer.92 Where the inspection has been proved by the defendant the plaintiff may show that it was not effective. The sufficiency of the inspection is

16 App. Div. (N. Y.) 490; s. c. 44 N. Y. Supp. 926.

87 Harriman V. Pullman Palace Car Co., 85 Fed. Rep. 353; s. c. 56 U. S. App. 313; 29 C. C. A. 194; Towle v. Pacific Improv. Co., 98 Cal. 342; s. c. 33 Pac. Rep. 207; Connors v. Morton, 160 Mass. 333; s. c. 35 N. E. Rep. 860; McDonald v. Savoy, 110 Mass. 49.

91 Myhre V. Tromanhauser, 64

Minn. 541; s. c. 67 N. W. Rep. 660.
92 Pardridge v. Gilbridge, 98 Ill.
App. 134.

88 Malcolm v. Fuller, 152 Mass. effective and is not the test usually 160; s. c. 25 N. E. Rep. 83.

89 Houston v. Brush, 66 Vt. 331;

s. c. 29 Atl. Rep. 380.

90 Delude v. St. Paul City R. Co., 55 Minn. 63; s. c. 56 N. W. Rep. 461.

applied to boilers, evidence may be introduced in rebuttal that mill men of the vicinity usually apply that test so far as the witness knows: Jones v. Malvern Lumber Co., 58 Ark. 125; s. c. 23 S. W. Rep. 679.

not shown by evidence that a designated establishment employed a test similar to that employed by the plaintiff, as the practice of a single establishment has no tendency to prove the usual and customary method or practice. The necessity of providing inspectors at a particular station may be shown by evidence of the size of the town and the number of trains using the track at this point.95 On the question of the recognition of the necessity for inspecting at a particular station, it may be shown that car inspectors were formerly employed at the place in question and that their services were afterward discontinued. It may be shown by the testimony of other brakemen that it was the duty of a car inspector to inspect couplings and that brakemen were not called upon to inspect such couplings, in a case where the death of the brakeman was caused by a defective coupling appliance. Where the inspector has testified that one of his reasons for knowing that he made an inspection was the fact that he invariably performed that duty each morning, evidence is admissible to show that he failed to inspect the cars as his duty required on days succeeding an accident in question.98

§ 7785. Negligence of Defendant at Other Times.-Ordinarily, evidence of negligence and omission of duty of the defendant at other times and places is not admissible, as the liability of the defendant depends upon his negligence on the particular occasion, and this fact is usually susceptible of direct proof.99 For like reasons, evidence of the condition of a railroad track and culverts at a remote time should not be received.100

§ 7786. Scaffolds and Derricks.-Where the matter in issue is whether a particular scaffold is reasonably safe, and not whether some other scaffold would be safer, testimony offered as to a better and safer method of constructing the scaffold is properly excluded." 101 Nor is

"Jones v. Malvern Lumber Co., 58 Ark. 125; s. c. 23 S. W. Rep. 679.

"Missouri &c. R. Co. v. Crowder (Tex. Civ. App.), 55 S. W. Rep. 380 (no off. rep.).

Missouri &c. R. Co. v. Miller, 25 Tex. Civ. App. 460; s. c. 61 S. W. Rep. 978.

Missouri Pac. R. Co. v. Fox, 60 Neb. 531; s. c. 83 N. W. Rep. 744. Cunningham v. Austin &c. R. Co. (Tex.), 31 S. W. Rep. 629 (no off. rep.).

Hudson v. Chicago &c. R. Co., 59 Iowa 581; s. c. 44 Am. Rep. 692;

Parker v. Portland Pub. Co., 69 Me. 173; s. c. 31 Am. Rep. 262; Wise v. Ackerman, 76 Md. 375; s. c. 25 Atl. Rep. 424; Dye v. Delaware &c. R. Co., 130 N. Y. 671; Snowden v. Pleasant Valley Coal Co., 16 Utah 366; s. c. 52 Pac. Rep. 599; Sills v. Fort Worth &c. R. Co. (Tex. Civ. App.), 28 S. W. Rep. 908 (no off. rep.).

100 Stoher v. St. Louis &c. R. Co., 91 Mo. 509; s. c. 10 West. Rep. 54; 4 S. W. Rep. 389.

101 Gravadahl v. Chicago Refining Co., 85 Ill. App. 342.

given occasion is claimed to have caused the injury sued upon had always theretofore displayed the requisite skill and caution, is clearly inadmissible.87

§ 7782. Evidence of Competency of Foreman.-Evidence of the general reputation of the superintendent of work as a careful workman is irrelevant where the action is for the negligent act of a competent superintendent, and not for negligence in employing an incompetent superintendent.ss General evidence of the care and prudence of a foreman at other times and in respect to other things, is inadmissible as tending to prove care and prudence on his part in regard to a particular appliance, by a defect in which an employé has sustained personal injuries.$9

§ 7783. Acts in Emergencies.-Evidence that one employed around dangerous machinery was called upon to act suddenly or in an emergency is admissible on the question whether he had notice of defects therein and used reasonable care.90 Thus, evidence that an employer ordered a fellow servant of the plaintiff in a stern, repulsive and sharp manner to change the position of a heavy cross beam on the walls of an elevator in process of construction, was held admissible on the question whether such fellow servant was compelled to act so hurriedly as not to have sufficient time to execute the order carefully and consider the danger to others from prying the beam off the wall.o1

16 App. Div. (N. Y.) 490; s. c. 44 N. Y. Supp. 926.

88 Malcolm v. Fuller, 152 Mass. 160; s. c. 25 N. E. Rep. 83.

89 Houston v. Brush, 66 Vt. 331; s. c. 29 Atl. Rep. 380.

20 Delude v. St. Paul City R. Co., 55 Minn. 63; s. c. 56 N. W. Rep. 461.

91 Myhre V. Tromanhauser, 64 Minn. 541; s. c. 67 N. W. Rep. 660. 92 Pardridge v. Gilbridge, 98 Ill. App. 134.

93 Thus, after the introduction of evidence, in an action for personal injuries inflicted by the explosion of a boiler tested only by sounding it with a hammer after repairing it, that the "hammer test" is not effective and is not the test usually applied to boilers, evidence may be introduced in rebuttal that mill men of the vicinity usually apply that test so far as the witness knows: Jones v. Malvern Lumber Co., 58 Ark. 125; s. c. 23 S. W. Rep. 679.

not shown by evidence that a designated establishment employed a test similar to that employed by the plaintiff, as the practice of a single establishment has no tendency to prove the usual and customary method or practice. The necessity of providing inspectors at a particular station may be shown by evidence of the size of the town and the number of trains using the track at this point.95 On the question of the recognition of the necessity for inspecting at a particular station, it may be shown that car inspectors were formerly employed at the place in question and that their services were afterward discontinued. It may be shown by the testimony of other brakemen that it was the duty of a car inspector to inspect couplings and that brakemen were not called upon to inspect such couplings, in a case where the death of the brakeman was caused by a defective coupling appliance." Where the inspector has testified that one of his reasons for knowing that he made an inspection was the fact that he invariably performed that duty each morning, evidence is admissible to show that he failed to inspect the cars as his duty required on days succeeding an accident in question.98

§ 7785. Negligence of Defendant at Other Times.-Ordinarily, evidence of negligence and omission of duty of the defendant at other times and places is not admissible, as the liability of the defendant depends upon his negligence on the particular occasion, and this fact is usually susceptible of direct proof. For like reasons, evidence of the condition of a railroad track and culverts at a remote time should not be received.100

4 Jones v. Malvern Lumber Co., 58 Ark. 125; s. c. 23 S. W. Rep. 679.

95 Missouri &c. R. Co. v. Crowder (Tex. Civ. App.), 55 S. W. Rep. 380 (no off. rep.).

Missouri &c. R. Co. v. Miller, 25 Tex. Civ. App. 460; s. c. 61 S. W. Rep. 978.

97 Missouri Pac. R. Co. v. Fox, 60 Neb. 531; s. c. 83 N. W. Rep. 744. 9 Cunningham v. Austin &c. R. Co. (Tex.), 31 S. W. Rep. 629 (no off. rep.).

Parker v. Portland Pub. Co., 69 Me. 173; s. c. 31 Am. Rep. 262; Wise v. Ackerman, 76 Md. 375; s. c. 25 Atl. Rep. 424; Dye v. Delaware &c. R. Co., 130 N. Y. 671; Snowden v. Pleasant Valley Coal Co., 16 Utah 366; s. c. 52 Pac. Rep. 599; Sills Fort Worth &c. R. Co. (Tex. Civ. App.), 28 S. W. Rep. 908 (no off. rep.).

100 Stoher v. St. Louis &c. R. Co., 91 Mo. 509; s. c. 10 West. Rep. 54; 4 S. W. Rep. 389.

101 Gravadahl v. Chicago Refining "Hudson v. Chicago &c. R. Co., Co., 85 Ill. App. 342. 59 Iowa 581; s. c. 44 Am. Rep. 692;

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Commentaries on the Law of Negligence in All Relations: (including a ...