Gambar halaman
PDF
ePub

THE

NORTHWESTERN REPORTER

VOLUME 133

DENCE.

.

had or should have had knowledge of his LARRY v. DETROIT & M. RY. CO. incompetency. The case was tried before a (Supreme Court of Michigan. Nov. 3, 1911.) jury, which answered three special quesMASTER AND SERVANT (§ 279*)-INJURIES- tions, as follows: INCOMPETENCY OF FELLOW SERVANT-EVI- "First. Did not Larry's conduct and negliIn an action by a locomotive fireman in-gence contribute to the occasion of the collijured in collision claimed to have been caused sion?" Answer: "No." by the incompetency of the engineer in charge, evidence held insufficient to show incompetency. [Ed. Note.-For other cases, see Master and Servant, Dec. Dig. § 279.*]

Error to Circuit Court, Arenac County; Nelson Sharpe, Judge.

Action by Douglass Larry against the Detroit & Mackinac Railway Company. From a judgment for plaintiff, defendant brings error. Reversed and remanded.

Argued before OSTRANDER, C. J., and BIRD, MOORE, BROOKE, BLAIR, MCALVAY, STONE, and STEERE, JJ.

Charles R. Henry and Guy D. Henry (James McNamara, of counsel), for appellant. Hall, De Foe & Henry, for appellee.

MOORE, J. On the 12th day of April, 1907, the regular afternoon passenger train going north left Posen station 11⁄2 minutes late. It had the right of way. This train is due to leave Posen at 4:53 in the afternoon, and to arrive at Metz at 5:08 in the afternoon. On the afternoon in question the plaintiff was fireman on an engine in charge of Fred Markey as engineer. This engine was ordered to run from Tower, a station on the defendant's road 31 miles north of Posen to Alpena. This engine started south. The passenger train was running from 45 to 50 miles an hour. The engine was running from 35 to 40 miles an hour. Metz was one of the stations between Posen and Tower, and was 5 miles north of Posen and 26 miles south of Tower. Between Metz and Posen there was a curve in the road. This curve was about halfway between Posen and Metz, and it was here the collision occurred which caused the injury, for the recovery of which the plaintiff brings this suit.

It was the claim of the plaintiff that the engineer was incompetent, and the defendant

"Second. Did Bolen have authority over the engineer and fireman so that he could hire or discharge them or direct their conduct other than as conductor, when acting in that capacity?" Answer: "No."

"Third. Does the fact that Larry smothered the fire on one occasion and failed to keep the steam up on another time by not shaking the fire sufficiently constitute incompetency on the part of Markey?" Answer: "Yes."

The jury returned a general verdict in favor of the plaintiff. The case is brought here by writ of error.

Counsel are substantially agreed that the following legal questions are involved: (1) Was there any evidence to go to the jury of Markey's incompetency? (2) Was there any evidence upon which the jury could find that the defendant had notice of such incompetency? (3) Was plaintiff chargeable with contributory negligence as a matter of law?

The first of these questions we deem to be the most important one. Counsel for plaintiff insist there was testimony of the incompetency of the engineer sufficient to carry the case to the jury. Counsel for the defendant insist to the contrary. The following appears in the record: "It is conceded that Fred Markey had acted as an engineer for the D. & M. for one year prior to the time of the accident." Mr. Markey was not a witness upon the trial. The plaintiff commenced work for the defendant railroad company March 8, 1907. He had never been employed by a railroad company, and knew nothing about a locomotive engine before that date. About the 4th of April the plaintiff fired upon an engine with Markey as engineer from East Tawas to Alpena Junction, a distance of 65 miles. He then fired the same engine 5 or 6 round-trips to Tower, a distance

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

of 49 miles. About 11 or 12 o'clock of the was that I got along with reference to makday in question the plaintiff and Engineering steam. The day before the acMarkey were directed to go from Alpena to cident we were running from Tower to AlOnaway with an engine. The plaintiff claims pena. I know where Metz and Posen are. that the first knowledge he had of an im- As the train reached Metz that day Bolen pending collision was the jumping of Markey was conductor. I don't know where he was from his seat. He saw Markey take hold on the train. He wasn't in the cab.* * * of the lever to reverse the engine, but could With reference to air and air appliances, our not say whether he moved it or not. The train had air on the train line and steam on plaintiff was standing in the gangway as the engine. We operated the air from the Markey jumped from his engine. The plain engine. We reached Metz coming south about tiff ran onto the tank as the collision took 4 o'clock on the 11th-between 4 and half place. After the collision the plaintiff saw past. I don't remember whether Markey Markey coming up the track. stopped as he came to Metz, or whether he kept right on going. We were going by the station when Bolen stopped us. The train was in motion. Bolen stopped us by shutting the air from the rear of the train by opening an angle cock on the back of the train. This is an emergency application. * * Our engine and train was better than half the length of the train, I should think, seven or eight cars from the station at Metz at that time. The side track at Metz that you should run into in order to meet and pass the train coming from the south was about a train length and a half back of us towards Tower. There was no other side track south of Metz and between Metz and Posen, where your train could side track. After the train was stopped, Bolen came to the engine. He asked Markey where he was going for No. 3, what he was pulling by for. I don't remember what Markey said. Whether he said anything or not I could not say. Bolen was mad, and said something about he would get fired. I don't know exactly what he said. I have said all I can remember about it. One could see about a mile south from Metz, and then the track curved out of sight, as I remember it. After Bolen came to Markey and asked him what he was going to do about No. 3, or something, we backed into the side track, and waited for No. 3 to go by. I don't think it was over 5 or 10 minutes that we waited before No. 3 came. No. 3 is the train that was in the record yesterday. I think it was on time that day. I ran with Markey after this day.”

The testimony of the incompetency of the engineer is almost wholly the testimony of the fireman, and is as follows: "I don't remember Markey giving me any directions relative to the manner of firing the locomotive. Q. Was there any circumstances took place on the first trip- A. Yes, sir. Q. In connection with Mr. Bolen and Mr. Markey and Mr. Markey's treatment of the engine? A. Yes, sir. Q. What was that? A. Our engine was on the Cleveland branch, back of Tower. Mr. Markey and Mr. Bolen had a talk. We were cleaning the fire and taking water at the same time. When we got our engine up to Tower, we went on the branch with the cars, and spotted them for them to load, and just before noon, I think it was, we went down to clean the fire. We went down where there was a little water hole to take water. While down there it was discovered that there was not very much live We were there maybe half or threequarters of an hour. I saw Bolen come down after we were there. Mr. Bolen asked why we were taking up so much time, and Mr. Markey spoke up something about the fire was not going. I didn't know how to fire. Bolen asked him why he didn't show me.

fire.

All Bolen told Markey was to learn me how to fire. I didn't know how to fire. I had only fired two or three days. The trouble with my fire was that there was too much coal on it. I had fed it too much coal. Engine running light, and I didn't know how to fire, kept throwing in coal and choking it down. Markey saw me. He was right there. On the cross-examination, the plaintiff tesRunning the engine was all he was doing. I finally got my fire up, and we went back to tified in part as follows: "I first started out to become a fireman. I was going in the load up ties. Bolen took charge of all the operrailroad business. I took an examination. ations in there loading ties, and directed us I studied for it. I was on the train. I was where to go. * Take the second occasion, we had further trouble about firing not under pay during these first three trips. Charles Zink was with me and instructed my engine. I could not say where it was. It was somewhere on the road going to AlHe told me how to build my fire and how to coal. He explained to me how to pena. Markey had not instructed me in any way how to fire after Bolen told him. The keep the fire going. After this I didn't know second occurrence was where the steam got whether I was competent to fire or not. I low, and we could hardly get along. I think was willing to try and learn. This was along Bolen was riding in the engine. He asked early in March. Just two trips before I Markey something about why there wasn't started with Markey was all I ever fired. any steam and told him to let him run the I was with him five or six days before the engine, and he did and I fired, not very far, accident. Q. Did you ever have perhaps two or three miles, where Bolen had any trouble excepting on those two occasions to get out and unload the ties. Bolen in that you had named when your fire went

me.

*

**

that you had was because you put in too, Mr. Larry, so far as this second offense is much coal, is that right? A. Yes, sir. Q. concerned, it all depends on whether the fireWhat was the next trouble? A. The next man is lazy or whether he is diligent, doesn't trouble was the time the steam went down it? A. Yes, sir; I suppose. I don't know. on the road. I don't know what caused that. I suppose it is. Q. Aside from those two I know now that this last time the trouble things, you never knew of Fred Markey dowas because I didn't shake it and keep the ing anything that was not right in line with fire clean. I know it was necessary to shake his duty as engineer? Mr. Hall: Just the it to keep the fire going. It was three or firing, do you mean, Mr. Henry? Q. All four days before I was injured that I failed of those that you have related? A. Just firto shake the coal down sufficiently. Q. The ing. Q. Well, whatever you have related? only difficulty you had was because first A. Well, I know of him going to sleep in the you put in too much coal. A Yes, sir. Q. engine. Q. When it was running? A. No, And smothered your fire? A. Yes, sir. Q. sir. Q. Well, tell me in what way that is a How long did it take you to learn you should defect? A. Why, as quick as his engine not do that? A. Well, it didn't take me very would stop, he would prop himself up and long after I found out what was the cause. go to sleep. Q. Wherein Fred Markey was Q. And the second trouble you had was be- deficient. Now, why do you charge him with cause you didn't poke it; shake it enough defect in those things, not keeping the fires and stir up the fire? A. Yes, sir. Q. How right? A. Because I think he should have long did it take you to learn that? A. Well, learned me more, try to learn me, which he it didn't take me very long. Q. Now, do you did not try to do." mean that in all the experience you have had, and in all the education you got when you were qualifying, that you were not told about stirring up the fire and shaking it? A. I was told, but I was not told how often it needed it. Q. Before that you had succeeded in getting along and had shaken it the required number of times, hadn't you? A. I got along all right; yes. Q. You never had any trouble with the fires at all during all of the time you fired, excepting these two times? A. No; that is all. Q. And one was when you smothered it and when you didn't poke it enough? A. Well, there was another time, if I ain't mistaken. It was a time when we was leaving in the Alpena yard. Mr. Richardson was acting as conductor. The blower was on and Markey told me to shut the blower off. I told him the fire would go out if I did, and he told me, let go, and I shut it off, and, when we got ready to start up, the fire was gone. That was the night before the wreck, I think. I don't remember Markey instructing me on occasions when I choked the fire down and when I didn't poke it enough. The only thing Markey did on these two trips was not to tell me. ** I went back firing something like three weeks after. I worked until November some time, most of the time in the yard at Bay City. Q. I want to ask you once more, because I want to be definite about this.

Aside from having put in too much coal at one time and thereby smothering your engine, and aside from not clearing it up sufficiently, nothing ever occurred until the wreck when Markey was there that was defective in your firing? A. Not about the firing; no. Q. And, after you had once made the mistake by putting in too much coal and smothering it, you did not repeat this mistake, did you? A. Not as I remember; no. Q. And, after you had failed this time to sufficiently poke and stir the fire you did not make that mistake again, did you? A. Why,

Mr. Bolen's version of the transaction at Metz is as follows: "I was standing on the flat cars, and, when we was going through Metz, I thought he was going a little too fast, so I swung him up and he did not see me, and I reached for the air and set the air on him. This stopped the train. I got off and went back and went into the telegraph office and I got a train order there to meet No. 45 at Posen. When I got down to the engine, I asked him what he was trying to do by pulling by the station at Metz, and he said he was figuring on backing in at Metz on the south end of the station. Well, I could say no more. All right, if that is what you are figuring on. But when we was at Metz,

Mr.

just about that time we got at Metz, No. 45
would be due out of Posen in about five min-
utes, and we got a train order there to meet
her at Posen, and we went to Posen for that
train. Q. At any time while Markey was
acting for your company did you ever have
any knowledge of anything which he did
inconsistent with a competent engineer? A.
No, sir. Q. Who had charge at that time of
the train crew, including the engineer and
fireman, who was directly over them? A.
Well, the trainmaster was over them.
Philip Richardson was trainmaster at that
time. I never at any time communicated
with him or with any officer of the road of
any incompetency of Markey or Larry. Q.
Did you find after you had spoken to Markey
on this 11th of April that there were cars on
the north end of this side track so that would
be the only way he could get in there? A.
Yes, sir; there was two cars loading with
bark. There was one loaded and one partly
loaded. Q. So in going into the side track
it was the only thing he could do? A. Was
to go ahead and back in. Q. Now, at the
time you stopped him, how far was the rear
of his train from the south end of the side
track? A. Well, his engine was over the
switch and the way car was three or four

not got far enough along yet to back in? A. | in face of a train about due at Metz when he Oh, no, no; I stopped him."

On the cross-examination he testified: "Q. Well, you thought yourself that he had neglected to see your signal, didn't you? A. No; I did not. I pulled the emergency brake be cause I wanted to stop him. Q. Well, he would not stop you say until he got still further down? A. Well, because he figured on backing in, and I didn't know he was figuring on that. I first learned that he intended to back in when he told me. Q. You were in charge of the train, were you not? A. Yes, sir. Q. And you were the one to tell him where to stop, weren't you? A. No; he had just as much to do as I did. I had charge of the train. Q. Now, as a matter of fact, Mr. Bolen, don't you know that you went down to Markey and criticised him for attempting to run by here in view of the approaching train? A. I asked him— Q. Just answer my question. A. Yes, sir. I don't know where Mr. Richardson was. The day before he rode with me on the tie train from Millersburg or Onaway down to Metz. Q. You deny having said you will be fired for this? A. Yes, sir. I never said that. I never said that."

was running south, that he failed to observe
a signal given and the emergency had been
applied, or the appliance used for the emer-
gency, and he was brought to a stop, then
he was remonstrated with, as to what he in-
tended to do, and he made no reply, and he
was reprimanded by the one in charge of
the train, would you regard that as evidence
of incompetency? A. I think I testified in
regard to my opinion as to his competency
previous to that accident.
* I did
not produce the record of Mr. Markey be-
cause I have not been asked for it."

Mr. Allen, a witness for the plaintiff, testified in part as follows: "Relative to the choking down of the fire, I don't see how this could be occasioned by the work of a compe tent engineer and fireman. Every employé is liable to make a mistake. If Larry was firing and permitted the fire to be choked by putting on too much coal, I should judge that it was his fault from inexperience. As soon as the engineer discovered it, I think it would be his duty to instruct the fireman what to do; but in the first instance it is the duty of the fireman to see the thing does not occur. In my long years of experience I Mr. Henry T. Thomas, sworn for defend- have had firemen who committed that misant, testified: "Q. Did you employ Frederick take while I was competent to run the enMarkey as engineer? A. I did. Q. And gine. The fireman has one thing to do and Douglass Larry as fireman? A. I did. Q. the engineer has another. The duties of the What have you to say as to the competency engineer are to see that every part of the as an engineer of Frederick Markey? A. engine is in running order. The fireman is About what? Q. Competency, as to his abil- supposed to know how to fire and take care ity, as to his competency? A. I considered of his fire. The engineer cannot watch the him at that time fair. Q. What experience fireman constantly. When an engineer is on April 12, 1907, had Markey, how long had running his engine, it is his duty to watch he worked as engineer? A. I could not an- out. His mind is directed ahead when he swer that question without looking up the is running ahead for obstacles or anything record. Q. Do you pass upon the competency that might be in his path. I would not reof engineers in the employment of your com- gard an engineer incompetent whose fireman pany? A. Largely. Q. Who, aside from your-permitted twice within two days his fire to self, has the employment of engineers and firemen? A. No one. Q. Prior to April 12, 1907, had any one informed you of any act on the part of Mr. Markey while running his engine with Mr. Larry that were not competent acts? A. I do not remember of one instance of anybody making any such report." Cross-examination by Mr. Hall: "If any reports were made of the men, I have a record. I have not looked up the record to see what it is as to Mr. Markey. Q. So you don't know what is on that record, do you? A. If there was anything grievous in that record, I would remember it. My recollection is that there is nothing in the record bearing on its competency. Q. Have not you got on your record that he was laid off at one time because of the fact that he had caused a collision at Saginaw river bridge? A. It may be there. Q. It may be there? Well, was not he as a matter of fact laid off prior to this because of a collision of engine and cars at the Saginaw bridge? A. He may have been laid off. Q. Now, Mr. Thomas, if

be choked or go out."

We have quoted every word of the testimony bearing upon the question of incompetency.

In Railway Company v. Guyton, 115 Ind. 450, 17 N. E. 101, 7 Am. St. Rep. 458, the following language is used in the opinion: "There was some testimony, however, from which the jury may have found that he was not possessed of sufficient familiarity with the time cards, and with the technical language of train orders, and was not sufficiently quick of apprehension to be able to construe and interpret an order in connection with a time card so as to be competent to act as the conductor of a wild train. view of the fact that Stice had been promoted to the position of conductor but recently before the accident, and that more than ordinary vigilance and aptitude were required for the control and safe management of trains such as the one he was intrusted with, and in view of the further fact that there is some evidence which tends

In

This

of the general rules of the company, Stice, such care and caution employés and agents had been assigned to duty as a conductor are selected who are incompetent, or in any without the usual inquiry or examination in respect unfitted for the position, and harm respect to his qualifications, we are con- and loss come to others by reason of such strained to hold that the evidence tends to incompetency or unfitness, the corporation support what must have been the conclusions must answer for their neglect and want of of the jury, viz., that Stice was incompetent care in employing a servant incompetent or to act as conductor of a wild train, and that untrustworthy. * * If it be conceded the railroad company was remiss in its duty that the negligence of McGerty upon the priin selecting him for that service. While the or occasion is established, it by no means railroad company, in relation to the plaintiff, follows that the defendant was bound to diswas not bound to guarantee the absolute fit- charge him upon peril of being charged with ness of the conductor, it was its duty never- neglect and a want of due care in retaining theless to exercise reasonable and ordinary him in its service. An individual who by diligence, having respect for the exigencies years of faithful service has shown himself of the particular service, to the end that it trustworthy, vigilant, and competent is not might ascertain the qualification and com- disqualified for further employment, and petency of the conductor, and whether or not proved either incompetent or careless and not he was fit to be intrusted with the responsible trustworthy by a single mistake or act of station to which he was assigned. Railway forgetfulness and omission to exercise the Co. v. McDaniels, 107 U. S. 454, 2 Sup. Ct. highest degree of caution and presence of 932 [27 L. Ed. 605]; Patters. Ry. Accident mind. The fact would only show what must Laws, 313. In employing its subordinates it be true of every human being, that the inwas the duty of the company to exercise a dividual was capable of an act of negligence, degree of care commensurate with the re- forgetfulness, or error of judgment. sponsibilities of the position in which they must be the case as to all employés of corwere to be placed, and with the consequences porations until a race of servants can be which might ensue from incompetence or found free from the defects and infirmities unskillfulness on the part of those employed. of humanity. A single act may under some In case peculiar fitness was required, or circumstances show an individual to be an special qualifications demanded for the serv- improper, unfit person for a position of ice to be performed, unless it was assured by trust, or any particular service, as when the previous like service of the conductor of such act is intentional and done wantonly, his fitness, the duty of the company required regardless of consequences, or maliciously. it to institute affirmative inquiries in order So the manner in which a specific act is perto ascertain his qualification in that regard. formed may conclusively show the utter inIn case an employé proves to be incompetent competency of the actor, and his inability to for the duty assigned him, and ordinary care perform a particular service. But a single has not been used in his selection, or if he act of casual neglect does not per se tend to is to be retained after notice of his incom- prove the party to be careless and imprudent petency, the employer will be liable to a co- and unfitted for a position requiring care and employé, whose injury results proximately prudence. Character is formed and qualities from the lack of qualification of the fellow exhibited by a series of acts, and not by a servant, unless the person injured had notice single act. An engineer might from inattenof the incompetency, or had equal opportuni- tion omit to sound the whistle or ring the ties with the employer to obtain notice. bell at a road crossing, but such fact would Pennsylvania Co. v. Roney, 89 Ind. 453 [46 not tend to prove him a careless and negAm. Rep. 173]; Railway Co. v. Stupak, 108 ligent servant of the company. The comInd. 1, 8 N. E. 630; Railway Co. v. Ruby, 38 pany is only charged with the duty of emInd. 294 [10 Am. Rep. 111]; Chapman v. ploying those who have acquired a good Railway Co., 55 N. Y. 579; Mann v. President, character in respect to the qualifications etc., 91 N. Y. 495; Baulec v. Railroad Co., called for by the particular service, and 59 N. Y. 356 [17 Am. Rep. 325]." In that no one would say that a good character accase it was held that, because Mr. Stice had quired by long service was destroyed or seribeen a competent brakeman and fit for ously impaired by a single involuntary and promotion, it did not follow that he was unintentional fault. Murphy v. Pollock, 15 also competent to take charge of and run a Irish C. L. 224. But this appeal does not wild train. In Baulec v. Railroad Co., 59 necessarily depend upon the correctness of N. Y. 356, 17 Am. Rep. 325, it is said, in this view of the effect to be given to a single part: "The duty of a railroad corporation instance of neglect. All that the corporation is to exercise due that is, ordinary-care defendant was bound to do, after the occurin the selection and employment of its serv-rence, was to inquire into it, and ascertain ants and agents, having respect to their par- the facts, and act in the discharge or reticular duties and responsibilities and the tention of the switchman with reference to consequences that may result from the want the facts as ascertained, as reasonable pruof competence, skill, or care in the perform- dence and care should dictate, and, if such

« SebelumnyaLanjutkan »