rily have little intercourse,-is unwarranted by common experience. And to say, as matter of law, that a railroad corporation discharged its obligation to an employe -in respect of the fitness of co-employes, whose negligence has caused him to be injured by exercising, not that degree of care which ought to have been exercised, but only such as like corporations are accustomed to observe, would go far toward relieving them of all responsibility whatever for negligence in the selection and retention of incompetent servants. If the general practice of such corporations, in the appointment of servants, is evidence which a jury may consider in determining whether in the particular case the requisite degree of care was observed, such practice cannot be taken as conclusive, upon the inquiry as to the care which ought to have been exercised. A degree of care ordinarily exercised in such matters may not be due, or reasonable, or proper care, and, therefore, not ordinary care, within the meaning of the law."1

In Jordan v. Wells, the United States Circuit Court for the Northern District of Georgia held that in order to entitle one servant to recover for an injury received through the negligence of a fellow-servant, it must be shown, not only was the servant incompetent but also that the master was willfully negligent in employing him. But this is not the law.3

§ 81.

What does not Amount to Ordinary Care in the Selection of

Employes. A railroad company placing one of its brakemen in a position where peculiar fitness is required, without being

1. See also Hilts v. Chicago & G. T. R. Co., 55 Mich. 437; s. c., 17 Am. & Eng. R. R. Cas. 628.

2. 3 Woods (U. S.) 527.

3. Wood's M. & S. (2d Ed.) 819; Blake v. Maine Cent. R. Co., 70 Me.

60; Tyson v. South & N. Ala. R. Co., 61 Ala. 554; Delaware, etc., Canal Co. v. Carroll, 89 Pa. St. 374; McDonald v. Hazletine, 53 Cal. 35, and authorities cited supra.

assured of his competency by instituting special inquiries, or from previous like service, is liable for any injuries which may happen to a fellow-servant, without notice, the proximate cause of which was the incompetency of such brakeman. Thus, a conductor, having been but recently promoted from the position of brakeman, but without test as to his qualifications by any special examination, who is placed in charge of a "wild train," a service demanding special skill, and who causes a collision owing to his neglect of an order, in which a brakeman on the train was injured, is incompetent for the position in which he was placed, and the company is remiss in its duty in selecting him, and is liable to the brakeman for the injuries he received.1 And where the conductor of a train was injured

1. Evansville & T. H. R. Co. v. Guyton, 115 Ind. 450; s. c., 33 Am. & Eng. R. R. Cas. 311. M., plaintiff's intestate, who was an engineer in defendant's employ, was killed by the collision of the train he was running with freight cars standing on the track of defendant's road at O. The accident occurred on a dark and foggy night. A freight train was being made up at O., and the main track and switch were both occupied. The usual signal to stop a train was the swinging of a red lantern. In addition, the rules of the company requires its flagman on foggy nights to use torpedoes, which were provided for that purpose. There were three brakemen upon the freight train, two of them regular brakemen, and one, T., an extra man; it was defendant's custom to keep extra men at O. to supply the place of regular brakemen, sick or absent. T., about a week before the accident, applied to defendant's general train dispatcher for a position as brakeman, and was advised that

he might get a job at O., to which place he went and reported to the yardmaster, and he had, prior to the accident, made two or three trips as brakeman. He was selected by the conductor of the freight train to take the place of a regular brakeman. The yardmaster requested the conductor to send out a flagman to flag the expected train. One of the regular brakemen started to do this, but the conductor ordered him to remain and sent T. The latter did not take or use a torpedo, and had not been informed of, and did not know of, the rule requiring such use. He had never flagged a train in the night, except the second night before, on which occasion the conductor found fault with and discharged him for not obeying orders. T. failed to properly signal the approaching train, and this omission occasioned the accident. Held, that the evidence justified the submission to the jury of the question as to the negligent performance, by defendant, of the duty it owed to its

in consequence of the mismanagement of a locomotive by a fireman, who had been placed in charge of the engine by the agents of the company, it was held, in an action for damages against the company, that it was responsible, on the ground that its agents were negligent or unmindful of their duty in employing competent and skillful servants in the execution of the company's business.1 In an Illinois case it appeared that the defendant, a railroad company, employed an engineer, who was given to fast running, addicted to drinking, and inattentive to his watch. and time-card. It was held that the defendant was bound to know the qualifications of its employes in such responsible positions, and that where a brakeman was thrown from a car and killed by reason of the engineer's incompetency, his representatives could recover for his death. Doubtless this case states the rule of responsibility too strictly. Where a railroad company, whose road formed a junction with another road, intrusted a person employed and paid by such other road with the business. of attending to trains at such junction, and such person was incompetent, whereby death resulted to one of its engineers, it was held liable to his representatives in damages. In a case decided by the United States Supreme Court a brakeman sought damages for an injury alleged to have resulted from the employment by the company of an incompetent train dispatcher. It appears that the latter was a bright, industrious boy seventeen years of age, but that his whole knowledge of telegraphy had been acquired during one year's service as a messenger boy, during which he received instruction in the art; and that he had not

servants, to use due care in the selection of competent co-servants. Mann v. Delaware & H. Canal Co., 91 N. Y. 495; s. c., 12 Am. & Eng. R. R. Cas. 199.

1. Harper v. Indianapolis & St. L. R. Co., 47 Mo. 567; s. c., 4 Am. Rep.

352.

2. Illinois Cent. R. Co. v. Jewell, 46 Ill. 99.

3. See cases cited ante § 80. 4. Taylor v. Western Pacific R. Co., 45 Cal. 323.

been considered competent for some parts of the business. A judgment for damages was sustained.1 A manufacturing company also, is liable for damages caused by placing a man, accustomed to the habitual use to excess of intoxicating liquors, in charge of business including the control and direction of persons operating dangerous machinery,2

82. What Amounts to due Care.-Instances.—

In an action against a railroad company by an engineer, for an injury caused by the negligence of a freight conductor, evidence that he was put on the list of conductors some eight months before the accident, after having been employed as brakeman for a somewhat longer period, and that he had once by 'mistake carried a passenger by his stopping-place, and had for that reason spoken disparagingly of himself to his employer, but where it appears that he had nevertheless maintained a good standing, and that no fault had been found with him except by himself for this single blunder, does not make out a case of incompetence. And in a Texas case the personal reprecase1 sentatives of a brakeman sought damages on the ground that his death had been caused by the incompetence of the engineer. The latter had been a fireman on other roads, and also on the defendant's road for a year previous to his promotion as engineer, and had borne a good reputation as to his knowledge of his work and the performance of his duty. It was held that the defendant was not guilty of negligence in employing him in the latter capacity.

Promoting to the post of conductor a person who has served seven years as car coupler and shover, the duties of which place made him acquainted with the modes of mak

1. Wabash R. Co. v. McDaniels, 107 U. S. 454; s. c., Am. & Eng. R.

R. Cas. 158.

3. Michigan Cent. R. Co. v. Dolan, 32 Mich. 510.

4. Texas & N. O. R. Co. v. Berry,

2. Kean v. Detroit, etc., R. M. Co. 67 Tex. 238. (Mich.), 33 N. W. Rep. 395.

ing up trains, the dangers incurred by those employed in the work and by others, and the precautions necessary to guard against accidents, is not negligence nor evidence of negligence; it not appearing that such person had ever shown himself incompetent or unfaithful prior to the happening of the injury sued for.1

Gibson v. North. Cent. R. Co.2 was an action against a railroad company by an employe for an injury resulting from a defective car-bumper. It was alleged that the car inspector was negligent in not having sent the car to the shops for repairs. It appeared that the inspector was sober and intelligent, but that he had no knowledge of machinery except that obtained by working one or two years in the defendant's carpenter shop, bolting, putting in brasses and boxes, and assisting in the shop. The Court held that the defendant was not negligent in appointing him a carinspector. In a Pennsylvania case3 it appeared that B., an engineer in the employ of a railroad company, was going through the yards of the company to his work; a locomotive of the company was backing slowly on one of the tracks; it struck B. and killed him. Whether he was walking on the track, or stepped suddenly upon it and in the way of the approaching engine, was not clearly shown. In an action against the company for damages, based on the negligence of the company, alleged to consist in placing the engine in charge of an engineer whose left eye was so badly diseased as to require the keeping of it bandaged, and whose right eye was defective in vision owing to sympathetic causes, the Supreme Court held that the plaintiff was properly nonsuited.

883. Employing a Person Generally Known to be Incompetent.— In such case it has been held that the master is charge3. Keys v. Pennsylvania R. Co. (Pa.), 3 East. Rep. 830.

1. Hasken v. New York Cent. & H. R. Co., 65 Barb. (N. Y.) 129. 2. 22 Hun (N. Y.) 289.