If, however, the master has promised a servant that an incompetent and unsafe co-employe shall be removed, the servant so promised may remain for a time in the service without being conclusively charged, as a matter of law, with contributory negligence, even though, without such promise, he would have been so chargeable.1

The law presumes that the master exercises care in the employment of his servants, and the burden is upon him who alleges negligence in this particular to prove it.2

competency or unskillfulness will not be presumed; in order to make either available as a ground of action, they must be proved, and merely showing the manner in which he did the particular act complained of, is not generally of itself sufficient to warrant such an inference. The burden is upon the servant to show negligence or unskillfulness in the co-servant through whose act the injury was inflicted.1

In an action against a railroad company by one employe thereof, to recover damages for an injury caused by the alleged negligence or unskillfulness of another employe, the company will be presumed to have exercised due care in the employment of the latter, and to have had no knowledge of the defects of capacity or character imputed to him. But such presumption may be rebutted by evidence of his general reputation for unfitness, without proof that such reputation was known to the officers of the com

den v. Smithville Mfg. Co., 29 Conn. 557; Moss v. Pacific R. Co, 49 Mo. 167.

1. Summersell v. Fish, 117 Mass. 312; Thayer v. St. Louis, etc., R. Co., 22 Ind. 26; Indianapolis, etc., R. Co. v. Love, 10 Ind. 554; Hayden v. Smithville Mfg. Co., 29 Conn. 557; Mad River R. Co. v. Barber, 5 Ohio St. 541; McMillan v. Saratoga, etc., R. Co., 20 Barb. (N. Y.) 449; Faulkner v. Erie R. Co., 49 Barb. (N. Y.) 324; McCarthy v. Bristol Ship Owners' Co., 10 L. R. Ir. 384; Byrne v. Fennell, 10 L. R. Ir. 397, n.

Wood on Master and Servant (2d ed.), 819, says: “Prima facie, where the law imposes a duty upon another, the law presumes that such duty was properly performed; hence, from, the mere circumstances that the servant is in fact incompetent, and that injury has resulted to other servants therefrom, the law will not presume want of care on the part of the mas

ter, although such facts are material circumstances, in connection with other facts, to establish want of

care.

Therefore the mere fact that a fellow-servant is incompetent, that materials have proved defective, or that the appliances or machinery used in the prosecution of the business have proved insufficient, does not tend even prima facie to establish negligence on his part; but the burden in all such cases is upon the servant seeking a recovery, to establish the fact that the injury resulted to him because the master did not exercise reasonable and proper care in these respects, or either of them; and this must be established as a fact in the case, and cannot result as an inference from the circumstance that the servant causing the injury was in fact incompetent, or that the materials or resources of the business were in fact defective."

pany.1 It is not enough that the servant show that a similar accident occurred during his employment, unless it is also shown that it occurred through his fault or that the master was negligent in investigating and ascertaining where the fault lay.2

90. Evidence.-General Reputation.

Evidence of general reputation is admissible to prove the unfitness of a fellow-servant, and ignorance of such general reputation on the part of the master is itself negligence in a case in which proper inquiry would have obtained the necessary information, and where the duty to inquire was plainly imperative. Where a complaint alleges negligence in the employment of plaintiff's co-laborers, evidence of the quality of such co-laborers is admissible as a link in a chain of evidence, and, as such, cannot be objected to at the time when offered, even, though it afterwards appeared that the injury had not resulted from any unfitness on the part of such co-laborers.* And it has been held that in an action against a railway company for the death of an engineer in consequence of a collision resulting from the yardmaster's negligence in sending him out when a coming train was past due, as bearing upon the competency of the yardmaster, questions as to the number of tracks in the depot yard, the number of engines ordinarily employed in switching, the average number of freight trains in the yard, and similar questions are relevant, as tending to show the character and importance of the work the yardmaster had charge of, and the need of

1. Davis v. Detroit, etc., R. Co., 20 Mich. 105.

Nay, 144 Mass. 186; Tarrant v.
Webb, 18 C. B. 797; Edwards v.

2. Baulec v. New York, etc., R. Railroad, 4 C. & F. 530; Mad River Co., 59 N. Y. 356. R. Co. v. Barber, 5 Ohio St. 541; Hayden v. Smithville Mfg. Co., 29 Conn. 557.

3. Davis v. Detroit & Mil. R. Co., 20 Mich. 105; Summersell v. Fish, 117 Mass. 312; Gilman v. Eastern R Co., 13 Allen (Mass.) 433; Hatt v.

4. Altee v. South Car. R. Co., 21 S. Car. 550.

experience and skill.1 An old brakeman, who has worked upon a train operated by a certain engineer for two weeks, has been held qualified to testify as to the competency and carefulness of the engineer as to all matters which do not involve a technical knowledge of the machinery of the engine.2

91. Same.-Specific Acts of Negligence.

For the purpose of showing that an employer did not exercise due care, prudence, and caution in the employment of, or in retaining in his service, careful, prudent, and skillful persons, and for the purpose of charging the employer with notice of the incompetency of his employes, specific acts of negligence or unskillfulness of such employes may be proved, and it may be proved that such acts were known to the master or his agents prior to the employment of such persons, or that such employes were retained in service after notice of such acts..3 Yet, while evidence of single acts may be admissible to prove the incompetence of a servant, such evidence is not necessarily conclusive. Negligence, such as unfits a person for service, or such as renders it negligent in a master to retain him in his employ, must be habitual rather than occasional,

1. Michigan Cent. R. Co. v. Gilbert, 46 Mich. 176; s. c., 2 Am. & Eng. R. R. Cas. 230.

2. Houston, etc., R. Co. v. Patton (Tex. 1888) 9 S. W. Rep. 175. In this case it was also held that the testimony of a locomotive engineer and machinist, who worked in defendant's shops from February to October, 1883, that a certain engineer in the employ of defendant was careless, because he had habitually brought his engines into the shops out of repair, and that the defects were such as would not have occurred if he had exercised proper care, is admissible in an action for

injuries alleged to have been caused by the negligence of such engineer on May 25, 1883, such habitual carelessness tending to show that he was careless or reckless prior to the injury.

3. Pittsburg, etc., R. Co. v. Ruby, 38 Ind. 294; Lee v. Detroit Bridge & Iron Works, 62 Mo. 565; Huffman v. Chicago, etc., R. Co. 78 Mo. 50; s. c., 17 Am. & Eng. R. R. Cas. 625; Cooper v. Milwaukee & P. R. Co., 23 Wis. 668; Couch v. Watson Coal Co., 46 Iowa, 17; Louisville, etc., R. Co. v. Collins, 2 Duv. (Ky.) 114; Illinois Cent. R. Co. v. Reedy, 17 Ill. 580; Quimby v. Vermont Cent.

or of such a character as renders it imprudent to retain him in service. A single exceptional act of negligence will not prove a servant to be incapable or negligent,1 and has been held insufficient, to warrant the jury in inferring negligence on the part of the master in retaining such servant. The correct rule is stated by the New York Court