Furlong v. New York, N.H. H.R. Co. , 83 Conn. 568 ( 1910 )

The pleas in abatement to the two appeals to this court, afterward united in one by amendment, are dismissed. The words in the appeal of July 3d 1909, describing the court, and the time and place of holding it, to which it was asked that the evidence be reported, were evidently intended to apply also to the appeal, and to describe the court and the time and place of holding it, to which the appeal was taken. This description was sufficient to permit the appeal of April 28th, 1910, to be joined with that of July 3d, by amendment.Stillman v. Thompson, 80 Conn. 192, 194,67 A. 528. The two appeals having been thus properly joined in one, it was unnecessary to give a second bond to prosecute, when the amended appeal of April 28th, 1910, was filed. The bond given July 3d 1909, became, by the amendment joining the two appeals, applicable to both. The motion of July 2d for a new trial, addressed to this court, was irregular.

Turning to the appeal itself, we find that many of the questions raised by the defendant in the trial court, and some of which are repeated in the reasons of appeal, were practically eliminated by the charge of the court respecting them, favorable to the defendant, and by the evidence regarding them which we have before us. Indeed, we think the record before us shows that the controlling questions upon this appeal are those arising upon but one or two of the grounds of negligence alleged in the complaint, and from the action and rulings of the trial court regarding them, in its charge to the jury and its refusal to set aside the verdict as against the evidence.

The alleged grounds of negligence from which most, if not all, of such questions arise, are, in substance, these: that the flagman of the freight train (D'Arche) had not for many months before the accident gone back to give proper signals to approaching trains when the freight train was so standing upon the main track; that the "defendant company negligently employed and continued to employ said flagman (D'Arche), who was on said day and for many months prior thereto had been so negligent as aforesaid, in failing to give signals as aforesaid;" that the defendant was negligent in failing to inspect the method of giving the signals required by the rules, and "in allowing and permitting said flagman (D'Arche) to continue to neglect to give proper signals to approaching trains." . . .

The court very properly told the jury that it was clear that D'Arche neglected to go back with his flag, and that his failure to do so was one factor in the accident; but that D'Arche was a fellow-servant of Furlong, and that therefore the plaintiff could not recover for an injury to Furlong caused by D'Arche's negligence only.

Concerning the liability of the defendant for its own alleged negligence, as above stated, the court said to the jury that it was charged that "this conduct of D'Arche (in disregarding Rule 99) was his habitual conduct . . . consistently practiced by him, recognized by his associates, and tolerated and acquiesced in by the company;" that there was conflicting testimony upon that point; that isolated violations of the rule were not enough to establish such an acquiescence by the company as amounted to an abrogation of the rule; but that it must appear that "the violations were persistent enough to be chargeable to the knowledge of a reasonably vigilant master, and that the master's conduct was such as to tolerate or encourage a continuance of them, to fasten upon the company responsibility for such a practice." The court further charged the jury upon this point as follows: "If D'Arche's conduct on the day in question was his habitual method long enough and persistently enough practiced by him to impute knowledge of it and an acquiescence in its continuance by the defendant, then the negligence of the defendant is established, and it is liable if that negligence directly caused the injury. On this feature of the case, therefore, I charge you that any knowledge of the conductor, Mitchell, of the freight train of prior and persistent and habitual violations of the rules — if such there were — would be chargeable to his superior, the defendant itself."

The two questions raised by the appeal respecting these instructions given by the trial court, are: (1) Were they correct statements of the law? (2) Was the evidence such as justified the court in submitting to the jury the questions of fact involved in these propositions of law, and in refusing to set aside the verdict of the jury in favor of the plaintiff?

This is an action against an employer by the representative of a deceased employee. Clearly, under the fellow-servant law, the mere negligence of Furlong's colaborer, D'Arche, to carry back the signal flag, did not render the employer liable for the injury thereby caused to Furlong. Whittlesey v. New York, N.H. H.R. Co., 77 Conn. 100, 58 A. 459. In order to hold the defendant responsible for Furlong's injury, the plaintiff was required to prove that the railroad company had violated some duty which it owed to its employees. One rule, firmly established by law, growing out of the relation of master and servant, or employer and employee, is that the former shall exercise reasonable care to provide "fit and competent" persons as colaborers of his employees. McElligott v. Randolph,61 Conn. 157, 161, 22 A. 1094. The duty of the employer to so endeavor to provide "fit and competent" colaborers for his employees, is not necessarily fully performed by exercising reasonable care in the original selection and employment of his servants. The master who continues in his service with his other employees, one who is unfit or incompetent to engage in such employment with others, as the master has learned, may properly be regarded as careless in endeavoring to provide fit and competent persons to work with others, as one who originally employs such a co-workman with knowledge of his unfitness. Ordinary care in providing fit and competent servants, means ordinary care in the retention as well as in the selection of fit and competent servants. 12 Amer. Eng. Ency. of Law (2d Ed.) p. 915; Coppins v. New York C. H.R. R. Co.,122 N.Y. 557, 25 N.E. 915; Gilman v. Eastern R. Co., 13 Allen (Mass.) 433; Brookside Coal Mining Co. v. Dolph,101 Ill. App. 169. Ordinary care in the retention of fit and competent persons to operate a railroad train, means some kind of observation of the manner in which such persons perform their duties, if some kind of observation is practicable. The law only requires the employer to act reasonably. It does not compel the directors or high officials of a corporation to themselves perform the work of selecting and hiring its employees. That duty may be performed by any duly authorized suitable person, but in performing it such person represents the corporation, and is performing the employer's duty. It would seem to be no more difficult for a railroad company to authorize a suitable person to act in its behalf in observing how trainmen performed their work, than to authorize one to act for it in the selection and employment of trainmen.

Again, the words "fit and competent persons," mean something more than skilful and experienced persons. Carefulness and faithfulness are often more essential elements of fitness and competency in an employee than experience and skill. The fitness and competency of a fellow-servant may depend as much upon his promptness and willingness to perform his duties as upon his understanding of the duties he is expected to perform. In selecting and retaining in its employ trainmen, a railroad company should select and retain only reliable men. Coppins v. New York C. H.R. R.Co., 122 N.Y. 557, 25 N.E. 915. A railroad company that knowingly employs a reckless or careless trainman to discharge duties, the negligent performance of which may endanger the lives of his fellow-workmen, or that continues such person in its service after actual or constructive knowledge of his habitual violation of a rule so important as that requiring him in stated situations to go back with a flag to signal possibly approaching trains, has not only failed to provide fit and competent persons to be colaborers with its other workmen, who may be injured by such negligence, but has failed to perform the duty imposed upon it by law (Nolan v. New York, N.H. H.R. Co., 70 Conn. 159,194, 39 A. 115) to use reasonable care to see that its rules for the protection of person and life are enforced. Such company would not, under the fellow-servant rule, be entitled to exemption from liability for an injury to one of its employees caused by such negligent failure of the trainman to perform his duty.

But it is said that the evidence fails to show that the company knew of D'Arche's delinquencies, and that the court erred in charging the jury that the knowledge of Mitchell, the conductor, was chargeable to the defendant. We are not prepared to say that the jury might not properly have found from the evidence that D'Arche had so long and openly violated Rule 99 that the company was chargeable with knowledge of his negligence. But, as we have pointed out, the duty of the employer to provide fit and competent colaborers for his employees, is not ended by the act of selecting and hiring them. The employer continues to provide the colaborers so long as they continue to work under his employment. Less watchfulness and oversight may be required of the employer over the conduct of such workmen as have been carefully selected at the time of their original employment, but it still remains at all times a duty which the master owes to his servant, to exercise reasonable care to provide as his colaborers persons who can and will perform those duties which they are employed to perform, and the failure to perform which may endanger the lives of their fellow-workmen. He who performs the duty of seeing that the employees of a railroad company are not negligent or incompetent is, in that respect, performing a duty which the master owes the servant, and his failure to properly perform it is the negligence of the master. Rincicotti v.O'Brien Contracting Co., 77 Conn. 617, 60 A. 115.

The conductor, Mitchell, was required to perform that duty of the master. The rules of the company required him to note and report to the superintendent "all violations of rules and neglect of duty by the train employees," and authorized him in certain cases to suspend the delinquent. Evidently one of the reasons of requiring him to perform this duty was to enable the company to learn who of its employees were competent and reliable persons to be continued in their employ. In the performance of that duty — although in other respects he may have been — Mitchell was not a fellow-servant of Furlong, but a representative of the company (Brennan v. Berlin Iron Bridge Co., 74 Conn. 382,389, 50 A. 1030), and, as such, his knowledge of D'Arche's disregard of the rules was therefore the company's knowledge. O'Neil v. Keokuk D. M. R.Co., 45 Iowa 546; Brookside Coal Mining Co. v. Dolph,101 Ill. App. 169. With such knowledge of an habitual violation of Rule 99 the defendant was negligent at least in continuing D'Arche, if not in continuing Mitchell, in its service. There is no error in the charge of the trial court to the jury.

The trial court committed no error in refusing to direct a verdict for the defendant, nor in denying the defendant's motion to set aside the verdict as against the evidence. It is impracticable to recite here the evidence which, in our opinion, showed that the defendant was not entitled to exemption under the fellow-servant law and justified the verdict rendered. Upon a perusal of it we think the jury were warranted in finding that D'Arche was negligent in not carrying back the flag to signal train 1746; that in that respect he had habitually violated Rule 99; that Mitchell, as representing the company, with knowledge of such violations of Rule 99, negligently failed to perform the duty imposed upon him, and that the defendant was therefore negligent as alleged in the complaint.

Neither the rulings upon evidence, nor other parts of the charge complained of, furnish grounds for a new trial, and we deem it unnecessary to discuss them.

There is no error.

In this opinion the other judges concurred.