worth, 90 N. Y. 502; Arnold v. Suffolk Bank, | roundhouse and yard, and in control of same; 27 Barb. 424; Re Dexterville Mfg. & Boom and notice to him of the incompetency and Co. 4 Fed. Rep. 873; Hiles v. Case, 9 Biss. recklessness of said Sheldon to handle en549, 14 Fed. Rep. 141; Central Trust Co. v. gines was notice to defendant company. East Tennessee, V. & G. R. Co. 30 Fed. Rep. 895; Easton v. Houston & T. C. R. Co. 38 Fed. Rep. 12; Farmers' Loan & T. Co v. Green Bay, W. & St. P. R. Co. 45 Fed. Rep. 664; Finance Co. of Pennsylvania v. Charleston, C. & C. R. Co. 46 Fed. Rep. 508.

Messrs. W. Cloud and J. T. Burgess, for respondent:

Where the master gives to a person power to superintend, control, and direct the men engaged in the work, such person is, as to the men under him, a vice principal, and a foreman who has charge of a gang of men, with power to direct their movements, is such vice principal. In this case Peter Stringer was night foreman of defendant's

Dayharsh v. Hannibal & St. J. R. Co. 103 Mo. 570, 15 S. W. 554; Schroeder v. Chicago & A. R. Co. 108 Mo. 322, 18 L. R. A. 827, 18 S. W. 1094; Bradley v. Chicago, M. & St. P. R. Co. 138 Mo. 293, 39 S. W. 763; Loe v. Chicago, R. I. & P. R. Co. 57 Mo. App. 350.

Sheldon was incompetent to handle engines, and defendant knew of the same, or by the use of ordinary care could have known it; and yet, after knowing that fact, still it permitted him to so handle engines under protest from the company's employees.

Williams v. Missouri P. R. Co. 109 Mo. 475, 18 S. W. 1098; Francis v. Kansas City, St. J. & C. B. R. Co. 127 Mo. 658, 28 S. W. 842.

In one case it was said that, in the absence of evidence as to the exercise of any care in his selection. proof that a servant who had been in the service but two or three weeks was incompetent when employed need not be supplemented by proof of the company's knowledge of his incompetency, the presumption that the employer had done his duty being overcome by proof that the servant was incompetent: and the general rule was laid down as follows: Where one competent at the time of his employment becomes incompetent, or indulges in a habit which renders him incompetent during its indulgence. notice of the incompetency or of the habit must be brought home to the company, or the incompetency or habit must be so notorious as to charge the company with knowledge; but when the incompetency does not arise after the employment, but existed at the time, proof of notice is not necessary. Lee v. Michigan C. R. Co. (1891) 87 Mich. 574, 49 N. W.

ant's unfitness renders it necessary to submit
to the jury the question whether the master
was negligent is Skerritt v Scallan (1877) 1
Ir. Rep. 11, C. L. 389 (unskilful construction of
scaffold), where the jury had specially found,
among facts, that the delinquent coservant was
incompetent, but that the defendant was not
aware of it, and the trial judge directed a ver-
dict for the defendant. A new trial was
awarded on the ground that the question
whether the master had used due care in the
selection of the servant had not been submitted
to the jury. Dowse, B., did not express a de-
cided opinion as to whether the onus of proving
negligence still lay on the servant after the in-
competence of the delinquent servant was
shown. Palles, C. B., held that the onus of dis-
proving negligence was transferred by such evi-
dence to the master, adopting the theory of
Deasy. B.. in Murphy v. Pollock (1863) 15 Ir. C.
L. Rep. 224, that, as the mode and circumstances
of the employment were matters peculiarly 909.
within the knowledge of the master, evidence
showing that the delinquent fellow servant had
started an engine after the plaintiff's decedent.
who was killed by its exploding, had suggested
that there was something wrong with it, was
sufficient to be submitted to the jury on the
question of his incompetency. Fitzgerald and
Hughes, B. B., intimated an opinion to the
contrary, but held that, at all events, it was
not evidence of negligence in selecting the serv-

ant.

In Minnesota it has been held that proof that the servant was incompetent at the time of his employment casts upon the master the burden of disproving negligence. Crandall v. McIlrath (1877) 24 Minn. 127.

This rule, however, is subject to a qualification analogous to that which, in the case of Injuries caused by inanimate agencies, is created by the doctrine of res ipsa loquitur.

An instruction which declares, without qualification, that negligence in hiring a servant cannot be inferred merely from the fact of his incompetency, is erroneous, as there may be a degree of incompetency which, of itself, might justly be regarded by the jury as impart ing notice. East Tennessee. V. & G. R. Co. v. Gurley (1883) 12 Lea, 46. Compare II. g. infra, as to acts prior to accident.

Another qualification also arises in practice from the fact that "the testimony by which the incompetency of a servant is established may be such as to warrant the inference that the master had notice of his incompetency, or that he omitted to make such inquiries as common prudence would have dictated." Murphy v. St. Louis & I. M. R. Co. (1879) 71 Mo. 202.

b. Race and color of delinquent servant.

Notice of a servant's want of competency for the duties of a brakeman cannot be imputed to an employer from the fact that he is a negro. Missouri P. R. Co. v. Christman (1886) 65 Tex. 369. The court said: "The competency or incompetency of no one to perform a given duty, in the absence of some law so declaring, can be made to depend on color or race; but in each case this must depend upon intelligence to know, and ability and disposition to perform, the duties pertaining to any given position. Proof of facts which show the nonexistence of such intelligence, ability, or disposition must be made by the party who asserts its nonexistence. The law does not presume it because the person whose qualities may be the subject of investigation may be of one or another race or color; nor is a jury at liberty to infer it from such fact. If, however, this were not true, and the rule were that a jury might infer that a person was an unsuitable person for brakeman from the fact that he was a negro, then such inference would have to be based on the fact that all negroes are wanting in intelligence, ability, or disposition to perform faithfully and safely the duties of brakeman. If this were true, the appellee would stand charged with knowledge of their unitness, and, knowing that the brakemen on his train were negroes, would be held to have voluntarily assumed such risks as result from such incompetency. The invocation of such a rule would be suicidal to the appellee's case."

Evidence of the general reputation of an employee showing unfitness for the duties assigned the employees, and specific acts of negligence or of incompetency on the part of such employee, with evidence of knowledge thereof on part of the master, is competent to go to the jury.

Grube v. Missouri P. R. Co. 98 Mo. 330, 4 L. R. A. 776, 11 S. W. 736.

Allowing a person, not having the qualifications, to handle an engine, renders the company responsible for the negligence of the foreman in allowing such person to handle the engine, from which an injury results. Harper v. Indianapolis & St. L. R. Co. 47 Mo. 567.

Marshall, J., delivered the opinion of the court:

1. This proceeding against the receivers c. Appearance and manner of the servant while testifying.

That the appearance and manner of the servant while testifying do not constitute circumstances from which, apart from other evidence, a jury ought to be allowed to infer that he was unfit for his duties, is a rule no less comformable to principle than to authority.

appointed by the circuit court of the United States for the eastern district of Missouri is without any permission or authority from that court, and hence cannot be maintained. The cause of action did not arise or accrue while the receivers were in charge of and Conducting the business, and therefore the plaintiff does not come within the provisions of the act of March 3, 1887 (24 U. S. Stat. at L. p. 554). The accident complained of occurred on the 20th of October, 1893, and the receivers were not appointed until December 23, 1893. Receivers are officers of court to hold and manage property which is in the registry of the court, and persons having any claim to property so situated must submit their claims to the court that has obtained jurisdiction over the res, and the court will not permit its officers to be sued in any other tribunal without its any reasonable person would concede to be incompatible with efficiency. But even in thesecases, it would, upon general principles, be necessary to show by independent testimony that the defects existed at the time of the accident. It is difficult, therefore, to see why, if that testimony must ultimately be relied upon, the jury should be permitted at all to consider the demeanor and appearance of the delinquent servant on the witness stand. The obvious perils of the doctrine applied by the Massachusetts court do not seem to be counterbalanced by the consideration that the circumstances which it introduces into the case possess some probative force.

dicating recklessness of character.

In a suit against a railroad company by a brakeman, to recover damages for injuries received while coupling cars, evidence that the engineer, shortly before, had declared to the plaintiff that he "would as soon run over him as not," is admissible as bearing upon the question whether the company selected an unsuitable man for engineer, but the jury should be charged that, if the malice of the engineer toward the plaintiff was the cause of the injury, there could be no recovery. Houston & T. C. R. Co. v. Willie (1880) 53 Tex. 318, 37 Am. Rep. 756.

In Corson v. Maine C. R. Co. (1884) 76 Me. 244, the court held that if the jury undertook to decide that a person was unfit to be employed as a brakeman on account of what they saw, or supposed they saw or could read. in his face and manner while testifying before them as a witness, they fell into a very grave error, and said: "As well might a jury find d. Language of delinquent servant himself, ina man guilty of murder because in their opinion they could see guilt in his face. The law does not recognize physiognomy as an art or science sufficiently reliable to found a verdict upon,-not even against a railroad corporation." In Keith v. New Haven & N. Co. (1885) 140 Mass. 175, 3 N. E. 28, the court declined to rule that the appearance and conduct of a car inspector in the presence of a jury, when considered together with other testimony tending to show his unfitness, might not be legally sufficient to satisfy them that he was an incompetent person. In Peaslee v. Fitchburgh R. Co. (1890) 152 Mass. 155, 25 N. E. 71, it was argued that the jury had a right to determine from the appearance of a witness that he was so manifestly incompetent that the defendant was negligent in employing him as engineer. The court said there was nothing in the exceptions to show that there was anything in his appearance that would justify such an inference, and that it could not be presumed that there was. Keith v. New Haven & N. Co. (1885) 140 Mass. 175, 3 N. E. 28, was distinguished on the ground that there was other evidence of incompetency in that case, while in the case at bar the only evidence of incompetency was the single act of negligence.

But it would seem that, even in cases where there is corroborative evidence, the risk that injustice may result from such a doctrine in its practical operation is very considerable.

Men who, as employees, may be perfectly ef ficient, often appear to great disadvantage as witnesses, when under the influence of the nervous embarrassment which is apt to be produced in a greater or less degree by the unfamiliar surroundings of a courtroom. At the very most, it is submitted, a jury should not be allowed to draw any conclusions from their view of a witness, except in the most extreme cases of glaring mental and physical defects which

e. Minority.

The fact that the delinquent servant was a minor is an important, though not decisive, element in the inquiry. Its evidential weight depends upon the character of the work to be done, the servant's previous experience, and his actual age.

Incompetency for the duties of telegraph operator cannot be inferred from the mere fact that the servant was seventeen years old, when it is also in evidence that he has discharged his duties efficiently for a year, and that young men are generally better operators than old ones. Sutherland v. Troy & B. R. Co. (1891) 125 N. Y. 737, 26 N. E. 609.

The mere fact of employing a boy twelve years old for the purpose of running an elevator is not evidence from which a want of care in selecting a servant can be inferred. Smillie v. St. Bernard Dollar Store (1891) 47 Mo. App. 402 (dissenting, Thompson, J.).

A statute empowering mine owners to employ boys of a certain age does not create a presumption that any boy of that age is fit for his duties, but it is still permissible for the jury to

consent. This is not only a law of comity at Monett, knowing that he was unskilful, among courts, but is a jurisdictional neces- and incompetent to handle an engine, or that sity, for it is manifest that two courts could it might have ascertained that fact by the not, acting separately, successfully manage exercise of ordinary care; and that the plainthe property, or harmoniously distribute it. tiff, a locomotive fireman in the defendants' Beach, Receivers, Alderson's ed. §§ 229-240; employ, was injured, while in the discharge Kerr, Receivers, 2d ed. pp. 196 et seq. The of his duty, by the carelessness of said Shelpetition does not aver that the consent or don in starting the engine to which permission of the United States circuit court plaintiff was attached as such fireman, withto sue its receivers was asked or obtained out ringing the bell or sounding the whistle. before this action was begun, and there is a This is the substance of the first count. The total lack of any evidence of such steps hav-second count is the same, except that it coning been taken. The action cannot, there-tains an averment that the engine was in a fore, be maintained, and the judgment defective or dangerous condition; but, as against the receivers, or, as amended, that the judgment against the company be certified to the receivers, is reversed.

there is no evidence to support that averment, and no instructions were asked by the plaintiff predicating a right to recover upon 2. The case made against the defendant the defective or dangerous condition of the company by the pleadings is that it employed machinery, the plaintiff must be regarded as Grant Sheldon as a hostler at its roundhouse having abandoned that count. We will consider the boy's size, age, previous experience, | rienced workmen. strength, and intelligence, and the fact that he was kept at his post thirteen hours a day. Carlson v. Wilkeson Coal & Coke Co. (1898) 19 Wash. 473, 53 Pac. 725.

The mere fact that the servant is under fourteen years of age will not justify the inference that he is incompetent, where the duties to be performed are of a simple character, such as repeating to the engineer of the hoisting machinery above a quarry the signals received from the men in the quarry. Rickert v. Stephens (1890) 133 Pa. 538, 19 Atl. 410 (evidence that such work was done by boys).

f. Previous experience of the servant. Whether the master is chargeable with negligence on the ground that he should have seen that the servant's previous experience was not such as to qualify him for the duties to which he was assigned is a question the answer to which is obtained by considering two variable factors. viz., the character of the duties, and the extent of the servant's experience in the same or similar duties. It is manifest that a question dependent upon factors which may assume such infinitely diverse forms as these is pre-eminently one for the jury.

What time or training is requisite to make one a competent engineer is a question of fact solely. Hence it is error to instruct a jury that "proof of the employment of one who had always been a manual laborer or a mule driver to run a steam engine raises a presumption of negligence of the master, without showing that he had actual notice of the servant's antecedents." Joch v. Dankwardt (1877) 85 Ill. 331. This instruction, which follows the rule formulated in Shearman & Redfield on Negligence, § 133, was, however, approved by the court, arguendo, in Harper v. Indianapolis & St. L. R. Co. (1871) 47 Mo. 567, 4 Am. Rep. 353.

The commentator, therefore, can do little more than indicate the broad category under which the cases fall, and state the effect of the rulings under each head.

In some cases the propriety of requiring that the servant shall have had some practical experience, or been in a position in which he had an opportunity of observing others do the work, is too manifest to be a matter of doubt.

If the employment demands special knowledge or experience, only men of special knowledge and experience should be employed. Holland v. Tennessee Coal, I. & R. Co. (1890) 91 Ala. 444, 12 L. R. A. 232, 8 So. 524.

It is negligence to intrust the handling of a dangerous material, like dynamite, to inexpe

Stewart v. New York, O. & W. R. Co. (1889) 54 Hun, 638, 8 N. Y. Supp. 19 (verdict for plaintiff warranted by evidence that the foreman in charge for the day was a stone mason with an imperfect knowledge of the properties of dynamite).

The master may properly be found negligent where common laborers, engaged in stowing stone posts in a schooner, were charged with the duty of securing the platform, and allowed to select the gear, without instruction, and there is no evidence that they possessed the requisite skill, intelligence, or care. Donnelly v. Booth Bros. & H. I. Granite Co. (1897) 90 Me. 110, 37 Atl. 874.

On the other hand, negligence on the master's part is not established where the only testimony as to incompetency is that of the delinquent servant himself, who admitted on crossexamination that he had never done any wiring of holes loaded with dynamite, and had not had charge of deep drilling and dynamite blasting with electricity, but also testified that he knew how it ought to be done. O'Neil v. O'Leary (1895) 164 Mass. 387, 41 N. E. 662. The incompetency of a servant may arise from the fact that he has not worked at the employment for several years, as well as from unfamiliarity with it. Curran v. A. H. Stange Co. (1898) 98 Wis. 598, 74 N. W. 377.

But if the work may be well done by the unskilled and inexperienced, it cannot be said that the master is lacking in the measure of care he owes to other employees, if he employs unskilled and inexperienced men upon it. Holland v. Tennessee Coal. I. & R. Co. (1890) 91 Ala. 444, 12 L. R. A. 232, 8 So. 524.

It is not negligence to other employees to employ a man twenty-two years of age, physically and mentally qualified for the business, to assume the active duties of brakeman, merely because he has not yet had experience. Gorman v. Minneapolis & St. L. R. Co. (1889) 78 Iowa, 509, 43 N. W. 303.

Complaint by a yard switchman, charging incompetency of the fireman through failure to understand signals, and alleging his inexperience, is sufficient as to the allegation of his incompetency. Galveston, H. & S. A. R. Co. v. Eckols (1894) 7 Tex. Civ. App. 429, 26 S. W. 1117.

A verdict for the plaintiff has been set aside where the evidence showed that such fellow servant was an intelligent man, that the duties of a signalman and a switchman which he was discharging when the accident occurred were so simple that, according to the testimony of one witness, they could be learned in one or two days, or, according to the testimony of another

therefore treat the case as resting upon the dent. The plaintiff's witnesses Andrews, first count only. The evidence wholly failed Loftin, and Coyle testify to hearing or makto support the allegation that Sheldon was ing complaints against Sheldon, and that the employed by defendant as a hostler. On the fire pullers were afraid to go under the encontrary, all the evidence shows that he was gine when he was moving it, but none of employed as a wiper or fire puller, and that them would swear that this occurred prior the rules of the company positively pro- to the accident to the plaintiff; and when it hibited a wiper or fire puller to move an en- is remembered that the plaintiff was ingine under any circumstances, except in the jured on the 20th of October, 1893, and that immediate presence and under the direction the trial at which this testimony was introof a hostler who was on the engine. The duced took place on the 3d of January, 1896, plaintiff produced some evidence that on at the inability of the witnesses to locate these least one occasion before this accident Shel-"talks" among "the boys," as to whether they don did move an engine, and backed it into were before the accident or afterwards, is another engine; but there is no evidence that easily understood. The witness Coyle also the company, or any of Sheldon's superior testified to hearing complaints made to oflicers, knew of this fact, and, on the con- Stringer, the head hostler, about Sheldon, trary, the head hostler and the foreman both but he was unable to state whether this was testify that they never knew of Sheldon mov-before or after the accident; he finally saying an engine at any time before the acci-ing: "I do not know for certain. It was mistakes would be likely to be made, and the delinquent servant's duties as yard conductor only occasionally required him to turn the switches, and before his appointment to that position he had been engaged in coupling cars. O'Loughlin v. New York C. & H. R. R. Co. (1895) 87 Hun, 538, 34 N. Y. Supp. 297.

witness, in two or three weeks; and that, previous to the accident he had been employed for three weeks in the yard and one week in the duties of switchman and signalman. Deverill v. Grand Trunk R. Co. (1866) 25 U. C. Q. B. 517.

Between these two extreme predicaments lie those in which some experience is admitted to be necessary, and the question presented is whether that which the servant has had is sufficient to qualify him for his duties. The following cases will indicate the views taken by the courts as to a variety of circumstances.

In Bunnell v. St. Paul, M. & M. R. Co. (1882) 29 Minn. 305, 13 N. W. 129, there was held to be sufficient evidence to sustain a verdict for the plaintiff where the testimony showed that the man hired as a foreman of carpenters had been in the defendant's employ only about four months before the accident caused by his negligence that for three years before that time he had been in the insurance business; that he had never learned the carpenter's trade, and had, in all, never worked more than twelve weeks as a carpenter.

In Gibson v. Northern C. R. Co. (1880) 22 Hun, 289, a car inspector, who failed to discover and note a defect, was thirty-four or thirtyfive years old, and had worked for three or four months in a railroad yard in Ireland, putting brasses into freight cars, but, with this exception, had been employed as a common laborer, and was not a mechanic, and was without knowledge of machinery up to the time of entering the service of the defendant. He worked in the defendant's carpenter shop, repairing cars, putting in brasses, bolting, and putting in boxes, and assisting in the shop, from one to two years, and was then made car inspector. His evidence showed clearly that he understood the details of his business, and appeared to have been given intelligently. It was held that negligence in employing him as a car inspector was not shown.

Incompetency to act as flagman for an approaching train at night-time may be properly found where the servant had had scarcely any experience as brakeman or flagman, had not been instructed as to the rule requiring the use of torpedoes, and had never flagged a train except once before, on which occasion he had been found fault with by defendant's conductor, and discharged for disobedience. Mann v. Delaware & H. Canal Co. (1883) 91 N. Y. 495.

Whether a railway company is liable for an injury caused by the unskilfulness of a yard conductor in turning a switch is for the jury, where the tracks are so complicated that with out experience in the operation of the switches,

The fact that a man is competent for the general duties of a locomotive engineer will not excuse a railway company for an accident caused by his lack of knowledge and experience as to the road at the place where the accident occurred. Missouri P. R. Co. v. Patton (1894; Tex. Civ. App.) 25 S. W. 339, Affirmed in (1894: Tex.) 26 S. W. 978, where, however, this point was not discussed.

In Wright v. New York C. R. Co. (1858) 28 Barb. 80, the court expressed its dissatisfaction with a verdict finding that a man was not competent to act as engineer of a night train on the line between Rochester and Niagara, where the evidence was that he had served as an engineer some four years, and had been in the employ of the defendant nineteen months, but not on the section of the road in question; that he had, however, as engineer, run over the road a dozen times in the nineteen months, and had ridden on the cars at other times; and that he had run up to the bridge with a freight train, the night before; and several witnessesof the defendant, engineers, also state facts tending strongly to show that such an acquaintance with a road was amply sufficient. The court of appeals held that the man was certainly competent. (1862) 25 N. Y. 562.

The competency of a fireman to act as engineer on a run between stations is for the jury where the evidence is that he had been in the employment of the defendant several years. part of the time as a fireman, and at two different periods of about six months each had served as an extra engineer in charge of freight trains, but never as a regular engineer; that he had been over the section of the road. on which the accident occurred about twentyfour times in all, in his service as an engineer, the last time about a month before the accident; that he had never inspected the switches or side tracks at the point where the accident occurred, so as to learn their exact location, and knew nothing on that subject except what he had noticed when he passed over them, and had been told by others; that he had had no experience in running an engine disabled as was the one which caused the injury, and had never observed the effect of such disability upon the holding power of an engine or the ability of those in charge of it to stop it; and that he had been examined when promoted to the posi

|

A railroad engineer is presumably a competent person to inspect an engine to see if it is in such repair as to prevent the escape of fire. Menominee River Sash & Door Co. v Milwaukee & N. R. Co. (1895) 91 Wis. 447, 65 N. W. 176. The principle governing the liability of a railway company for injuries caused by the in-engine is not proved where the servant had had competency of a fireman who has been temporarily permitted to handle an engine for switching, and similar work, has been formulated as follows:

In Chicago & E. I. R. Co. v. Beatty (1895) 13 Ind. App. 604, 40 N. E. 753, 42 N. E. 284, a verdict for the plaintiff was sustained where One who has served as a fireman for a long the evidence tended to prove that the delintime, and on several occasions has run an en- quent servant, an engine wiper, had some exgine in a switchyard, is not to be deemed in-perience as a brakeman, and had, competent to act as engineer on a train in such yard because he is not regularly engaged as an engineer. Ohio & M. R. Co. v. Dunn (1894)