This was an action to recover damages for injuries sustained by the plaintiff, the defendant in error here, from a collision between two freight trains belonging to the Wabash Railway Company, a corporation engaged in the business of carrying freight and passengers for hire. The collision took place on the night of August 17, 1877, near Wabash, Indiana. The jury returned a verdict in favor of the plaintiff for $15,000. A motion for new trial having been made and overruled, the case has been brought to this court for review. The action proceeded mainly upon the ground that McHenry, a telegraphic operator in the service of the company, was incompetent for the work in which he was engaged, and that his incapacity to meet the responsibilities of his position could, by reasonable care, have been ascertained, and, in fact, was known to the company at, before, and during the time of his employment. The essential facts bearing upon the question of the company's negligence in employing McHenry are summarized in one of the paragraphs of the charge to the jury, to which, so far as the facts which the evidence tended to establish are stated, there seems to have been no exception. They are: 'The tenth night after McHenry went on duty as night operator he went to sleep at his post of duty, with the result already stated. He was 17 years old but a few weeks before his employment. In June, 1876, he went into the service of the defendant, at Wabash, as a messenger boy, and continued in that service some 12 months, during which time he was instructed by Waldo, the day operator, in the art of telegraphy. For this instructed Waldo exacted and received, as compensation, McHenry's wages, $10 per month. For a month or more before McHenry's employment as night operator he worked in the country, harvesting. The only knowledge that he had of telegraphy was what he acquired under Waldo, and before taking charge as night operator he had never been employed anywhere or in any capacity as operator. He was not competent, as he told you, to take press reports, but was competent, as he thought, and as Waldo and Wade (the latter his predecessor as night operator) thought, to do ordinary business, and to discharge the duty of night operator at Wabash; his habits were good, and he was bright and industrious. Waldo had recommended McHenry to Simpson, the chief train dispatcher at FT. Wayne, as capable and faithful, and without knowing McHenry personally, or even seeing him, and, on Waldo's recommendation and what Simpson knew of McHenry's skill from having occasionally noticed at Ft. Wayne his fingering the key at Wabash, Simpson directed Waldo to employ McHenry at $50 a month; or, according to Waldo's testimony, he was directed by Mr. Simpson to put McHenry in charge of the office. McHenry's father told Waldo, before the son entered on the discharge of his duties, that Waldo should have $10 a month of the son's wages if Waldo would continue to give the son attention, to which Waldo assented. This is the father's testimony. Waldo admits that the father made the proposition to him as stated, but says he replied that the son was competent to take charge of the office and run it without assistance. Boys no older than McHenry had successfully discharged the duties of day and night dispatcher on this and other roads, and it teems to have been the custom of the company to educate its telegraph operators while serving as messenger boys. Other railroad companies, it seems from the evidence have pursued the same course with satisfactory results.' Wager Swuyne and Chas. B. Stuart, for plaintiff in error.
The opinion of the court was delivered by: Harlan, J.
E. E. McKay and Wm. Stone Abert, for defendant in error.
That we are without authority to disturb the judgment upon the ground that the damages are excessive cannot be doubted. Whether the order overruling the motion for new trial, based upon that ground, was erroneous or not, our power is restricted to the determination of questions of law arising upon the record. Railroad Co. v. Fraloff, 100 U. S. 31.
We also remark, before entering upon the consideration of the matters properly presented for determination, that it is unnecessary to express any opinion upon the question whether the plaintiff and McHenry were fellow-servants, within the meaning of the general rule that the servant takes the risks of dangers ordinarily attending or incident to the business in which he voluntarily engages for compensation, including the carelessness of his fellow-servants. The plaintiff took no exception to the instructions, which proceeded upon the ground that plaintiff and McHenry were fellow-servants, and that in accepting employment from the company they risked the negligence of each other in the discharge of their respective duties. As no such question can arise upon the present writ of error, we pass to the examination, as well of the instructions to which the defendant excepted, as of those asked by it which the court refused to give.
At and before the time of the accident the plaintiff was a brakeman in the service of the defendant. When injured he was at his post of duty on one of the colliding trains. The collision, it is conceded, was the direct result of negligence on the part of McHenry, one of defendant's telegraphic night-operators, who was assigned to duty at a station on the line of its road. He was asleep when one of the trains passed his station, and ignorant, for that reason, that it had passed, he misled the train dispatcher at Fort Wayne as to its locality at a particular hour of the night. In consequence of the erroneous information thus conveyed to the train dispatcher, the trains were brought into collision, whereby the plaintiff lost his leg, and was otherwise seriously and permanently injured.
The court charged the jury, in substance,––
That the position of a telegraphic night-operator upon the line of a railroad was one of great responsibility, the lives of passengers and employes on trains depending upon his skill and fidelity; that the company 'was bound to exercise proper and great care to get a person in all respects fit for the place;' that while the defendant did not guaranty to its servants the skill and faithfulness of their fellow-servants, its duty was 'to use all proper diligence in the selection and employment of a night-operator,' and to discharge him, after being employed, if it learned or had reason to believe he was incompetent or negligent; that the plaintiff had a right to suppose that the company 'would use proper diligence in the selection of its telegraphic operators and all other employes whose incapacity or negligence might expose him to dangers, in addition to those which were naturally incident to his employment;' that 'what will amount to proper diligence on the part of the master in the selection of a servant for a particular duty will in part depend on the character and responsibility of that duty;' that 'the same degree of diligence which is required in the employment of a locomotive engineer would not be required in the employment of a fireman;' that 'sound sense and public policy require that railroad companies should not be exempt from liability to their employes for injuries resulting from the incompetency or negligence of co-employes, when, by the exercise of proper diligence, such injuires might be avoided;' that the presumption is that the defendant 'exercised proper diligence in the employment of McHenry, and the burden of proof of showing the contrary is upon the plaintiff;' but 'if from any cause McHenry was not a fit person to be intrusted with the responsible duties of night-operator, and the defendant knew that fact, or by reasonable diligence might have known it, it is liable, for it is admitted that the plaintiff's injuries were the direct result of McHenry's negligence, and there is no proof that the plaintiff contributed to the accident by his own negligence.
To each of these instructions the defendant excepted at the time, and in proper form.
Among those asked by the company, and for the refusal to give which error is assigned, is one which presents the distinction between the propositions of law presented to the jury for its guidance, and those which the railroad company requested to be given. It is as follows:
'Although McHenry may have been and was guilty of negligence, and that negligence may have caused and did cause the collision which resulted in the injury to the plaintiff complained of, still the plaintiff cannot recover in this action unless it appears from the evidence that the defendant was guilty of negligence, either in the appointment of said McHenry, or in retaining him in his position; and to establish such negligence on the part of the defendant, not only the incompetency of said McHenry must be shown, but it must be shown that defendant failed to exercise ordinary care or diligence to ascertain his qualifications and competency prior to his appointment, or failed to remove him after his incompetency had come to the notice of the defendant, or to some agent or officer of defendant having power to emove said McHenry.'
The court modified this instruction by striking out the word 'ordinary' in the only place where it occurred, and inserting in lieu thereof the word 'proper.' Thus modified the instruction was granted; the defendant excepting, at the time, to the refusal to give the instruction in the form presented.
The main contention of the defendant is that the jury were instructed that the duty of the company was to observe 'proper and great care,' when they should have been instructed that only ordinary care was required in the appointment and retention of its employes. The former degree of care, it is contended, is matter of opinion upon a question of law, while the latter is a question of fact. And the argument of counsel is that the question of ordinary care is to be determined by the usages or custom which obtain in railroad management, and therefore the proper inquiry is not what ought to be, but what is, the general practice in that business; that what the servant is presumed to know, and to have accepted as the basis of his employment, is the practice or custom as it is when, in hiring his services, he risks the dangers incident to his employment; that the law presumes that master and servant alike contract with reference to that which is equally within their observation and inquiry. Consequently, the company was required, in the selection of plaintiff's fellow-servants, whose negligence might endanger his personal safety, not to observe 'proper and great' (which counsel insists mean peculiar) care, but only that degree of diligence which the general practice and usage of railroad management sanctioned as sufficient.
In Hough v. Ry. Co. 100 U. S. 213, it was decided that among the established exceptions to the general rule as to non-liability of the common employer to one employe for the negligence of a co-employe in the same service, is one which arises from the obligation of the master, whether a natural person or a corporate body, not to expose the servant, when conducting the master's business, to perils or hazards against which he may be guarded by proper diligence upon the part of the master; that the master is bound to observe all the care which prudence and the exigencies of the situation require, in providing the servant with machinery or other instrumentalities adequately safe for use by the latter; and that it is implied in the contract between the master and the servant that, in selecting physical means and agencies for the conduct of the business, the master shall not be wanting in proper care. It was further said that the obligation of a railroad company, in providing and maintaining, in suitable condition, machinery and apparatus to be used by its employes, is the more important, and the degree of diligence in its performance the greater, in proportion to the dangers which may be encountered; and that 'its duty in that respect to its employes is discharged when, but only when, its agents, whose business it is to supply such instrumentalities, exercise due care as well in their purchase originally, as in keeping and maintaining them in such condition as to be reasonably and adequately safe for use by employes.'
These observations, as to the degree of care to be exercised by a railroad corporation in providing and maintaining machinery for use by employes, apply with equal force to the appointment and retention of the employes themselves. The discussion in the adjudged cases discloses no serious conflict in the courts as to the general rule, but only as to the words to be used in defining the precise nature and degree of care to be observed by the employer. The decisions, with few exceptions, not important to be mentioned, are to the effect that the corporation must exercise ordinary care. But according to the best-considered adjudications, and upon the clearest grounds of necessity and good faith, ordinary care, in the selection and retention of servants and agents, implies that degree of diligence and precaution which the exigencies of the particular service reasonably require. It is such care as, in view of the consequences that may result from negligence on the part of employes, is fairly commensurate with the perils or dangers likely to be encountered. In substance, though not in words, the jury were so instructed in the present case. That the court did not use the word 'ordinary' in its charge is of no consequence, since the jury were rightly instructed as to the degree of diligence which the company was bound to exercise in the employment of telegraphic night-operators. The court correctly said that that was a position of great responsibility, and, in view of the consequences which might result to employes from the carelessness of telegraphic operators, upon whose reports depended the movement of trains, the defendant was under a duty to exercise 'proper and great care' to select competent persons for that branch of its service. But that there might be no misapprehension as to what was in law such care, as applicable to this case, the court proceeded, in the same connection, to say that the law presumed the exercise by the company of proper diligence, and unless it was affirmatively shown that the incapacity of McHenry when employed, or after ...