MiNbb, J.
(after stating the facts):
Plaintiff was a miner, taking out ore. Breen was in the same department, loading ore on the cage, and had no control of the plaintiff. Both were under the same foreman, in the same department of labor. They were therefore fellow servants. It is the duty of a master to exercise due and reasonable care in the selection of his servants, with reference to their competency and fitness. He must also exercise the same degree of care in retaining his servants after such employment, for his responsibility is the same. The employer’s liability for injuries caused by the incompetency of a fellow servant depends .upon such incompetency being established by affirmative proof, and that it was known to the master, or that, if he had exercised due and proper diligence, he would have learned of such incompetency. In exercising this supervision by the master, to ascertain whether the servant is competent, the nature of the service and the dangers attending it should be considered. A closer supervision over the habits, competency, and conduct of an engineer is required than over a common laborer, for the obvious reason that the dangerous consequences of neglect are likely to be so much greater in the one case than in the other; the rule being, the greater the danger, the greater the care. It is the duty of the party charging incompetency and negligence to establish the fact by proof. This may be done by showing specific acts of incompetency, [185] and bringing them home to the knowledge of the master, or by showing such acts of incompetency and negligence of the servant to be of such a character and frequency that the master, in the exercise of due and reasonable care, must have had them brought to his notice. After proof of incompetency of the servant is shown, the fact of incompetency may also be shown by the general reputation ; but, when reputation alone is relied upon, it should be so generally known that inquiry would disclose it. When repeated acts of carelessness are shown on the part of the servant, it then becomes proper to leave the question to the jury to determine whether or not they did come to the knowledge of the master, or would have come to his knowledge had he used reasonable care. Bailey on Mast. Liab. pp. 47-61; Monahan v. City of Worcester, 105 Mass. 439; Hilts v. Railway Co., 55 Mich. 444; Loning v. Railroad Co., 49 N. Y. 521.
It is apparent from the facts above stated that the injury would not have happened but for the negligence of the station tender in leaving the chairs in the shaft, and of Adamson, the engineer, in not discovering the fact. These two acts contributed to cause the accident. Without these two concurrent acts the accident would not have happened. The question now arises, did the incompetency of Adamson and his carelessness contribute, in a legal sense, to the cause of the injury? Bailey, Mast. Liab. p. 433, states the rule to be: “When the injury is the result of two concurrent causes, one party is not exempt from full liability, although another party was equally culpable.” Whart. Neg. § 144, states the rule to be: “The fact that another person contributed, either before the defendant’s interposition, or concurrently with such interposition, in producing the damage, is no defense.” Care must be taken in applying the rule to dis[186] tinguish between concurring causes and intervening causes. “The negligence of each person is a proximate cause where the injury would not have occurred but for that negligence; and it is no answer that the negligence or trespass of a third person contributed to the injury. And this is true although the party contributing by his negligence was acting without concert with, and entirely independent of, the party to whom the cause is attributable in the first instance. The reason of the rule lies in the fact that the effects produced by two or more concurrent causes cannot be separated, and the damages apportioned; that, because such may be the case, the injured party should not be refused redress. The rule always has been, in case of joint tort feasors, that either or all are liable.” In case the injury is caused by accident, and the defendant’s negligence concurs to the extent that the accident would not have happened but for such negligence, he is liable for the consequences. “The distinction between concurring causes and intervening causes lies, not so much in the character of the act done or omitted, but its ‘effect upon the result, — the difference between contribution and cause and effect; and to this it must be added that the concurrent or succeeding negligence must break the sequence of events to make the cause one of intervention. Hie only available test is, did the intervening cause, whether animate or inanimate, break the sequence of events? If so, it is a case of intervening negligence; otherwise, a case of co-operating, concurring, or contributory negligence.” Bailey, Mast. Liab. pp. 435, 436; Illidge v. Goodwin, 5 Carr. & P. 190; Cooley, Torts, 153; Eaton v. Railroad Co., 11 Allen, 500; Railroad Co. v. Kellogg, 94 U. S. 474; Atkinson v. Transportation Co., 60 Wis. 141; Railway Co. v. Cummings, 106 U. S. 700; Johnson v. Exchange Co., 48 Minn. 433. In Wright v. Southern Pac. [187] Co., 13 Utah 381, this court held “that, when the negligence of the employer and that of a fellow servant combine to produce an injury to a servant, the employer will be liable in damages to the injured servant.” Shearm. & R. Neg. p. 187; Bailey, Mast. Liab. p. 439.
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MiNbb, J.
(after stating the facts):
Plaintiff was a miner, taking out ore. Breen was in the same department, loading ore on the cage, and had no control of the plaintiff. Both were under the same foreman, in the same department of labor. They were therefore fellow servants. It is the duty of a master to exercise due and reasonable care in the selection of his servants, with reference to their competency and fitness. He must also exercise the same degree of care in retaining his servants after such employment, for his responsibility is the same. The employer’s liability for injuries caused by the incompetency of a fellow servant depends .upon such incompetency being established by affirmative proof, and that it was known to the master, or that, if he had exercised due and proper diligence, he would have learned of such incompetency. In exercising this supervision by the master, to ascertain whether the servant is competent, the nature of the service and the dangers attending it should be considered. A closer supervision over the habits, competency, and conduct of an engineer is required than over a common laborer, for the obvious reason that the dangerous consequences of neglect are likely to be so much greater in the one case than in the other; the rule being, the greater the danger, the greater the care. It is the duty of the party charging incompetency and negligence to establish the fact by proof. This may be done by showing specific acts of incompetency, [185] and bringing them home to the knowledge of the master, or by showing such acts of incompetency and negligence of the servant to be of such a character and frequency that the master, in the exercise of due and reasonable care, must have had them brought to his notice. After proof of incompetency of the servant is shown, the fact of incompetency may also be shown by the general reputation ; but, when reputation alone is relied upon, it should be so generally known that inquiry would disclose it. When repeated acts of carelessness are shown on the part of the servant, it then becomes proper to leave the question to the jury to determine whether or not they did come to the knowledge of the master, or would have come to his knowledge had he used reasonable care. Bailey on Mast. Liab. pp. 47-61; Monahan v. City of Worcester, 105 Mass. 439; Hilts v. Railway Co., 55 Mich. 444; Loning v. Railroad Co., 49 N. Y. 521.
It is apparent from the facts above stated that the injury would not have happened but for the negligence of the station tender in leaving the chairs in the shaft, and of Adamson, the engineer, in not discovering the fact. These two acts contributed to cause the accident. Without these two concurrent acts the accident would not have happened. The question now arises, did the incompetency of Adamson and his carelessness contribute, in a legal sense, to the cause of the injury? Bailey, Mast. Liab. p. 433, states the rule to be: “When the injury is the result of two concurrent causes, one party is not exempt from full liability, although another party was equally culpable.” Whart. Neg. § 144, states the rule to be: “The fact that another person contributed, either before the defendant’s interposition, or concurrently with such interposition, in producing the damage, is no defense.” Care must be taken in applying the rule to dis[186] tinguish between concurring causes and intervening causes. “The negligence of each person is a proximate cause where the injury would not have occurred but for that negligence; and it is no answer that the negligence or trespass of a third person contributed to the injury. And this is true although the party contributing by his negligence was acting without concert with, and entirely independent of, the party to whom the cause is attributable in the first instance. The reason of the rule lies in the fact that the effects produced by two or more concurrent causes cannot be separated, and the damages apportioned; that, because such may be the case, the injured party should not be refused redress. The rule always has been, in case of joint tort feasors, that either or all are liable.” In case the injury is caused by accident, and the defendant’s negligence concurs to the extent that the accident would not have happened but for such negligence, he is liable for the consequences. “The distinction between concurring causes and intervening causes lies, not so much in the character of the act done or omitted, but its ‘effect upon the result, — the difference between contribution and cause and effect; and to this it must be added that the concurrent or succeeding negligence must break the sequence of events to make the cause one of intervention. Hie only available test is, did the intervening cause, whether animate or inanimate, break the sequence of events? If so, it is a case of intervening negligence; otherwise, a case of co-operating, concurring, or contributory negligence.” Bailey, Mast. Liab. pp. 435, 436; Illidge v. Goodwin, 5 Carr. & P. 190; Cooley, Torts, 153; Eaton v. Railroad Co., 11 Allen, 500; Railroad Co. v. Kellogg, 94 U. S. 474; Atkinson v. Transportation Co., 60 Wis. 141; Railway Co. v. Cummings, 106 U. S. 700; Johnson v. Exchange Co., 48 Minn. 433. In Wright v. Southern Pac. [187] Co., 13 Utah 381, this court held “that, when the negligence of the employer and that of a fellow servant combine to produce an injury to a servant, the employer will be liable in damages to the injured servant.” Shearm. & R. Neg. p. 187; Bailey, Mast. Liab. p. 439.
The facts found in the case on the part of the plaintiff must be deemed to be admitted for the purpose of this discussion, as the case was not submitted to the jury. The negligence complained of in this respect was in keeping Adamson in the employ of the defendant after it knew or was chargeable with notice that he was an incompetent and careless engineer, and that his negligence and inefficiency contributed to cause the injury. The first act of negligence was on the part of Breen, who left the chairs in the shaft. The act of Adamson, the engineer, was subsequent in point of time, yet his act of negligence, if it was such, was continuing negligence, which cooperated and acted with the negligent acts of Breen to produce the common result complained of. Although Breen was negligent, yet if the defendant was chargeable with notice of Adamson’s incompetency, and, through his negligence, was therefore wanting in ordinary care and prudence in discharging its duties, and such want of ordinary care contributed to produce the injury in question, and the plaintiff did not know of such want of ordinary care and prudence on the part of the defendant, then the defendant would be liable. The mere fact of the concurrence of one who stands in the relation of a fellow servant and the one receiving the injury does not excuse the master from his contributory negligence. The injury was the result of two concurring causes, and if the defendant is responsible for or contributed to one of these causes, he is not exempt from liability, because Breen, who is responsible for the other cause, may have been [188] also culpable. The servant assumes the risk of the negligence of the fellow servant, but not that of the master. Railroad Co. v. Callaghan, 6 C. C. A. 205; Lane v. Atlantic Works, 111 Mass. 136; Lake v. Milliken, 62 Me. 240; Railroad Co. v. Cummings, 106 U. S. 700; Bailey Mast. Liab. p. 437.
There was some testimony in the case tending to show the incompetency of Adamson, the engineer, and that defendant was negligent in keeping him in its employ after it had knowledge of his incompetency. While we express no opinion upon the weight to be given to this testimony, yet we are of the opinion that, under all the facts shown, the case should have been submitted to the jury. The judgment of the court below is vacated and set aside, and a new trial granted.
Zane, C. J., and BaRtoh, J., concur.