LaChappelle v. Allis-Chalmers Co.

157 Ill. App. 112, 1910 Ill. App. LEXIS 237

Opinion

Mr. Presiding Justice Holdom

delivered the opinion of the court.

Whether plaintiff was injured in-consequence of the negligence of Donnelly or Snyder, singly or in combination, is not necessarily important to his right to recover unless defendant was negligent in respect to one or more of the delinquencies charged in the declaration, as it stood at the time the cause was submitted to the jury, as constituting such negligence. From the statement preceding this opinion it appears such negligence consisted in defendant’s employing and retaining in its employ two incompetent servants, one Donnelly, the head switchman of engine 1087 crew, and Alfred H. Snyder, its engineer, defendant having knowledge, either actual or imputable, of such incompetency. The law cast upon plaintiff the burden of sustaining, by a preponderance of the evidence, the charge of incompetency of one or the other or both of these two servants and that such incompetency resulted in the negligent act which proximately caused the injury complained of. We are of opinion that the evidence pro and con on these propositions fails to sustain the incompetency charged against either of these servants, or that the delinquencies charged against them were known to or should have been known to defendant in the exercise of due diligence, or that any of the acts or conduct proven against either'of them was of such a character as to fasten upon the master knowledge that either of them were incompetent servants, not to be trusted to discharge the. duties imposed upon them by their employment. On the contrary, it is our deliberate opinion that the evidence absolutely fails to sustain any of the charges of incompetency of either of these two servants. In weighing the testimony it must not be lost sight of that general reputation is of no controlling force unless supported by specific instances of conduct amounting to carelessness or negligence. So, therefore, the testimony of a witness as to general reputation, without citation of any concrete fact or instance of negligence or carelessness, is of little, if any, weight as evidence sustaining the charge either of negligence or carelessness. FTor would such reputation alone constitute notice to the master of incompetency, or prove that such servant was in fact incompetent. The rule is, we think, correctly stated in a foot note to State v. Broderick, 14 L. R. A. (N. S.), 704-5, as follows: “The incompetency of a servant to discharge the duties of his position is not established only by proof of his general reputation, but by testimony of many instances of carelessness and negligent conduct in the performance of such duties;” and that such rule is sustained by the doctrine of Consolidated Coal Co. v. Seniger, 179 Ill. 370.

It is fairly inferable from all the testimony in this record that the members of the two switching crews came daily in contact with each other in the discharge of their kindred duties, so that each could be said to have exerted some influence over the other in the performance of their several allied tasks and to acquire knowledge of the habits, conduct and reputation of each other.

At the time of the accident plaintiff had been in the service of defendant about ten months. For six or seven months of this time he worked as a switchman with the same crew in which he was working at the time he was injured. Donnelly and Alfred M. Snyder had been long in the service of defendant, Donnelly about fourteen years and Snyder about twenty-one years. There is little room for doubt that they were both capable men and thoroughly well able, through long years of practical experience, to discharge the duties of their several positions with efficiency. In no aspect of the evidence could they he considered incompetent to perform the duties intrusted to them. So that in the final analysis of the testimony, the question for solution is not their competency, but the fact, under the averments of the counts under which the case was submitted to the jury, whether Donnelly was, by reason- of his alleged intemperance, carelessness and recklessness in doing his work, an unsafe man to do the work he was employed to do, and whether Snyder was so “bull headed” and careless in the discharge of his duties as to be unfit to perform his work as an engineer, and whether negligence is imputable to defendant in retaining these men in its employ.

The record discloses that five witnesses sworn for plaintiff testified as to the reputation and conduct of Donnelly and particularly as to his alleged habit of intemperance, and twelve witnesses produced by defendant testified to the contrary and supported the contention of defendant that Donnelly was a temperate and sober man. Plaintiff’s witnesses were Godfrey, Dunn, Borges, Seeberg and Eyhus. If the testimony of these witnesses is worthy of credit, then the reputation of Donnelly for intemperance was so notorious that it must have been known to everyone with whom he was associated and could not have failed to be observed by any person who came in daily contact with him, as plaintiff undeniably did. If such be the fact, then plaintiff had knowledge thereof, and by continuing thereafter in the employment of defendant in the same department of work with Donnelly he assumed the risk attendant upon continuing to work with a man who had such notoriously intemperate habits as' Donnelly is claimed to have had, according to the testimony of these witnesses of plaintiff. It is contended that Donnelly was under the influence of liquor on the morning of the accident, and the witness Godfrey did so swear, but Godfrey was himself discharged from defendant’s employ for drunkenness. Dunn was a saloonkeeper, who had previously worked for defendant, and he swore that Donnelly was one of his regular patrons and was an intemperate man. Dunn himself had indulged in drink just before being sworn as a witness. Borges had worked for defendant about six or seven months three years before the accident, and was of the age of eighteen years when in defendant’s employ.' Seeberg worked for defendant and was discharged because of a dispute between himself and iSTyhaus. The witness ISTyhaus was in the employ of defendant only two months. A statement made by Prank Beggs, who witnessed the accident, was read in evidence by plaintiff as an impeachment of his testimony given from the witness stand, and among other things he stated that Donnelly had been drinking on the day of the accident. Arrayed against these witnesses are those of the defendant, twelve in number, who all give Donnelly, a good reputation for sobriety. Strange, however, is the fact that plaintiff himself did swear that during all of the ten months of his association with Donnelly, more or less close and continuing day after day for more than six months, he was unable by any act or conduct on his part to discover that Donnelly had been drinking or was an habitually intemperate man or addicted to the drinking habit. The witnesses of defendant who supported Donnelly’s reputation for sobriety were Sheridan, a lawyer, Westphal, whose tenant he was, a neighbor named Brett, a priest named Burdock, at whose church Donnelly and his family were attendants; Espenard, a former landlord, who had known him four years; Zophy, Doller, Beggs, Johnson and both the Snyders, who had worked with Donnelly for varying and long periods of time at the works of defendant. All of these witnesses were employes of defendant and had worked for defendant for much greater length of time than had any of the plaintiff’s witnesses, Alfred H. Snyder having been in such employment twenty-one years. It is quite apparent that defendant’s witnesses had a better opportunity of knowing intimately the character and reputation of Donnelly than any of plaintiff’s witnesses possibly could have, and consequently their testimony is worthy of greater credence as being the most trustworthy. As to Alfred M. Snyder’s competency to run switch engine 1087 there can hardly be divergent opinions after a careful reading of the evidence. He had been in defendant’s employ twenty-one years. He ran a stationary engine for fifteen years, then acted as fireman on his brother William’s engine for five months, and after that ran a switch engine in defendant’s yards. Such long continued employment in one establishment would denote to the unprejudiced mind character for stability. The transition from a stationary to a locomotive engineer would seem to have progressed along natural lines. It is matter of common knowledge that firemen bn locomotive engines graduate to and become locomotive engineers. In fact such engineers are mostly recruited from the ranks of firemen. We are unable to say from this testimony that there was anything, either in the training or. conduct of Alfred M. Snyder, which would justify his being stigma-, tized as an incompetent engineer or one that defendant could not employ and retain in its employment without being amenable to the charge of negligence in so doing. We therefore hold that defendant was not guilty of actionable negligence in employing or retaining in his employ either Donnelly or Alfred M. Snyder.

The judgment of the Superior Court is reversed.

Reversed.

Mr. Justice Baker dissents.