By the Court, Marvin, J.
No error was committed in allowing the plaintiff to testify as a witness in his own behalf, though the defendant was a corporation. It is true that the code limits the right of examination to cases in which the adverse party or person in interest is living. It is said that the adverse party or person in interest is, in this case, a corporation, and that life, or living, cannot with propriety, be applied to corporate existence. It may well be that the present -case did not occur to the legislature, when the statute was enacted; but the design was to admit, as a witness, a party to an action whenever the adverse party or person in interest could also be a witness. A corporation could never be a witness, but a corporation is composed of a person or persons, who are natural persons and are interested in the corporation, and they can be witnesses. I'have no doubt the code (§ 399) should be so construed as' to admit a person who has an action with a corporation, to be a witness in his own behalf.
It was not error to admit evidence to show the state of the plaintiff's leg after the second breaking. Evidence of the second breaking had been given without objection, and it was important that the jury should know the condition of the leg before and after the second breaking, in order that they might be able to determine for what injury the defendant was liable. It was not claimed that the defendant was liable for any injury other than that which happened at the time of the collision.
Was any error committed in the charge to the jury ? It is settled law in this state, that a principal is not liable to a servant for injuries sustained by reason of the negligence of [85]*85another servant, when both are engaged in the same general business, in the service of the principal. (Coon v. The Syracuse and Utica Rail Road Co., 1 Selden, 492.) This principle was conceded in the present case, by the plaintiff, who claimed to recover on account of the negligence of Upton, its managing agent. If the servant is injured by reason of the negligence of the master, the latter is undoubtedly liable.
As the general business of managing a train of cars upon a rail road requires the co-operation of many persons, and as they are supposed to know the risks incident to the business, they voluntarily take those risks at the time they enter into the employment of the rail road company, and the compensation to be paid them may be affected by the character of the business. As one servant may be injured by the carelessness of a fellow servant, he takes this risk. The business requires all the servants, and some one or more of them, though possessed of sufficient skill and capacity, may, on some occasion, be careless and negligent, and a fellow servant may be injured in consequence. In such a case, the master or principal is not responsible. But it may be that one of the servants, employed by the master, to co-operate with the other servants, is incompetent, and lacks the requisite skill to perform his part of the work. He may be a careful, prudent servant, but from ignorance of his duties, or from the absence of the necessary skill, may be unable to perform them, and a fellow servant may sustain injury in consequence of his incompetency. Is the principal then liable ? It is, I have no doubt, the duty of the master, to all his servants, to use reasonable care in providing them with careful and competent fellow servants, and he is liable for injuries to any servant arising from his neglect to use such care, in the absence of proof that the injured servant was awai-e of the incompetency of his fellow servant. If the injured servant has knowledge of the incompetency and want of skill of his fellow servant, a presumption may arise that he consents to take upon himself the risk of any injury which may result from such incapacity. He may, if the mas[86]*86ter employs an incompetent co-laborer, quit his employment; unless the master will, upon notice, discharge the incompetent servant.
As the master or principal has the sole right to.employ all his servants, each servant has the right to rely upon the master’s using reasonable care and diligence in employing none but competent servants. The power to employ servants may be delegated by the principal, and this must generally be so, when the principal is a corporation. When the principal thus acts by an agent he will, upon general principles, be liable for the negligence of the agent. This agent will not be regarded simply as a fellow servant of those whom he employs in the general business. (See Pierce on Am. Rail Road Law, ch. 13, and the cases'there cited; Keegan v. The Western Rail Road Corporation, 4 Selden, 175.)
In the present case, Upton had authority to employ the engineers. He was the managing agent. He employed Adams. There can be no reasonable doubt that the injury to the plaintiff was caused by the carelessness and negligence of Adams. He left the bridge at 9 o’clock 30 minutes and ran to Pekin, 8y- miles, in a fraction over 10 minutes. He failed to arrest the progress of the train in time, and the collision occurred before the up train could run upon the switch. He must have run east beyond the east end of the switch. But the liability of the defendant does not depend upon the negligence of Adams. The questions presented are, 1. Was Adams incompetent ? 2. If so, was there negligence in Upton in employing him and putting him in charge of that train, as engineer ? Waiving the question arising out of the time tables, both of the questions here presented must have been found in the affirmative before the plaintiff could recover. The defendant did not warrant that Adams was competent. If Upton, as the managing agent of the defendant, used proper care, in employing Adams and placing him in charge of the train, the defendant is not liable. As I understand the charge, it was in accordance with the views here presented. The learned judge [87]*87instructed the jury that it was the duty of the defendant to use reasonable care in order to employ an engineer of competent skill and experience; and if the jury found that Upton did not use ordinary care, in that respect, in providing the engineer on the occasion of the collision in question, and the injury was occasioned by such negligence, the defendant was liable for the consequences. It may be said that this proposition does not include the question of the competency of Adams ; or rather, perhaps, that it assumes that he was incompetent and makes the question turn upon the care and diligence of Upton in employing him. The duty of Upton is properly stated; and then follows the proposition that if such duty was not performed, and the injury was occasioned by such negligence, then the defendant was liable for the consequences. The duty was to use reasonable care in order to employ an engineer of competent skill and experience. If, in fact, Adams was competent, skillful and experienced, then there was no want of proper care on the part of Upton. The jury must have fonnd that Adams was incompetent, and that Upton did not use reasonable eare in employing him. If the charge failed to present, fully and clearly, the principles involved,' the defendant should have requested further instructions. In my opinion we cannot say that the charge, as it is, was erroneous.
The proposition that if the injury was occasioned by the negligence of the defendant, the plaintiff could recover, is sound. It has referenee, I suppose, to the question arising out of the time tables.
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By the Court, Marvin, J.
No error was committed in allowing the plaintiff to testify as a witness in his own behalf, though the defendant was a corporation. It is true that the code limits the right of examination to cases in which the adverse party or person in interest is living. It is said that the adverse party or person in interest is, in this case, a corporation, and that life, or living, cannot with propriety, be applied to corporate existence. It may well be that the present -case did not occur to the legislature, when the statute was enacted; but the design was to admit, as a witness, a party to an action whenever the adverse party or person in interest could also be a witness. A corporation could never be a witness, but a corporation is composed of a person or persons, who are natural persons and are interested in the corporation, and they can be witnesses. I'have no doubt the code (§ 399) should be so construed as' to admit a person who has an action with a corporation, to be a witness in his own behalf.
It was not error to admit evidence to show the state of the plaintiff's leg after the second breaking. Evidence of the second breaking had been given without objection, and it was important that the jury should know the condition of the leg before and after the second breaking, in order that they might be able to determine for what injury the defendant was liable. It was not claimed that the defendant was liable for any injury other than that which happened at the time of the collision.
Was any error committed in the charge to the jury ? It is settled law in this state, that a principal is not liable to a servant for injuries sustained by reason of the negligence of [85]*85another servant, when both are engaged in the same general business, in the service of the principal. (Coon v. The Syracuse and Utica Rail Road Co., 1 Selden, 492.) This principle was conceded in the present case, by the plaintiff, who claimed to recover on account of the negligence of Upton, its managing agent. If the servant is injured by reason of the negligence of the master, the latter is undoubtedly liable.
As the general business of managing a train of cars upon a rail road requires the co-operation of many persons, and as they are supposed to know the risks incident to the business, they voluntarily take those risks at the time they enter into the employment of the rail road company, and the compensation to be paid them may be affected by the character of the business. As one servant may be injured by the carelessness of a fellow servant, he takes this risk. The business requires all the servants, and some one or more of them, though possessed of sufficient skill and capacity, may, on some occasion, be careless and negligent, and a fellow servant may be injured in consequence. In such a case, the master or principal is not responsible. But it may be that one of the servants, employed by the master, to co-operate with the other servants, is incompetent, and lacks the requisite skill to perform his part of the work. He may be a careful, prudent servant, but from ignorance of his duties, or from the absence of the necessary skill, may be unable to perform them, and a fellow servant may sustain injury in consequence of his incompetency. Is the principal then liable ? It is, I have no doubt, the duty of the master, to all his servants, to use reasonable care in providing them with careful and competent fellow servants, and he is liable for injuries to any servant arising from his neglect to use such care, in the absence of proof that the injured servant was awai-e of the incompetency of his fellow servant. If the injured servant has knowledge of the incompetency and want of skill of his fellow servant, a presumption may arise that he consents to take upon himself the risk of any injury which may result from such incapacity. He may, if the mas[86]*86ter employs an incompetent co-laborer, quit his employment; unless the master will, upon notice, discharge the incompetent servant.
As the master or principal has the sole right to.employ all his servants, each servant has the right to rely upon the master’s using reasonable care and diligence in employing none but competent servants. The power to employ servants may be delegated by the principal, and this must generally be so, when the principal is a corporation. When the principal thus acts by an agent he will, upon general principles, be liable for the negligence of the agent. This agent will not be regarded simply as a fellow servant of those whom he employs in the general business. (See Pierce on Am. Rail Road Law, ch. 13, and the cases'there cited; Keegan v. The Western Rail Road Corporation, 4 Selden, 175.)
In the present case, Upton had authority to employ the engineers. He was the managing agent. He employed Adams. There can be no reasonable doubt that the injury to the plaintiff was caused by the carelessness and negligence of Adams. He left the bridge at 9 o’clock 30 minutes and ran to Pekin, 8y- miles, in a fraction over 10 minutes. He failed to arrest the progress of the train in time, and the collision occurred before the up train could run upon the switch. He must have run east beyond the east end of the switch. But the liability of the defendant does not depend upon the negligence of Adams. The questions presented are, 1. Was Adams incompetent ? 2. If so, was there negligence in Upton in employing him and putting him in charge of that train, as engineer ? Waiving the question arising out of the time tables, both of the questions here presented must have been found in the affirmative before the plaintiff could recover. The defendant did not warrant that Adams was competent. If Upton, as the managing agent of the defendant, used proper care, in employing Adams and placing him in charge of the train, the defendant is not liable. As I understand the charge, it was in accordance with the views here presented. The learned judge [87]*87instructed the jury that it was the duty of the defendant to use reasonable care in order to employ an engineer of competent skill and experience; and if the jury found that Upton did not use ordinary care, in that respect, in providing the engineer on the occasion of the collision in question, and the injury was occasioned by such negligence, the defendant was liable for the consequences. It may be said that this proposition does not include the question of the competency of Adams ; or rather, perhaps, that it assumes that he was incompetent and makes the question turn upon the care and diligence of Upton in employing him. The duty of Upton is properly stated; and then follows the proposition that if such duty was not performed, and the injury was occasioned by such negligence, then the defendant was liable for the consequences. The duty was to use reasonable care in order to employ an engineer of competent skill and experience. If, in fact, Adams was competent, skillful and experienced, then there was no want of proper care on the part of Upton. The jury must have fonnd that Adams was incompetent, and that Upton did not use reasonable eare in employing him. If the charge failed to present, fully and clearly, the principles involved,' the defendant should have requested further instructions. In my opinion we cannot say that the charge, as it is, was erroneous.
The proposition that if the injury was occasioned by the negligence of the defendant, the plaintiff could recover, is sound. It has referenee, I suppose, to the question arising out of the time tables.
In my opinion no error was committed by the court; unless it was error to refuse to nonsuit the plaintiff. And I shall consider this question briefly, in connection with the motion now made for a new trial upon the ground that the verdict is against evideüce. Aside from the question growing out of the time tables, I confess that I am not satisfied with the verdict. The question turns upon the competency of Adams, assuming that Upton was negligent. As to his competency, I certainly should have been better satisfied if the jury had found Adams [88]*88competent. He had served as an engineer some four years, and he had been in the employ of the defendant 19 months, but not on the road from the bridge to Eochester. He had, however, as engineer, run over the road a dozen times, in the 19 months, and had ridden on the cars at other times. He had run up to the bridge with a freight train, the night before. Several witnesses of the defendant, engineers, state facts tending strongly to show that such an acquaintance with a road was amply sufficient. Adams, upon whose evidence as to his competency the case of the plaintiff rests, puts his incompetency upon the sole ground of a want of sufficient acquaintance with the road to enable him to run the train safely in the night. He says that he should want three weeks’ knowledge of the road by running every day, to get acquainted with it. His remark to Upton, if he made it, that he did not feel competent to take the train over the road at night, is very slight evidence to prove the fact of incompetency. If he did so feel, it might be evidence of a want of confidence in himself. Upton denies that Adams made any such remark, and Jackson, who was present, does not in his evidence speak of any such remark. They both say that Adams said he thought it was laying it on some too thick, after coming with a freight train; thus complaining, &c.
Was Upton negligent, in employing Adams ? He was first employed 19 months before, upon the recommendation of three master mechanics and foremen for rail road companies. He had served the defendant for more than a year and a half as an engineer, and so far as we learn, with skill, giving abundant evidence of competency. Was Upton negligent, when he relied upon his knowledge of Adams as an engineer ? But here comes in, and undoubtedly with telling effect upon the jury, the remark of Adams to Upton that he did not feel competent to take the train over the road at night; thus, as it was probably argued, showing that Upton had notice of Adams’ incompetency, and that he therefore did not use reasonable care in employing him in that service.
[89]*89If the question raised hy the time tables was not in the case, I am inclined to think that the verdict ought to be set aside as being against the evidence. I think the decided weight of the evidence is adverse to the positions that Adams was incompetent ; or that Upton did not use proper care and diligence in entrusting ■ the train to him. But the case is embarrassed with the question growing out of the time tables. By them the approaching trains were to-arrive at Pekin at the same moment. It is true that the up train was to run on to the switch or side track, and Adams had instructions to stop, and if the up train had not arrived, to wait five minutes. If the trains should reach Pekin at the same time, and one of them should go on to the side track and the other remain on the main track, no collision could happen. But suppose the down train should arrive one or two seconds sooner than the up train, and should not be stopped precisely at the right spot, but should run past the east end of the switch, a collision would most likely occur. This was precisely what happened in the present case.
It appears from the testimony of Adams that there were two switches at Pekin; one at the east end of the station, and one at the west. I suppose there was but one side track. What the length of this side track was does not exactly appear. Carpenter says that when he stepped otit, they might have been over the switch a rod. This was perhaps 300 feet west of the stopping place. Adams had not, at that time, signalled to brake. I infer that the side track was between 600 and 700 feet in length, and Adams ran the whole length and some further. How so far as the defendant is concerned the question is presented, was it negligence to require or permit approaching trains to reach this station at the same moment P And this was a question of fact to be solved by experience in running trains. If there is no difficulty in stopping the train at the proper place, and no danger of running by at any time, including the night, then timing the trains in this manner would not be negligence; assuming, of course, that the up [90]*90train should run on to the side track. But if experience shows that there is danger, especially in a dark night, of the down train running by the east switch, then it would be gross negligence to provide for the arrival of the trains at the same moment, as there would be great danger of a collision. The case is quite meagre of evidence touching the question of the danger of running by. We have the evidence of what actually occurred in this case. Adams says: “The night was damp and foggy; on reaching Pekin I saw a train; it appeared tome to be on the switch, coming west. I mean the side track off the principal track. I thought it was stationary. I had got about half way opposite the station, which is about the middle of the side track, before I discovered that the other train was not on the side track. I had shut off steam, and down brake, and reversed my engine; but not within sufficient time to avoid collision.”
[Orleans General Term,
September 13, 1858.
Grover, Marvin and Davis, Justices.]
Upon the whole, I have come to the conclusion to let the verdict stand. I cannot say that it is so against the evidence upon all the controlling questions in the case as to require that it should be set aside.
Judgment affirmed.