23 Wis. 668 | Wis. | 1869
Lead Opinion
It was no doubt negligence in the flagman to put up the flag west of the bridge, and so near to the place where the rails were taken up. If he had crossed the bridge, and gone to the first curve east of it, and put up the flag there, so that it could have been seen upon the straight line of road beyond, it seems morally certain that the fatal accident of which the plaintiff complains, and by which his intestate lost his life, would never have happened. It may also have been negligence in the section foreman, that he did not direct the flagman to go to the proper place beyond the bridge, or see that he did so; and, not having done that, he may have been still further negligent in permitting so many rails to he taken up at a time. Put all this is to no purpose, so long as it is not shown that the company, its officers or agents, were negligent in the employment of these persons, or in retaining them in its service. The negligence of the company, its officers or agents, in employing careless and unfit servants, is the gist of the action; and unless this be shown, there can be no recovery. To establish such negligence, either a want of proper care in the employment of suitable servants in the first instance must be shown, or else it must be shown that unfit persons were retained in the service of the company with the knowledge of its officers or agents, or under such circumstances that, in the exercise of reasonable care and prudence, the officers or agents ought to have known their unfitness, and to have dismissed them on that account. It was for want of such proof as this that the court below ordered the nonsuit; and, upon careful consideration of tlie evidence, we must say that we think the judgment ought not to be disturbed.' Aside from the proof of negligence in the servants on the occasion in question, which is clearly not enough to charge the company, there is not the slightest evidence showing, or tending to show, negligence on the part of the company in the employment of those servants. They had been in the service of the company for a long time,
Dissenting Opinion
dissenting. I concede that within the current of the authorities upon this subject, there was no proof to charge the company with negligence in employing or retaining the servants, through whose negligence the death in this case was occasioned. But, for the reasons given in Chamberlain v. The Mil. & Miss. R. R. Co., 11 Wis. 238, I do not assent to the rule of law established by those authorities. 'This case also comes within the exception sustained by several cases referred to in that opinion, which have held that a servant may recover for an injury occasioned by the negligence of another servant, if the latter was engaged in a different department of the service. The taking up and relaying the track is no part of the ordinary business of running the cars. It is not like the duty of a switchman in that respect. It is as though the company had found it necessary to take down and rebuild a bridge, and had, through their bridge builders, taken down the bridge, and neglected to give notice to approaching trains. There are a number of cases which decide, and others intimate, that in such cases the company would be responsible. As shown in the opinion referred to, I do not think the distinction which these cases establish is sound upon principle, but that the company ought to be liable in every case for an injury occasioned by the negligence of its servants, without any fault by the party injured. But at the same time I would avail myself of any class of cases which approach that position though not coming up to it. I do not desire here to go into any review of the authorities, or any elaborate discussion of the question, but only
By the Ooitrt. — Judgment affirmed.