78 Mo. 50 | Mo. | 1883
Action by Nancy A. Huffman to recover damages on account of the death of her husband. It was averred in the petition that Huffman, a brakeman on a freight train, received injuries causing his death, by reason of the negligence of one Isaac T. Smith, an engineer m the employ of the defendant, in the management of a locomotive. It was also averred among other things : That the defendant failed and neglected to exercise proper care and diligence in employing said Smith to run its engines on its said road, and negligently retained him in its em
This case hinges on the sufficiency of the evidence off the plaintiff, a brief recital of which has been given. We-regard that evidence insufficient for these reasons : There is nothing in it which shows, or which, as set forth in the-bill of excejitions, tends to show, that defendant was blameworthy in retaining Smith in its employment. That he-was originally competent; that he was highly commended as a careful, skillful and competent engineer, the evidence-for the defendant very satisfactorily establishes. This, shows that whatever may have been its subsequent derelictions of duty, the corporation, in the first instance, had. done all that the law enjoined.
And the only evidence as to Smith’s subsequent incompetency, is that already mentioned, that on the occasion in question he was careless and that several times prior thereto, he had been guilty of acts of negligence in running his engine too fast. It has frequently been ruled in this court, as well as elsewhere, that aside from some statutory provision, no rate of speed at which a train is run, is, as a matter of law, negligence per se. Wallace v. JR. JR. Co., 74 Mo. 594, and cases cited. And the circumstances and surroundings — the relative situation — are to be considered be
Cases. of this sort are obviously analogous to those where a municipal corporation is sued for an injury arising from a defeet in one of its streets, where one of two things must be shown to hold the city liable, either notice of the defect directly communicated to the city, or evidence that the defect had continued so long as to allow the inference
The rule on this point is well stated in Wood on Master and Servant, p. 800, § 419, as follows : “ Therefore, the mere fact that a follow-servant is incompetent, that materials have proved defective, or that the appliances or machinery used in the prosecution of the business have proved insufficient, does not tend even prima facie to establish negligence on his part, but the burden in all such cases is upon the servant seeking a recovery to establish the fact, that the injury resulted to him because the master did not exercise reasonable and proper care in these respects, or either of them, and this must be established as a fact in the case, and cannot result as an inference from the circumstances that the servant causing the injury was in fact incompetent, or that the materials or resources of the business were in fact defeotivé.” And it is elsewhere stated that: “ In actions brought by servants against their master, the burden of proof as to the master’s knowledge or culpability in lacking knowledge of the defect which led to the injury, whether in the character of a fellow-servant or in the quality of the materials used, rests upon the plaintiff'.”' Shearman & Redffeld on Neg., § 99. The authorities
For the reasons aforesaid, we reverse the judgment and also remand the cause, because on a re-trial thereof, the plaintiff may be able to show such circumstances as will supply the element now lacking in her evidence, and thus show the liability of the defendant.