The following opinion was filed April 19, 1904:
Appellant’s first and most urgent insistence is that there was no evidence upon which could stand the answers of the jury to the effect that Hartkopf was an incompetent or unfit person to be charged with the duty of warning coal trimmers when coal was to be drawn from hoppers, and that the defendant knew, or in the exercise of ordinary care ought to have known, of such incompetence or unfitness. We confess that the evidence upon these subjects was scanty and ambiguous, but that is not surprising, as most of it bad to be drawn from those who would be thereby convicted of partici
The same instruction is complained of because the court speaks of the incompetency of Hartkopf without express suggestion that it was still an unfound fact, whereby, counsel contends, the jury might have received an intimation that the court believed that incompetency to be established. As the judgment must be reversed on other grounds, we need do
The second assignment of error is predicated upon the admission of plaintiffs testimony that after the accident she had a conversation with defendant’s general sales agent in Wisconsin, Mr. Kuesel, in which he told her that the accident was due to Hartkopf’s negligence in failing to warn her deceased husband, and that he had been habitually negligent prior to that. This was received as evidence both of the fact of Hartlcopf’s habitual negligence and of defendant’s knowledge at a time prior to the making of the statement. Such ruling was erroneouson most elementary principles. Hardly any rule of law is better settled than that the declarations of an agent as to past events are not admissible to prove such events. Clancy v. Barker (Neb.) 98 N. W. 440; Randall v. N. W. Tel. Co. 54 Wis. 140, 144, 11 N. W. 419; Stone v. N. W. Sleigh Co. 70 Wis. 585, 36 N. W. 248; Heddles v. C. & N. W. R. Co. 74 Wis. 239, 252, 42 N. W. 237; Ramsey v. Holmes E. P. Co. 85 Wis. 174, 186, 55 N. W. 391; Small v. McGovern, 117 Wis. 608, 615, 94 N. W. 651; Hupfer v. Nat. D. Co. 119 Wis. 417, 96 N. W. 809; Chapman v. Erie R. Co. 55 N. Y. 579. The last two cases are much relied on by respondent’s counsel, and they serve excellently to indicate and illustrate the mental confusion which must have induced the offer and admission of this evidence. In the Hupfer Gase, plaintiff having applied for leave to enter defendant’s premises and examine hoops which had come from a broken, vat, the superintendent, having authority to exhibit them,, said, “Those are the hoops.” This was admitted as the verbal part of the act which he was then doing on behalf of his principal — part of the res gestee. It had in it nothing of narrative or declaration of any past event or pre-existing fact. Had the superintendent gone fuller, and said, “Those hoop3.
Two assignments of error, which naturally associate themselves, arise upon the withdrawal from the jury of the question of contributory negligence on the part of the decedent by the court’s assuming to answer the question on that subject, and upon the refusal of defendant’s request to submit by question assumption of the risk. In both of these respects we think error was committed. There was evidence to establish that mo trimmer had any occasion to enter one of these hoppers until it was so full as to at least approach the point when the coal was piled up in the middle nearly four feet' above the top of the hopper; that in the course of business there would be no reason to expect a trimmer to be in a hopper not in such condition; and that this one was, to Hart-kopf’s knowledge, only about half full. Hence it might legitimately have been found that there was no likelihood of any warning to one who might be there. Decedent had been a teamster for years, knowing the frequency with which wagons
Again, it seems clear that there was evidence from which the jury might have found knowledge on the part of the deceased of any general unfitness on the part of Hartkopf to perform the duty of warning.' Respondent is insistent that there was some proof of such general incapacity apparent from acquaintance with the man himself, but for some years the decedent had been under direction of Hartkopf, with full opportunity to observe his characteristics, manner of doing business, and the like. Of course, so far as he did have knowledge of Hartkopf’s unfitness, he assumed the risk thereof by remaining in an employment likely to be affected thereby, and the court should, either by a question with regard to contributory negligence accompanied with proper instructions, or by a direct question as to the assumption of this risk, have allowed the jury to pass upon it. Daily v. Sang, 91 Wis. 336, 64 N. W. 997; Hennesey v. C. & N. W. R. Co. 99 Wis, 109, 74 N. W. 554; Dugal v. Chippewa Falls, 101 Wis. 533, 77 N. W. 878.
Further assignment of error is based on the claim that the
A further assignment of error is predicated on the giving and refusal of instructions in rejection of appellant’s contention that, even if the fellow-servant be unfit and the master have, or be chargeable with, knowledge of such unfitness before the accident, nevertheless there remains a question of fact whether his retention was negligent; i. e., was other than would have been the conduct of the great mass of mankind under like circumstances. This contention presents a refinement of distinction which has not often been treated in decided cases. Philosophically, of course, the master is liable only for negligence; that is, for conduct which he, as an ordinarily prudent person, ought to have foreseen might probably cause injury, and which is not up to the standard of care exercised by ordinarily careful persons under like circumstances. The conditions of his liability to a servant for negligence of an incompetent fellow-servant have generally been stated as the negligent employment or retention of such servant. Cooper v. M. & P. du C. R. Co. 23 Wis. 668, 671; Hoth v. Peters, 55 Wis. 405, 413, 13 N. W. 219; Maitland v. Gilbert P. Co. 97 Wis. 476, 490, 72 N. W. 1124; 34 Am. Dig. (Century ed.) 863, § 343[a]; Bailey, Master’s Liab. 47; 1 Shearm. & R. Reg. § 191; 7 Am. & Eng. Ency. of Law (1st ed.) 844. Nevertheless multitudinous authorities might be cited sustaining liability solely upon the fact that the incompetent was known to be such prior to the injury, there being no discussion upon the necessity of a further finding of fact that the retention after the knowledge constituted negligence or was not such conduct as might have been expected from the ordinarily prudent man. Shearm. & R. Neg., supra; 2 Rorer, Railroads, 1179; Daily v. Sang, 91 Wis. 336,
In considering the doctrine of the Indiana cases above-cited, it must be observed that the field of reasonable diligence accorded the master is really two fields: first, that of investigation after receiving some information that an employee is incompetent, in order to ascertain the facts, see--ondly, that of dispensing with his services after being convinced of the incompetence. The right of investigation is recognized in Hughes v. B. & O. R. Co. 164 Pa. St. 178, 30 Atl. 383, and Cobb v. Simon, 119 Wis. 597, 97 N. W. 276. It is not in conflict with the rule imposing liability for knowingly retaining án incompetent. As stated in Cobb v. Simon, the information may be of any grade of definiteness or authenticity, mere idle rumor, or unfounded gossip which ought not to cause the discharge of a faithful and competent employee. Such information cannot be said, certainly as matter of law, to charge the master with knowledge of the fact rumored, even if it exists. That question, however, is not in this case, for the jury have found the fact of knowledge that ITartkopf was incompetent, thus eliminating the necessity of any further investigation by the master with reference thereto. The exact question raised here is whether the law does or should recognize a question of fact as to the reasonable diligence of an employer in failing to discharge an incompetent servant for some time after knowledge of the incompetency, in deference, for example, to the difficulty of obtaining a substitute or to the inconvenience to a going business which may result from dispensing with the service altogether. L. S. & M. S. R. Co. v. Slupak, 123 Ind. 210, 23 N. E. 246, presented the illustrative case of a railway engineer upon whose services might depend the unavoidable-running of a train to its destination; Curran v. A. H. Stange Co. 98 Wis. 598, 74 N. W. 377, that of a sawyer upon whose services depended the running of the whole sawmill. Ob
The reason of the law, not to mention considerations of humanity, would seem to point to an answer. He who knowingly exposes another to an imminent peril should respond for the result. The philosophy of the law suffers no breach if courts declare that such conduct is per se negligence, and close their ears to the plea that the great mass of mankind might do the same thing under the circumstances. True, the employer of men is not an insurer, but when courts excuse him from any duty more than due care in ascertaining the existence of the incompetency of one whose conduct will imperil others they have sufficiently recognized that rule. If he is not negligent in ascertaining the fitness of such an employee when selected for the employment, nor in discovering the unfitness afterward, he is excused; but when he has, or is chargeable with, knowledge of incompetency, he should be liable for injury proximately resulting therefrom to those whoh lie exposes to the perils thereof, unless they, having knowledge, actual or constructive, choose to assume the risk. We think any other view inconsistent with the rule that during a reasonable time after protesting to the master the unfitness of a fellow-servant an employee remaining in reliance on promise to remove the incompetent may nevertheless recover for in
We are persuaded that an accurate statement of the true rule on the subject is that stated in Baulec v. N. Y. & H. R. Co. 59 N. Y. 356, that the master who negligently or knowingly employs or retains an incompetent servant is liable for injuries thereby resulting to fellow-servants who are not themselves negligent and have not assumed the risk. lie is liable always and independently of any other question of negligence if be, knowing the incompetence, employs or retains him. He also may be liable, though in fact ignorant, if by exercise of ordinary care be ought to have ascertained the incompetency, eithér at the time of the employment or subsequently, though doubtless the master does not owe the same activity of investigation to discover the incompetence of a servant once properly and carefully selected and employed as be does at the original employment. Baulec v. N. Y. & H. R. Co., supra; Whittaker v. Delaware & H. C. Co. 126 N. Y. 544, 549, 27 N. E. 1042; Hilts v. C. & G. T. R’y, 55 Mich. 437, 21 N. W. 878; Maitland v. Gilbert P. Co., supra. We are confident tbat this measure of duty and liability is in accordance with the law as it has been administered in this state, and that the expressions “negligent retention” or “negligently retained,” used in some of our own cases, refer merely to negligence in failing to acquire knowledge of incompetency, never to conduct after that knowledge is in fact acquired. The case which perhaps has most appearance of approving the doctrine that the question of due care as a fact for the jury is always involved in a case of injury from incompetence of a fellow-servant is Maitland v. Gilbert P. Co.,
From what has been said, our conclusion is obvious that no error was committed in refusing to instruct as requested by appellant on this subject.
By the Court. — Judgment reversed, and cause remanded' for a new trial.
The appellant moved for a rehearing.
In support of the motion there was a brief by Spooner & Rosecrantz. They contended that the appellant is entitled to a mandate directing the trial court to enter judgment in its favor upon the uncontradicted evidence. (1) The evidence that the hopper was only about half full, and that as a result of that condition there was no reason for any person to be in the hopper, was entirely undisputed; and there was-an utter failure on plaintiff’s part to prove the essential fact that Ilartkopf, in the exercise of ordinary care, should have-anticipated the presence of the deceased in the hopper. (2) Conceding the correctness of the construction given to-Ilartkopf’s testimony, there was still nothing to support the-finding of his incompetency. Evidence of a criticism or rep-
For the respondent, in opposition to the motion there was a brief by J. C. Officer, attorney, and Hoyt, Doe, Umbreit & Olwell, of counsel.
The motion was denied Tune 10, 1904.