65 Tex. 369 | Tex. | 1886
There is no controversy as to the general principles of law applicable to this case, and they need not now be discussed. The appellee was an employe of the appellant at the time he was injured, and, to entitle him to recover, it was necessary for him to establish, by sufficient evidence, the facts:
1. That his injury resulted from the negligence of an incompetent co-employe.
2. That the appellant did not exercise due care in the selection and employment of the servants, through wjhose negligence, it is claimed, the injury resulted, or in retaining them in its service.
The burden of proof, upon these issues, rested upon the appellee, who asserts that his injury resulted from these facts. It is claimed that the brakemen, Eobinson and Bennett, were unsuitable persons for the positions in which they were placed, and that the injury resulted from their negligence. The evidence bearing on the question, whether the injury resulted from the negligence of either of these persons, is conflicting; but, if this was clearly shown to be true, the question still remains, whether there is evidence reasonably tending to show that the appellant did not exercise due care in selecting and employing them originally, or in retaining them in its service. It is shown that the brakeman, Eobinson, was twenty-five years of age at the time the accident occurred through which appellee was injured.
He had been acting as brakeman during the years 1882 and 1883, and had so served on another road, whose service he quit upon his own volition. He had been in the service of the appellant about five months, as brakeman, during which time but one accident happened, and no complaint seems to have been made against him for this, or for failure of duty. He states that, when employed, inquiries were made as to his antecedents and character, and that his credentials were taken. Ho single act, showing his unfitness for the place, is shown, unless he be held in fault at the time the accident occurred, through which the appellee was injured. His testimony bears evidence of ordinary intelligence ; and, in the light of that of the appellee, himself, of a fair knowledge of the duties of his position.
When he was employed, inquiry was made as to his former occupation and former employers. A conductor, under whom he had served as a brakeman during the years 1881 and 1882, stated that he considered him a good and careful negro brakeman. This person had known him for about four years. The testimony of the brakeman indicates fair intelligence and knowledge of his duties as a brakeman.
The evidence of the appellee, during the short time the two brakemen were with him, points to no fact which would induce the belief that they were unsuitable persons to be employed as brakemen, save the single act of negligence, which, he claims, caused his injury. We are unable to discover any fact tending to show that the brakemen were not reasonably well qualified for the places held by them, save that they may have been negligent at the time the accident occurred, through which the appellee was injured. Nor does the record contain facts tending to show that appellant failed to exercise due care in retaining the brakemen in its employment. If no inquiry whatever had been made at the time the brakemen were originally employed, it would seem that their period of service, without some evidence of their unfitness, would justify the appellant in retaining them in its service. The evidence, standing as we have stated, the court instructed the jury as follows :
“ One single act of carelessness or negligence was not sufficient, of itself, to show want of care on the part of the defendant in the employment of brakemen upon its train at the time of the accident complained of, nor is that, of itself, sufficient to show general incompetency of the brakemen; but the evidence of incompetency may show circumstances, which, taken in connection with other circumstances, may be sufficient to raise a fair inference that defendant was negligent, or did not use ordinary care, or make ordinary inquiry, as to the qualifications and fitness of such servants for the duties assigned them, and thus, by a preponderance of evidence, the presumption of their competency for the duties assigned them may be rebutted.”
Among other objections to this charge, it is urged that it violates the rule which forbids a judge to charge upon the weight of evidence. This charge assumed that there was evidence of incompetency, and that there were circumstances, which, taken in connection with such evidence, might rebut the presumption of competency. Whether there
Prom the evidence in the case, and from the brief of the appellee, the inference is very strong that it was insisted in the court below that the mere fact that the brakemen were negroes was a fact to which the jury might look to determine their compétency or incompetency.
We know no rule of law which sanctions such a holding. The competency or incompetency of no one, to perform a given duty, in the absence of some law so declaring, can be made to. depend on color or race'; but, in each case, this must depend upon intelligence to know, and ability and disposition to perform, the duties pertaining to any given position.
■ Proof of facte which show the non-existence of such intelligence, ability or disposition must be made by the party who asserts its nonexistence.
The law does not presume it because the person whose qualities may be the subject of investigation may be of one or another race or color; nor is a jury at liberty to infer it from such fact. If, however, this were not true, and the rule were, that a jury might infer that a person was an unsuitable person for brakeman from the fact that he was a negro, then such inference would have to be based on the fact that all negroes are wanting in intelligence, ability or disposition to perform, faithfully and safely, the duties of brakemen.
If this were true, the appellee would stand charged with knowledge of their unfitness, and, knowing that the brakemen on his train were negroes, would be held to have voluntarily assumed such risks as resulted from such incompetency. The invocation of such a rule would be suicidal to the appellee’s case.
A new trial was asked upon the ground that the evidence was not sufficient to show that the appellant had not used due care in employing and retaining the brakemen in its service, and we are of the opinion that the court erred in refusing to grant it.
Revebsed and Remanded.
[Opinion delivered January 29, 1886.]
