Moering v. Falk Co.

141 Wis. 294 | Wis. | 1910

BaeNes, J.

It is urged that it was competent for the plaintiff to prove the general reputation of Lesch among his fellow-servants for recklessness, and likewise his general reputation as to being careless in the use of "gasoline, for the purpose of showing that if the defendant had exercised ordinary care it would have discovered such incompetency. The court admitted a portion of the evidence offered, excluded other portions, and finally held it all incompetent.

Sufficient evidence to warrant a jury in finding that the servant was incompetent should be offered before evidence of reputation for incompetency or recklessness should be received. The court held in directing the verdict in this case, and we think correctly, that there was sufficient evidence offered to warrant the jury in finding that Lesch was guilty of habitual carelessness in the use of gasoline so as to make him incompetent. This being so, his general reputation for incompetency, among those acquainted with his work, is admissible as tending to bring notice of the incompetency to the master. Reputation among a particular class, which included but a part of those who knew his character or work, is inadmissible for this purpose. Southern Pac. Co. v. Hetzer, 135 Fed. 272; Gulf, C. & S. F. R. Co. v. Hays, 40 Tex. Civ. App. 162, 89 S. W. 29; Green v. Western Am. Co. 30 Wash. 87, 114, 70 Pac. 310; Metropolitan W. S. E. R. Co. v. Fortin, 203 Ill. 454, 458, 459, 67 N. E. 977; Western S. Co. v. Whalen, 151 Ill. 472, 38 N. E. 241; Consolidated C. Co. v. Seniger, 179 Ill. 370, 53 N. E. 733; Giordano v. Brandywine G. Co. 3 Pennewill (Del.) 423, 52 Atl. 332; Park v. N. Y. C. & H. R. R. Co. 155 N. Y. 215, 49 N. E. 674. The case of Driscoll v. Fall River, 163 Mass. 105, 39 N. E. 1003, is notin conflict with the rule above stated, as will be observed from reading Carson v. Canning, 180 Mass. 461, 463, 62 N. E. 964. We think, under the facts established in this case, the court erred in refusing to receive evidence along the lines above indicated and in striking out a portion of the evidence admitted. What is here said does not run counter to the decisions of this court in Kamp v. Coxe Bros. & Co. 122 Wis. 206, 216, 99 N. W. 366, and Kliefoth v. Northwestern I. Co. 98 Wis. 495, 498, 499, 74 N. W. 356. The fact that employees of the defendant, including Lesch, avoided the careless use of gasoline while the defendant’s foremen were around, might be very significant on the question of actual notice, but could not render incompetent the evidence offered as to general repute.

It is further urged that there was sufficient evidence, aside from that offered to show general reputation, to warrant- the jury in finding that tbe defendant, in the exercise of ordinary care, should have known of the incompetency of the employee Lesch before the accident, and that the jury might likewise have found that the defendant was negligent in failing to discharge him.

Evidence was offered tending to show that, for the period of one year or more that Lesch was employed as a molder before the accident, he had frequently thrown gasoline on fires in the molds; that he had'been upbraided once and probably twice by one of the defendant’s foremen for so doing; that the foremen were very frequently in the portion of the shop, in which Lesch was employed, and many times every day passed by where he was working; and that one of the proprietors, during a very considerable portion of the time, occupied a position where he could observe generally what was going on in the factory; as well as some other facts that were calculated to give notice to the defendant of Lesch’s habitual carelessness in the use of so dangerous an element as gasoline. If, in addition to these facts, it be shown that Lesch had a general reputation among those with whom he worked for being habitually careless in using gasoline in the manner stated, we think it was for the jury to say whether, in the exercise of ordinary care, the defendant should not have discovered that Lesch was an incompetent servant and whether the defendant was negligent in failing to discharge him.

■By the Court. — The judgment of the circuit court is reversed, and the cause is remanded for a new trial.