71 Mo. 202 | Mo. | 1879
The plaintiff, who was engineer of a passenger train on the defendant’s road, was injured by reason of a collision wdth a freight train, of which one E. W. Evans was conductor. The petition alleged, among other causes of the injury, that said conductor was incompetent; that the collision resulted from his incompetency, and that the defendant was guilty of negligence in employing him. These allegations were denied by the answer. The testimony was conflicting. The jury were instructed that the burden of proof was on the plaintiff' to establish the unfitness and incompetency of the conductor, Evans, and that the injury complained of resulted from his unfitness and incompetency, but that the burden was on the defendant to establish that it used ordinary care and prudence in the selection and appointment of said Evans, as conductor. The court erred in thus instructing the jury. The mere fact of the incompetency of a servant for the work upon which he was employed is not enough to warrant a jury in finding the master guilty of negligence in employing him. Shearman & Redfield on Negligence, § 91; Moss v. P. R. R., 49 Mo. 169; Elliott v. St. L. & I. M. R. R., 67 Mo. 272.
We cannot say from the record before us that the jury has ever found that the defendant was guilty of negligence in employing Evans. It is true they were told in the first instruction given for the plaintiff that there could be no recovery unless the defendant was negligent in employing him, but they were also told that if the conductor was incompetent, that was sufficient evidence that the master was guilty of negligence in employing him.
It will not do for an appellate court to permit a judgment to stand when all the facts necessary to a recovery have not been found, simply for the reason that there was testimony from which they might have been found.
The judgment of the court of appeals and that of the circuit court will be reversed and the cause remanded for a new trial.
