8 Kan. 647 | Kan. | 1871
The opinion of the court was delivered by
But in another part of his charge to the jury the court below laid down the rule correctly, as follows:
“ If the evidence shows that Allison and the plaintiff were both in the service of the defendant, and both engaged in the common service of making up a train of cars for the company, although the particular duties of Allison pertained to the managing of the motive power of the train, and the plaintiff’s to the coupling the cars, the defendant is not liable for an injury resulting from the negligence of Allison, unless it appears that Allison was not reasonably careful or skillful as an engineer, and that the company was • aware of his unfitness or did not use reasonable diligence in employing him in that capacity.”
“ Q.-Did you know this Jack Allison? A.-Yes, sir. Q.-Do you know how he came there? A.-Mr. Boon, the master mechanic at Wyandotte, sent him there. Q.-IJpon what occasion? A-Alr. Walsh sent for a man, and Allison was sent up with a
Now so far as this testimony goes it points to care and diligence. True, it does not amount to very much, being mainly’ important as indicating the line of inquiry. But whatever of bearing it has is on the side of the plaintiff in error. It tends to show that the employment was made by one qualified, one of the chief officers of the road, and one especially charged with the supervision of that kind of service. What knowledge, what information this master-mechanic had, what inquiries he made as to Allison’s competency are undisclosed. We have no right to infer in the absence of testimony that he employed without knowledge or inquiry. We are never justified in imputing negligence or wrong-doing to one without proof. But it may be said the jury were under no obligation to accept the testimony of one of the company’s witnesses and employees — that they might have seen enough in the manner of his testifying to satisfy them of his untruthfulness. Suppose it was evident that he was falsifying, and the jury therefore rightfully rejected all his testimony, what is there then in the record to indicate when, how, or by whom Allison was employed? The defendant in error on his direct examination testified as follows:
“ Q.-How long had you known Jack Allison who was in charge of the engine? A.-I saw him about four days before the day I was injured. I never knew he was an engineer till that day. Q.-What had he been doing? A.-Loafing around the depot, and around there. Q.-Had he been doing anything for the company? A. — Nothing that I ever saw, except to go out one night to fire. Q.-Do you know how that man Allison came to be acting as engineer on that day? A.-I do not. Q.-Had you ever seen Jack Allison acting as engineer before
His cross-examination upon this, though a little longer, elicited no new fact. Now in this testimony the witness plainly denies any knowledge in regard to the point we are considering. He does not know how Allison came to be employed, by whom he was employed, what information such employer had, or what inquiries he made concerning Allison’s qualifications. It would seem from this testimony to have been the opinion of the witness that George Walsh, the master mechanic at the station, was the party chargeable with the employment of Allison; yet this is merely an inference as to his opinion, and not his testimony as to a fact. Now the testimony of these two witnesses is all that bears upon the circumstances of Allison’s employment. The one witness denies knowledge; the other’s testimony points to diligence. What then can support a finding of negligence? Nor does the case stand any better in reference to the allegation of a continuance of the employment after knowledge of Allison’s unfitness. The plaintiff testified that Allison had been at Ellsworth only three or four days before the injury — that he had run an engine only once or twice during that time. No one of the officers of the road is shown to have been present while he was so engaged. True, the witness Nelson, in answer to this question, “What officers of said defendant passed through and stopped at that yard at Ellsworth during the time said Jack Allison was in the employ of said railroad company, or while you were there,” testified— “The superintendent,road-master, and supervisor of said road. The superintendent was there very often, and road-master there very often also.” But as Allison was in the employ of the