Walters v. Durham Lumber Co.
80 S.E. 49
N.C.
1913
Check Treatment
*541 Hoke, J.,

after stating the ease: It is the very generally accepted principle, unless otherwise provided by statute, as it is in this State in the case of railroads, that an employer of labor is not responsible for injuries to an employee attributable solely to the negligence of a fellow-servant. Hagins v. R. R., 106 N. C., 527. He is held, however, to the exercise.of reasonable care in selecting employees who are competent and fitted for the work in which they are engaged, and, if there has been negligence in this respect, and it is shown that such negligence is the proximate cause of injury to an employee, he may be held liable. Shearman and Redfield on Negligence (6 Ed.), sec. 189 ; Bailey on Master’s Liability, p. 46. The presumption is that the employer has properly performed his duty in the respect suggested, and before responsibility can be fixed on him it must be established by the greater weight of the testimony that the employee has been injured by reason of the carelessness or negligence due to the incompetency of a fellow-servant; that the master has been negligent in employing or retaining an incompetent employee after knowledge of the fact, either actual or constructive. Shearman and Redfield (6 Ed.), sec. 190; Bailey on Master’s Liability, pp. 48-55; Big Stone Iron Co. v. Ketnon, 102 Va., 23. In the citation from Shearman and Redfield, the authors say: “The burden of proving negligence in selecting or continuing an unfit servant is upon the plaintiff. He must prove (1) the specific negligent act on which the action is founded, .which may, in some cases, but not generally, be such as to prove ineompetency, but never can, of'itself, prove notice to the master; (2) incompetency, by inherent unfitness or previous specific acts of negligence, from which incompetency may be inferred; and (3) either actual notice to the master of such unfitness or bad habits, or constructive notice, by showing that the. master could have known the facts had he used ordinary care in 'oversight and supervision,’ or by proving general repu-„ tation of the servant for incompetency or negligence; and (4) that the injury complained of resulted from the incompetency •proved. For evidence of a defect or bad habit is of no effect if the injury eompláined of was in no way brought about by *542 that defect or habit. 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. But the evidence by which such incompetency 'is proved may be of such a nature as to raise a fair inference that the master either had notice of the fact or else omitted to make such inquiries as common prudence would have dictated.” And, in this connection, it may be well to note that- this term, incompetency, is not confined to a lack of physical capacity or natural mental gifts or of technical training when such training is required, but it extends to any kind of unfitness which “renders the employment or retention of the servant dangerous to his fellow-servant,” and would include habits of carelessness or inattention in a kind of work where such habits or methods ‘are not unlikely to result in injury. Thompson on Negligence, Vol. IV, sec. 4049.

In making out the proof required to fix the employer with liability on an issue of this-character, it is very generally held that testimony of the general reputation of the fellow-servant for incompetency is admissible, and also of habitual carelessness and inattention on his part tending to show that he was unfitted for the work in which he was engaged; and, by the great weight of authority, it is also held that specific acts of negligence or carelessness and inattention on the part of the offending fellow-servant should be received, not to show that there was negligence in the particular case being investigated, but in so far as they may tend to establish the character of incompetency and that the same was known to the master or should have been in the exercise of the duties incumbent upon him as an employer of labor. Allyv. Pipe Co., 159 N. C., pp. 327-330; Lamb v. Littman, 132 N. C., 978; Baulec, Admx., v. N. Y. and Harlem R. R., 59 N. Y., 356; Western Stone Co. v. Whalen, 157 Ill., 472; Grisbe v. Mo. Pac. Ry., 98 Mo., 330; Wesley Hilts v. Chicago and G. R. R. Co., 55 Mich., 437; Evansville and Terre Haute R. R. v. Guyton, 115 Ind., 450; B. and O. R. R. v. Camp, 65 Fed.; 962; 1 Wigmore on Evidence, secs. 199-208 and 250; Bailey on Master’s Liability, pp. 55, 56, and 57. In the refer *543 ence to Bailey, supra, it is said: “Tbe presumption is tbat tbe master bas exercised proper care in tbe selection of tbe servant. It is incumbent upon tbe party charging negligence in tbis respect to sbow it by proper evidence. Tbis may be done by showing specific acts of incompetency, and bringing them home to tbe knowledge of tbe master or company; or by showing them to be of such nature, character, and frequency tbat tbe master, in tbe exercise of due care, must have bad them brought to bis notice. But such specific acts of alleged incompetency cannot be shown to prove tbat tbe servant was negligent in doing or omitting to do tbe act complained of. So it'is proper, when repeated acts of incompetency of a certain character are shown on tbe part of tbe servant, to leave it to tbe jury to determine whether they did come to-the knowledge of .the master, or would have come to bis knowledge.if be bad exercised ordinary care.”

Tbe Courts of Pennsylvania and Massachusetts seem to have rejected tbe evidence of specific acts of negligence for any purpose, on tbe ground, chiefly, tbat such evidence tends to unduly multiply tbe issues; but, as heretofore stated, we think tbe weight of authority and tbe better reason sustain tbe admissibility of tbe evidence for tbe purpose and under tbe circumstances indicated.

Applying these principles, we are of opinion tbat tbe evidence offered by plaintiff tending to show tbe general reputation of Milton Carden, the fellow-servant, should have been received; tbat tbe question as propounded to tbe witness ~W. E. Young, as to tbe habits and character of Carden as a workman while under tbe witness as foreman of defendant’s work, was also relevant to tbe extent tbat it tended to fix the character of Carden as an incompetent employee and under circumstances from which knowledge on tbe part of tbe master might be reasonably inferred; and if it is established tbat knowledge of tbe kind indicated came to tbis witness in tbe course and scope of hjs duties as vice principal of defendant, it would fix tbe company with notice as a conclusion of law, and tbe fact tbat thes witness bad subsequently left tbe employment of tbe company would not affect tbe result (Fishblate v. Fidelity Co., 140 N. C., 589; Neal *544 v. Hardware Co., 122 N. C., 104; Tiffany on Agency, p. 257; 1 Clark and Skyle on Agency, sec. 474), and, on the evidence admitted, we think the judgment of nonsuit must be set aside.

As the case goes back for a further hearing, we do not consider it desirable to make detailed or specific reference to the inferences permissible on the testimony, but, applying the well established rule that, when there has been a judgment of non-suit, under the statute the evidence making for validity of plaintiff’s claim must be taken as true and interpreted in the light most favorable to him, we are clearly of opinion that the question of defendant’s liability should have been referred to the jury on the issues raised by the pleadings and under the principles as heretofore stated.

On the. question asked of the witness W. F. Stanley, and excluded, whether, in his opinion, Milton Carden was competent for the work in which he was then engaged, there are decided cases of authority in support of his Honor’s ruling. Troy Fertilizer Co. v. Logan, 90 Ala., 325; Moore v. Chicago and Qu. R. R., 65 Iowa, 505; Labatt on Master and Servant (2 Ed.), sec. 1597.

We are not .prepared to say that the principles sustained by these decisions should apply to all instances nor to any and every class of employees, but, having regard to the character of work and on the facts presented, we hold that the authorities referred to should be allowed as controlling, and that, in the present ease, the question was properly excluded.

For the errors indicated, the judgment of nonsuit will be set aside; that the case may be referred to the jury under proper instructions.

Eeversed.