Calumet Electric St. Ry. Co. v. Peters , 88 Ill. App. 112 ( 1900 )

Me. Justice Windes

delivered the opinion of the court.

It is contended by plaintiff in error that the court erred in not taking the case from the jury at the close of all the •evidence, and that the verdict is against the law and the evidence. Under these contentions it is argued that defendant in error, plaintiff below, failed to prove that O’Malley was habitually careless and incompetent, or that the company had knowledge thereof,- or by the exercise of reasonable diligence might have known it, and also that deceased was in a position to know whether O’Malley was a careless or careful man, and that he therefore assumed, all risk by reason of O’Malley’s carelessness or incompetence.

There was no evidence on behalf of plaintiff in error as to the general reputation of O’Malley for carefulness or competency by the foremen of ' transportation, the men of all others who should have known of it had it been good, because they had charge of the motormen and conductors and -were their immediate superiors. These two witnesses only testified that no report was ever made to them as to his incompetencv or drunkenness. They were not asked whether any report was made to them as to his carelessness.

On behalf of plaintiff two witnesses testified as to O’Malley’s reputation; one that he was reckless, careless and a drinking man; that O’Malley’s usual and customary way was to go over a railroad crossing at full speed; and another, that O’Malley’s reputation for competency and carefulness as a motorman was not very good, and that he had seen O’Malley on two occasions cross the railroad tracks with his car without stopping. These witnesses were in a position to know as to O’Malley’s reputation for competency and carefulness. One of them ran with him as a conductor, and the other was the gate tender at the crossing where the accident happened.

There were also two other witnesses who testified to careless and reckless acts on the part of O’Malley as a motorman, which are set out in the statement preceding this opinion.

Whether O’Malley was an incompetent or careless servant, and whether plaintiff in error knew of such incompetency or carelessness, and whether b\r the exercise of reasonable diligence it might have known of such incompetency or carelessness, were questions of fact for the determination of the jury, under proper instructions by the court. There is no such absence of evidence on either of these points as would have justified the court in taking the case from the jury. The conclusions which might naturally be reached upon these matters, under the evidence in this record, by reasonable and fair-minded persons, might well differ. Eo complaint is made as to the instructions given by the court, and after a full consideration of the evidence on these matters, we can not say that the verdict of the jury is manifestly against the evidence.

The proof of general reputation of O’Malley, together with the proof of the specific acts of carelessness, which latter proof is competent in connection with proof of his general reputation in that regard (Western Stone Co. v. Whalen, 151 Ill. 482), was entirely sufficient to justify the submission of the case to the jury, and sufficient, in our opinion, to sustain its verdict, when it is considered in connection with the evidence that the company was notified by its instructor of motormen that O’Malley was very careless in running over switches and curves, and that the foremen of transportation of the company were not asked as to his general reputation for carefulness, and were not asked whether they had any reports as to O’Malley in that regard.

In the Whalen case, supra, the Supreme Court, in speaking on this subject (p‘. 483), quote from Shearman & Bed-field on Negligence, as follows:

“It is clearly sufficient for a servant injured by the incompetency of a fellow-servant, to prove that such fellow-servant’s incompetency was actually known to the master, * * * or that the servant had a general reputation for incompetency to such an extent that, if the master had maintained a habit of vigilant supervision and inquiry, he would probably have learned the fact.”

The contention that deceased knew that O’Malley was incompetent and careless, and therefore assumed any risk in that regard, was also a question for the jury, and we think that the evidence justifies their verdict. The only evidence that deceased knew of the carelessness or incompetency of O’Malley, is that, between one and two hours before the accident which resulted in the death of deceased, O’Malley ran his car over the railroad crossing without stopping to allow the conductor (deceased) to flag it over, and it appears that then the deceased started toward the front of the car, and when O’Malley ran the car onto the crossing he started back again, thus plainly indicating by his actions that deceased expected that O’Malley would stop the car to give an opportunity to deceased to flag it over the crossing, if it was safe to cross. There is no evidence that deceased ever ran on a car with O’Malley before the day of his injury, or that he knew of any specific acts of carelessness on O’Malley’s part beyond this one, or that he knew of his reputation for carelessness. Neither does it appear that deceased had any opportunity of seeing any of the officials of the company to whom he could make report of this one instance before the time of the accident. It could not be reasonably expected or required that deceased should stop his car in the midst of a run and refuse on the instant to proceed further with his duties at the peril of assuming the risk of injury by reason of O’Malley’s carelessness. The judgment is affirmed.