Cooper v. Milwaukee & Prairie du Chien Railway Co. , 23 Wis. 668 ( 1869 )

DixoN, 0. J.

It was no doubt negligence in the flagman to put up the flag west of the bridge, and so near to the place where the rails were taken up. If he had crossed the bridge, and gone to the first curve east of it, and put up the flag there, so that it could have been seen upon the straight line of road beyond, it seems morally certain that the fatal accident of which the plaintiff complains, and by which his intestate lost his life, would never have happened. It may also have been negligence in the section foreman, that he did not direct the flagman to go to the proper place beyond the bridge, or see that he did so; and, not having done that, he may have been still further negligent in permitting so many rails to he taken up at a time. Put all this is to no purpose, so long as it is not shown that the company, its officers or agents, were negligent in the employment of these persons, or in retaining them in its service. The negligence of the company, its officers or agents, in employing careless and unfit servants, is the gist of the action; and unless this be shown, there can be no recovery. To establish such negligence, either a want of proper care in the employment of suitable servants in the first instance must be shown, or else it must be shown that unfit persons were retained in the service of the company with the knowledge of its officers or agents, or under such circumstances that, in the exercise of reasonable care and prudence, the officers or agents ought to have known their unfitness, and to have dismissed them on that account. It was for want of such proof as this that the court below ordered the nonsuit; and, upon careful consideration of tlie evidence, we must say that we think the judgment ought not to be disturbed.' Aside from the proof of negligence in the servants on the occasion in question, which is clearly not enough to charge the company, there is not the slightest evidence showing, or tending to show, negligence on the part of the company in the employment of those servants. They had been in the service of the company for a long time, and, for all that appears, had always before been faithful and diligent iu the discharge of their duties, and fully competent, so that there was no reason to discharge them,, or upon which to base the charge of negligence against the officers or agents of the company.