
    The Texas M. R. Co. v. Edward B. Whitmore.
    (Case No. 1479.)
    1. Negligence — Railway company.—An engine used in operating a pile-driver for a railroad corporation was defective, and the engineer who managed it was negligent and reckless in controlling his engine. Both these facts were known to a superintending agent of the company, who in person supervised the work of the pile-driver, with full power from the company to employ and discharge all other employees. A laborer while employed by the company was directed by this superintendent to do a service connected with driving a pile, in performing which his foot was so crushed as to require amputation. The injury resulted not from the defective engine, but the negligence of the engineer; the maimed workman having no notice either that the engine was defective or that it was being operated by a careless man. In a suit for damages on account of the injury against the company, a verdict was rendered for the plaintiff for $7,646.11, compensatory damage. On appeal, held,
    
    (1) If the plaintiff had known, or by due care might have known, of the careless and reckless character of the engineer, and had continued the employment after knowing the risk, placing himself in a position to be injured by such carelessness of his fellow servant, he could not have recovered; but being ignorant of the carelessness of the engineer, whose character was known to the supervising agent of the company, his right to recover results from the following rules:
    (2) If an employer, either in person or through an agent having authority to employ and discharge workmen, retains in his service one whose duties are hazardous to the lives of others, when he knows such person to be careless and negligent, and the employer afterwards directs a laborer to perform an act which he could perform in safety, but in doing which he is injured by the reckless negligence of such careless employee, of whose character for negligence he has no notice, the employer is liable in damages for such injury.
    (3) When a superintending agent of a corporation is invested with power to select, employ a,nd discharge other employees, then the act, knowledge and negligence of such agent is deemed that of the corporation concerning all matters within the scope of his authority and discretion; and his negligence in failing to secure the protection of one employee against injury by another whom he knows to be negligent, will be deemed the negligence of the company.
    (4) The duty of the master to furnish suitable and safe machinery stands on no higher or other ground than does his duty to employ competent and careful servants.
    (5) While the master is not responsible for the management of Ms machinery and the conduct of his servants toward their fellow servants, as a general rule, yet he cannot shield himself from responsibility when his own negligence in not having suitable instruments, whether persons or things, to do his work, causes ity'uty to those in his employ.
    Appeal from Webb. Tried below before the Hon. John 0. Russell.
    This suit was brought by E. B. Whitmore to recover from appellant $10,000 compensatory damages, $400 special damages, and $10,000 punitory damages, for injuries to his person, alleged to have been caused on July 26, 1881, by the use of a defective engine operated by a careless engineer in the employ of appellant, and while plaintiff was also in its employ.
    The petitioner alleged that appellee (with various others) was in. the employ of and at work for appellant as a carpenter in the construction of a railroad bridge; that appellant was using in connection therewith a pile-driving apparatus, the hammer of which was raised by a steam engine; that appellee was instructed by the agent and superintendent of appellant to take a crow-bar and prize or push a pile timber into a proper position so that the hammer of the pile-driver could drive the pile into the ground; that while appellee was so engaged, and without any fault of his own, the hammer of the pile-driver fell and mashed his foot so that it had to be amputated; that the hammer weighed two thousand pounds, and a steam engine was used and required to raise it by means of a rope, one end of which was attached to a revolving dram of the engine and passed up over a pulley at the top of the pile-driver. The other end of the rope was usually fastened to a nipper-block made of iron, and so constructed that when let down upon the hammer, the nippers or clamps, of their own motion, fastened to the hammer, and then the hammer was by the engine raised to the top of the framework of the pile-driving apparatus, where the nippers came into contact with other parts of the machinery, and then opened and let the hammer fall upon the pile. That the nippers made a loud noise at the • top, which warned the workmen below that the hammer was falling, and enabled them to get out of the way of the hammer. That the day before appellee was injured the nippers had been broken and removed, and the rope was fastened to the hammer itself, which was thus raised to the proper height, when the engineer, by reversing the engine, would let the hammer fall.
    Appellee further alleged that the engine was not fit for the purpose for which it was used; that it was defective in its construction,' and was not in a good or safe condition; that often when the hammer had been hoisted part of the way, the engine, owing to some defect therein, would stop working and would not raise the hammer to the proper height, and that in such cases the engineer, who was a careless, reckless and incompetent man, would reverse the engine and let the hammer fall without warning any person of their danger; that at the time of the injury the engine was defective and out of order, and stopped revolving, which caused the hammer to stop before it was elevated to its full height, and that the engineer recklessly reversed the engine and let the hammer fall without any warning to appellee; but the nipper-block being removed, even if the hammer had been raised to the proper height, there would have been no warning to enable plaintiff to get out of the way; that when appellee commenced to prize the pile, hammer was raised part of the way and the engine was stopped by the engineer; but in attempting to raise the hammer to its full height, the engine, owing to its defective and unsafe condition, stopped working, and the engineer recklessly and carelessly reversed the engine and let the hammer fall on appellee’s foot. That appellee knew that the nipper-block had been removed, but did not know that it was more dangerous without it, nor could he have known it by reasonable care or diligence. That he knew nothing about the running of engines, nor that the engine was defective, out of repair and unsafe, nor that the engineer was careless, incompetent and reckless, nor could he have known these facts by reasonable care or diligence. That appellant knew, or might have known by due care and diligence, that the pile-driving machinery was unsafe and dangerous by reason of the absence of the nipper-block. That appellant well knew of its being broken and removed. That the engine had been defective, unsafe and out of repair fox a long time previous, which fact the appellant knew, ox might have known, as well as that the engineer was incompetent, careless and reckless, and unfit for the business.
    
      The defendant demurred generally, and excepted specially because the petition was vague, uncertain and indefinite;
    1st. Because it did not appear who the agent or superintendent was, or give his name.
    2d. Because it did not appear in what respect the pile-driving apparatus and machinery were defective and unsafe.
    3d. Because the petition does not show by whom the machinery was being worked.
    4th. Because it did not appear from the allegations that the compensatory damages claimed were based on any act or neglect on the part of the defendant.
    Judgment overruling demurrer, and exceptions taken.
    Defendant answered by a general denial, and specially denied that there was any defect in the engine or machinery, but that at the time of the injury the same was in good order and repair, and was being properly used. It also alleged that appellee was guilty of contributory negligence. That appellee so carelessly and negligently placed his foot against the side of and between the leads of the pile-driver, and under the hammer, that in the working of the hammer it fell on appellee’s foot. That it was by no command, act or requirement of appellant that appellee placed his foot under the hammer, and between the leads.
    Appellee testified; “ I am house and bridge carpenter by trade, and was working for defendant as such, building a bridge; had been working at pile-driver six or seven days; my business was to be at work at the leads; I was working there when I was hurt; the pile sprung out of line when it passed the lower yoke; the foreman told me to take a crow-bar and help straighten it; I placed the crowbar between the pile and the yoke, and placed my foot on the yoke and against the lead to get a purchase. As I was prizing pile back, I saw the hammer coining down. I could not have saved my foot and hands both; the hammer fell on my foot and mashed it so badly that it had to be amputated; the nipper-blocks had been broken and taken off the day before I was hurt. I knew they had been taken off; they did not serve to raise the hammer; the hammer was raised by the engine. I think if the nipper-blocks had been on, I could have got out of the way, because they make a loud noise when they get within about a foot of where they let the hammer go; the hammer was near the top of the leads when I went to straighten the pile; I don’t know anything about the engine in use; I had been working on railroad bridges about two and one-half years; never worked with pile-driver before; the foreman’s name was James McDonald. While I was prizing with iron bar, his order to me was to give another pull, and it was while I was absorbed in my work, making the pull, and just as I straightened back, that I saw the hammer coming. If I had- taken my foot down, that would have thrown my body forward in the way of the hammer. I could not have placed my foot on the outside of the leads and out of the way of the hammer, and done the work I was ordered to do; I was working in my regular place. There was only about two inches on the outside of the lead which the hammer did not cover when it came down, and had I placed my foot there, I could not have had sufficient surface for my foot, and then it was too far to one side to give me sufficient purchase. I did not hear any one give the word to the engineer to go ahead. The engineer’s name was Paddy Eyan; the hammer was of iron and weighed about two thousand pounds; the top of the leads are about thirty feet above where I was standing. I did not know whether Paddy Eyan was a good engineer or not. I had no warning that the hammer "was falling until I saw it just above my head. It was the custom to stop the engine and hold the hammer up near the top of the leads while we were "straightening the piles.”
    James McDonald testified that he “ was foreman and in charge of the pile-driver at the time plaintiff was hurt; he was working under my orders; he was supposed to work any place about the pile-driver; the pile got crooked; I told plaintiff to straighten it. It was necessary for him to use the crow-bar; the nipper-block bad been broken and taken off the day before; the hammer was worked with a friction line. The engineer in charge o£ the engine was a very good engineer, but wild and reckless. I had given him orders not to go ahead until I gave the word; to wait for my orders; he had to look to me for his orders to go ahead; I had not given him the order, but some one else did. I had often cursed him before that for not waiting for my orders. I went into the employ of the defendant company on the 4th day of May, 1881. This accident was in July. I was foreman on that bridge work. I had authority to employ and discharge men. He could have put his foot on the lead without the hammer touching it, but it was necessary for him to put his foot in the leads in order to prize the pile. It was not the custom to fasten the hammer to the leads when straightening a pile. The hammer fell because some one gave the order ‘ all right, go ahead,’ and the engineer turned her loose without waiting for my orders. His reputation was that of a good engineer, but was reckless, and was too negligent about the safety of the men working about the pile-driver. If the nipper-block had been on the driver, plaintiff would have had sufficient time after the warning, from the noise, to have enabled him to get out of the way. When the nipper-block is off, I fasten the rope directly to the hammer, and the engine would then hoist the hammer up to the top of the leads, and then he would reverse the engine and let the hammer fall, the rope being still fastened to it. The nipper-blocks create a loud noise just before they reach the top of the leads when they let go of the hammer.”
    Robert Brannot testified: “I knew the engineer; his name was Paddy Ryan. I knew his reputation. His reputation was that of a man who understood his business, but was reckless and careless about the men working about the pile-driver.”
    E. S. Mackin testified for defendant: “ McDonald had charge and control of the men.”
    Kilner, for defendant, testified: “ The sketch introduced is a sketch of a pile-driver. The two upright posts are called the leads; they are pieces of timber about thirty feet high, and about six inches wide on the inside, and about four inches on the outside or facing. The bands joining the leads are called yokes. The nippers are pieces of iron something like tongs; the lower prongs fasten to the hammer and hold it until it is raised to the top, when the handles of the nippers come in contact with the piece of iron inside the leads; this causes the nippers to open and let the hammer fall. Pile-drivers are often worked by a friction line without nipper-blocks. It is barely possible for a man to get a purchase with his foot without putting his foot inside the leads. It might be necessary to put his foot between the leads; .he could hardly have anything to put his foot on, on the outside of the leads, outside of where the flanges of the hammer goes. The hammer isgrooved, and the flange extends over the front of the leads about four inches. Taking the position of the pile as it was six inches below the yoke, I hardly think he could have had sufficient surface for his foot to rest upon to enable him to prize with much force, and I think to have put his foot outside so far to one side might have hindered him from doing what was required of him. The sketch exhibited shows the top of the pile above the collar, while in this case it had been driven below the collar.”
    The court, among other instructions, charged the jury: 5th. “You are further instructed that if, from the evidence, you believe that the engineer who was running the engine was careless in the discharge of his duties, and that the injuries complained of resulted from such careless discharge of the duties of such engineer, and that the defendant had not been notified of, and did not know that the said engineer was careless, then the defendant company could not be held liable for the injury occasioned solely by the careless acts of said engineer.”
    . Eighteen separate instructions were given by the court, but it is not deemed important to insert them. Verdict and judgment for 87,646.11, compensatory damages.
    
      
    
    
      
      McLane & Atlee, for appellant.
    I. The foreman was not the agent or superintendent of the defendant railroad company, and had no authority to furnish implements or machinery; and the fifth charge of the court thereon was erroneous, and calculated to mislead the jury into believing that it was the duty of the foreman to furnish a new nipper-block, and that his failure was negligence for which the company was liable. But the foreman and engineer were coservants with the appellee, and the appellant is not liable for injuries received by one through the neglect or carelessness of the other. 46 Tex., 550; 51 Tex., 274; Wood’s Master and Servant, sec. 437.
    II. Appellee was guilty of contributory negligence. The allegations in his petition and the evidence show that he had actual knowledge of the condition of the pile-driver, and that he knew, or should have known by the exercise of ordinary care, of the character and reputation of the engineer. Wood’s Master and Servant, secs. 365, 366, and note; id., secs. 368, 371-5, and notes, page 749.
    III. The burden of proof is on the appellee to show that he could not have avoided the injury by due care on his part, and the fourth charge of the court is erroneous. Wood’s Master and Servant, sec. 382.
    IV. The injury was caused by the negligence of a coservant, or by the intervention of a third person for whose act the appellant is not liable. 51 Tex., 121.
    
      T. J. Brown and J. O. Nicholson, for appellee.
    I. Appellee did not know of the dangerous character of the machinery, nor of the reckless character of the engineer, and it was not contributory negligence in him to work at the point that he did. L. S. & M. R. R. v. Lavely, 5 A. & E. R. R. Cases, 549.
    „ . . IV. James McDonald was the agent of appellant, in full charge of the work, with power to employ men and discharge, and his knowledge and acts bind it. 53 Tex., 206; 2 Am. & Eng. R. R. Cases, pp. 105-7; Pierce on Railroads, p. 368, and cases cited in note 4; 53 N. Y., 549, 553; 1 Am. & Eng. R. R. Cases, pp. 112-14; 2 Thompson on Neg., pp. 1054 (3), 994; Chapman v. E. R. R. Co., 55 N. Y., 579; Brabbits v. C. & N. W. R. R. Co., 38 Wis., 289.
    V. Appellee was injured by the defects in the pile-driver and the carelessness of appellant’s engineer, both of which were known to its agent, and it is liable for damages. Malone v. Hathaway, 64 N. Y., 5; 2 Thompson on Neg., 1030; Stoddard v. St. L. R. R., 65 Mo., 514.
    
      VI. James McDonald, appellant’s agent in charge of the work, knew the defects of the machinery and recklessness of the engineer, and ordered appellee to perform the work, and it is responsible for the injury resulting from the defects of the machinery and the carelessness of the engineer. 2 Thompson on Neg., 1010, 1011; Patterson v. Pittshurg & C. R. R., 76 Pa., 893; Conroy v. Vulcan Iron Works, 62 Mo., 35; L. S. & M. R. R. v. Lavely, 5 A. & E. R. R. Cases, 549; O. & M. R. R. v. Collarn, 5 A. & E. R. R. Cases, 554; Howard Oil Co. v. Farmer, 56 Tex., 301.
    VII. The verdict of the jury is warranted by the law and the evidence, and this court will not reverse for an error in the charge which did not mislead the jury. 14 Tex., 465; 17 Tex., 414; 40 Tex., 548; 2 Tex., 287; Green’s Pleadings, p. 386, sec. 1060.
   Stayton, Associate Justice.

An examination of the several matters assigned as error in detail, in this opinion, will not be attempted. The assignments are very general in their character, hut have all been considered, and we are of the opinion that there was no error in. overruling the general and special exceptions to the petition; and we are further of the opinion that the charge, taken as a whole, in view of the uncontroverted facts in proof, was as favorable to the appellant as could have been given, and we will only consider such matters in this opinion as are necessary to the further proper disposition of the case.

It appears that, on the day of the injury to the appellee, he was in the employment of the appellant as a carpenter, engaged in bridge building upon the appellant’s railway; that in the construction of a bridge, he and others were engaged under the direction ■and control of one McDonald, who was employed by the appellant, and by it given control over the work and men engaged upon it, with full power to employ and discharge hands. . •

It further appears that in the prosecution of the work a pile-driver was used, which, on the day before the injury occurred, became defective by reason of the breaking of what is known as the “ snapper-block,” which is so constructed that when the hammer of the pile-driver is drawn to such elevation as is desired, the pressure of the arms of the “ snapper-block ” upon the upright beams ■ upon and between which the hammer ascends and descends, the hold of the “snapper-block” upon the hammer is released and it descends without hindrance upon the pile, after which the “.snapper-block” is lowered and attaches to the hammer until it is elevated again to the highest point to which it is to be raised, when it releases its hold and the hammer may descend. It appears that there is such an adjustment to the “snapper-block,” that just before it reaches the point from which the hammer is to fall, it makes a noise to warn hands of the fall of the hammer, which may be heard for a considerable distance. When the injury occurred the “ snapper-block ” was not in use, but the rope by which the hammer was raised was attached to it, and ran over a pulley on the upper part of the pile-driver, and thence to and around a drum which was turned by a steam engine to elevate the hammer, which was permitted to fall by reversing the engine. On the day that the injury to appellee occurred, he with others was engaged in driving piles for a bridge, and after one had been partially driven, it lost its upright position, and it became necessary to restore it, when the appellee was directed by McDonald, the foreman, to take a crow-bar and assist in replacing the pile in proper position. To do this, it was necessary for him to go between the leads or upright beams, between which the hammer ascends and falls, and to place the foot which was crashed on one of the leads, in such position that the hammer would crush it in falling. Appellee obeyed the instructions, while the other hands were assisting with a rope to adjust the pile, and while in that position, without any notice to the appellee, the engineer reversed the engine and permitted the hammer to fall, which so crushed and injured his foot that amputation became necessary.

It appears that the engineer was under instructions from the foreman not to reverse the engine and permit the hammer to fall until he should direct him to do so; but that, upon the occasion when appellee was injured, the engineer did reverse the engine without, direction from the foreman so to do, some other person, mot identified by the evidence, having given such direction, which, was heard by the foreman, but not by the appellee.

There was evidence tending to show that the engine with which the pile-driver was operated was defective, and that the appellee knew nothing of such defects.

The evidence also shows that, while the engineer was a skillful man, yet that he was careless and reckless in managing his engine with reference to the safety of men engaged at work with the pile-driver; and McDonald, the foreman, testified that such was his character, and that more than once he had cursed him for reversing the engine without orders from him; but it does not. appear that the appellee had notice of the careless or reckless character of the engineer, nor that he had done any act while the appellee had been in the work which would indicate that such was his character.

The pleadings alleged the defects in the pile-driver and engine, and also the carelessness of the engineer1, and that the same was known to the railway company, or might have been by the use of ordinary care, and negatived such knowledge upon the part of the appellee except in reference to the defect in the pile-driver.

The immediate cause of the injury was not the defect in either the engine or pile-driver, but was the carelessness or recklessness of the engineer in reversing the engine before he was directed to do so by the foreman, McDonald, by whom he was instructed to look to him alone for orders to reverse the engine; hence -it -becomes unnecessary to consider what the rights of the parties would be if the injury had resulted from defective machinery, of which the appellee had notice, or might have had notice by the exercise of due care.

The position in ■which the appellee was working at the time of the injury was evidently one of danger; and in so far as he knew of any defects in the machinery, or by due care might have known of such defects, he took the risks incident to the work, although directed by the foreman to perforin the particular act which he was doing at the time he received the injury, it not appearing that he was a man unaccustomed to the business; and if he knew, or by due care might have known, of the careless and reckless character of the engineer, then he took the risk of injury from his carelessness or recklessness, as he continued in the business and placed himself in a position to be injured by the act of that person. The general rule, that the master is not liable for an injury inflicted upon a servant by the carelessness, recklessness or fault of a fellow-serv,ant engaged in the common service, is well recognized, and employees are presumed to take the natural risks incident to their employment, but are not presumed to take such risks as result from the master’s negligence.

The duty which a corporation owes to its servants is the same as every other master owes; the only difference between individuals and corporations in this respect being, that the individual can discharge the duty in person, while the corporation can only do so by its officers or agents.

The rule in reference to the duty and obligation of a corporation in the employment of servants is thus well stated in Pierce on Bail-roads, 3T4:' “The company, like any master, is under an obligation to its servants to use reasonable care to associate with them fellow-servants having the ordinary care and skill required in the service to be performed, and is liable to them for injuries resulting from the negligence and incompetency of fellow-servants, which it might have prevented by the exercise of such care. This duty and liability, like that which relates to the road and its appointments, is continuing, and governs the company both in the original choice of its servants and in their discharge when they subsequently become incompetent.”

If, in the case under consideration, the foreman, McDonald, had been the master instead of an agent, knowing, as he evidently did, the incompetency of the engineer, there could be but little, if any, doubt, that he would have been liable to the appellee, if, while in his employment, without knowledge or means of knowledge by the appellee of the character of the engineer, he had been injured under the circumstances evidenced by the record. He knew of the carelessness of the engineer in the very respect vrhich led to the injury of the appellee. He testified as follows: “ I had given him orders not to go ahead until I gave the word; to wait for mv orders; he had to look to me for his orders to go ahead. I had not given him the order, but some one else did. I had often cursed him before that for not waiting for my orders. I had to see that everything was clear and all right before giving the orders to go ahead.” With this knowledge the engineer was continued in an employment hazardous to the lives of all other employees, and, without notice to the appellee of such carelessness of the engineer, he was directed to perform an act made dangerous by the carelessness of the engineer, hut for which the act might have been performed with safety. Under the finding of the jury, the evidence and charge of the court being considered, it must be held that the appellee had no notice of the carelessness of the engineer, and that McDonald did have full notice.

It thus becomes necessary to consider the relation of the foreman, McDonald, to the railway company, to determine whether his acts, knowledge and negligence are to be considered the acts, knowledge and negligence of the company. In the nature of things, a corporation can only act through its officers and agents; and it would seem that when a superintending agency, carrying with it the power to select, employ and discharge employees, is intrusted to an agent, that his act, knowledge and negligence should be deemed that of the corporation in reference to all matters in regard to which the corporation has given to such agent the power to do those things which the corporation is bound to do for the protection of employees.

It may for the strongest reasons bo held, that when a corporation clothes an agent with power to select, employ and discharge employees, and to manage and control the business in which they are engaged, that the corporation should be held responsible for the want of care by such agent which leads to the employment of incompetent servants, by reason of whose negligence or incompetency injury results to other servants; for there is an implied duty, if not contract, upon the part of the master to employ careful and competent servants, with reference to which the engagement between the master and servant is made; and from this responsibility it seems reasonable that the master should not be permitted to discharge himself by delegating his power to some other person to do that which is incumbent upon himself.

The duty of the master to furnish suitable and safe machinery and material stands upon no higher or other ground than- does the duty of the master to employ competent and careful servants. In reference to the duty of a corporation to furnish suitable machinery, in the case of Hough v. Railway Co., 100 U. S., Justice Harlan delivering the opinion of the court, and adopting the language of the supreme court of Massachusetts in the case of Ford v. Fitchburg R. R. Co., 110 Mass., 241, said: “ The rule of law which exempted the master from responsibility to the servant for injuries received from the ordinary risks of his employment, including the negligence of his fellow-servants, does not excuse the exercise of ordinary care in supplying and maintaining proper instrumentalities for the performance of the work required. One who enters the employment of another has a right to count on this duty, and is not required to assume the risks of the master’s negligence in this respect. The fact that it is a duty which must always be discharged, when the employer is a corporation, by officers and agents, does not relieve the corporation from that obligation. The agents who are charged with the duty of supplying safe machinery are not, in the true sense of the rule relied on, to be regarded as fellow-servants of those who are engaged in operating it. , They are charged with the master’s duty to his servant. They are employed in distinct and independent departments of service, and there is no difficulty in distinguishing them, even when the same person renders service by turn in each. . . . The corporation is equally chargeable, whether the negligence was in originally failing to provide, or in afterwards failing to keep its machinery in safe condition.”

Speaking upon the same subject in the case of Gilman v. Eastern R. R. Co., 13 Allen, 440, Gray, Justice, says: “ The master is bound to use ordinary care in providing suitable structures and engines and proper servants to carry on his business, and is liable to any of their fellow-servants for his negligence in this respect. This care he can and must exercise, both in procuring and in keeping or maintaining such servants, structures and engines. If he knows, or in the exercise of due care might have known, that his servants are incompetent, or his structures or engines insufficient, either at the time of procuring them or at any subsequent time, he fails in his duty. For the management of his machinery and the conduct of his servants, he is not responsible to their fellow-servants; but he cannot avail himself of this exemption from responsibility when his own negligence in not having suitable instruments, whether persons or things, to do his work, causes injury to those in his employ. He cannot divest himself of his duty to have suitable instruments of any kind, by delegating to an agent their employment or selection, their superintendence or repair. A corporation must, and a master "who has an extensive business often does, perform this duty through officers or superintendents; but the duty is his, and not merely theirs, and for negligence of his duty in this respect he is responsible.”

[Opinion delivered January 16, 1883.]

The same principles are announced in the following cases: Tyson v. S. & N. Ala. R. R. Co., 61 Ala., 556; Booth v. B. & A. R. R. Co., 73 N. Y., 40; Frazier v. The Pa. R. R. Co., 38 Pa. St., 111; Brabbits v. The Chicago & N. W. R. R. Co., 38 Wis., 299; Kansas. Pacific R. R. Co. v. Little, 19 Kans., 267; Mobile & Montgomery R. R. Co. v. Smith, 59 Ala., 246; The Cumberland & P. R. R. Co.. v. Moran, 44 Md., 284. The same principles were recognized by this court in the case of Railway Co. v. Dunham, 49 Tex., 188.

An application of these principles to this case fixes upon the ap- • pellant a liability to the appellee for the injury "which he received. McDonald was its representative, to whom it had confided a duty which was its own. However careful he may have been in selecting the engineer in the first instance, he knew at the time the injury oc- ■ curred, and prior to that time, that the engineer was unfit for the employment, and yet he continued him in an employment by which. he imperiled the lives of other employees. It not appearing that the appellee had notice, or might have had notice, of the careless or reckless character of the engineer, by the exercise , of due care, the judgment must be and is affirmed. -

Aeeirmed.  