
    Thomas E. Park, Resp’t, v. New York Central and Hudson River Railroad Company, App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed February, 1895.)
    
    Evidence—Mastei and servant.
    Evidenceof the general reputation of a servant as to his prudence and care is admissible to charge the master with notice of his incompetency.
    A.ppeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes.
    
      Hiscock, Doheny & Hiscock, for app’lt; Louis Marshall, for resp’t.
   Merwin, J.

The recovery in this case is for damages sustained by the plaintiff by reason, as he claims, of the negligence of the defendant. On the 21st November, 1891, the plaintiff was, and. had been for a number of years, in the employ of the defendant as a locomotive engineer. On the evening of that day he was the engineer upon a mail express train that left Syracuse at eight-twenty-five, eastward bound on track'No. one. The train passed Oanastota about nine o’clock, and when about a mile east of that place it ran into a freight train of the defendant,going eastward on the same track, but which was then stalled in going up a grade. The injuries to the plaintiff which are here complained of were one of the results of the collision. The night was dark and rainy, and there was a strong southerly wind. At Oanastota the plaintiff was informed by the indicator there that there was a train on the same track forty-three minutes ahead of him. His train was going at the rate of about forty miles an hour. Between Oanastota and the place of the accident there is a curve to the north, being to the left as you go east, and the stalled train was a short distance (about eight hundred feet) beyond this curve. The plaintiff claims that he did not see the stalled train or get any notice of the obstruction in time to stop. Whether he did so, or whether, in the exercise of reasonable care, he might have done so, were questions for the jury. When the freight train stopped, it became the duty of one Brownr a brakeman on that train, to go back, at least half a mile, according to the rule of the defendant, and give the proper signal to any approaching train. There was evidence tending to show that he did not do this, although he had plenty of time for that purpose; that his failure to do it was the cause of the accident ; and that such failure was due to his incompetency to perform the duties of his position. There is abundant evidence to sustain the finding that Brown was incompetent, within the rule laid down in Coppins v. N. Y. C. & H. R. Railroad Co., 122 N. Y. 557, 564; 34 St. Rep. 214. The conclusion that the accident was due tq such incompetency is not against the weight of the evidence. It is claimed by the plaintiff that the defendant was negligent in employing and keeping in their employment such a man, when0 it knew, or in the exercise of reasonable care might have known, of his unfitness for the position. The conclusion of the jury in this respect should not, we think, be disturbed.

It is claimed by the defendant that the plaintiff was himself negligent in that he did not, as the defendant claims, comply with rule No. 131 of the company. That provides on this subject as follows:

“It is required of both engineman and fireman to keep a careful lookout from the engine. When rounding curves, take position-on the inside of the curve, and keep sharp lookout until a straight line is reached.”

The curve here was to the left. The position of the plaintiff on the engine was on the right, while the position of the fireman was on the left. The plaintiff did not, on approaching the curve, take position on the left. Whether his failure to do so, under the circumstances of this case, was negligence which contributed to the acccident, was a matter for the jury to decide.

In the course of the trial, evidence on the part of plaintiff was-received of the general reputation of the brakeman Brown prior to-the accident, as to his prudence and care. The objection taken was that it was incompetent and immaterial. Evidence was also received, under like objection, that his general reputation was that-he was “a little off,” and that among railroad men he was usually called “Crazy Brown.” The defendant claims that in admitting-this evidence there was prejudicial error. It has been held in several cases that evidence of this kind was competent on the subject of notice. Gilman v. Railroad Co., 13 Allen, 433 ; Monahan v. City af Worcester, 150 Mass. 439 ; Railway Co. v. Stupak, 123 Ind. 210, 225; Davis v. Railroad Co., 20 Mich. 124; Railroad Co. v. Hoover, 29 Atl. 994; Wood, Mast. & Serv. § 421. In the Monahan case it is said:

“The master is bound to use reasonable care in selecting his servants, and, if a person is incompetent for the work he is employed to do, the fact that he is generally reputed in the community to want those qualities which are necessary for the proper performance of the' work certainly has some tendency to show that the master would have found out that the servant was incompetent, if proper means had been taken to ascertain the qualifications of the servant.”

On the part of the defendant, we are referred to Hasken v. N. Y. C. & H. R. Railroad Co., 65 Barb. 135, and Young v. N. Y., O. & W. Railroad Co., 77 Hun, 612; 59 St. Rep. 888. The Young case was decided by this court, but the question here involved was not passed upon. In the Hasken case, which was decided in January, 1873, evidence as to the reputation of one Wood as an engineer had been excluded, and in sustaining the ruling it was said:

“Reputation is not competent evidence to charge a master with negligence in the employment of a servant, because—First, it may be false; and, second, he may never have heard it.”

It was also said that no question was made that' the defendant was chargeable with negligence in the employment of Wood. What bearing reputation might have on the question of notice was not considered. It may be here observed that in Baulec v. N. Y. & H. Railroad Co., 59 N. Y. 356, decided in December ber, 1874, it is said by Judge Allen, at page 361:

“A principal would be without excuse should he employ, for a responsible position, on the proper performance of the duties of which the lives of others might depend, one known to him as having the reputation of being an intemperate, imprudent, indolent, or careless man. He would be held liable to the fellow servants-of the employe for any injury resulting from the deficiencies and defects imputed to the individual by public opinion and general report.”

We are of the opinion that the evidence of general reputation was competent on the subject of notice, and therefore the general objection to it was properly overruled. Hersey v. Benedict, 15 Hun, 285. The defendant did not ask to have its effect limited to the • question of notice. It would seem, from the course of the trial, that the main, if not sole, object of the evidence was to show notice. It was referred to by the court in its charge, and no exception taken to the remarks of the court on the subject. We have examined the other exceptions to which our attention has been called, and find no sufficient ground for reversal.

Martin, J., concurs.

Hardin, P. J.

In yielding my assent to the views expressed .in the opinion of Merwin, J., besides the authorities cited therein, I am influenced somewhat by the decision made by this court in Van Dusen v. L. S. & M. S. Railway Co., 12 St. Rep. 353. It was "there said, viz.:

“ It may be said that the defendant should have known his reputation as a railroad man. The answer to that suggestion is that there was no evidence that he had other than a good reputation at the time of his employment, or at any other time, excepting ■during the two days in which he was engaged in making a single trip over the defendant’s road.”

The language seems to indicate that such evidence might have been proper to show the defendant guilty of negligence in selecting or keeping an employe in the service of the road. I think due regard to the authorities require I should concur, as I do, in the opinion of Merwin, J. Bossout v. R., W. & O. Railroad Co., 32 St. Rep. 884; affirmed in court of appeals, 126 N. Y. 646. Judgment and order affirmed, with costs.  