
    Davis vs. Milwaukee R. R. Co.
    Where it is clear that there is no evidence of facts warranting a verdict, it is not error in the Circuit Judge to so instruct the jury.
    An employee cannot recover damages of his principal for injuries sustained in consequence of the negligence of a fellow servant, on the ground that such fellow servant was an incompetent and unfit man to be employed, it appearing that the plaintiff knew of the carelessness of his fellow servant, and made no complaint to his employer.
   Opinion by

Cooley J.

Action for damages for injuries sustained. by plaintiff while in-defendant’s employ, in consequence of the negligence of one Harris, one of their engineers.

It does not appear that the 'plaintiff contests the general principle laid down in Leahy v. Michigan Central R. R. Co., 10 Mich., 199, that the employer is not liable to those in his employment for injuries arising from the negligence, misconduct, or unskillfulness of fellow servants, where the employer himself is not in fault; but he seeks to bring this case within the exception to that rule by showing, either that Harris was incompetent and an unfit- man to be employed by the defendants in the capacity of engineer, and that they were guilty of negligence in employing him, or that he was untrustworthy, careless, imprudent, and reckless, previous to and at the time of the accident, and that the defendants with notice of that fact continued him in their employ.

The Court below charged the jury as follows:

1. That' there is no evidence in the case to show want of care or good faith on the part of the company in the selection of Harris for the position.

2. That if it is claimed that Harris fell into his habitual carelessness after he was employed, there is no evidence that knowledge of such fact was brought home to the officers of the company, or that the company continued him in their employment after such knowledge.

3. That as the plaintiff testifies that Harris was working with the plaintiff, and under his general direction, as head yardsman, from July 16th to November 22d, this gave the plaintiff full opportunity to know if Harris was habitually careless, and as plaintiff testified that he made no complaint to the officers of the company, the plaintiff cannot recover.

4. That there is no evidence in the case to show that the casual remarks made by unknown persons, testified to by Lewis and Sullivan, ever reached the knowledge of any officer of the company, and therefore this evidence is to be excluded from the case.

And the Court refused to charge the jury, that ’if they should find that the reputation of Harris was bad as an engineer, this was notice to the defendants.

These charges and the refusal to charge took the case away ' from the jury, and the verdict was for the defendants.

After a careful statement and consideration of the testimony in the case, and a full examination of authorities bearing upon the legal questions involved, the Court

Held, That there was no error in the charge of the Court be low, and the judgment was affirmed with costs.  