
    Eliza B. Chapman, Administratrix, etc., Respondent, v. The Erie Railway Company, Appellant.
    (Argued January 21, 1874;
    decided February 3, 1874.)
    While the duty of a master to his servant requires the exercise of great care in the employment of fellow-servants and the institution of affirmative inquiries to ascertain their characters and qualifications, when suitable and. competent persons have been employed, the same degree of diligence is not thereafter required. Good character and proper qualifications once possessed may be presumed to continue, and the master may rely upon that presumption until notice of a change or knowledge of such facts as would be deemed equivalent to notice, or such at least as would put a reasonable man upon his guard.'
    Without such knowledge or notice, therefore, the master is not liable to a servant for injuries sustained through the negligent acts of a fellow-servant, competent and of good habits when employed, but who becomes thereafter incompetent or unfit, from bad habits, to discharge his duties.
    
      Wright v. N. T. O. It. It. (25 IT. Y., 562) distinguished.
    In an action against a railroad company to recover damages for the death ‘ of an employe caused by the negligence of A., a coemploye, competent at the time of his employment, but who subsequently became unfitted to discharge his duties in consequence of habits of intoxication, evidence was received, under objection, that the division superintendent of the road, at one time speaking of A., said that he must quit drinking; also the said superintendent was permitted to testify that he at one time told A., he had heard that he had been off on a spree drinking, which A., did not deny, and that the witness reprimanded him for it. Held, no error: that the former evidence was proper as showing notice or knowledge, and the latter as the declarations of an agent within the scope of his agency.
    To obviate an erroneous instruction to the jury upon a material point, it must be withdrawn in such explicit terms as to preclude the inference that the jury might have been influenced by it.
    It is not error for the court to refuse to charge that if the jury believe certain specified witnesses, they must find for the party in whose favor they testified. The facts, upon which the instruction is asked, should be hypothetically stated, leaving the jury to decide as to whether they were proved.
    Appeal from judgment of the General Term of the Supreme Court in the fourth judicial department, in favor of plaintiff, entered upon an order reversing an order granting a new trial, and directing judgment upon a verdict.
    This action was brought to recover damages of plaintiff’s intestate, alleged to have been occasioned by defendant’s negligence.
    The deceased was an employe of the defendant, as engineer, and, at the time of his death, was engaged in the business of his employment. He was killed by a collision which occurred through the negligence of a Mr. Allison, a telegraph operator and train dispatcher in the employ of defendant. It was conceded that Allison, when employed by defendant, was competent, and in every way a fit and proper person to discharge the duties of his position. But plaintiff gave evidence tending to prove that about a year prior to the accident he drank ardent spirits to excess, so as to unfit him to faithfully perform his duties, which was known to Mr. Fisk, defendant’s division superintendent, and to Mr. Caligan, his assistant. A witness, called by defendant, was permitted to testify, under objection, that prior to the accident he had a conversation with Fisk, in reference to Allison’s drinking, and that Fisk said “ Allison will have to quit this,” meaning his drinking. This was objected to and received under objection. Mr. Fisk was called, as a witness for plaintiff, and testified under objection to having spoken to Allison about his drinking before the accident; that he told Allison he had to stop drinking; had been out of town on a spree, and reproved him for so doing.
    The court, among things, after stating in substance that it appeared that Allison was a proper and competent person when employed, charged as follows: “ But if, after a competent and proper person is employed for such a duty, his habits become such that it is unsafe to trust him any longer in that capacity, the company are bound to use, through their proper officers, such reasonable care and diligence in ascertaining what the man is, after he is employed, as they would be in his original employment,” to which defendant excepted.
    Further facts appear in the opinion.
    
      
      John Ganson for the appellant.
    To make defendant liable plaintiff must show that the injury arose from negligence by defendant, or some agent representing it in the character of master in the performance of a duty owed to its employe. ( Warner v. Erie R. Co., 39 N. Y., 468; Coon v. U. & Syr. R. R. Co., 5 id., 492; Wright v. N. Y. C. R. R. Co., 25 id., 564.) This rule applies although the injured employe is of an inferior grade of employment to that of him who caused the injury, if they are both employed in the accomplishment of the same general end. ( Warner v. Erie R. Co., 39 N. Y., 468, 470, 478; Wright v. N. Y. C. R. R. Co., 25 id., 565; Hurd v. Vt. C. R. R. Co., 32 Vt., 473; Hayes v. West. R. R. Co., 3 Cush., 270; Albro v. Agawan C. Co., 6 id., 75.) The master only guarantees to his servants that the co-servants he appoints shall be competent when appointed, knowledge or notice to him of their subsequent incapacity is necessary to make out negligence on his part. (Wilson v. Meny, 1 L. R. Scotch Div. Apps., 326 ; Kenyon v. West. R. R. Co., 4 Seld., 175; Price on Am. R. R. Law., 294; King v. B. & W. R. R. Co., 9 Cush., 112; Priestly v. Fowler, 3 Mees & Wels., 1; McMillan v. Sar. W. R. R. Co., 20 Bar., 349 ; Langlois v. Buff., &c., R. R. Co., 19 id., 264 ; Warner v. Erie R. Co., 39 N. Y., 468; Turrant v. Webb., 89 Eng. [C. L.], 795.) The motion for a nonsuit should have been granted. (Warner v. Erie R. Co., 39 N. Y., 468; Wilson v. Meny, 1 L. R. Scotch Div. Apps., 326; Wigmore v. Jay, 3 Exch., 354; Gallagher v. Piper, 16 C. B. [N. S.], 669; Fellthen v. England, 2 L. R. [Q. B.], 33; Morgan, v. Vale of N. R. R. Co., 1 id., 148.) Notice to defendant that Allison had become incompetent was necessary, and the complaint should have alleged it. Warner v. Erie R. Co., 39 N. Y., 468, 475.) The declarations of Fisk to third parties were not admissible as evidence against defendant. (Luby v. H. R. R. R. Co., 17 N. Y., 131; Bap. Church v. Brooklyn F. Ins. Co., 28 id., 153 ; Green v. H. R. R. Co., 32 Bar., 25.) It was error to instruct the jury that they could add interest to the sum they concluded to give plaintiff. (S. L., 1870, chap. 78.)
    
      
      Benj. B. Austin, Jr., for the respondent.
    Fisk stood in the place of defendant and was the master of the deceased. (Brickner v. N. Y. C. R. R. Co., 2 Lans., 10, 17; Patterson v. Wallace, 28 E. L. & Eq., 48, 50, 55 ; Perkins v. N. Y. C. R. R. Co., 24 N. Y., 196, 213, 214; Warner v. Erie R. Co., 39 N. Y., 468; Gallagher v. Piper, 11 E. C. L., 668, 696; Farwell v. B. & W. B. B. Co., 4 Metc., 49, 62; Walker v. Bolling, 22 Ala., 294.) The declarations of the superintendent while employed as defendant’s agent, were part of the res gestee, and as obligatory on defendant, if it had made them. (Laning v. N. Y. C. R. R. Co., 49 N. Y., 538 ; Story on Agency, § 451.) It was proper for the court to charge that defendant was bound to exercise ordinary care in respect to the competency of the men it employed. (Wright v. N. Y. C. R. R. Co., 25 N. Y., 562, 566 ; Warner v. Erie R. Co., 52 id., 437; Nicholson v. Erie R. Co., 43 id., 54.) Plaintiff is entitled to hold the verdict because of defendant’s negligence and because the deceased was free from contributory negligence. (Gra. on N. T., 301-310; Horton v. Hendershot, 1, Hill, 118-120; Day v. Roth, 18 N. Y., 448, 457.)
   Church, Ch. J.

It was admitted on the trial that the plaintiff’s intestate came to his death by the negligence of Allison, a telegrapher and train dispatcher in the employ of the defendant; and the question litigated was, whether the. defendant was in any way responsible for his conduct. The deceased was also in the employ of the defendant as engineer upon a train which was brought in collision by such negligence. The responsibility of the defendant was sought to be established by proof that Allison, although of good habits and competent for his position when employed, had become addicted to the use of intoxicating drinks to such an extent as to render him unfit for the position which he occupied, and of which Fisk, the defendant’s superintendent, aud Caligan his assistant, one or both of them had notice, and that the mistake which caused the accident, was committed while Allison was in a state of intoxication. The general principle applicable to this class of actions, and the rule of liability of the principal for injuries to employes by the negligence of co-employes, have been so fully considered by this court in the recent cases of Laning v. N. Y. Central Railroad Co., and Flike v. Boston & Albany Railroad Co. (this case was not decided until after the present one), that it is unnecessary to advert to them in this case. There is no doubt that Fisk, as superintendent, with power to employ and discharge subordinates, including Allison, and Caligan as his assistant, occupied the position of principal in respect to the duty of employing and retaining such only as had good habits and were competent to properly discharge the duties of their respective positions. It is equally well settled that if proper persons are employed who afterward become incompetent or unfit, from bad habits, to discharge their duties, and this is brought to the knowledge or notice of the principal or its managing officers who have power to act in the premises, a failure or neglect promptly to discharge them will render the principal liable for any injury caused thereby.

The motion for a nonsuit was properly denied. The evidence tended to establish each of the requisites necessary to maintain the action; or at least it was capable of a construction which would justify a finding in favor of the plaintiff. Evidence was given that Allison was in the habit of drinking daily, many times, and had become somewhat dissipated ; and that he was intoxicated on the night of the accident. The evidence of knowledge, or notice to Caligan or Fisk was not conclusive, but facts were proved from, which the jury might infer such knowledge. They were accustomed to daily intercourse with Allison, saw him in drinking places, and were present on some occasions when he drank; and on one occasion Fisk testified that lie0 reprimanded Allison for drinking; and on another occasion a witness thinks that he heard Fisk say that “ he must quit this,” referring to his drinking habits. It is quite evident that both Fisk and Galigan han an opportunity to know the fact from actual observation; and we think the jury might infer that they did know it, although they each testified that they did not recollect of seeing him drink or of seeing him when he was intoxicated. It was for the jury to determine the credibility of witnesses and the weight and construction to be given to the evidence. If there was any evidence to justify a verdict, the motion for a nonsuit was properly denied—and we think there was.

It is objected that the declaration of Fisk, above referred to, was inadmissible, and its admission is claimed to be error. As evidence of the fact of the habit of drinking it was not admissible, within the general rule, that the declarations of an agent will not bind the principal unless made at the time of doing some act within the scope of the agency, and which in fact constitutes a part of the act itself. (17 N. Y, 131; 28 id, 153.) But we think this evidence was competent to prove notice to Fisk. Other evidence was produced that Allison was in the habit of drinking to excess, and the remark, if it had reference to such habit, was pertinent to establish that he knew it. It would be competent to prove that a third person told him of it; and it is more satisfactory to establish the fact that he admitted such knowledge at the time. It is evidence of a material fact. An admission afterward that he had known the fact would stand upon a different footing. It is not error to receive evidence, if competent, for any purpose.

It is also objected that the court permitted Fisk himself to testify that on one occasion he told Allison that he had heard that he (Allison) had been off on a spree, drinking; that the latter did not deny it, and the witness reprimanded him for it. o The ruling of the court may be sustained upon the ground that this transaction was within the agency of Fisk; and the declaration accompanied an act in the discharge of his duty. He liad the power of employment, discharge and supervision of Allison as one of the employes of the defendant; and upon being informed of his delinquency and its cause, it was his duty to investigate the matter and apply such remedy as the circumstances demanded; and what he did and said in discharging that duty were competent. It related to the question in controversy whether there was negligence in retaining Allison. Conceding that his retention by Fisk, after being informed of a single dereliction of duty was justifiable, as it might be, greater vigilance in observing the conduct of Allison, afterward, might be expected if not demanded; and the evidence would be competent upon the question whether he did observe it.

The other exceptions relate to the charge and refusals to charge as requested. The instructions to the jury were in the main correct, and the views expressed have received the sanction of this court. It is urged, however, that the learned judged erred in his charge as to the duty of a principal after employing competent persons to exercise care to discover whether they became incompetent or fall into bad habits. The part of the charge complained of is as follows: “ But, if after a competent and proper person is employed for such a duty, if his habits become such that it is unsafe to trust him any longer in that capacity, the company are bound to use, through their proper officers, such reasonable care and diligence in ascertaining what the man is, after he is employed, as they would be in his original employment.” To this there was an exception. We think this rule of diligence is too broad, and cannot be sustained. The general rule is, that notice or knowledge of incompetency is necessary to charge the principal with the duty of acting. In employing subordinates the principal must exercise great care, and is required to institute affirmative inquiries to ascertain their character and qualifications, and negligence in this respect will create a liability; but after suitable persons have been employed, there is not the same reason for exacting such a high degree of diligence. Good character and proper qualifications once possessed may be presumed to continue, and I see no reason why a principal may not rely upon that presumption as to these personal qualities until he has notice of a change or knowledge of such facts as would be deemed equivalent to notice, or at least such as would put a reasonable man upon inquiry. The charge permitted the jury without restriction or limit to determine what particular supervision or watchfulness was necessary to "exonerate the defendant from the charge of negligence. They might require periodical investigations, or an efficient detective system. They were at liberty to adopt any rule, and might adopt one which would practically make the defendant a guarantor of the correctness of every act of its employes. We have been referred to no authority for such a doctrine, and it would be manifestly unjust to adopt it. We were referred to some cases of injury from a defect in machinery or implements furnished to a servant by a master, where it is said that knowledge of the defect must be brought home to the master, or proof given that he was .ignorant of the same through his own negligence or want of care. ( Wright v. N. Y. C. R. R. Co., 25 N. Y, 562, and cases cited.) There is a distinction in the two cases. Implements and machinery are certain to fail, and become defective from natural causes, and frequent examination and measures of precaution are necessary to prevent it. Hence, continued and constant vigilance may be required, but, in such a case, either the facts upon which negligence is predicated must be shown, or actual notice or knowledge. If it should appear, for example, that a passenger car was used for a considerable period, without any examination of the wheels, or other parts of the running gear, and an injury should occur by reason of a defect which such examination would or might detect, the omission would be regarded as negligence. This would result from the known liability of the article to become defective, and the consequent necessity of preventive care to avoid it. Th'ese reasons are not applicable to the case of an employe. If competent when employed, additional experience would naturally render him more so, and while his habits might change for the worse, there is no such depravity in human nature as in law requires special vigilance on the part of the employer to prevent it.

It is not quite clear, from the whole charge, how far the learned judge intended to go in the direction indicated. During a colloquy between the judge and the counsel upon the point, the former used language tending partially to qualify the import' of that quoted, but this portion of the charge was not withdrawn, and the jury might have acted upon it. To obviate an erroneous instruction upon a material point, it must be withdrawn in such explicit terms as to preclude the inference that the jury might have been influenced by it.

There was no error in refusing to charge the jury that if they believed the testimony of Fislc and Caligan to be true they should find for the defendant. This is not ordinarily a proper form of making a request. The facts upon which the instruction is asked should be hypothetically stated and left to the jury to decide from the evidence. The request in this case required the judge to determine what the testimony was. It was the province of the jury to construe it, and determine its weight.

For the error in the charge the judgment must be reversed, and a new trial granted, costs to abide the event.

All concur.

Judgment reversed. 
      
      49 IT. Tí, 521.
     
      
      53 IT. Y, 549.
     