Statement of the Case.

pass the second section of the east-bound train, No. 28, at the switch at the station of Inverness. The east-bound train had the right of way as between it and the plaintiff's train, and this required that the plaintiff's train should enter the switch to the east of Inverness and await the coming upon the main track of train No. 28. The engineer of train No. 23 forgot his orders, and did not stop at the switch at Inverness, but ran on a mile or more beyond the switch, and brought his train into collision with the east-bound train No. 28. The plaintiff was on the engine at the time of the collision, and was so pinned in that before he could be extricated both of his legs had to be amputated, and he suffered other severe and painful injuries from the crushing of his arm and from burns by escaping fire and steam. The plaintiff's petition charged that the accident was due to the intoxication of John Harrison, the engineer of the train upon which the plaintiff was, and that the defendant knew that Harrison was incompetent as an engineer by reason of his habits of intoxication, and was grossly negligent in retaining him in its employ in such a responsible position. The petition further averred that the plaintiff, because it was his first trip as brakeman in the defendant's employ, had no knowledge of the incompetency of the engineer, or of his habit of becoming intoxicated, or that he was intoxicated on the day of the collision. The plaintiff introduced the evidence of the conductor of train No. 23, of Harrison's boarding-house keeper and of others, to show that Harrison, the engineer, was drunk and in a drowsy condition during the trip west from Chicago Junction to the place of the collision. The plaintiff introduced further evidence to show that Harrison was in the habit of drinking to excess and was habitually intoxicated. The plaintiff introduced further evidence to show that Harrison had a general reputation both at the town of Garrett and the town of Chicago Junction, the terminal stations of his run, as well as among the railroad men along the line of the division, of being addicted to the excessive use of intoxicating liquor. The plaintiff introduced the depositions of a former superintendent, one Britton, and a former master mechanic, one Lowther, both of

Statement of the Case.

whom had left the company before the collision, who stated that Harrison had been discharged from the employ of the company while they were connected with it for negligence and drunkenness. The plaintiff also introduced a witness who had been in the employ of the defendant company, who testified that when, as conductor of a train with Harrison as his engineer, he was about to leave Chicago Junction, Fitzgerald, the yardmaster of the defendant company at the Chicago Junction, cautioned him concerning Harrison's intoxicated condition, and directed him to keep watch to prevent accidents. As yardmaster, Fitzgerald had the right and it was his duty, upon discovering the intoxication of the engineer, to sidetrack and hold the train, and notify the superintendent of the condition of affairs.

The defendant introduced evidence to show that Harrison had never been discharged for drunkenness; that he had been suspended twice or three times, once for running by a target with the red light signal out, once for carelessly mashing the end of a car by reckless backing of his engine, and once for some other minor offense. The defendant did not produce in court, however, the record which it had kept of Harrison's service, as it might have done. The defendant also introduced evidence to show that the only persons with authority to dismiss an engineer were the superintendent of motive power, whose office was at Newark, Ohio, and the division superintendent, whose office was at Garrett, Indiana; and that the master mechanic had power to suspend an engineer pending a court of inquiry, but not to dismiss him. The defendant introduced much evidence to show that Harrison's reputation was that of a sober, careful, competent engineer, and that he was not a drinking man. The case went to the jury, and resulted in a verdict of $30,000 for the plaintiff. The trial judge made it a condition of overruling the motion for a new trial that a remittitur should be entered of $15,000. This was done, and judgment was entered for the plaintiff for the remaining $15,000.

The defendant requested the court to charge the jury as follows: "J. P. Fitzgerald, the defendant's agent at Chicago

Statement of the Case.

Junction, was a fellow-servant with the plaintiff, and for his negligence, if he was guilty of any, the defendant is not liable to the plaintiff, and the knowledge of said Fitzgerald that said John Harrison was not competent to run the engine of said train, if he had such knowledge, was not the knowledge of the defendant," which charge the court refused to give, and the defendant excepted.

The court also refused over defendant's exception to give this charge: "Thomas Taylor, the master mechanic at Chicago Junction, was a fellow-servant with the plaintiff, and for his negligence, if guilty of any, the defendant is not liable to the plaintiff, and the knowledge of said Taylor of the unfitness of said John Harrison to run the engine of said train, if he had such knowledge, was not the knowledge of the defendant."

The defendant requested the court to give this charge to the jury: "The evidence introduced on this trial with reference to the general character of John Harrison, the engineer, as to his habit of drunkenness or intoxication, cannot be considered by the jury as tending to prove that he was in fact a drunkard or a person in the habit of becoming intoxicated,” which charge the court gave as requested, adding at the same time the following language: "That I can make a little more plain. The plaintiff did not attempt to prove that Harrison was drunk at this particular time by offering evidence as to his general bad reputation. That was offered solely for the purpose of showing that it was so notoriously bad that it ought to have come to the knowledge of the defendant. The plaintiff does not rely upon that to prove the intoxication at the time of the accident. There was other testimony directly upon that point. Therefore I give you this last instruction." A juror said: "If your honor please, we do not understand the last instruction;" and the court explained: "You could not look to the general bad reputation as establishing drunkenness at this particular time. It was not offered by the plaintiff for that purpose. He claims it for the purpose of showing that his reputation was so generally bad that it ought to have come to the knowledge of the

Statement of the Case.

defendant, and that therefore it was responsible for his bad conduct," to which explanation and comments of the court upon said request, after the same were given, the defendant, by its counsel, at the time excepted.

The court charged the jury among other things as follows: "The plaintiff on his behalf has offered proof tending to show that the bad habits of Harrison, the engineer, were known to the officers of the defendant authorized to employ and suspend engineers. If you find that such knowledge of bad habits was so brought to the defendant's knowledge through such officers, then the defendant was guilty of negligence, and had a share in causing the injury, and is liable even though the negligence of a fellow-servant was contributory also. You will, then, first consider and weigh the evidence on this point. Corporations can act only through their officers. Knowledge to the company of the bad habits of its engineers must reach it through its officers, and it must be through such officers as are charged with the employment and retention in service of such engineers. There must necessarily be a division of labor and responsibility in such immense corporations, and each department has its appropriate head, who is held responsible for his division of labor or business. In this case the officer who has the supervision of the engineers their employment or suspension, and who is charged with looking after the manner in which they discharge their duties is the eye and ear of the corporation through which knowledge must go to it of the incompetency of Harrison. It will not be sufficient to trace such knowledge to some officer of some other department. The information and notice must be traced to this particular source." To this charge the defendant excepted.

The court also charged the jury as follows: "Now, there has been evidence on behalf of the plaintiff offered tending to show that such officer had such knowledge. The officers who were in the employ of the defendant about the time of the accident and some of them who had charge of Harrison's branch of the service have been examined on behalf of the defendant, and each denied that he knew of

Statement of the Case.

Harrison's alleged habits of drunkenness, or that such reputation had ever come to his attention. If you find this to be true, then the defendant is not liable unless you find that Harrison's reputation as a drinking man was so notorious and widespread and of such long standing that the defendant by reasonable diligence could have ascertained such incompetency. If his reputation along the line of the defendant's road was so notoriously bad, as being a careless or negligent employé, and knowledge of such bad reputation could have been ascertained by reasonable diligence, the jury is at liberty to infer from that fact that the defendant through that means should have obtained notice of his carelessness, and if the accident which caused the injury was the result of Harrison's recklessness and incompetency, because of his bad habits, then the defendant was guilty of the negligence charged and would be liable for the plaintiff's injury, provided he did not contribute to such accident by his own negligence, as I shall hereafter instruct you."

Again, the court charged the jury as follows: "It is not enough, therefore, to show a bad general reputation, unless it is known and talked about by those around and about those to whose knowledge it is necessary to bring such fact. Apply these rules to this case, and see if the common rumor referred to by the witnesses as to Harrison's habits was circulated among those who would likely and naturally bring it to the attention of the proper officers of the company. Did his brother engineers who saw him on duty and off duty know of it and hear of it? Did the train master and master mechanic and local agent or other officers having supervision of him know of it and talk about it? If they did not, consider and find out whether the rumors and facts testified to by the plaintiff's witnesses would reach the defendant's officers. And in this connection it is proper to say that if you find from the evidence that Harrison had been previously discharged or suspended one or more times, that fact would put the defendant upon its inquiry, and you would be justified in sooner inferring from his general bad reputation (if such is established) that notice