Beasley v. San José Fruit-Packing Co.

Harrison, J. The plaintiff, an employee of the defendant, brought this action to recover for personal injuries caused by the carelessness of a fellow-employee in running a freight-elevator. Judgment was rendered in his favor for five hundred dollars, and from this judgment, and an order denying a new trial, the defendant has appealed.

The plaintiff can maintain no action against the defendant for damages sustained solely through the negligence of a fellow-employee; but to avoid the .effect of this rule, the plaintiff has charged in his complaint that the defendant was negligent in selecting and retaining in its service the fellow-servant through whom the accident occurred. The presumption is, that the master has done his duty, and has selected competent servants, and there is no presumption that the fellow-servant is incompetent or careless; hence it is incumbent upon the servant who seeks to recover from the master for the carelessness of a fellow-employee to show by affirmative proof, not only that the fellow-employee was in fact careless, but that the master had knowledge of such carelessness, or was negligent, either in the selection or retention of such servant. There must be some personal fault in the master before he can be made liable, and the burden of showing such fault is on the plaintiff. (Wood on Master and Servant, sec. 419.)

The facts shown at the trial in support of this allegagation are, that Henning, who had charge of the elevator at . the time of the accident, had been previously employed by the defendant as a night-watchman; that [391]while in that service it was his duty at night to fill the gasoline tank, and that on one occasion, about ten days prior to this accident, when he went to the gasoline-house for that purpose with a lighted lantern, as was his custom, upon opening the door an explosion took place by reason of some of the gasoline having leaked out of the tank. It was not shown by any competent evidence that Henning was in fact careless at any time prior to the accident with the elevator, or that he was either known or reputed to be a careless man, and the fact that upon a single occasion an accident had occurred while he was in the service of the defendant in a different employment would not show any incapacity for another employment in the same service. There is no necessary inference, that an accident is the result of carelessness, and it was testified by Wright, the foreman of the defendant, that, in his opinion, that accident was not the result of any negligent act of Henning.