Gier v. Los Angeles Consolidated Electric Railway Co.

California Supreme Court Jul 13, 1895 No. No. 19577Published

Before: Henshaw

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Holding. An employer is liable for an employee's injury caused by a fellow-servant only if the employer failed to exercise ordinary care in the selection or retention of the culpable employee. Evidence of an employee's bad reputation is insufficient to establish liability without proof that the employee was, in fact, unfit or incompetent.

Issues

Whether an employer is liable for the negligence of a fellow-servant if the employer exercised ordinary care in the initial selection of that servant.
Whether evidence of an employee's general reputation for recklessness is sufficient to prove the employee's actual unfitness or incompetence.
Whether an employer may be held liable for the retention of an employee who becomes unfit after the initial hiring.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“Such lack of ordinary care may as well be shown by the retention of an unfit employee after knowledge of the fact as by a failure to use due diligence at the time of his selection”

“It is, therefore, the character of the employee which is the object of ultimate determination, not his reputation.”

Synopsis

Negligence—Master and Servant—Contributory Negligence—Place of Danger.—A conductor on a street railway while engaged in switching his car from the main to a side track is not guilty of contributory negligence in standing in the space between the two tracks, if such position was the usual one assumed by the employees in performing that duty, and was not, in itself, a place of peril.

Id.—Selection of Employee—Inquiry as to Fitness.—A railroad company cannot be charged with negligence in the selection of an employee, merely because it omitted to question the employee himself as to his competency, skill, and carefulness at the time of his employment, if it made such inquiries of his former employers.

Id.—Retention of Unfit Employee. — Under section 1971 of the Civil Code, an employer is as much guilty of a lack of ordinary care by the retention of an unfit employee, after knowledge of his unfitness, as by a failure to use due diligence at the time of his selection, and in either case the employer is liable for all losses resulting therefrom.

Id. —Knowledge of Unfitness—Durden of Proof.—An employer who has exercised due care, in the selection of an employee cannot be held liable for an injury to a co-employee occasioned by the employee, unless the latter had become and was actually unfit or incompetent through negligence or incapacity, and the injury happened by reason thereof, and the employer knew of his negligence or incapacity or his general reputation was so in accord with the fact that the presumption is that the employer knew it, and was therefore negligent in not acting upon the knowledge, and the burden of proving such facts is on the employee injured.

Id.—Bad Reputation of Employee.—After proof of the fact of unfitness the employer may be charged with liability, if it can be shown that the reputation of the culpable employee was so generally known and notoriously bad that it ought to have been, and therefore presumptively was, known to the employer. But proof of bad reputation, without evidence of the fact of unfitness, is insufficient.

Henshaw, J. Appeals from the judgment and from the order denying a new trial.

Plaintiff, a conductor upon one of defendant’s electric cars, was injured under the following circumstances: He had stopped his car and gone ahead to turn a switch to permit the passage of his car from one track to the other. He turned the switch, standing while doing so, in the Y-shaped space made by the switch track and the main line. Another car coming up had stopped on the main line just behind him. At this moment his. own car was moved forward by its motorman. The plaintiff was caught between the cars in the wedge-shaped space, crushed and injured.

This action is for a recovery on account of his injuries, and to maintain it he pleads the negligent and careless act of the motorman—admittedly a fellow-servant—and a lack of ordinary care upon the part of defendant in selecting and hiring the culpable employee.

Some .charge is also made of defective and inadequate switching apparatus, but this contention seems to have been abandoned. In any event the record does not disclose any evidence in support of it, nor is argument addressed to maintain it.

Some evidence was introduced tending to prove that the plaintiff might with safety have stood in another place and turned the switch point, and that he voluntarily selected a dangerous spot from which to perform the act; but his position, it is shown, was the usual one, and not in itself a place of peril. No contributory negligence can be predicated upon that fact. (Taylor v. Louisville etc. R. R. Co., 93 Tenn. 305.)

There is likewise conflicting evidence upon the question whether or not plaintiff ordered his motorman to move forward; but the verdict of the jury upon this disputed fact will not be disturbed.

The evidence, however, does abundantly establish that plaintiff suffered through the carelessness of the motorman in sending his car ahead under such circumstances as must inevitably bring death or serious injury to the [131]plaintiff, and upon this proposition not the least convincing evidence comes from the motorman himself. But herein it is to be noted that the act was not one evincing incompetency, employing the word strictly to denote a lack of skill or ability to use appliances or perform a duty in a workmanlike way, but was a single and signal exhibition of carelessness or recklessness— such, however, as the most competent man might at some time be guilty of. Nor does the evidence of plaintiff’s witnesses establish, or seek to establish, incompetency as the word is here used. It is addressed to establishing the propositions that the motorman was, in fact, habitually reckless or careless, or both, and that his general reputation was in accord with this fact. If these propositions are satisfactorily demonstrated it follows from them that the defendant, being presumed to know this reputation, was negligent in not pursuing inquiries which would have shown that it was well founded, and that the man was an unfit employee.

Gier v. Los Angeles Consolidated Electric Railway Co.

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