Page:Federal Reporter, 1st Series, Volume 8.djvu/561

 EOSS V. CHICAGO, M. & ST. P. EY. 00. D47 �tent. And it was also the duty of the company, if they ignorantly or without notice employed an incompetent or improper servant and afterwards became advised or had notice of the fact of his character for incompetency or negligence, — it was the duty of the company, under those circumstances, to disoharge him. And if they continued such person in their service as conductor after notice, they became liable for any damage that the plaintiff may have sustained through the negligence of the conductor. �It was the duty of the plaintiff, however, wheh he became aware of the negligence of this conductor, to give notice to the company. If he knew it himself, and took no steps to eominunicate the fact to the company, gave them no warning about it, and they went on in igno- rance of it, and continued him in their service, he cannot eomplain. Whether he gave notice to the company of the negligence of this con- ductor is a question of fact for you to decide upon the evidence. If it be true that he communicated the fact by letter to the master mechanic, and the master mechanio laid it before the assistant superintendent, who acted upon it so far as to institute an investiga- tion 'conceming it, that was sufficient notice to the company. �I instruct you, further, that the company cannot protect itself from the consequences of the negligence of the conductor after notice of his negligent character by showing that they believed him to be com- petent and diligent, nor by showing that they instituted an investiga- tion which resulted in his acquittai upon the charges of incompetency and negligence which were made against him. When the company was notified by another employe that this conductor was a negligent and incompetent officiai, it continued him at its own risk, notwith- standing the fact that he was incompetent. They were bound, in other words, by the fact, whatever the fact might be. They were put upon inquiry ; and, as to the rights of their employes, they cannot shield themselves upon the ground that they did not believe in the truth of the charges that were made against him. So that, upon this branoh of the case, gentlemen, you are simply to inquire — First, whether Mc- Clintock was in fact a negligent and unfit person to be entrusted with the duties of the conductor of the train; and, second, whether the company, under the rules that I have already indicated to you, had notice of the fact of his unfitness or his negligence before the time of this accident, and continued him in their service notwithstanding such notice. Upon this branch of the case I shall ask you to find specially by answering an interrogatory which I have prepared and will submit to you. I will ask you to say specially upon this branch ��� �