Wabash Railway Company v. McDaniels

This was an action to recover damages for injuries sustained by the plaintiff, the defendant in error here, from a collision between two freight trains belonging to the Wabash Railway Company, a corporation engaged in the business of carrying freight and passengers for hire. The collision took place on the night of August 17, 1877, near Wabash, Indiana. The jury returned a verdict in favor of the plaintiff for $15,000. A motion for new trial having been made and overruled, the case has been brought to this court for review. The action proceeded mainly upon the ground that McHenry, a telegraphic operator in the service of the company, was incompetent for the work in which he was engaged, and that his incapacity to meet the responsibilities of his position could, by reasonable care, have been ascertained, and, in fact, was known to the company at, before, and during the time of his employment. The essential facts bearing upon the question of the company's negligence in employing McHenry are summarized in one of the paragraphs of the charge to the jury, to which, so far as the facts which the evidence tended to establish are stated, there seems to have been no exception. They are:

'The tenth night after McHenry went on duty as night operator he went to sleep at his post of duty, with the result already stated. He was 17 years old but a few weeks before his employment. In June, 1876, he went into the service of the defendant, at Wabash, as a messenger boy, and continued in that service some 12 months, during which time he was instructed by Waldo, the day operator, in the art of telegraphy. For this instructed Waldo exacted and received, as compensation, McHenry's wages, $10 per month. For a month or more before McHenry's employment as night operator he worked in the country, harvesting. The only knowledge that he had of telegraphy was what he acquired under Waldo, and before taking charge as night operator he had never been employed anywhere or in any capacity as operator. He was not competent, as he told you, to take press reports, but was competent, as he thought, and as Waldo and Wade (the latter his predecessor as night operator) thought, to do ordinary business, and to discharge the duty of night operator at Wabash; his habits were good, and he was bright and industrious. Waldo had recommended McHenry to Simpson, the chief train dispatcher at FT. Wayne, as capable and faithful, and without knowing McHenry personally, or even seeing him, and, on Waldo's recommendation and what Simpson knew of McHenry's skill from having occasionally noticed at Ft. Wayne his fingering the key at Wabash, Simpson directed Waldo to employ McHenry at $50 a month; or, according to Waldo's testimony, he was directed by Mr. Simpson to put McHenry in charge of the office. McHenry's father told Waldo, before the son entered on the discharge of his duties, that Waldo should have $10 a month of the son's wages if Waldo would continue to give the son attention, to which Waldo assented. This is the father's testimony. Waldo admits that the father made the proposition to him as stated, but says he replied that the son was competent to take charge of the office and run it without assistance. Boys no older than McHenry had successfully discharged the duties of day and night dispatcher on this and other roads, and it teems to have been the custom of the company to educate its telegraph operators while serving as messenger boys. Other railroad companies, it seems from the evidence have pursued the same course with satisfactory results.' Wager Swuyne and ''Chas. B. Stuart'', for plaintiff in error.

E. E. McKay and ''Wm. Stone Abert'', for defendant in error.

HARLAN, J.