Nor are

a breach of any duty it owes to its employés.12 they chargeable with negligence in leaving snow banks in close proximity to the track, which have been placed there in the usual manner, in clearing their track from the accumulation of snow, made necessary for the operation of their trains; 13 nor in leaving sticks, stones, or baggage close thereto,11 although the supreme court of Wisconsin held that to leave sticks close to the track, whereby injury might be caused to an employé in the exercise of his duties, was negligence.15

13

"Finnell v. Delaware, L. & W. R. Co., 129 N. Y. 669, 29 N. E. 825. Dowell v. Railway Co., 62 Iowa, 631, 17 N. W. 901; Brown v. Railway Co., 69 Iowa, 161, 28 N. W. 487; Piquegno v. Railway Co., 52 Mich. 40, 17 N. W. 232.

"Piquegno v. Railway Co., supra.

"Hulehan v. Railway Co., 68 Wis. 520, 32 N. W. 529.

As to the liability of a railroad company for injuries sustained by its employes by reason of its failure to comply with a statute requiring it to fence its track or right of way, because of which failure stock stray upon and obstruct the track, see Append. p. 537.

CHAPTER IV.

MASTER'S DUTY (Continued)-EMPLOYMENT OF SERVANTS.

In employing servants, reasonable care to be exercised with reference to fitness and competency, p. 47.

Same care to be exercised in their retention, p. 47, 59, 64.

Proof that master knew or should have known of servant's incompetency, p. 48, 59.

Presumption that competency continues, p. 51. Degree of care in supervision dependent upon degree of danger, p. 52.

Presumption of due care, p. 55.

How want of care may be shown, p. 55.

Showing specific acts of incompetency, pp. 55, 60, 61. Knowledge of master, question for jury, p. 57. Habitual use of intoxicating liquor by servant, knowledge and duty of master, pp. 57-59. Facts dispensing with proof of master's knowledge, p. 59.

Amount of proof of servant's incompetency, and master's knowledge thereof, pp. 60, 66.

Showing reputation of servant, p. 61.

Inference of servant's incompetency and master's knowledge from particular facts and circumstances, p. 63.

Duty to discharge servant after notice of incompetency, pp. 64, 65.

Notice of incompetency to agent of master, p. 65.

Allowing jury to consider appearance and conduct of alleged incompetent servant on witness stand, p. 66.

Knowledge by injured servant, and assumption of risks, p. 67.

Duty of master to furnish an adequate number of

servants, p. 68.

Duty to see that they are at their posts, p. 70. The servant's incompetency must have been the proximate cause of the injury, p. 70.

We have seen that the master must exercise due and reasonable care in the selection of his servants, with ref erence to their fitness and competency. He must also exercise the same degree of care in the matter of the retention of his servants in his service; for his responsibility is the same, whether the want of skill of a servant, or his incompetency from other causes, existed when he was hired, or has come upon him since, if he has been continued in the service with notice or knowledge, either actual or presumed, of such unfitness, by the master.1

'Laning v. Railway Co., 49 N. Y. 521; Chicago & G. E. Ry. Co. v. Harney, 28 Ind. 28; Ohio & M. Ry. Co. v. Collarn, 73 Ind. 261; Evansville & T. H. R. Co. v. Guyton, 115 Ind. 450, 17 N. E. 101; Lake Shore & M. S. R. Co. v. Stupak, 123 Ind. 210, 23 N. E. 246; Flike v. Railway Co., 53 N. Y. 549; Morse v. Glendon Co., 125 Mass. 282; Gilman v. Railway Co., 13 Allen, 433; Gilman v. Railway Co., 10 Allen, 233; Keith v. Railway Co., 140 Mass. 175, 3 N. E. 28; Mayes v. Railway Co., 63 Iowa, 562, 14 N. W. 340, and 19 N. W. 680; Corson v. Railway Co., 76 Me. 244; Northern Pac. Ry. Co. v. Herbert, 116 U. S. 655, 6 Sup. Ct. 590; Mad River & L. E. R. Co. v. Barber, 5 Ohio St. 541; Peaslee v. Railway Co., 152 Mass. 158, 25 N. E. 71; Monahan v. City of Worcester, 150 Mass. 439, 23 N. E. 228; Rummell v. Dilworth, 111 Pa. St. 349, 2 Atl. 355, 363; Blake v. Maine Cent. R. Co., 70 Me. 63; Lawler v. Androscoggin R. Co., 62

Liability on the part of an employer for an injury caused by the incompetency of a fellow servant depends upon its

Me. 467; Moss v. Pacific Railroad, 49 Mo. 167; Harper v. Railway Co., 47 Mo. 567; Chapman v. Erie Ry. Co., 55 N. Y. 579; Wright v. Railroad Co., 25 N. Y. 565; Corson v. Railway Co., 76 Me. 244; Mackin v. Railway Co., 135 Mass. 201; Noyes v. Smith, 28 Vt. 63; Coon v. Railway Co., 6 Barb. 231; Wabash Ry. Co. v. McDaniels, 107 U. S. 454, 2 Sup. Ct. 932; Taylor v. Railway Co., 45 Cal. 323; Curran v. Manufacturing Co., 130 Mass. 374; Colton v. Richards, 123 Mass. 484; Pennsylvania Co. v. Roney, 89 Ind. 453; McDermott v. Railway Co., 73 Mo. 516; Baulic v. Railway Co., 59 N. Y. 356; Huntingdon & B. T. R. Co. v. Decker, 84 Pa. St. 419; Chicago & N. W. Ry. Co. v. Moranda, 108 Ill. 576; Baltimore Elevator Co. v. Neal, 65 Md. 438, 5 Atl. 338.

Laning v. Railway Co., 49 N. Y. 521, is one of the leading cases upon this branch of the general subject. The reasoning of the court is clear, logical, and convincing. Many authorities are reviewed, and the former case of Wright v. Railway Co., 25 N. Y. 562, is criticised and distinguished. The broad doctrine is forcibly stated that the selection and employment of fit and competent servants is a duty personal to the master. Say the court: "And there is not a performance of it until there have been placed for the servant's helpmeets fit and competent fellow servants, or due care used to that end. It is not enough to satisfy the affirmative duty or contract of the master that he selects one, or more than one, general agent of approved skill and fitness. If the general agent goes forward, and carelessly places by the side of a servant another unskilled and incompetent, the duty of the master has not been met; his contract is yet unperformed. We hold, therefore, that a master is liable to his servant for an injury caused by the incompetency or want of skill of a fellow servant, whether it existed when the fellow servant was hired, or has come upon him since the hiring; the fellow servant having been in the first instance hired, or afterwards continued in service, with notice or knowledge or the means of knowledge of this lack. The duty of the master is to use reasonable care to provide and employ none but competent and skillful servants. and to discharge from his service, on notice thereof, any who fail to continue such." The facts were in this case that one Colby was the agent of the defendant, charged with the duty of hiring the

being established by affirmative proof that such incompetency was actually known by the master, or that, if he had

employés, and that among such was Westman, whose duties were those of a foreman over the others, and the plaintiff, Foreman, and Churchill were ordinary laborers. Westman directed Foreman and Churchill to construct a scaffold, which work was so defectively performed that it fell with the plaintiff, causing him injury. This defect was mainly from building it with timbers too small in size, and too poor in quality, being cross grained, and hence weak. Westman was a competent man in skill and natural judgment. It did not appear, at the time he was hired for the defendant, that he had acquired any habit which detracted from his competency. At the time of this work, however, he was not temperate in strong drink. He was drunk on the day of the accident. The testimony did not show directly, though it is an inference which a jury might make fairly, that his condition in that respect was a cause of the injury to the plaintiff; for they might well infer that, if his faculties had been without confusion from strong drink, he would not have put the lads Foreman and Churchill, who were deficient in judgment and strength, to do a work requiring discretion and power, or, doing so, he would have inspected the result of their work before using it. There was evidence that the defendant or its agent Colby knew of the habits of Westman, and therefore of his incompetency. The court held that the defendant was negligent towards the plaintiff in retaining Westman in its service after his habit of drinking to drunkenness was known to Colby, its general agent for hiring and discharging men of the class of Westman.

The New York court again, in Baulic v. Railway Co., 59 N. Y. 356, had occasion to discuss the question particularly of the master's duty in respect to the selection of his servants, continuing them in its service after knowledge of negligent acts on their part, and the effect and character of proof of such knowledge and acts of the servant. The general doctrine is thus stated: "It must be regarded as too firmly established, as well upon principle as by authority, to be now questioned, that if the master is wanting in proper care in the selection of servants, and negligently or knowingly employs or retains in his service those who are incompetent and unfit for the duties to which they are assigned, he is liable to respond to other employés and servants engaged in the same servMAST. AND SERV.-4