Opinion
March Term, 1900.
Ira Leo Bamberger [ Saul S. Myers, with him on the brief], for the appellant.
John Notman, for the respondents.
The defendants in this action were the proprietors of a manufacturing establishment in Brooklyn at the time of the accident complained of, and the plaintiff was employed in filling tubs with the chemicals produced and transporting them to various parts of the building. The plaintiff worked in a four-story building known as the new factory, and a freight elevator traversed a shaft from the fourth to the ground floor. On each floor there was a railroad track about two feet wide, and these connected with a similar line of tracks on the floor of the elevator. Small trucks were used, which were carried to the several floors and run off upon the tracks, or the trucks were run from the floors upon the elevator as the necessities of the case demanded. On the 31st day of October, 1895, the plaintiff had been sent in the elevator to the fourth floor to bring down two trucks, and when between the third and second floors, on his way down, he was struck on the head and seriously injured by a truck which had been shoved into the elevator shaft by a fellow-servant operating on the floor above. On the trial a motion to dismiss the complaint, on the ground that the plaintiff had failed to establish a cause of action, was granted, and an appeal comes to this court.
It is conceded that the accident was due to the negligence of a fellow-servant, and that, under ordinary circumstances, this would constitute a complete defense; but it is urged that the defendants were negligent in retaining in their employ the particular individual who caused the accident, because of his incompetency. An effort was made to show that the plaintiff's case was taken out of the general rule by evidence of specific cases of negligence on the part of the co-servant, but in our opinion the evidence fell far short of establishing the necessary facts. The specific cases of negligence were not such as to establish incompetence for the particular kind of work for which the co-servant was employed, and, therefore, the foundation was never laid for admitting evidence that such facts were brought to the attention of the defendants by proof of general reputation. It is necessary, under the rule laid down by the court in Park v. N.Y.C. H.R.R.R. Co. ( 155 N.Y. 215) that incompetency shall be shown by the specific acts of the servant, and that the master knew or ought to have known of such incompetency. The latter may be shown by evidence tending to establish that such incompetency was generally known in the community, but it is not competent to establish the general reputation of the servant without any reference to specific acts of incompetency; the speech of people as to the morals, manners or idiosyncrasies of a common laborer would not in any manner tend to convey notice to an employer of the specific acts of incompetency which are alone sufficient to establish that lack of reasonable care on the part of the defendants which the plaintiff had a right to expect in the selection and employment of fellow-servants. The burden of proof was upon the plaintiff to establish the specific acts on the part of the servant which would justify a reasonable person in saying that he was incompetent to perform the particular services for which he was employed, and in the performance of which the accident occurred, and that the master knew of these acts on the part of the servant, or that in the exercise of reasonable care he should have known them. Evidence tending to show that it was generally known in the community that the servant had been guilty of these specific acts of negligence or incompetence would be proper in support of the proposition that the master did know, or that he might, in the exercise of reasonable care, have known of them; but the trial court very properly excluded evidence of the servant's general reputation among his fellow-servants.
The judgment and order appealed from should be affirmed, with costs.
All concurred.
Judgment and order affirmed, with costs.