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authorized to find the servant incompetent, and to declare it negligence in longer retaining this young man in its employ as a motorman.
This brings us to the question raised by the exceptions: Is the evidence of specific acts of prior negligence admissible to prove (1) incompetency, (2) knowledge to the master? All the exceptions but one, which will be discussed later, present the same question of law, and may be considered together.
The defendant does not question the assertion that the great weight of authority is in favor of the admission of such testimony, and cites only Massachusetts and Pennsylvania in opposition. On the other hand, it appears from the plaintiff's brief that 29 of the 31 States that have passed upon this question have decided in the affirmative. The precise question has never been raised in this State. We are therefore free to adopt that rule which seems best calculated upon the principles of reason and authority to attain the best results. Upon a careful examination of the authorities, it is the opinion of the court that the rule admitting specific acts of prior negligence tending to prove the incompetency of a servant when the master has actual knowledge of such acts or by the exercise of due care should have had such knowledge is the safer and better rule to establish. In arriving at this conclusion, we have carefully reviewed and considered the reasons advanced by the courts for the directly opposite views by them declared.
It is conceded that the plaintiff, when injured, was in the discharge of his duties and in the exercise of due care. The evidence discloses that he was injured by the negligence of the defendant's servant, that the servant was in fact incompetent, and that his incompetency was known to the defendant when the plaintiff was injured and prior thereto, and yet he was retained in its employ.
Motion and exceptions overruled.
EMPLOYERS' LIABILITY-NEW TRIAL-SUCCESSIVE VERDICTSDAMAGES.-Carr v. American Locomotive Company, Supreme Court of Rhode Island, 77 Atlantic Reporter, page 104.-Peter F. Carr was employed by the defendant company as a rivet heater in the boiler shop, in which oil was used as a fuel, and was injured as a result of an alleged defective condition of the valve supplying the oil to the furnace. The defect was said to consist in the condition of the threads on the valve stem which had become so worn that when partly opened it was in danger of being blown out by the pressure necessary to feed the oil as a spray for burning. Carr testified that on June 28, 1902, he started the fire in his heater in the usual way, and that when he had given the valve stem two or three turns it blew out and a stream of oil poured upon him which became ignited and seriously burned his body, face, and arms. The company offered in court as an exhibit, marked “Exhibit A,” a combination of valves claimed by it to be the identical apparatus which Carr was using at the time that he was injured. This Carr denied, so that the identity of the valve became an important question in determining the negligence of the employer and his corresponding liability. During the statement of the facts involved, Judge Sweetland who delivered the opinion of the court said:
This case has been tried four times. The first trial was in the common pleas division of the supreme court and resulted in a disagreement of the jury. The second trial was in the common pleas division of the supreme court, and the jury returned a verdict for the plaintiff for $18,000, with a special finding that Exhibit A includes the identical burner valve and stem which were operated by the plaintiff at the time of the accident. Upon petition the appellate division of the supreme court granted a new trial. (Carr v. American Locomotive Co., 26 R. I. 180, 58 Atl. 678.) Upon the establishment of the superior court this case was transferred to that court and the last two trials have been in that court. The third trial resulted in a verdict for the plaintiff for $20,000, with a special finding that the burner valve stem forming a part of Exhibit A was not the stem operated by the plaintiff at the time of the accident. The justice who presided at that trial denied the defendant's motion for a new trial. Upon exception to that decision this court sustained the exception and ordered a new trial. (Carr v. American Locomotive Co., 29 R. I. 276, 70 Atl. 196.) A fourth and last trial was had with the result herein stated, of a verdict of $22,895, for the plaintiff, with a special finding by the jury that the burner valve stem forming a part of Exhibit A was not the stem operated by the plaintiff at the time of the accident.
The present appeal, therefore, was from the last trial in the superior court, based on exceptions made by both parties, Carr excepting to an order by the superior court granting a new trial in that court, and the company filing numerous exceptions to various rulings and instructions of the presiding justice. The trial resulted in the judgment of the superior court being affirmed and the order for a new trial reversed with directions that judgment be entered upon the verdict, none of the company's exceptions being allowed. The opinion of the court, which was delivered on July 12, 1910, is in part as follows:
From the record before us it does not appear whether at the first two trials the justices were asked to direct verdicts in favor of the defendant; but in each instance the case was submitted to the jury. At the third trial a motion was made that the jury be directed to return a verdict for the defendant. The motion was denied, and this court said in Carr v. American Locomotive Co., 29 R. I., at page 290, 70 Atl., at page 203: “The forty-sixth exception was taken to the court's denial of a motion to direct a verdict for the defendant upon all the testimony. The evidence was conflicting and was properly left to the jury.” At the last trial the justice presiding refused to direct a verdict in the defendant's favor. We have carefully read and considered the transcript of the testimony given at the last trial. The plaintiff has produced the testimony of seven new witnesses in support of his claim as to the defendant's negligence and the identity of the middle stem on Exhibit A. The case for the plaintiff is much stronger than at the former trial. Upon this testimony, to order judgment for the defendant would be highly improper. If this case was before us for the first time, we should hesitate to disturb the verdict of the jury but for the decision of the justice presiding at the trial, whose decision will in ordinary cases be given much persuasive force by this court in appellate proceedings. Thus it has appeared to every judicial mind which has considered the testimony in this case that the deductions which may fairly be made upon the evidence are conflicting, that there is substantial evidence to support a verdict for the plaintiff, and that it is a case in which, under the constitution of this state, the determination of the facts must be made by a jury. The effect of the two opinions of this court in granting new trials was not that the verdicts in the plaintiff's favor were entirely unjustified, for in that case the court would have exercised its authority and ordered a judgment for the defendant. The opinions indicate rather that the court was not satisfied that justice had been done, that in its opinion another opportunity should be given to the parties to present further testimony if they were able, and that the court might have the benefit of the finding of another jury upon the issues. In some States it has been provided by statute that there shall not be granted in any case to the same party more than two new trials on the ground that the verdict is contrary to the evidence, or that it is not sufficiently supported by the evidence. Thus fixing in those States the rule as to the effect of concurring verdicts when there bas been no error of law. In the absence of such statutory provision the doctrine has been generally accepted by the courts of the various States, that, in cases where the evidence is conflicting and a judgment can not be directed and successive juries have returned a verdict for the same party, there comes a time when the court upon the facts will no longer oppose their judgment to that of the jury but will bring long-continued litigation to a close. This doctrine has not been accepted in a few cases and by some eminent jurists in dissenting opinions and the position has been taken as in the dissenting opinion in McCann v. New York, etc., 73 App. Div. 305, 76 N. Y. Supp. 684: “A wrong committed, no matter how often, never makes a right. This verdict is wrong; it is the result of misconception, prejudice or partiality and ought not to be approved by the court. Upon substantially the same state of facts we have several times declared that the plaintiff ought not to recover, and yet we are about to permit a recovery, because the jury forsooth have, for the fourth time, committed the same wrong. The law imposes a duty upon this court to review verdicts, and whenever it can be seen that injustice has been done, by reason of the jury not properly considering the evidence, or that its action has been influenced either by prejudice or partiality, then the court ought, in the discharge of its duty, to fearlessly exercise the power given to it by the statute (Code Čiv. Proc., sec. 1317) and right the wrong by setting the verdict aside and ordering a new trial, and this as many times as may be necessary to accomplish the proper result. Justice never tires, and an act ought not to be approved in its name which wrongfully takes property from one person and gives it to another.” This position presupposes in the judicial mind an infallibility in the determination of conflicting issues of fact which few courts would claim for themselves. If it is unquestioned in the mind of the court that a wrong has been committed by the verdict of the jury, surely the verdict should not be allowed to stand. The law provides a method by which such wrong can be corrected, and regardless of the jury's verdict a judgment should be ordered for the other party. That an appellate court has twice remanded a cause for a new trial indicates that the evidence of a wrong committed is not indubitable. The court may have an opinion or a suspicion that an injustice has been done, but it is unable to so declare with certainty. Courts recognize that it is not given to human tribunals to determine with the exactness of mathematical demonstration what is the true and just conclusion upon conflicting facts, with regard to which there is the opposing testimony of witnesses, as to whose reliability and good faith different minds may reasonably disagree. Cases involving such conflicting statements of fact must of necessity be determined in the courts, ultimately by the finding of a jury, but the true solution can not be found with demonstrative certainty. Hence an appellate court, having given sufficient opportunity for a fair determination of such disputed questions, will not longer interfere with the finding of the jury. To take this course is not to weakly permit or to approve the doing of a wrong in the name of justice, but is to recognize the proper functions of the court and the jury, and, after exercising due caution to prevent injustice, places the determination of disputed questions of fact in the tribunal provided by our constitution and laws. This doctrine has been recognized by this court.
In the case at bar we are of the opinion that the time has now arrived when this rule with regard to concurring verdicts should be applied, and if there has been no error of law occurring at the trial, which affects the jury's verdict, that verdict should be allowed to stand. This conclusion as to the force and effect of the three successive verdicts for the plaintiff, notwithstanding the decision of the justice of the superior court is not in disregard of the rule in Wilcox V. Rhode Island Co., 29 R. I. 292, 70 Atl. 913. The doctrine as to the force of concurring verdicts is superior to the rule in the Wilcox case, When the time comes in any case for the application of that doctrine, it will be applied not only in disregard of the decision of the justice of the superior court, but also in disregard of our own former conclusions in the case.
The defendant does not press before us the question of excessive damages which was one of the grounds for its motion for a new trial before the superior court. We have, however, considered the question, and although the amount awarded by the jury is large, in view of the very serious permanent injury to the plaintiff, we can not say that it is excessive.
The plaintiff's exceptions are sustained and the case is remitted to the superior court, with direction to enter judgment upon the verdict.
EMPLOYERS' LIABILITY-SAFE PLACE TO WORK-ACT OF FOREMAN—Campbell v. Jones, Supreme Court of Washington, 110 Pacific Reporter, page 1083.-Murdock Campbell sued E. N. Jones and others to recover damages for injury received by him in the course of his employment. Campbell was engaged by a firm, Jones & Onserud,
contractors for the construction of a railway, and was injured by the act of his foreman, Lundin, who, in uprooting a small stump for the purpose of procuring fuel for a fire to heat the tools used, accidentally loosened a stone on a hillside above the place where Campbell was at work. The suit was brought against both the railroad company and the contractors, and recovery was denied as against both parties in the superior court of Spokane County. On appeal, however, the case was reversed as against the contractors, while the railroad company was held to be in no way responsible.
The principal point of interest is the ruling of the court on the contention of the defendants that the act of Lundin in loosening the stone was that of a fellow servant, for which they were not responsible. This view the court rejected, as appears from the following quotation from its opinion, as delivered by Judge Fullerton, October 3, 1910:
We think the court erred in sustaining the challenge to the evidence made on behalf of the defendants Jones & Onserud. They were the appellant's [Campbell's] employers, and owed to him the duty of furnishing him with a reasonably safe place in which to work, and the duty of keeping the place reasonably safe as long as they required him to work therein. This duty was nondelegable, and when they intrusted it to another they became responsible for the negligent performance of the duty by that other. If, therefore, Lundin, in uprooting the stump, acted negligently, and the place of work which had been furnished the appellant was thereby rendered dangerous or unsafe, there can be no question of the liability of his principals therefor. His negligence was their negligence, and any negligent act in the line of his duty, which would render him personally responsible to the appellant, would render his principals likewise personally responsible. Thé liability of the respondents Jones & Onserud, therefore, turns on the question whether the act of uprooting the stump was in itself negligent. But as to this we think the evidence made a case for the jury. The position of the stump with reference to the working place of the appellant, the manner in which it was uprooted, the frozen condition of the ground, and the fact that the act did in fact loosen a rock, which rolled down the hill and injured the appellant, were all matters to be considered by the jury in determining the character of the act, and the court should have submitted the question of negligence to them.
We are aware of the contention of the respondents to the effect that Lundin, when he uprooted the stump, was not engaged in the master's work, but was performing the labor of a servant; that he was at that time a fellow servant, and his acts, being those of a fellow servant, would not render the master liable for injuries resulting therefrom, even though it were considered that the acts were negligent. But this reasoning overlooks the fact that the duty of the respondents to oversee the appellant's place of work was a continuing duty, obligatory upon them at all times; that, while the work itself may have been servant's work, the duty to see that its performance did not result in injury to the servants working elsewhere was the