Refusal of in. structions.


were merely evidential facts, not proper to enter into a verdict. The court did not err in overruling this objection.

It is contended, secondly, that the court erred in refusing to give to the jury certain instructions asked by the appellant. The appellant tendered to the court at the proper time 20 instructions, all of which were refused. They are quite voluminous, covering many pages of legal cap, and no good purpose would be subserved by setting them out here. It is sufficient to say that perhaps many of them would have been proper and pertinent in a case where the jury was permitted to return a general verdict, but were wholly inapplicable in a case like this, where the jury was instructed to return a special verdict. The court gave to the jury all the instructions we think necessary to enable it to fully comprehend and pass upon the material facts in issue between the parties, and in our opinion there was no available error in refusing to give the instructions asked by the appellant. Louisville, N. A. & C. R. Co. v. Frawley, 110 Ind. 23, 28 Am. & Eng. R. Cas. 308.

The appellant moved the court to suppress questions 40 and 41, and the answers thereto, of the deposition of Andrew Shiskoski, taken on behalf of the appellee; but the court overruled the objection, and appellant excepted. The questions and answers to which

Reputation of

engineer. objection was made were as follows: “ Were you acquainted with Engineer Pool's general reputation all along the line of the Lake Shore and Michigan Southern Railway, prior to the time John Stupak was injured, as to carelessness as an engineer? Answer. Yes, sir. Q. Was it good or bad? A. Bad." This evidence we think was admisssible, as it was one of the modes by which the appellee might prove notice or knowledge on the part of the appellant as to the negligent and careless habits of its engineer. If his reputation along the line of the appellant's road was notoriously bad, as being a careless or negligent employe, the jury was at liberty to inser from that fact that appellant through that means obtained notice of his carelessness.

The appellant took the deposition of one Joseph Kusch for the purpose of proving that appellee had notice of the careless and negligent habits of the engineer, Pool, prior to the time the appellee was injured. After Evidenceproving by this witness that on one occasion he

knowledge of heard the appellee express the opinion that said

engineer's engineer by his recklessness would kill all the men carelessness. on the train, the appellee propounded to him this question: " Is that the only time you heard him say anything about it? Answer. I only once heard him. The other people



talked with him." The court, on motion of the appellee, struck out from said answer the words, “ The other people talked with him," and the appellant excepted. It is now claimed that this ruling of the court was error, for which the judgment should be reversed. We do not think the court erred in this ruling. There is nothing in the deposition from which the nature of the conversation with the other people can be ascertained. When they talked to the appellee, the subject of the conversation may have been entirely foreign to the matter under investigation in this case. If the appellant claimed that such talk related to the recklessness of the engineer in the management of his engine, it should have made that fact appear by proper questions propounded to its witness. In our opinion the court did not err in overrul. ing the motion for a new trial.

This brings to us a consideration of the fifth and sixth assignments of error, and they may properly be considered to

gether; for, if the verdict of the jury is sufficient Suficiency or to authorize a judgment for the appellee, the court special ver

did not err in overruling the motion of the appel.

lant for judgment in its favor, nor did the court err in sustaining the motion of the appellee for judgment in his favor on said verdict. The jury expressly found that Walter Pool, the engineer, to whose carelessness the injury of the appellee is attributed, possessed sufficient skill to properly manage his engine. As to whether the verdict of the jury, therefore, authorizes a judgment in favor of the appellee, depends upon whether it is sufficiently shown that the appellant, after notice of his careless and reckless habits, negligently kept him in its employment. The averments of the complaint upon this subject are “ that the de. fendant had in its service and employment, on the 13th day of August, 1883, and for four months prior thereto, as engineer of the locomotive engine used to propel said train of cars upon said work, as aforesaid, one Walter Pool, who was habitually careless and negligent in the discharge of his duties as such engineer in running and operating said engine, and hauling said train of flat cars, during all of said time, in this: that during said time said engineer habitually and generally ran and propelled said engine and train of flat cars at a high and unusual and dangerous rate of speed, and habitually and generally carelessly and negligently, started and stopped said engine and train of cars during said time with great and dangerous suddenness, and habitually and generally, during all of said time, carelessly and negligently stopped and started said train of flat cars, with great danger, without giving any signal or warning thereof whatever, and while laborers were engaged in unloading said train of flat cars, and was not possessed of sufficient skill to manage and operate said locomotive engine and train of flat cars in an ordinarily careful and prudent manner, of all which said defendant had'due notice before said 13th day of August, as aforesaid, but carelessly and negligently retained said Pool in its service and employment as such engineer after such notice, and until the happening of the injuries hereinbefore mentioned.” That portion of the verdict relating to the issue thus tendered is as follows: “ That the defendant had sufficient and ample means of knowing the habits and conduct of said Pool, as such engineer, in the discharge of his duties, as aforesaid, before the 13th day of August, 1883, and we find that the defendant did have such knowledge before that date.” As there is no allegation in the complaint that the appellant had been negligent in ascertaining the habits of Pool, or that it had failed to avail itself of the means at its command to ascertain such habits, so much of the verdict as finds that appellant had ample means of knowing such habits must be regarded as a finding outside of the issues, and must be disregarded by this court. Indianapolis, P. & C. R. Co. v. Bush, 101 Ind. 582; Pittsburgh, C. & St. L. R. Co. v. Spencer, 98 Ind. 186, 21 Am. & Eng. R. Cas. 478; Conner 2. Citizens' St. R. Co., 105 Ind. 62, 26 Am. & Eng. R. Cas. 210; Buchanan v. Milligan, 108 Ind. 433 ; Western Union Tel. Co. v. Brown, 108 Ind. 538, 14 Am. & Eng. Corp. Cas. 139.

It is to be observed that there is no express finding that the appellant negligently kept Pool in its service after notice of his negligent and careless habits. The court can add nothing to the special verdict by inference, but must deal with it as it is returned by the jury. Buchanan v. Milligan, supra; Western Union Tel. Co. v. Brown, supra. It is true the jury find that the appellant had notice of the negligent habits of Pool, the engineer, but we are not informed as to when such notice was received by the appellant. It may have been on the 12th day of August, after the close of business hours, the day before the injury to the appellee occurred. It may have been to some officer of the appellant who had no power to discharge Pool. When a master employs a competent and careful servant as in this case, he has the right to rely upon the presumption that he will continue careful and skillful, and, when notified that he has become careless, he is not ordinarily bound to discharge such servant without an investigation into such charge, unless such notice is accompanied by such evidence as leaves no reasonable doubt of the truth of such charge. A rule that would require the master to discharge a servant, careful and competent when employed, without investigation, upon a charge of carelessness, would be a harsh one, and would often result in great injustice to employes. Ohio & M. R. Co. v. Collarn, 73 Ind. 261, 5 Am. & Eng. R. Cas. 554; Lake Shore & M. S. R. Co. v. Stupak, 108 Ind. 1, 28 Am. & Eng. R. Cas. 323; Indiana, B. & W. R. Co. v. Dailey, 110 Ind. 75; Chapman 1. Erie R. Co., 55 N. Y. 579; Moss v. Pacific R. Co., 49 Mo. 167; Blake v. Maine Cent. R. Co., 70 Me. 60; McDowell v. Chesapeake, (). & S. W. R. Co. (Ky.), 5 S. W. Rep. 413; LaRose v. Logansport Nat. Bank, 102 Ind. 332.

The material charge against the appellant, and without which the complaint would be bad, is that the appellant, with notice of the negligence and carelessness of Pool, the engineer, carelessly and negligently retained him in its service. The jury did not find this fact to exist, and we must therefore presume that it was not proven on the trial of the cause. In the absence of such a finding, the verdict does not authorize a judgment in favor of the appellee. It follows that the circuit court erred in sustaining the motion of the appellee for judgment in his favor on the special verdict of the jury. Judgment reversed, with instructions to the circuit court to overrule the motion of the appellee for judgment in his favor on the verdict, and to sustain the motion of the appellant for a venire de novo.




(Texas Supreme Court, November 12, 1889.) Master and Servant-Contract of Employment-Breach-Amendment of Petition. Where the original petition alleged that the defendant agreed that when plaintiff should ask for and accept employment from it as a locomotive engineer, it would give him such employment “for whatever length of time plaintiff should desire to retain it," an amendment which charges "that defendant promised to give plaintiff employment on its road for the period and term of the natural life of plaintiff " sets up a new cause of action.

APPEAL from District Court, Marion County.
H. F. Prendergast for appellant.
H. McKay and C. A. Culberson for appellee.
HENRY, J.-Plaintiff was injured in a wreck on the de-

fendant's railroad. He instituted suit for damages in the district court.

Afterwards that suit was compromised and dismissed, the defendant paying him a Original petisum of money: On the 10th day of November, tion. 1886, plaintiff filed his original'petition in this suit, in which he alleged that by the terms of the compromise of the first suit, in addition to the money consideration paid to him, defendant agreed and promised that it would thereafter, when plaintiff should ask for and accept service and employment from it as a locomotive engineer on its road, give him such employment “for whatever length of time plaintiff should desire to retain it,” at the reasonable and customary rate of pay for such employment. The original and amended petition charges that on the ist day of July, 1886, plaintiff Offered himself to defendant for said employment, but the company refused to employ him. Under this state of the pleadings there was a trial and judgment for plaintiff, which, on appeal by defendant to this court was reversed. 38 Am. & Eng. R. Cas. 16. In reversing the case, Chief Justice STAYTON says: “The evidence tends to show that the promise made on compromise was to give to appelle employment during his life, but it does not show that when appellee sought employment he proposed to render service for any named period, or so long as he might live and be able to perform the services contemplated. We must take the contract as alleged in the petition to be the contract on which appellee must recover, if at all; and, looking to that, there can be no doubt that whether appellee should serve appellant, and the term of such service depended upon his own will, it is very generally, if not uniformly, held, when the term of service is left to the discretion of either party, or the term left indefinite or determinable by either party, that either may put an end to it at will, and so without cause."

In the district court, on the 7th day of January, 1889, plaintiff amended his petition as to the contract of employment so as to make it read, in that particular, “ that defend

Amendment. ant promised to give plaintiff employment on its road as a locomotive engineer for the period and term of the natural life of plaintiff;" in other respects, including the date of the breach of the contract, this amended petition contained substantially the same allegations that the original petition did. Among other issues, the defendant pleaded the statute of limitations of two years to the cause of action set up by the amended petition. The facts were proved to be as follows: (1) Plaintiff was injured in August, 1882, and filed a suit on May 22, 1884, which he compromised for $4,500 in money, and an agreement to be employed as an engineer for

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