Bell v. Globe Lumber Co.

Citations

• 107 La. 725

Syllabus

<p>Syllabus.</p> <p>J. 'The master is not bound, absolutely, to his servants for the competency of their fellow servants, engaged in the same common employment, and is guilty of a fault, and becomes liable to the servant injured, only when the fellow servant, through whose incompetency, or negligence, the injury is inflicted, has been employed, or retained, with knowledge of his unfitness, or when the master has failed to exercise reasonable diligence and care to inform himself, and keep himself informed, as to his qualifications. Hence, a mere allegation of injury, caused by the incompetency, or negligence, of a fellow servant, imputes no fault to the master, and discloses no cause of action against him, ahd an exception to that effect should be decided before trial, if a decision is requested, and not referred to the merits. Hence, also, it is error to charge the jury that the “general allegation that the damage was caused by the employe is sufficient notice to the defendant that he knew of the incompetency of the employe.”</p> <p>ü. Where, however, in such a case, the exception of “no cause of action” is referred to the merits, by the court, and, upon the trial on the merits, the defendant, without objection, permits evidence to be Introduced tending to establish facts which, if alleged, would have disclosed a cause of action, he allows the ground upon which his exception is based to be taken from under it and, thereby, in' effect, allows the petition to be amended and its defects cured.</p> <p>8. Whilst the doctrine of the non-liability of the master for injury sustained by a servant in his employ, through the incompetency or négligence of another servant employed by him, has not been recognized in this State as including certain classes of oases to which it has been applied by the English, and by, some, American, courts, the ordinary case of a brakeman injured through the incompetency or negligence of an engineer, when both are engaged in handling the same trai