Gier v. Los Angeles Consolidated Electric Railway Co.

Citations

• 108 Cal. 129
• 41 P. 22
• 1895 Cal. LEXIS 833

Syllabus

<p>Negligence—Master and Servant—Contributory Negligence—Place of Danger.—A conductor on a street railway while engaged in switching his car from the main to a side track is not guilty of contributory negligence in standing in the space between the two tracks, if such position was the usual one assumed by the employees in performing that duty, and was not, in itself, a place of peril.</p> <p>Id.—Selection of Employee—Inquiry as to Fitness.—A railroad company cannot be charged with negligence in the selection of an employee, merely because it omitted to question the employee himself as to his competency, skill, and carefulness at the time of his employment, if it made such inquiries of his former employers.</p> <p>Id.—Retention of Unfit Employee. — Under section 1971 of the Civil Code, an employer is as much guilty of a lack of ordinary care by the retention of an unfit employee, after knowledge of his unfitness, as by a failure to use due diligence at the time of his selection, and in either case the employer is liable for all losses resulting therefrom.</p> <p>Id. —Knowledge of Unfitness—Durden of Proof.—An employer who has exercised due care, in the selection of an employee cannot be held liable for an injury to a co-employee occasioned by the employee, unless the latter had become and was actually unfit or incompetent through negligence or incapacity, and the injury happened by reason thereof, and the employer knew of his negligence or incapacity or his general reputation was so in accord with the fact that the presumption is that the employer knew it, and was therefore negligent in not acting upon the knowledge, and the burden of proving such facts is on the employee injured.</p> <p>Id.—Bad Reputation of Employee.—After proof of the fact of unfitness the employer may be charged with liability, if it can be shown that the reputation of the culpable employee was so generally known and notoriously bad that it ought to have been, and therefore presumptively was, kno