Supreme Court Wabash Railway Co. McDaniels, U. This Court will not reexamine the order of the circuit court refusing to set aside the verdict upon the ground that the jury awarded excessive damages.
The same degree of care which a railroad company should take in providing and maintaining its machinery must be observed in selecting and retaining its employees, including telegraphic operators. Ordinary care on its part implies, as between it and its employees, not simply the degree of diligence which is customary among those entrusted with the management of railroad property, but such as, having respect to the exigencies of the particular service, ought reasonably to be observed.
It is such care as, in view of the consequences that may result from negligence on the part of employees, is fairly commensurate with the perils or dangers likely to be encountered. This was an action by McDaniels against the Wabash Railway Company to recover damages for injuries he sustained by reason of a collision of two of its freight trains, which took place on the night of Aug.
There was a verdict in his favor. The court refused to set it aside, and, judgment having been rendered thereon, the company brought this writ of error. The company was a common carrier, and the plaintiff a brakeman in its service at and before that date. When injured, he was at his post of duty on one of the colliding trains. The collision, it is conceded, was the direct result of negligence on the part of McHenry, a telegraphic night operator of the defendant assigned to duty at a station on the line of its road, who was asleep when a train passed that station.
Being ignorant for that reason that it had passed, he misled the train dispatcher at Fort Wayne as to where it was at a particular hour of the night. In consequence of the erroneous information thus conveyed, the trains were brought into collision, whereby the plaintiff lost his leg, and was otherwise seriously and permanently injured. The action proceeded mainly upon the ground that McHenry, a telegraphic operator in the service of the company, was incompetent for the work in which he was engaged, and that the.
