The Montgomery advertiser., 1906-04-02
FIRST NATIONAL BANK OF MONT


 GOMERY v. CHANDLER.
 Decided Hume 90, IeO5--f3s So. Rep s22).
 1. Master ana servant: injuries to
 servant: incompetent servants; selec-
 tion.-In an action for injuries to a servant by the negligence of an al- legged incompetent fellow servant. plain
 tin Is bound to prove, not only the ser wants ineompetency, but that 1t was actually known to the master. or could
 have been discovered by the exercise of reasonable care.
 g. Same: evidence.--The incompetency
 of fellow servant by which plaintiff was injured, may be shown by proof of specific acts of incompetency brought to the knowledge of the master. or by showing them to have been of such a nature, character. and frequency that the master in the exercise of due care must have known thereof.
 tency of fellow servant cannot be shown to prove that the servant was negligent in doing or omiting the act complained of.
 1. Same. proximate cause-Incom- potency of plaintiffs fellow servant is insufficient to charge the master with liability for plaintiff's injuries. unless such incompetency was the proximate cause thereof
 D. same. ndOitual neBnEcnCe-NeSI- gence of a servant. sufficient to render the master negligent in retaining him in his employ. must be habitual, rather than occasional.
 S. Same: assumed risk.-where a ser want has equal knowledge with the master with reference to the incom- potency of a fellow servant, and not withstanding such negligence continues in his employment without objection. he thereby valves the negligence in re- taining such incompetent servant in his employ.
 7. Same: employers liability act: compiaint.-where complaint for in- juries to a servant by the negligence of an alleged Incompetent fellow ser
 want averred a comn1on-law liability. resulting from the masters negligence in retaining such incompetent servant in his employ with knowledge of his incompetency. the complaint was not demurrable for failure to allege that the fellow servant had any superin- tendence intrusted to him. or any of the essentials to a recovery under the employers libality act Code isss. Sec. 174s,.
 8. Same-In an action for injuries to a servant by the alleged incompetency of a fellow servant. 1t was not neces- sary that the complaint in charging negligence should state the quo nnodo or negative fact that plaintiff knew of the incompetency of such servant before going into the place of danger. where he was injured.
 g. Same; negligence of master.- Where a complaint for injuries to servant charged defendant with negli- gence at common law. in falling to in form itself of the unfitness of plain tiff's fellow servant. 1t was not neces- sary that the complaint should lay such failure to some person intrusted by defendant with management and superintendence.
 10. Same; contributory negligence Of servant.-In an action for injuries to servant by the negligence of fellow servant in the operation of an elevator while plaintiff was at work in the shaft
 a plea alleging that plaintiff stated that he would be through in few min utes. and that it was nearly an hour af-
 ter that the accident happened. was fatally defective for failure to aver that plaintiffs statement was made to the elevator operator or to any one else authorized to act thereon.
 Il. Same.--Where plaintiff. before go- | ing into an elevator shaft to make re- hairs. informed the elevator operator l not to descend below the first floor. the fact that plaintiff thereafter told the operator he might descend once to the basement for a particular purpose did | not authorize him to continue to oper- ate the elevator to the basement. l2. Same: incompetent servant; dis obedience of orders.-The fact that 2 servant claimed to be incompetent ana disobeyed his masters instructions was competent on the issue of the servant ] incompetency.
 13. Appeal; pleading: harmless error. It was harmless error to improperly sustain a demurrer ito certain pleas. where defendant had the benefit of all the matters set up therein under pleas remaining in the record.
 14 Master and servant; injuries to servant: pleading.-In an action Tor ln- juries to a servant by the alleged in- coupetency of a fellow servant, pleas ayerring that plaintiff had knowledge concerning such fellow servants aoil' | ity to operate the elevator, by which plaintiff was injured. was insumcien' | for failure to charge plaintiff with knowledge of the incompetency of the operator, due to carelessness and mat tention.
 Is. Evidence; information: experts A question as to whether an alleged in- competent servant was wide-awake. attentive boy during the time he was engaged in hIs duties was not objec- tionable as calling for the opinion of a witness who was not an expert. Is. Master and servant: injuries to servant: fellow servants3 incompe- tency: evidence.-Where witness. who had charge of a building. had been in- structed by defendants president to look after the operation of an elevator and take charge of the boy operating it. it became witness's duty to report the elevator boys misconduct to his superior: and hence evidence that wit ness had been informed of the conduct of the boy was admissible In an action for injuries by the boys negligence. IT. Same: instructions.-Where in an action for injuries to servant. there was evidence that the slipping of an elevator brake. alleged to have caused the injury, was caused by the inatten- ton or carelessness of the elevator boy. an instruction that If the injury was caused by the slipping of the brake plaintiff could not recover was properly refused.
 IS. Same.-where an elevator boy had been informed of plaintiffs inten- tion to work in the elevator shaft, and had been directed not to permit the elevator to descend below the first floor, hut he did so, causing the plaintiff s in niuries. an instruction that if another had been instructed by a superior to take carpet on the elevator to the basement, and he told the elevator boy
 to run the elevator to the basement, which he did then plaintiffs injury was
 not caused by the incompetency of the
 elevator boy. was properly refused.
 ls Same.--Where plaintiff was in-
 jured by the operation of an elevator
 nd lat