Page:Federal Reporter, 1st Series, Volume 8.djvu/562

648 PBDBEAL BEPOKTER. �of the case whether McClintock was a negligent and unfit person, and whether the company had notice. It may be necessary, in view of possible further proceedings in this case, that we should have your finding upon that specifie fact. �But it is insisted by the defendant that even though the company may be guilty of negligence, either by the act of the eonductor in failing to deliver these running orders on the night in question, or that the eonductor was known to be negligent, and their having continued him in service, — in other words, it is insisted that, al- though you may find for the plaintifif upon the question of the defendant's negligence, that yet the plaintiff cannot recover because he was also negligent, and his negligence contributed to the accident. Upon this subject, gentlemen, you have all the faots before you, and it is not expedient, even if it were proper, for me to comment upon the testimony. You will look into the testimony as it has been delivered to you, showing the conduct of the plaintiff on the night of the accident — the manner in which he ran the train. You will considei- the question whether there is any proof tending to show, or sufficient to show, that he knew or had any reason to believe that the gravel, train was on the track over which he was called upon to pass ; whether there is anything to show that he was bound to stop at the station and wait for the gravel train without order, because it is conceded that the orders were not delivered to him by the eonductor. �There is another braneh of the case upon which it is earnestly contended by the defendant that the plaintiff has been shown to have been guilty of contributory negligence. It is said that he had notice of the negligence of this eonductor McClintock ; that for some time before this accident he eonfessedly knew that McClintock was a negligent and improper person to hold that position, and that, know- ing that fact, he was negligent in continuing in the service of the company. ^ �. The law upon this subject, gentlemen, is that if one employe of a railroad company discovers that a co-employe of his is negligent or unskilful, it is his duty to give notice to the company, but it is not necessary that he should at once quit the service of the company. After having given notice he may continue in the service of the company for a reasonable time, in the expectation that the company will take proper action in the premises and discharge the unworthy and incompetent person. And if, within this reasonable time, after notice has been given, and before the objectionable person has been ��� �