On Petition for a Rehearing.
Downey, J.There is a petition for a rehearing filed in this case, and, notwithstanding the general practice to allow or overrule such applications without any further opinion, we have thought it proper to state the reasons, to some extent, of our action in this case. The pressure of business upon us, but more especially the inconvenience of any other practice, compels us to make it a rule that we will not, on a petition for a rehearing, consider questions which were not presented to us in the first instance. It is our aim to give parties an opportunity to present their cases, and to sustain them by oral argument or by brief; but when they have had this opportunity, we have a right to expect that they will presentall the points, and all the reasons in support of them, which they intend to present in the case. Any other rule would encourage inattention to cases by counsel, and much delay and unnecessary waste of time by the court. We are led to these observations by the fact that in this case new points, authorities, and arguments are presented now, of which we should have had the benefit in the first consideration of the case. This case is only one of those in which the evils of this practice have become apparent. Besides the petition, which itself should state the reasons for a rehearing (see rule 24 of this court), there have been filed three sue*320cessive briefs in support thereof, each stating grounds, and authorities, and arguments not supposed to be in its predecessor or predecessors.
In the petition, it is urged, first, that there was no evidence to prove that Kiser was careless, negligent, and unfit for the discharge of the duties of his position as conductor; second, that the presence of Humphrey, the master of transportation, and his knowledge of the occurrence which then took place was no notice to the company; third, that if Humphrey did represent the company, it'was shown that he employed Kiser as conductor of the train in question, and it was not shown that he was not a suitable and prudent person to discharge the duties of master of transportation, nor that he did not, in the employment of Kiser, use due' care and diligence. We will briefly consider these points.
It being evident that the case was made to turn on the allegations of the first paragraph of the complaint, and the evidence in support of it, it seems to us that whether the evidence was sufficient or not depends upon the question whether or not it established or authorized the jury to infer the truth of the following propositions:
First. That Kiser and Cummings, the conductor and brakeman, were “ careless, imprudent, unskilful, and untrustworthy persons,” as stated in the complaint.
Second. That this was known to the railroad company, or by the exercise of reasonable and proper diligence might have been’known to the company, as alleged.
Third. That the injury to the plaintiff resulted from the carelessness, imprudence, unskilfulness, or untrustworthiness of the said Kiser and Cummings, or one of them, as stated in the complaint.
It is with reference to the evidence in support of the first of these propositions that counsel for the appellant mainly insist there was error committed by the court below, and in the judgment of this court. Their position is, that this proposition cannot be established by the proof of particular acts of carelessness, imprudence, unskilfulness, or untrust*321worthiness on the part of the agent or servant of the company. They insist that the question is one of character,, and that, consequently, it must be settled by such evidence as is admitted to prove character and no other. They do not contend that evidence of general reputation is admissible, but that evidence of character, in its proper sense, is admissible, and that alone admissible, in proof of the fact. The books of reports are wonderfully barren of authorities upon this exact point.
In this case there were three separate and distinct acts^ or instances of alleged want of care, prudence, skilfulness, or trustworthiness on the part of Kiser before the jury from which to infer that he was not careful, prudent, etc.; for we suppose that in support of this first proposition of fact in the case it was competent for the jury to consider his acts at the time when the plaintiff was injured as well as on the other two occurrences referred to in the evidence.
We were of the opinion, in the former consideration of the case, and we are still of the opinion, that these acts of the conductor were properly left to the jury for their consideration, with the other evidence, in determining this part of the case. In a further search for cases upon this point, we have noted Gahagan v. Boston and Lowell Railroad Company, 1 Allen, 187. The question related to negligence, etc., of a flagman, and the evidence was offered by the company. The court say: “This was a fact which could be proved by witnesses who had seen his conduct, and could testify to the facts which they had observed. It did not’ require that they should be experts.”
In Murphy v. Pollock, 15 Ir. Com. Law, 224, the judges were equally divided in opinion, whether the jury might 01-might not infer the fact of the incompetency of the agent or servant from the single occurrence upon which the action was based. It was alleged in that case that the master had neglected to employ competent persons to manage the engine, the boiler of which had exploded and injured the *322plaintiff The Chief Justice and Deasy, B., were of opinion that they might do so, while Fitzgerald and Hughes, BB., were of a contrary opinion. They all agreed, however, that evidence of specific acts was admissible. We also refer to Gilman v. Eastern Railroad Co., 13 Allen, 433. In support of the second proposition of fact, it was neces5sary for the plaintiff to show that the company had notice of ■the incompetency of Kiser, or that they might have acquired such knowledge by the use of reasonable diligence. This ■evidence must, we think, relate to a time prior to that at which the plaintiff received the injury. That which had not yet happened could be no notice to any one. It is shown that the master of transportation, whose duty it seems to be to hire and discharge conductors and others managing freight trains, and to regulate the running of such trains, etc., was present on one occasion referred to in the evidence. But counsel for the company insist that notice to him was not notice to the company. We could not come to this concluIsion so readily. We think that notice to an agent of a corporation, relating to any matter of which he has the management and control, is notice to the corporation, and we do not see any reason why this rule is not applicable here. Danville Bridge Co. v. Pomroy, 15 Pa. St. 151; The Mechanics' Bank v. Schaumburg, 38 Mo. 228. As it was the duty of the master of transportation to communicate all matters concerning his agency to his principal, it may be presumed that he did so. But whether he did so or not, notice -to him is notice to his principal, when it relates, as it did here, to the business which he was transacting for the company. He was placed in his position that he might make himself acquainted with the conduct of those who were placed under his direction and control, and he seems to have had the power to appoint and remove, promote and degrade, those who were engaged in the business of which he had the oversight. All that we have decided in this case, on this point, is that the fact that the master of transportation was ¡present on one occasion when Kiser is alleged to have been *323guilty of negligence, was competent evidence to go to the jury, and from which, and the other circumstances, the jury might .find .that the company had notice of the carelessness of Kiser, or with the use of proper ..diligence might have had such notice. Upon the other proposition of fact, that Is, that the plaintiff was injured by the negligence of Kiser, ther» is no question made.
R. Brachenridge, % Brackenridge, and R. S. Taylor, for appellant y. L. Worden, y. Morris, and y. Colerick, for appellee.The petition is overruled.
Worden, C. J., having been of counsel, was absent.