The opinion of the Court was delivered by
Bermudez, C. J.This is an action in damages by a widow and tutrix. The damages claimed are said to have been occasioned a husband and father by the incompetence and negligence of a fellow-servant in defendant’s employ, and to have consisted in the endurance of excruciating pains which lasted some twenty-four hours, ending with loss of life.
The answer contains a general denial and, in exoneration of liability, a charge of contributory negligence.
Prom the judgment based on the verdict of the jury, the defendant has appealed.
The action is brought under the provisions of Articles 2315, et seq. pf the E. C. C., which are to the effect, that every act whatever of man which causes damage to another, obliges him by whose fault it happened to repair it j the right of such action surviving, in case of death, in favor of the minor children and widow of the deceased, or either of them, and the responsibility being fixed on the person occasioning the damage, not only for his. own deed, but also for that of persons for whom he is answerable, and for the injury caused by things in his custody. It is specially founded on Article 2320, which declares, that masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed, the responsibility attaching when the master might have prevented the act which caused the damage and has not done it.
We do not propose to take up and analyze the conflicting testimony of the twenty odd witnesses heard in this case, to ascertain and declare what facts were proved. We will remain satisfied with announcing our conclusions, which are the result of attentive examination and study.
Alfred Poirier was a skilled engineer. In November, 1879, he was employed by the defendant to take off his sugar crop from his planta- . tion, and was given one Eolf as his assistant.
In the course of time, apprehending that Eolf was incompetent and negligent, Poirier made it his duty to apprise J. E. Carroll, the plantation manager, of his deficiencies and shortcomings, accompanying the information with a request for a change of that assistant. The answer to this was, that if another assistant could be got as cheap, the change -would be made. The testimony of Chaperon, a disinterested witness, *703is entitled to more weight on this subject than that of J. R. Carroll, with which it conflicts, for the reason that the latter had an interest in screening himself from responsibility towards the owner of the plantation, in case of dereliction of duty on his part and consequent injury inflicted on his principal.
On the 20th of January, 1880, between two and three o’clock in the morning, Poirier, then off duty, was asleep in a bunk which he usually occupied over the boilers. His assistant Rolf was at the time in charge of the engine.
All of a sudden an explosion took place, by which Poirier was so severely injured, that he died from the effects of it after suffering pains, the intensity of which, though somewhat established, may be better imagined than expressed.
It is proved that the explosion is attributable, not to any defect in. the machinery, but to the fact that cold water was used and pumped by Rolf into a boiler, when the water in it had sunk below the last guage cock, and that the accident could have been prevented by his pulling the fire out.
Under such a state of facts, the defendant substantially charges that, as Poirier had full knowledge of the incompetency of Rolf, his fellow-servant, and of the possibility of danger and accident resulting therefrom, and yet remained in his master’s employ, he is presumed to have assumed voluntarily the risks attending and waived all right to personal security and to indemnity for injury to his person.
It is further urged that, in any contingency, he was guilty of contributory negligence, and from no standpoint can he recover.
It is finally insisted that the District Judge erred in refusing to give to the jury charges asked, and that the verdict was erroneous.
Hence, we consider that the question presented by both litigants can be well stated mainly to be: ,
Whether, where a servant, who is aware of the ineompetency of his fellow-servant, notifies his master of the same, but continues in his service, and sustains injury in consequence of the deficiency or negligence of such fellow-servant, whether notice was or not given to, or a promise made or not by the master—recovery can be had from him for damages suffered by the servant.
The general principles governing a case like that presented are unambiguous. The common and civil law are alike on the subject.
It is conceded by the defendant to the extent that, where a servant is injured by the incompetence and negligence of a fellow-servant, the injured servant cannot hold the master liable in damages, unless it be shown that the master negligently employed or retained an incom*704petent' or careless servant. The concession is not a liberal one. See Thompson on Negligence, Yol. II, p. 917, 969, 974; Wharton on Neg. § 324; Cooley on Torts, pp. 542, 558; Pierce on R. R. p. 379.
But it is claimed further, that the servant, in the excepted cases, is not protected, 1st, unless it is shown that the master was notified and promised to discharge the incompetent servant; 2d, unless the,injured servant was not guilty of contributory negligence.
The proposition might be yielded, except so far, however, as it implies,as an essential element for recovery, the pre-existence of a promise or some engagement on the part of the master to discharge the incompetent servant.
No doubt cases have arisen in which proof of an express promise, or of an inducement having been adduced, recovery was allowed, but it must not be inferred from such incidents that a promise eo nomine, whether formal or virtual, was declared' to be an indispensable condition sine ■qua non. 6 Hul. N. 349; 7 Ib. 937; 3 Dillon, C. C. Rep. 328; 49 N. Y. 534.
In the Hough case, 100 U. S. 225, the Court said:
“ There can be no doubt, that when a master has expressly promised to repair a defect, the servant can recover for an injury caused thereby, within such a period of time after the promise as it would be reasonable to allow for its performance.”
But the Court does not assume to go to the length of saying, that unless the'promise was explicit, recovery could not be had. It has left it to be determined whether any promise is necessary, and whether an implied promise, if one be indispensable, from which the complaining servant may deduce and entertain a hope, however weak or slim, is not sufficient even in the absence of a contract for the hire of labor for a limited time. In the case of Laning vs. Central R. R. Co., 49 N. Y. 534, in which the limitations and exceptions put to the rule were considered, the Court said, Polger, J.:
“ The duty of the master, as it is sometimes put, or his implied contract with his servant, as it is differently intimated, leads to another conclusion. That duty or contract is to the result, that the servant shall be under no risks from imperfect or inadequate machinery, or other material means and appliances, or from unskilful or incompetent fellow-servants of any grade. It is a duty or contract to be affirmatively and positively fulfilled and performed. And there is not a performance of it until there has been placed for the servant’s use perfect and adequate physical means, and for his helpmeets fit and competent fellow-servants, or due care used to that end. That some general agent, clothed with the power to make performance for the master, has *705not done his duty at all, or has not done it well, neither shows a performance by the master, nor excuses the master’s non-performance. When it is done, and notuntilthen, his duty is met or his contract kept. * * * If a master’s personal knowledge of defects be necessary to his liability, the more he neglects his business and abandons it to others, the less will he be liable.” We therefore hold, continues the Court, that a master is liable to his servant for an injury caused by the incompetency or want of skill of a fellow-servant, whether it existed when the fellow-servant was hired, or has come upon him since the hiring, the fellow-servant having been in the first instance hired or afterward continued in service, with notice or knowledge, or the means of knowledge of this lack. The duty of the master to his servants is to use reasonable care to provide and employ none but competent and skilful servants, and to discharge from his service, on notice thereof, any one who fails to continue such.
• Applying the rule to the case before them, the Court concluded, saying that they are of opinion that the defendant was negligent towards the plaintiff in retaining the fellow-servant in its service, after his habit of drinking to drunkenness was known to the general agent.
In the present case, however little, Rolf’s negligence may have to be considered, it is indubitable that he was incompetent and was previously known to be so; that Poirier notified Carroll, and that some sort of a statement or answer was made to him, the purport of which was to give him.some hope that a change would be accomplished. The word if, testified to by Chaperon, the witness, can be well understood as meaning when.
On principle, justice and law, Carroll was bound to give to Poirier a competent assistant. When he was notified by Poirier of Rolf’s incompetence, his duty was to have discharged him. He admitted that incompetence by promising a change when he would get as cheap an assistant.
. Had he discharged Rolf and replaced him by a competent man, the explosion directly caused by Rolf would not have occurred, and Poirier would not have been the victim of it.
His omission to make the change, after notification and knowledge of the incompetence, was negligence on his part, and on that account was enough to fix a liability on the defendant, his employer, for damage sustained in consequence. *
The fact that Poirier continued in the service of the defendant canr not be considered as a waiver or as contributory negligence, barring a recovery of damages.
*706Eminent text writers have said on this subject:
“ The mere continuance of a servant in his work has been treated as conclusive evidence of his having waived objections to defects in his associates or his materials. Such rulings are unjust, because a servant has the same right to complete his contract, in reliance upon its original terms, that anyone else has. * * * The real question to be determined in each case is : whether, under all the circumstances, the master had a right to believe and did believe, that the servant intended to waive his objection to the unfitness of his fellow-servant, or the defect in the materials provided for the work.” See Shearman and Redfield on Neg., p. 112.
Poirier had a contract with Carroll for the hire of his services, which was for the limited time required to take off the crop, that is, several months at a monthly salary, under which he was bound to serve for the grinding season.
The Code provides, in this respect, that: laborers who hire themselves out to serve on plantations have not the right of leaving the person who has hired them, nor can they be sent away by the proprietor until the term of their engagement has expired, unless good and just causes can be assigned.
Had Poirier thrown up his engagement and left his employment, owing to his fears and apprehensions of danger and injury which might have resulted from his conception of Rolf’s incompetence, and had he afterwards brought an action for payment, and been unable to establish with legal certainty the existence of a just and good cause, to the satisfaction of a court, with a burden of proof upon him, the consequence would have been to him the loss of not only his pay Tor time to come, but also the return to his employer of that already received. R. C. C. 2748, 2750.
Poirier was not bound to undertake that risk. He had a right to remain, notwithstanding his fears of danger. By remaining and doing his duty, he would be entitled to pay and thus meet his responsibilities.
Prom the fact of his thus continuing, we are averse to infer that he waived his right to a fitness of his fellow-servants, and to a life which he could not in conscience rashly expose, as it was not only useful to himself, but precious to his wife and minor children, who depended on him for support and maintenance.
We do not understand the doctrine of common employment announced in Priestly vs. Fowler, 3 Mer. and W. 1, often criticised, possibly overruled, and in Hubgh vs. R. R. Co., 6 An. 490, as having a direct bearing upon this case.
In the case of Laning, to which we have already referred, and which *707was decided by the N. Y. Court of Appeals in 1872, the Court said, speaking of the fellow-servant:
“ If he remains without promise of a change, or other like inducement, it is for the jury to say whether or not he voluntarily assumed the risks of defective machinery or of incompetent servants, whereof he had full and equal knowledge.” 49 N. Y. R., pp. 941-2.
But it is claimed that, be all this as it may, Poirier contributed to his own death by sleeping over the boilers.
It is established that the spot was designated as the corner which had been fixed for the engineer by the master; thatitwas customary for him to sleep there. Sleeping over the boilers of an engine is not in itself an acknowledged act of imprudence. It shows no want of ordinary care, and has not a proximate connection with the injury complained of. There to sleep is comfortable in the winter, and is a fact of frequent occurrence with persons who travel by water, whether navigating rivers or seas. We attach little importance, if any, to the conflicting statements made by witnesses, whom the jury did not believe, that Carroll notified Poirier not to sleep there.
No doubt, precisely because of his suspicions of Rolf’s want of skill or negligence, and of his uneasiness on thesubject, Poirier, as an overcautious and conscientious servant, had made it his duty to remain close by, in order, at the least notice or noise, to be on hand and ready to protect both life and property.
To blame him and to visit want and misery on his helpless widow and orphans, on account of his devotion for his master’s interest, is a defense which comes with exceptional ill grace from his thankless employer, and to which we think it our duty to turn a deaf ear.
The District Judge was asked to instruct the jury, that if the servant remained after discovering the danger, and without promise of removal by the master, he did so at his peril and has no claim for damages, if afterwards injured by the known danger.
The Court charged the jury, that if they found that Poirier had been employed under a contract for a specified time, and was discharging his duties under such contract, then and in that case, it was immaterial whether the defendant, upon being informed of the incompetency of the assistant engineer, promised to discharge him or refused to do so.
The charge asked required explanation and qualification. The Judge was not bound to give it as put. That which he gave accords with our views, and is justified by law.
We have read with interest the ably guarded written charge given by our learned brother to the jury, and which contains instructions on nine different points, covering nearly six pages of the transcript, and *708remain satisfied that it was well calculated to enlighten, the jury, and that it informed them correctly of all material points of fact and law to which their attention should have been directed. We notice no bill to such written charge.
The verdict of the' jury was for $12,000. We think it is excessive,' and should be reducéd. The suit is not, nor could it be brought for-damages sustained in consequence of the death of Poirier, but for the suffering and pains which he endured from the time of the explosion-' to that of his death, a period of some eighteen hours, during part of which he was apparently insensible or unconscious. Whatever the endurance was, his widow and minors cannot recover heavier damages than he would have been entitled to demand and receive had he sur-; vived, fully recovering at the very moment when he actually died.
■ In the case of Vredenburg, in which the unfortunate victim had been, sprung upon by a ferocious bear which lacerated his flesh, and suffered torture ending after twenty-eight days, the jury had allowed $15,000, but their verdict was reduced to half.
We do not think that, under the circumstances of this case, from which it appears that the suffering endured by the deceased did not last twenty-four hours, the plaintiff should be permitted to recover more than twenty-five hundred dollars.
It is, therefore, ordered and decreed that the verdict and judgment thereon and appealed from be amended, by striking therefrom the words “ twelve thousand dollars,” and inserting in place thereof-' the words “twenty-five hundred dollars,” ($2,500) and that thus amended the same be affirmed; the cost's of appeal to be paid by, plaintiff, and those of the lower, court by the defendant.