me if he had looked. The hammer man was supposed to move the hammer by the use of the motion lever, attend to it and run the water out of it the first thing in the morn started the hammer in motion and stopped it) was Joseph Tomlinson; so that the crew working together on that steam hammer, on that job, was Mr. Truitt, the blacksmith, myself, the helper, and Joseph Tomlinson, ing, without telling, and oil the hammer; the hammer boy. At the time of the accident, to the best of my knowledge, I do not think I had worked on that hammer and with that crew over two weeks. Previous to that I had been working down at the other end of the shop, I judge about a hundred feet away." The witness was here asked: "What did you know about Joseph Tomlinson? A. Well, I did not know anything." This was objected to by counsel for defendant, as too broad, and motion made to strike out the answer as immaterial. BOYCE, J. [1] We sustain the objection and order the answer stricken out. "I could not say how long I had known Joseph Tomlinson. I just knew him when I saw him around the shop; was not personally acquainted with him. I did not know anything whatever about his work as a hammer boy. "The accident happened in the morning of the 25th of February, 1910. It was about the first thing in the morning. I cannot recall the hour, but I know it was early in the morning. I cannot say which heat it was. It might have been between 8 and 9 o'clock in the morning. I don't know. I am supposed to be there at 7 o'clock. In my position as blacksmith's helper it was my duty to take orders from the blacksmith, Samuel Truitt, and my foreman, Mike Viegofski. The foreman did not give me any orders that morning. The blacksmith ordered me to clean the scales out of the die or form which was on the bottom die of the steam hammer, and told me to hurry up about it. The hammer was up at the time and I am positive there was nobody at the hammer when I went to it. The scales were in the hole in the top of the form. When Mr. Truitt told me to clean those scales out of the form and hurry up about it, that the heat was ready to come out, I stooped down and grabbed a piece of waste or rag and I started to knock the scales out. Then my hand got smashed with the steam hammer. The hammer came down on it. I did not know that Tomlinson, the hammer boy, had come to the steam hammer. When they push the motion lever it starts the motion of the hammer running up and down. If the hammer was up, and if you pulled the motion lever, and it had steam on it, the hammer would come down in a hurry. But if the hammer was down and you moved the motion lever with the steam on, it would raise the hammer up. The hammer man at his post, if he tries to see, can observe whether the hammer is up or down. In the position I was at the time of the accident, the ham and after that he was supposed to run his hammer when he was told. The blacksmith, Mr. Truitt, would tell the boy at the hammer to raise the hammer, hit it light or heavy, whatever he would want him to do. At the time of this accident the 'heat' was in the fire, not on the form or die. "The morning of the accident after the blacksmith told me to remove the scales from the form and before the accident happened, I heard him holler something to the hammer boy, but I cannot say whether it was the word 'right' or not, but he gave him the signal. I cannot say that I know what I did not see Tomlinthat signal was for. son at the time the signal was given and I I had no warndo not know where he was. ing whatever that the hammer was about to be moved and fall on my hand. The hammer came down on my hand and crushed it. I took my other hand, lifted it up and pulled it out. I did not have the strength in the crushed hand to lift it up and I took this other hand and lifted it out. I remember them taking me to the storeroom. I cannot say after that; it seemed like I cannot tell; cannot recall. I remember getting in the ambulance, and after that I don't remember which way I went. At the time I did not know where I had gone. I subsequently found myself at the Delaware Hospital. My arm was amputated on the 8th day of March, 1910. The pain was so great I thought I was dying all the time. I did not see how I could stand it. I thought I member much about that though, until after was going to die any minute. I did not remy hand was amputated, and then I remembered what happened to my arm. I was in the hospital one month lacking one day. I had to go back to the hospital several times. Some bones were mashed so fine that they did not get them all out, and they cut it again and took them all out. When I was first discharged at the end of the month the wound was not healed at the time. was discharged I had to go back to the Delaware Hospital twice a week for a long time. After I "At the time of the accident I was getting $12.75 a week. Previous to the accident my average weekly earnings I would say were $14 or $15 a week. This was what I earned previous to the time that I went to Harlan's. I have made more than that. After the accident I got employment again at Harlan's in the storeroom. They started me at $8.54 a week. They promised me more, but did not give it to me, and in June of 1910 I left or got fired. I was there only a month or two after the accident. It was nearly a thing at all to do. I am working now at the Wilmington Gas Company and am a gas arc light trimmer. I am making $10 a week. I have not been able to make more than $10 a week since this accident." Gentle BOYCE, J. (charging the jury). men of the Jury: We decline to instruct you to find for the defendant. This action was brought by the plaintiff, David Samuel Warren, against the defendant, Harlan & Hollingsworth Corporation, to recover damages for personal injuries to the plaintiff, alleged to have been occasioned by the negligence of the defendant corporation, at the shops of the defendant corporation, in this city, on the 25th day of February, A. D. 1910. use said motion levers with safety, but the said defendant, nevertheless, negligently and carelessly employed the said Tomlinson to work and operate said steam hammer and to control the said motion levers of the same." Such negligence must be proved, and the burden of proving it to the satisfaction of the jury, as alleged, rests upon the plaintiff. There is no presumption of negligence, either on the part of the defendant, or the plaintiff, from the mere fact that the plaintiff was injured. Whether there was any negligence at the time of the accident, and whose, you must determine from all the facts and circumstances of this case as disclosed to you by the testimony of the wit nesses. The plaintiff's declaration contains a sin- [5] Negligence has been defined to be a gle count and, in general language, the neg-failure to observe, for the protection of the ligence charged is that the defendant negli- interests of another person, that degree of gently and carelessly omitted to provide a care, precaution and vigilance which the reasonably careful and competent fellow circumstances justly demand, whereby such servant to operate a certain steam hammer other person suffers injury. around which the plaintiff was working as a helper to a certain blacksmith in the shops of the defendant, in making iron bolster hangers to be used as parts of car trucks; and it is contended that by reason of the incompetency of his co-worker to operate the said machine, he, the plaintiff, was injured. The defendant denies that it was guilty of the negligence charged, and insists that the injury complained of was caused by the negligence of the plaintiff himself. [2] We shall not attempt a statement of the testimony which has been produced before you. You have patiently and attentively listened to the several witnesses as they have given their testimony, and you doubtless have it clearly in your minds. We are not permitted to charge you on the facts adduced by the witnesses. You are the sole judges of the credibility of the witnesses and of the weight and value of their testimony. The evidence is, therefore, for your exclusive consideration and determination, after applying thereto the law as we are about to declare to you. [3, 4] This action is based upon the alleged negligence of the defendant, and to entitle the plaintiff to recover you must be satisfied by the preponderance or greater weight of the evidence that the alleged negligence of the defendant, which, is is claimed, caused the plaintiff's injuries, was such negligence as is described in the plaintiff's declaration; that is, "that the said Tomlinson was not a reasonably competent and careful person to operate said steam hammer and to control said motion levers, and the said Tomlinson was known to the defendant, or by the use of due diligence might have been known to the defendant, to be a person who did not possess the skill, care and prudence It is conceded that the injuries complained of were inflicted by the hammer being let down on the right hand and forearm of the plaintiff when his said hand was in the pocket or hole in the mould resting on the base or lower die of the hammer machine, and that as a result of the injury the arm had subsequently to be amputated below the elbow. [6] The ground upon which an employé may recover from his employer for personal injuries inflicted in the latter's service is that such injuries were caused by the violation or neglect of some duty which the employer owed his employé—that is, the right of recovery for such injuries is based upon the negligence of the employer, or the negligence of another for whose conduct the employer is responsible. And the burden of proving such negligence is on the plaintiff. [7, 8] It is conceded that the plaintiff and time of the accident, employed by the deTomlinson, the hammer man, were, at the fendant and engaged in a common employment. They, therefore, bore the relation of fellow servants or co-workers. It is the set tled law in this state that there can be no recovery from the employer for personal injuries caused by the negligence of a fellow servant, in the selection and retention of whom the employer has used due and reasonable diligence. [9] It is, therefore, the duty of the employer to exercise reasonable care in the selection and retention of his employés, to the end that fellow servants or co-employés may not be endangered in the performance of their duties by the conduct of other employés of the defendant who are unskilful or careless in the performance of their duty. The employer is required to employ and retain in his service co-workers and fellow for the performance of the particular work in which they are engaged. The degree of care thus required of the employer in the selection and retention of his employés is proportioned to the risk or hazard of the particular business in which the employé is engaged. ance of the duties to which he had been assigned, your investigation of this case should stop there, and you should return a verdict for the defendant. If you should find that Tomlinson was not reasonably competent for the work assigned to him, had the defendant reason to know it? If the defendant had reason to know that Tomlinson was incompetent, and if knowing it, or by the exercise of due care and caution could have known it, and continued him in its employment, and if the plaintiff was injured by reason of such incompetency, without the fault or negligence of the plaintiff operating at the time, the plaintiff would be entitled to recover. If the defendant had not reason to know that Tomlinson was not reasonably competent to perform the duties assigned to him, or, as we have said, if the injury to the plaintiff did not arise from his co-employé's incompetency, the plaintiff cannot recover. [10, 11] An employé is entitled to assume that his employer has exercised due care and diligence in the selection and retention of reasonably competent and careful co-employés, and is not chargeable with knowledge of the incompetency or carelessness of his co-employés until he has notice thereof by information or circumstances reasonably sufficient for that purpose. Whether an employé is chargeable with knowledge of the general reputation of his co-employé for incompetency or carelessness will depend upon the length of time he has known, or had an opportunity of knowing, the reputation of his co-employé, and upon all the circumstances of the particular case. Giordano V. [15, 16] By a competent servant is meant Brandywine Granite Co., 3 Pennewill, 423, a servant reasonably safe for the perform52 Atl. 332, and Murphy v. Hughes et al., 1ance of the duties assigned to him, considPennewill, 260, 40 Atl. 187. ering the nature of the work and the general [12] A person entering into the employ-safety of those engaged with him in a comment of another assumes the usual risks of mon employment. Incompetency may exist the employment, excluding that of the neg- in the disposition with which a servant perligence of the employer, and including that forms his duties. Although he may be physiof the pure negligence of the co-employé, cally and mentally able to do all that is rewhenever doing anything contemplated by quired of him, his disposition toward his his contract of employment. Taylor v. Bush work, and toward the general safety of the & Sons, 6 Pennewill, 307, 66 Atl. 884, 12 L. work of his employer and of his fellow servR. A. (N. S.) 853. ants, may, or may not, tend to make him an incompetent servant, according to the facts and circumstances of the particular case. Labatt on Master and Servant, § 134. [13] If the employer has exercised due and reasonable care in the selection and retention of reasonably careful and competent employés, he is not an insurer of the safety or against the negligence of such employés. Reasonable care means that degree of precaution and diligence which the risks and hazards of the particular service reasonably require. [14] We now especially direct your attention to the distinction to be made between the negligence of a competent fellow servant and the negligence of an incompetent fellow servant. The employer is not liable for the negligence of a competent fellow servant, but he is liable for the negligence of a careless and incompetent fellow servant, in the selection and retention of whom he has not exercised due and reasonable diligence, if it be shown at the same time that the injured co-employé used ordinary care and prudence to avoid the injury. The plaintiff insists that the defendant was negligent in failing to provide a reasonably competent and careful person to operate the said steam hammer at the time of the accident. Was Tomlinson, the hammer man, competent or incompetent to operate the steam hammer at the time of the accident? If you find from the preponderance or greater weight of the evidence that he [17] If it should be found from the evidence that Tomlinson was not careless or incompetent in the actual performance of his duties, as alleged, but that he had always, prior to the accident by which the plaintiff was injured, performed his duty as a hammer man in a reasonably safe and careful manner, the plaintiff would not be entitled to recover, or, if it should appear from the evidence that Tomlinson had been negligent only in respect to the particular act which caused the injury to the plaintiff, the latter cannot recover. The question whether the particular act which caused the injury to the plaintiff was negligent, and if negligent, whether it was merely a temporary lapse, or indicated an unfitness on the part of Tomlinson for the duties assigned to him, you should determine from all the evidence adduced before you. [18] Proof of the commission of an act by a co-worker by which a fellow servant is injured, satisfactory to the jury, accompanied by like proof that the person charged with the act had a general reputation, among those with whom he worked, for carelessness and incompetency in the performance of his duties, based upon facts and acts, shown to isfy the jury that the person charged with the act was a careless and unfit person to perform the duties assigned to him, would warrant the jury in finding that the person so charged was careless and unfit for the work, and that the particular act complained of was negligent; but such reputation should be based upon facts and acts, shown to the jury, sufficient in their character to satisfy the jury that the person charged with the act by which the plaintiff was injured was careless and unfit for the duties assigned to him. If such reputation be shown to the satisfaction of the jury, it may be taken as evidence tending to show notice to the defendant of the careless and negligent character of the person charged with the alleged negligent act. make and promulgate proper rules for the government of his employés and business whenever it is so large or complicated as to make his personal supervision impracticable; whether such rules are sufficient for the purpose is for the determination of the jury from the evidence in the particular case. One of the tests of their sufficiency is that they have been in force for a long time and have accomplished the purpose intended. Murphy v. Hughes Bros. & Bangs, supra. [23] The degree or measure of instruction or warning required to be given to an employé as to the dangers of his employment must depend upon the hazards and circumstances of each case. [24] Before the jury can find for the plaintiff they must be satisfied, from the evidence, not only that Tomlinson was a careless and unfit person to operate the hammer, but that the accident, whereby the plaintiff was injured, was caused by the negligent or careless act of Tomlinson. [19] The degree of weight to be given such evidence in the proof of notice to the employer of the incompetency or negligence of such employé will depend upon the length of time such reputation existed prior to the accident, and other circumstances of the particular case; the general rule being that the employer is presumed to have known what was generally known to those among whom such co-employé worked or lived, and that the employer is presumed to have known what he might have known by the exercise of due care and diligence. Giordano v. Bran- recover. dywine Granite Co., supra. [25] The plaintiff was bound to use ordinary care, prudence and diligence to avoid the accident, and the care and caution he was bound to use was in proportion to the danger to be avoided. If the plaintiff, by his own negligence, proximately caused the accident, he cannot Counsel for the plaintiff admits that the [20] Evidence of reputation for careless-statements alleged to have been made by ness, not connected with the performance of Truitt, the blacksmith, admitted in evidence the duties assigned to Tomlinson, and uncon- without objection for the purpose of contranected with any specific acts of prior neg- dicting Truitt's testimony respecting the repligence with respect to the work to which he utation of Tomlinson as a hammerman, do was assigned, is alone not sufficient to show not bind the defendant, and such statements, that he was so careless and unfit for such work if you find they were made by Truitt subsethat the defendant ought to have known it.quent to the accident, should be considered And no weight should be given to evidence by you only for the purpose for which they to the effect that Tomlinson frequently left were admitted. can, and if they cannot, they should weigh and estimate it, and give their verdict for that party in whose favor is found the greater weight or preponderance of the evidence. the steam hammer and talked with others [26] Where there is a conflict of testiin the shop near by, between the prepara-mony, the jury should reconcile it if they tions of "forges" or "heats" when his services were not required at the hammer, unless the jury are satisfied from a preponderance of the evidence that his habits in this respect showed such inattention to his duties as to render him unfit for the proper discharge of those duties. In estimating the weight of the evidence the jury should consider the character of the witnesses, their means of knowledge of the facts of which they have testified, their fairness, their intelligence, their interest, and all other circumstances by which the value of their testimony may be properly determined. If you should find from the evidence that Tomlinson was, in fact, a careless, unfit person to perform the duty assigned to him, and his incompetency had continued for such a length of time, before the accident which caused the injury to the plaintiff, that a careful and diligent supervision of the defendant's business ought to have brought it to light, the defendant would be chargeable with notice of its existence. And if you find he was negligent at the time of the accident, and it was his negligence which proximately caused the injury to the plaintiff, your verdict should be for the plaintiff. [27] If your verdict should be for the plaintiff, it should be for such a sum as in your judgment, from the evidence, will reasonably compensate him for his injuries, including his loss of time and wages, his pain and suffering in the past, and such as he may have in the future as the result of his injuries, and also for his permanent injuries and loss of ability to earn a living in the future Giordano v. Brandywine G. Co., supra. VALERII v. BREAKWATER CO. (Superior Court of Delaware. New Castle. Jan. 1912.) 1. PLEADING (§ 18*) - DECLARATION—ALLEGATIONS OF NEGLIGENCE-CERTAINTY. Allegations in a declaration that defendant negligently and carelessly furnished an employé with "unsafe cars," "unsafe tracks," and "unsafe cars and tracks," were insufficient, as too general. [Ed. Note. For other cases, see Pleading, Cent. Dig. § 39; Dec. Dig. § 18.*] 2. PLEADING (§ 64*)-DECLARATION-DUPLIC ITY. Allegations in a declaration that defendant furnished an employé cars loaded with stone in a specifically unsafe manner, and furnished unsafe tracks upon which the car was to be moved, whereby the car was caused to jump the track, is not demurrable, as being duplicitous, since it merely alleges two facts operating to gether to cause one accident. [Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 134-137; Dec. Dig. § 64.*] 3. MASTER AND SERVANT (§ 258*)-ACTION FOR INJURIES-DECLARATION-ALLEGATIONS OF NEGLIGENCE. A declaration alleging that an employer furnished an employé cars loaded with stone in such a manner that the equilibrium of the car might be easily disturbed, and furnished unsafe tracks upon which the car was to be moved, whereby the car was caused to jump the track, was not demurrable, as not showing that the tracks were not reasonably safe for the purpose for which intended. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 816-836; Dec. Dig. § 258.*] car or track was unsafe, or as failing to show what relation there was between the unsafe cars and tracks and the accident. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 816-836; Dec. Dig. § 258.*] Action by Louis Valerii, administrator of Francesco Valerii, against the Breakwater Company. On special demurrer to certain counts of the declaration. Overruled in part, and sustained in part. See, also, 82 Atl. 597. Argued before BOYCE and RICE, JJ. Josiah O. Wolcott, of Wilmington, for plaintiff. William S. Hilles, of Wilmington, for defendant. Summons case (No. 54, November term, 1910). Special demurrer to certain counts of plaintiff's declaration. Delaware cases cited: Campbell v. Walker, 1 Boyce, 580, 76 Atl. 475; Hunter v. P., B. & W. R. R., 1 Boyce, 5, 75 Atl. 962. RICE, J. (delivering the opinion of the court). To the first, second, third, fourth, eighth and ninth counts of the plaintiff's declaration, the defendant has demurred specially. In substance the first count in the declaration alleges that the defendant company was at the time of the accident engaged in the business of quarrying stone, in Brandywine hundred, New Castle county, and that Fran4. MASTER AND SERVANT (8 258*)-ACTION cesco Valerii, the plaintiff's intestate, was FOR INJURIES-DECLARATION-ALLEGATIONS employed by the defendant as a brakeman OF NEGLIGENCE. Such declaration was not demurrable, as not showing whether it was based on the failure to furnish reasonably safe tracks, or on the negligence in loading the car; it sufficiently appearing that it was based on' the defendant's default in furnishing unsafe tracks, and in furnishing a car unsafely loaded. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 816-836; Dec. Dig. 8 258.*] 5. MASTER AND SERVANT (§ 258*)-ACTION FOR INJURIES-DECLARATION-ALLEGATIONS OF NEGLIGENCE. Such declaration was not demurrable, as not showing that, if the car had been properly loaded by defendant's coservants, the tracks would not have been reasonably safe, since to hold it demurrable it would be necessary to assume that the car was loaded by the employé's fellow servants, while the complaint directly alleged that the car was furnished unsafely loaded by the employer. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 816-836; Dec. Dig. 8 258.*] 6. MASTER AND SERVANT (8 258*)-ACTION FOR INJURIES-DECLARATION-ALLEGATIONS OF NEGLIGENCE. The declaration in an employé's action for injuries, alleging that a car was furnished by the employer loaded with stone so placed that the equilibrium might be easily disturbed, and that the employer furnished tracks upon which it was to be moved, at the joint of two rails, of which there was a slight elevation, which tilted the car and caused it to jump the track, was not demurrable, as not showing that the on a train of cars, which it used for the purpose of hauling stone in and about and out of its stone quarry, "and it was the duty of said defendant to furnish to the said Francesco Valerii in and about his said business as brakeman, reasonably safe cars and railroad tracks for the same to run on, yet the said defendant did not regard its duty in this behalf, and heretofore, to wit, the said defendant negligently and carelessly furnished the said Francesco Valerii in and about his said business of brakeman on the train of cars of said defendant then and there used by the said defendant for the purpose aforesaid, unsafe cars and railroad tracks for the same to run on, and through and by the negligence and carelessness of the said defendant in this regard, a certain car in a train of cars on which the said Francesco Valerii was then and there riding in the performance of his work as such brakeman, he, the said Francesco Valerii, being then and there in the exercise of care and caution on his part, jumped from the said railroad tracks of the said defendant on which the said car was then and there moving and thereby threw the said Francesco Valerii from off the said car down to and upon the ground, and the said Francesco Valerii was then and there and there |