STATEMENT OF CASE-OPINION.

Superior Court, New Castle County, May Term, 1900.

ACTION ON THE CASE (No. 56, November Term, 1899), for damages for personal injuries. Demurrer.

The declaration originally consisted of five counts. The first count was withdrawn. The fifth count, to which a demurrer was filed, was in substance as follows: That the defendant was and is a corporation of the State of Delaware, engaged in operating a certain shop in the City of Wilmington, Delaware, and being so engaged as aforesaid employed the said plaintiff to work upon a certain machine, known as a header, in its said shop; that said defendant "negligently and carelessly omitted to provide for the repair and keeping in repair of a certain machine known as a header, used by it in its said shop, upon which said machine the said plaintiff was, in the exercise of due care and caution on his part, on the fifteenth day of September, A. D. 1899, at New Castle County aforesaid, employed in his occupation aforesaid, whereby the said machine then and there became and was dangerous, unsafe and improper, and was well known to the said defendant to be so dangerous, unsafe and improper, and unknown to the said plaintiff, whereby by reason of the negligence and carelessness aforesaid, the said machine closed upon the left arm of the said plaintiff”, and thereby the said plaintiff was injured, etc.

The demurrer filed to the above count was as follows: "That it is not alleged in said count in what respect the defendant omitted to provide for the repair and keeping in repair the said machine in said count mentioned."

Demurrer sustained.

SYLLABUS.

TRIMBLE, SIDES & Co., p. b. a., v8. FRANCIS DUGAN, d. b. r.

Appeal Amendment-Certificate of Justice-Justice of PeaceAppeal Bond-Practice-Rule of Court.

1. Under Section 16, Rule 9, of Superior Court, the Justice is allowed to amend his certificate on or before the first Friday of the term to which the appeal is entered; and such amendment will not be allowed after the time stated in said rule.

2. It appeared by the record of the Justice (1) that the appeal bond contained the word "successors" instead of "executors;" and (2) that the certificate of the Justice did not set out that the transcript was "a true copy of all the docket entries," but simply certified that it was a "true copy and truly copied from the records" etc. Held that the appeal should be dismissed.

(June 5, 1900.)

LORE, C. J., and PENNEWILL and BOYCE, J. J., sitting.

Herbert H. Ward for appellant.

J. Frank Biggs (special appearance for purpose of making a motion.)

Superior Court, New Castle County, May Term, 1900.

APPEAL (No. 48, May Term, 1900.)

Ward, for appellant, asked that the Justice be allowed to amend his certificate in the above entitled cause. The Court held that under Section 16 of Rule 9 of the Rules of the Superior Court (requiring that applications for such amendments must be made on or before the first Friday of the term of the Court to which the appeal is entered), the time for making such application had passed, and the rule could not be extended.

Biggs, for respondent, moved that the appeal be dismissed, because (1) the security was not taken according to the statute (Rev. Code, 751, Sec. 25) in that the appeal bond contained the

OPINION OF COURT.

word "successors" when it should be "executors;" also because (2) the certificate of the Justice was defective as it did not set out that the transcript was a true copy of all the docket entries as required by the statute (Rev. Code, 737, Sec. 34) but simply certified that it was a "true copy and truly copied from the records," etc.

After argument by the respective counsel, the Court ordered the appeal dismissed.

JESSE J. RAY vs. DIAMOND STATE STEEL COMPANY.

Case-Personal

Injuries-Damages-Negligence-Master and Servant-Primary Duty of Master — Assumption of Risk— Conflicting Testimony-Measure of Damages.

1. Primary duty of the master stated. If he fails to perform such duty and injury results from such failure alone he is liable. And a master may not relieve himself of this duty by delegating it to a fellow-servant of the person injured.

2. An employee assumes all the ordinary risks of his employment, and such dangers as are patent, but does not assume those risks which may not be seen and known. Where machinery is defective in the knowledge of the employee, yet if the master promises to remedy the defect and the employee, relying upon that promise, continues to use it for a reasonable time he does so at the master's risk. Two or three days would be such reasonable time. Notice of defects given to foreman is notice to the company and the foreman's promise to remedy the defect is the promise of the company.

3. In order that the plaintiff may recover in an action for personal injuries he must show by a preponderance of proof that they were caused by the negligence of the defendant, and of the defendant only; for if the plaintiff contributed proximately in any way to the accident, he may not recover.

SYLLABUS-CHARGE.

4. If the plaintiff at the time of the accident was acting outside of the scope of his employment, without the order of the defendant, he cannot recover, and much less if he disregarded the warning of defendant.

5. What jury must do when testimony is conflicting.

6. Measure of damages stated.

(June 7, 1900.)

LORE, C. J., and PENNEWELL and BOYCE, J. J., sitting.

Levi C. Bird and Andrew E. Sanborn for plaintiff.

Lewis C. Vandegrift and Charles M. Curtis for defendant.

Superior Court, New Castle County, May Term, 1900.

ACTION ON THE CASE for damages for personal injuries (No. 111, September Term, 1899).

The facts sufficiently appear in the charge of the Court.

LORE, C. J., charging the jury:

Gentlemen of the jury:-In this action, Jesse J. Ray, an infant, by Harry Schuler, his next friend, the plaintiff, seeks to recover damages for injuries which he claims to have sustained from the negligence of the Diamond State Steel Company, the corporation defendant.

The plaintiff claims that on the fourteenth day of July, 1899, he was in the employment of the defendant company working at their plant in this City. That by order of the company and in the line of his employment, he was helping to push a buggy or truck loaded with hot iron, from the scales upon which it had been weighed, to the place of deposit; that while so engaged in the exercise of due care on his part, the truck upset and the load of hot

CHARGE OF COURT.

iron fell upon him breaking one of his legs, burning his flesh and otherwise injuring him; so that he suffered great pain and injury and is permanently disabled; that the accident happened because both the truck, and the track on which the truck was run, were out of repair and defective, being narrow, contracted, uneven and dangerous; of which defective condition the defendant company had actual notice and promised the plaintiff that they should be remedied; relying upon which promise he continued to work thereon.

The defendant, on the other hand, claims that both the truck and the track were in good order. That it was not within the scope of the plaintiff's work to assist in pushing the truck. That he was not ordered to do so; that on the contrary he was warned not to touch the truck; that the injuries were received in work not in the line of his duties; were the result of his own negligence for which they are not liable.

Your province is to determine, which of these two contentions is right and whose negligence caused the injury, if any negligence there was.

While there are no new questions of law raised in this case, yet it becomes the duty of the Court, under the prayers of the respective parties, to announce certain principles of law which are to govern you in reaching your verdict upon the evidence adduced.

It is not only a humane, but a primary duty of the master to provide for his employees a reasonably safe place in which to work and reasonably safe tools and appliances with which to work, and to keep them in such condition of reasonable safety. The place, tools and machinery need not be the best nor of the most improved kind; but must be reasonably safe and adapted to the purpose for which they are to be used. If the master fails to perform this duty and injury results from such failure alone he is liable. A master may not relieve himself of his duty by delegating it to a fellow-servant of the person injured. The liability of the master remains, it matters not by whose hands this duty is performed.