day of the accident, to justify the court in | ́[10] Negligence, in a legal sense, is the ordering a view by the jury. The application therefore is denied. PENNEWILL, C. J. (charging the jury). Gentlemen of the Jury: Thomas Seininski, the plaintiff, is seeking in this action to recover from the Wilmington Leather Company, the defendant, damages for personal injuries, which he alleges were caused by the negligence of the defendant on the 14th day of January, 1910, at its leather factory in the city of Wilmington, where the plaintiff was at the time employed in catching skins from a fleshing machine. The plaintiff's declaration consists of three counts. In the first count it is averred that the defendant on the 14th day of January, 1910, negligently and carelessly furnished and operated in its leather factory a certain machine, known as a fleshing machine, which was out of order, defective and dangerous in that the cover or guard over the rollers or knives of said machine was broken, defective, dangerous and out of order, whereby the plaintiff, who was then and there directed to work on the machine, and ignorant of the risk and danger incident thereto, and in the exercise of due care and caution on his part, had one of his arms caught in the said machine and greatly injured and mangled. In the second count it is averred that the defendant on the day aforesaid, well knowing that the plaintiff was inexperienced in the occupation to which he was then put by the defendant, to wit, taking skins from a certain fleshing machine which was defective and dangerous, negligently and carelessly omitted to warn or instruct the plaintiff as to the danger connected with the said occupation, whereby the said plaintiff was injured. In the third count it is averred that the defendant, who had employed the plaintiff in general duties about the defendant's place of business, the same being a safe and secure occupation, on the day aforesaid negligently and carelessly placed the plaintiff at work upon a certain fleshing machine, the same being a dangerous employment, without giving to the plaintiff any instruction or warning in relation thereto, the defendant well knowing that the plaintiff was ignorant of the risk and danger connected therewith. Such are the acts of negligence on the part of the defendant company, which the plaintiff has averred as the cause of his injuries, and upon which he seeks to recover. [8, 9] This action is based upon the alleged negligence of the defendant. The burden of proving such negligence is cast upon the plaintiff, and it must be proved to the satisfaction of the jury by a preponderance of the testimony. Negligence is never presumed, it must be proved. Whether there was any negligence at the time of the accident, and whose, must want of due care, that is, such care as an ordinarily prudent man would exercise under like circumstances. It is the failure to observe, for the protection of another person, that degree of care and vigilance which the circumstances justly demand. [11-13] In order for the plaintiff to recover in this action he must satisfy you by the weight, or preponderance, of the evidence, that the defendant was guilty of one or more of the negligent acts averred in his declaration. He must satisfy you not only that the injuries complained of resulted from the negligence of the defendant, but also that at the time of the accident he was himself without any fault or negligence which proximately contributed to his injuries; for, if at that time his own negligence did proximately contribute to his injuries, the defendant would not be liable even if it was also negligent. Where the contributory negligence of the plaintiff is relied on as a defense it must be proved by a preponderance of the evidence, and the burden of proving it rests upon the defendant, if it does not appear from the testimony produced by the plaintiff. The defendant has prayed that you be directed, by binding instructions, to render a verdict in its favor. We decline to do this because we think the case should be submitted to, and determined by the jury under the evidence, and the law, as we shall state it. [14] The relation existing between the defendant company and the plaintiff at the time of the accident was that of master and servant, and one of the primary duties imposed upon the master towards the servant in the course of his employment, by reason of such relation, was to furnish him reasonably safe tools, machinery and appliances with which to work and to keep the same in reasonably good repair and condition. The tools or machinery used need not be of the safest, best, nor of the most improved kind. It is sufficient if they are reasonably safe, and adapted to the purpose of the employment. If the master fails to observe this rule of law and injury results to his servant from such failure he becomes liable therefor to the servant on the ground of negligence. [15-17] The servant has the right to rely on the master for the performance of this duty without inquiry on his part. The servant assumes no risk as to such primary duty at the time he enters upon his employment, but he does assume all the ordinary risks incident to the employment that are obvious, seen or known, or which may be seen or known by the reasonable use of his senses or the exercise of due care. The servant also assumes the dangers and hazards which are ordinarily and naturally incident to the serv. ice which he undertakes. When a person enters upon a dangerous employment, he not only assumes the risks ordinarily incident from manifest peril. The master is not bound to insure the absolute safety of his machinery or mechanical appliances, which he provides for the use of his employés. [18] When a servant engages himself in any specific work the master has the right to presume that the servant has the knowledge, experience and skill necessary for the performance of the work so undertaken, in a reasonably safe and proper manner, in the absence of knowledge to the contrary. And especially has the master the right so to presume if the servant represents or holds himself out to the employer as experienced in such work. [19] But this rule does not apply when the servant was engaged to work generally. and while so engaged, and without seeking or holding himself out to be experienced and skilled in a specific and particular work, is sent by the master to perform such specific and particular work. In other words, the phrase "engages himself in any specific work" implies a seeking and acceptance by the servant of some specific and particular kind of work, and is not met by a case where the servant, without his seeking, is sent by the master from one employment to some other and different employment. which by the exercise of reasonable care he could avoid, but fails to do so and is thereby injured, he must abide the result of his own negligence. [25] The servant is not bound to obey the orders of his superior directing him to go to a place of danger or engage in a dangerous service if he knows, or by the reasonable use of his senses might know of the danger of the place or service; and if he, having such knowledge, or opportunity of observing the danger, nevertheless obeys the order and exposes himself to the danger, and suffers injury therefrom, the master cannot be held liable therefor. [26] If the plaintiff undertook the work of catching skins as they passed through the fleshing machine, of his own motion, or at the suggestion and request of a fellow servant, or at the suggestion and request of any other person than the defendant's agents having the authority to give such orders, then the plaintiff was acting outside the scope of his duty, and cannot recover for the injuries he suffered. [27, 28] If the defendant furnished for plaintiff a machine, reasonably safe and adapted to the purposes for which it was used, and the dangers incident to the operation of the machine were of a patent character, and obvious to the mind of a person of average intelligence, judgment and under [20, 21] Where the employment is dangerous it is the duty of the master to warn and instruct his servant as to its dangerous character, if, by reason of inexperience or ig-standing, and the plaintiff possessed such norance the servant is unacquainted with such danger. And even if the servant be experienced, it is the duty of the master to warn him of any special and extraordinary danger connected with the particular employment, if the same was unknown to the servant, and could not be seen or known by the reasonable use of his senses and the exercise of due care. [22] The burden of proving that the plaintiff had knowledge, before the accident, of the particular defect in the machine rests upon the defendant, unless the jury believe from the testimony of the plaintiff, or other evidence in the case, including the knowledge and experience of the plaintiff, that he knew, or should have known, of the defect complained of. [23] The master cannot delegate his primary duties, and if a machine provided for the servant to work with is defective and dangerous the master is responsible in damages to the servant for any injury caused him by the defective condition of such machine, provided the servant was himself free from fault, had no knowledge of the defect, and provided also the defect was not apparent and obvious. [24] The servant must exercise reasonable care to avoid injury to himself, and to learn the dangers that are likely to beset him in his employment. If à servant in the course of his employ average intelligence, judgment and understanding, or had knowledge of such dangers. then he assumed all the risks incident to the work he was engaged in at the time of his injuries, and the defendant would not be liable. The plaintiff was bound to see any patent and obvious defects of the machine with which he was working at the time he was injured, and he assumed all patent and obvious risks incident to his employment: and if he knew or by the exercise of due diligence might have known of the defects in the hood, and the dangers to be apprehended therefrom, and continued to work with the same and received his injuries therefrom, he was guilty of contributory negligence and cannot recover. If the plaintiff was of such age, apparent intelligence, experience and maturity of judgment that he could have known of the danger incurred by him while working at the machine with the hood in the condition testified to, he took upon himself and assumed all the patent and obvious risks incident to his employment. And if all the perils and risks incident to the use of the fleshing machine upon which the plaintiff was injured, were open and obvious, and could be readily observed by a person possessing average intelligence and judgment, by the ordinary exercise of his senses, then the plaintiff assumed the risks and cannot recover. In order to find a verdict for the plaintiff But whether the plaintiff was instructed and warned or not, if he knew the danger to which he was exposed, or in the exercise of reasonable care might have known it, considering his apparent intelligence and experience, then he assumed the risk and would not be entitled to recover. We cannot charge you as requested by the twenty-fourth prayer of the defendant, relative to the purpose of the hood. The cases of Hazen v. West Superior Lumber Co., 91 Wis. 208, 64 N. W. 857, and Connolly v. Eldredge, 160 Mass. 566, 36 N. E. 469, cited by the defendant, do not, in our opinion, support such a proposition. But the cases of Craver v. Christian, 36 Minn. 413, 31 N. W. 457, 1 Am. St. Rep. 675, and Hunt v. Kane, 100 Fed. 256, 40 C. C. A. 372, cited by the plaintiff, seem to be much more in point, and strongly indicate that the defendant's contention is untenable as a proposition of law. [31] But we do charge you, as requested by the defendant in his twenty-fifth prayer, that if you believe from the evidence that the plaintiff had knowledge of two or more ways of removing the skins from the grip roller around which skins would become wound in the operation, one of which was perfectly safe and the other subject to risk and dangers, and he voluntarily chose the latter and was injured, he was guilty of contributory negligence and cannot recover. [32] The jury may not infer negligence on the part of the defendant from the mere fact that the plaintiff was injured in the work, and upon the machine, at which he was engaged. The ground upon which a servant recovers against a master for injuries sustained in his service is that such injuries were caused by the violation or neglect of some duty which the master owed to the servant. If there was no such duty. there can be no such liability. If the plaintiff from his experience gain knew how to do with safety the particular work he was doing at the time he was injured, the defendant would not be liable on account of its failure to give the plaintiff instruction and warning. If he knew of the danger, or by the ordinary use of his senses could have known thereof, he assumed the risk and may not recover therefor. [33, 34] If the plaintiff, at the time of the accident, was acting outside the scope of his employment without the order of the master, he cannot recover, even though the machinery or appliance was defective and dangerous. Neither is he entitled to recover if the accident was caused by his attempt to do something which he was warned not to do. In the one case he would be doing something he was not authorized to do, and in the other something he was forbidden to do, and in either case assumed his own risk, for which he could not hold the master liable. [35] The plaintiff cannot recover for any negligence of the defendant other than that which he has alleged and proved. So that, if you believe from the evidence that his injuries were caused by some defect in the hood or covering of the machine different from the defect alleged and proved, he is not entitled to recover no matter what other defects there may have been in said hood or covering. [36] In conclusion, gentlemen, we say, that if you believe from a preponderance of the evidence that the plaintiff's injuries were caused by the negligence of the defendant as we have instructed you, and further believe that the plaintiff's own negligence did not proximately contribute thereto, your verdict should be in favor of the plaintiff, and for such sum of money as will reasonably compensate him for his injuries, including therein his pain and suffering in the past, and such as may result to him in the future therefrom; and also for his loss of time and wages, and for any impairment of ability to earn a living in the future arising from such injuries, as may be disclosed by the evidence. If, however, you are not satisfied that the plaintiff's injuries were caused by the negligence of the defendant, or, if you believe that the plaintiff's own negligence contributed in any way proximately to his injuries, your verdict should be in favor of the defendant. You have listened very attentively and patiently to the presentation of this case, and the court, in view of the importance of the questions involved, has at some length and as clearly as they were able to do, given you the law applicable to the facts. It now becomes your duty to carefully, fairly and conscientiously consider all the evidence, and after applying thereto the law as we have stated it, reach such a conclusion as you believe to be just and proper under the law and the evidence. (3 Boyce, 302) SPAHN v. PEOPLE'S RY. CO. 1. MASTER and SERVANT (§§ 101, 102*)-IN- JURIES TO SERVANT-ACTION-ESSENTIALS. Negligence is the basis of an action by a servant against his master for injuries from [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 135, 171, 174, 178-184, 2. MASTER AND SERVANT (§ 265*)-INJURIES TO SERVANT-ACTION-BURDEN OF PROOF. In an action by a motorman against his master for injuries received by reason of a defective brake on the car, the burden of prov- ing negligence is on the motorman. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 877-908, 955; Dec. Dig. 3. MASTER AND SERVANT (8 227*)-ACTION- DEFENSES-CONTRIBUTORY NEGLIGENCE. A servant, guilty of contributory, negli gence, cannot recover for injuries caused part- ly through his own negligence and partly [Ed. Note.-For other cases, see Master and 19. MASTER AND SERVANT (8 125*)-INJURIES Notice given to the foreman or person in general charge of a master's business of defec- tive appliances is notice to the master. Servant, Cent. Dig. §§ 243-251; Dec. Dig. § [Ed. Note.-For other cases, see Master and 10. MASTER AND SERVANT (§ 221*)-INJURIES TO SERVANT-ASSUMPTION OF RISK. Where a servant, with knowledge of the defect, continues to use a dangerous appli- ance, the master is not liable for resulting in- jury, though if the master promises to remedy the defect, and the servant, relying on that promise, is injured while using it for a rea- sonable time, the master is liable. Servant, Cent. Dig. §§ 638-640, 642-645; Dec. [Ed. Note.-For other cases, see Master_and 11. MASTER AND SERVANT (§ 123*)-INJURIES TO SERVANT-DUTY OF INSPECTION. tive brake on an electric car, cannot recover, A motorman, injured because of a defec- where the defect could not have been discov- ered by a reasonable inspection, or occurred while in use or after inspection; the master being bound only to use reasonable care to [Ed. Note.-For other cases, see Master and The primary duty of a master towards his servant is to use all reasonable care, pro- portioned to the danger of the employment, to furnish him with reasonably safe tools and ap- pliances with which to work, though they need not be of the safest, best, or most improved kind; and if the master neglects this duty he is liable for injuries received by the servant [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 135, 171, 174, 178, 179, 180-184, 192; Dec. Dig. §§ 101, 102.*] 5. MASTER AND SERVANT (§ 205*)-INJURIES A servant has the right to rely on the [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 547-549; Dec. Dig. § 6. MASTER AND SERVANT (§§ 206, 217, 219*)— INJURIES TO SERVANT-RISKS ASSUMED. A servant assumes all of the ordinary risks incident to the employment, and such as are patent or may be discovered by the ordi- [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 550, 574-600, 610-624; 7. MASTER AND SERVANT (§§ 85, 229*)-IN- ants; the servant being bound to use ordinary [Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 135, 136, 139, 140, 674, 8. MASTER AND SERVANT (§ 127*)-INJURIES A master is bound, not only to furnish reasonably safe appliances, but also to use due TO SERVANT-CONTRIBUTORY NEGLIGENCE. A motorman of an electric car, who re- ceived injuries, owing to his running the car at an unusual and excessive rate of speed, let- ting it get from under his control, cannot re- cover, being guilty of contributory negligence. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 751-756; Dec. Dig. § 13. EvIDENCE (§ 598*)-PROVINCE OF JURY- It is the duty of the jury, where the evi- dence is conflicting, to reconcile it, if possible, but, if impossible, to decide in favor of that party whose evidence preponderates. [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 2450-2452; Dec. Dig. § 598.*1 14. EVIDENCE (§ 588*) - CREDIBILITY-DE- In determining the weight of the testi- mony and credibility of witnesses, the jury should consider the apparent fairness and in- terest or bias of the witnesses, together with their opportunity to see and know of the ac- [Ed. Note. For other cases, see Evidence, Cent. Dig. § 2437; Dec. Dig. § 588;* Witness- 15. DAMAGES (§ 95*)- PERSONAL INJURIES. Where a motorman received personal in- juries, owing to a collision caused by a de- fective brake on his car, he is entitled to such damages as will compensate him for money expended for medical attendance, for his suf- fering in the past, and for such as he may en- dure in the future, together with loss of wa- ges in the past and any impairment of earning power for the future which is due to defend- [Ed. Note.-For other cases, see Damages, Cent. Dig. 88 222-229; Dec. Dig. § 95.*] Action by John B. Spahn against the Peo- ant. Even if there was negligence on the part of the defendant, yet if the negligence of the plaintiff contributed proximately to the accident at the time thereof, the plaintiff cannot recover. In such case the plaintiff would himself be guilty of contributory negligence, and where there is such negligence the law will not attempt to measure the proportion of blame or negligence to be attributed to each party. ages for personal injuries. Said injuries were alleged to have been sustained on account of the negligence of the defendant in not furnishing the plaintiff with reasonably safe appliances, to wit, brakes. The contention of the plaintiff was that by reason of the imperfect and defective condition of the brakes upon the car which he was operating as the servant of the defendant, he was unable to stop the car, and by reason thereof, collided with another trolley car and was Contributory negligence has been defined thereby injured. Verdict for plaintiff. to be the negligence of the plaintiff, or of Argued before PENNEWILL, C. J., and the person on account of whose injury the WOOLLEY, J. W. W. Knowles and Caleb E. Burchenal, for plaintiff. Robert H. Richards, for de fendant. PENNEWILL, C. J. (charging the jury). Gentlemen of the Jury: The plaintiff in this action seeks to recover from the defendant company damages for personal injuries which are alleged to have been sustained on account of the negligence of said company. The plaintiff claims that about 11 o'clock on the night of August 14, 1911, he was motoring a car of the defendant from Brandywine Springs to the city of Wilmington, and because of defective brakes on the car, which would not take hold of the wheels, he was unable to stop or hold the car when descending a grade near Haley's curve, and in consequence thereof his car collided with another car and he was injured. action is brought, amounting to a want of ordinary care, and approximately contributing to the injury. [4-7] The relation existing between the defendant and the plaintiff at the time of the accident was that of master and servant, and the primary duty imposed upon the defendant towards the plaintiff in the course of his employment by reason of this relation was to furnish him reasonably safe tools, machinery and appliances with which to work. The tools or machinery used need not be of the safest, best nor of the most improved kind. It is sufficient if they are reasonably safe, and adapted to the purpose of the employment. If the master fails to observe this rule of law and injury results to his servant from such failure, he becomes liable therefor on the ground of negligence. In the performance of this duty the master must use all reasonable care and prudence The plaintiff's declaration consists of two for the safety of the servant, having regard counts, one of which avers that the said to the character of the work to be performed. defendant negligently and carelessly suffered Such care must be in proportion to the danand permitted the said plaintiff to use and ger of the employment. The servant has operate a certain car with an improper, de- the right to rely on the master for the perfective, inadequate, unfit, unsafe, unsuitable formance of this duty without inquiry on his and dangerous brake shoe, all of which was part. The servant assumes no risk whatwell known to the said defendant but un-ever as to such primary duty at the time known to the said plaintiff, and by reason of he enters upon his employment; but he does the said negligence of the said defendant in permitting the use of said car with the defective brake shoe as aforesaid at the time and place aforesaid, the said car on which the said plaintiff was a motorman as aforesaid ran into and collided with another car operated and controlled by the said defendant, whereby the said plaintiff was greatly bruised, cut, mangled, broken, injured and distressed. The second count is similar to the first, except that the word "brakes" is used in the second count instead of "brake shoe," as in the first count. So that, the negligence averred, and relied upon, by the plaintiff is, that the defendant suffered and permitted the plaintiff to use and operate the car with a defective, unsafe and dangerous brake shoe, or brakes. [1-3] The gist of this action is negligence, which is the want of ordinary care, and the burden of proving the negligence of the defendant rests upon the plaintiff. If there was no negligence on the part of the com assume all the ordinary risks incident to the employment; such as are patent, seen and known, or which may be seen and known by the ordinary use of his senses. And he is required to exercise due care and caution in the course of his employment to avoid dangers and injuries; for the master, having performed the primary duties required of him, is not an insurer of the safety of his servants. [8-10] "It is the duty of the master also to maintain said tools and machinery in a reasonably safe condition so long as they are continued in use. If the master knows, or by the use of due diligence might know that the tools and machinery in use in his business are not reasonably safe it is negligence on his part to fail to remedy and correct the defects of which he has knowledge, or by the exercise of due diligence he might discover. Notice to the foreman or person in general charge of the business, or having charge and control of the men and the cars, that the machinery is unsafe or dangerous, is, in law, |