18. MASTER AND SERVANT (§ 279*)—InJURIES TO SERVANT-FELLOW SERVANTS INCOMPETENCY-KNOWLEDGE OF MASTER-EVIDENCE. While, in an employé's action for injuries, proof of a coemployé's reputation for incompetency and carelessness may be sufficient to charge an employer with knowledge thereof, such reputation must be established by proof of facts and acts sufficient to show that the coemployé was careless and unfit for the duties assigned to him.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 973-975, 978-980; Dec. Dig. 279.*]

19. MASTER AND SERVANT (§ 265*)-INJURIES TO SERVANT-FELLOW SERVANTS - COMPETENCY-KNOWLEDGE OF MASTER-PRESUMP

TIONS.

An employer is presumed to have known, concerning his employé's reputation, that which is generally known to those among whom the employé has worked or lived, and is presumed to have known what he might have known by due care and diligence.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 877-908, 955; Dec. Dig. § 265.*]

20. MASTER AND SERVANT (§ 279*)-INJURIES TO SERVANT-FELLOW SERVANTS INCOMPETENCY-KNOWLEDGE OF MASTER-EVIDENCE.

In an employé's action for injuries through the act of a coemployé, evidence of reputation and carelessness of the coemployé, not connected with the duties assigned to him, and unconnected with any specific acts of prior negligence as to such duties, is not sufficient to show that he was careless or unfit for such duties, and that the employer should have known it.

[Ed. Note.-For other cases, see Master and Servant. Cent. Dig. §§ 973-975, 978-980; Dec. Dig. § 279.*]

21. MASTER AND SERVANT (§ 141*)-INJURIES TO SERVANT-RULES.

An employer should promulgate proper rules for his employés and business whenever his personal supervision is impracticable. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 283; Dec. Dig. § 141.*] 22. MASTER AND SERVANT (§ 142*)-INJURIES

TO SERVANT-RULES-SUFFICIENCY.

That rules promulgated for employés have been in force for a long time, and have accomplished the purpose intended, is evidence of their sufficiency.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 385-421; Dec. Dig. § 185.*]

25. MASTER AND SERVANT (§ 229*)-INJURIES

TO SERVANT-CONTRIBUTORY NEGLIGENCE.

An employé must use ordinary care, prudence, and diligence, in proportion to the dangers, to avoid accident.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. 88 674, 683; Dec. Dig. § 229.*]

26. EVIDENCE (§ 588*)-Weight-CREDIBILITY. Where the evidence is conflicting, the jury should reconcile conflicts, if possible, and, if not, they should give credit to the evidence of those witnesses which they believe most worthy of belief, taking into consideration the character of the witnesses, their means of knowing the facts about which they have tesand all circumstances proper to consider. tified, their fairness, intelligence, and interest,

[Ed. Note.-For other cases, see Evidence, Cent. Dig. § 2437; Dec. Dig. § 588.*] 27. DAMAGES (§ 95*)-PERSONAL INJURIESMEASURE.

The measure of an injured employé's recovery should be such as will reasonably compensate him for his injuries, including his loss of time and wages, his past and future pain and suffering, and also for his permanent injuries and loss of ability to earn a living in the future.

[Ed. Note.-For other cases, see Damages, Cent. Dig. §§ 222-229; Dec. Dig. § 95.*]

Action by David Samuel Warren against the Harlan & Hollingsworth Corporation. Verdict for plaintiff.

Argued before BOYCE and CONRAD, JJ.

Levin Irving Handy, of Smyrna, and Wilbur L. Adams, of Wilmington, for plaintiff. Reuben Satterthwaite, Jr., of Wilmington, for defendant.

Action on the case (No. 37, November term, 1910) to recover damages for personal injuries to the plaintiff.

At the trial, the plaintiff testified concerning the accident, in substance, as follows:

The instruction or warning required to be given an employé depends upon the circumstances of each case.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 297, 299-302, 305-307; Dec. Dig. 150.*]

24. MASTER AND SERVANT (§ 185*)-INJURIES TO SERVANT-FELLOW SERVANTS.

In a suit against an employer for injury to an employé from a steam hammer operated by a fellow servant, the plaintiff cannot recover

ing what they call a form or yoke out of iron. In making that they use several different kinds of tools, among them a steam hammer. I do not know the name of the hammer, but it was an upright hammer, and about 12 feet high. It struck a heavy blow. The hammer had, I judge, about a 3-foot drop. My work was to put the form up on the lower die of the steam hammer when I was told. And I had to clean the scales out of the form. The hammer boy (the one who

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

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 per

sonally 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 that signal was for. I did not see Tomlinson at the time the signal was given and I do not know where he was. I had no warning 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 re did not know where I had gone. member which way I went. At the time I I subsequently found myself at the Delaware Hospital. My arm was amputated on the 8th

day of March, 1910. The pain was so great

not see how I could stand it. I thought I I thought I was dying all the time. I did member much about that though, until after was going to die any minute. I did not remy hand was amputated, and then I rememthe hospital one month lacking one day. I bered what happened to my arm. I was in 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. After I was discharged I had to go back to the Delaware Hospital twice a week for a long time.

"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.

The plaintiff's declaration contains a single count and, in general language, the negligence charged is that the defendant negligently and carelessly omitted to provide a reasonably careful and competent fellow servant to operate a certain steam hammer 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

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.

[5] Negligence has been defined to be a failure to observe, for the protection of the interests of another person, that degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury.

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 settled 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.

[12] A person entering into the employment of another assumes the usual risks of the employment, excluding that of the negligence of the employer, and including that of the pure negligence of the co-employé, whenever doing anything contemplated by his contract of employment. Taylor v. Bush & Sons, 6 Pennewill, 307, 66 Atl. 884, 12 L R. A. (N. S.) 853.

[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

ering the nature of the work and the general safety of those engaged with him in a common employment. Incompetency may exist in the disposition with which a servant performs his duties. Although he may be physically and mentally able to do all that is required of him, his disposition toward his work, and toward the general safety of the work of his employer and of his fellow serv 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.

[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 injuret, 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