American Bridge Co. v. Valente

Citations

• 23 Del. 370
• 7 Penne. 370
• 73 A. 400
• 1909 Del. LEXIS 19

Syllabus

<p>Writ of Error—Fellow-Servants—Instruction and Warning— Rules—Safe Place—Nonsuit—Instructing Jury—Error —Reversal of Judgment.</p> <p>1. If the facts that are necessary to determine whether co-employees are, or are not, fellow-servants are undisputed, then it is a question for the court to decide and not the jury. Such has been the rule upon which the courts of this State have acted.</p> <p>2. If the injured servant and his deliquent co-employees were at the time of the accident employed by a common master, and engaged in a common employment, the relation of fellow-servants existed, unless the servant whose negligence caused the injury was at the time engaged in the performance of one of the primary duties of the master.</p> <p>3. What is a “common employment,” does not depend upon the grade of the servant in the master’s employment, nor the time he has been engaged in the service in which the injury happens. Held that the members of a loading gang who were engaged in loading iron columns on a car and the plaintiff who was engaged in painting a column that had been already loaded, were fellow-servants.</p> <p>4. It is a general rule that a servant holds himself out as capable of doing the work he undertakes to do, and that he assumes the risks incident to the employment. So far as he comprehends, or ought to comprehend them, he assumes such risks.</p> <p>5. The employment not being a difficult one and there being no hidden or latent danger, and any peril that may have existed being as obvious to the plaintiff and more so, than to the master, held that it was not necessary that the master should have given him instructions or warning. Any negligence upon the part of fellow-servants, either in their failure to give him warning, or in their carelessness in loading the car, the plaintiff assumed.</p> <p>6. While it is the duty of the employer to make and promulgate rules when his business is so large and complicated as to make his personal supervision impossible, this