Creswell v. Wilmington & Northern Railroad

Citations

• 18 Del. 210
• 2 Penne. 210
• 43 A. 629
• 1899 Del. LEXIS 32

Syllabus

<p>Case—Personal Injuries—Negligence—Damages—Fellow Servant— Master and Servant—Harmless Error.</p> <p>1. If the conductor of a shifting crew, when about to couple engine and car omits to give the proper signal to the engineer when he sees the engine approaching at a dangerous speed, or attempts the coupling when the engine and car are approaching each other at an unsafe speed, or makes the attempt in an unskillful manner, he is guilty of such negligence as would defeat recovery. But in the absence of any direct evidence as to what he did, or omitted to do, the inference of his negligence from the position in which his body was found after the collision would not alone be sufficient to justify the withdrawal of the case from the jury.</p> <p>2. The rule of law which makes the master liable when the injury is caused by the negligence of a fellow servant combined with the negligence of the master must be limited to cases where there has been negligence on the part of the master in the selection of the negligent fellow-servant, or some other negligence of the master for which he would be responsible if it had been the sole cause of the injury.</p> <p>3. It is not incumbent on the defendant to show that the accident was not caused by his negligence. 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. It is not the duty of the master to furnish appliances of the best and most improved kind.</p> <p>4. While the servant by entering into a hazardous employment assumes its ordinary risks, and while by the continued use, without complaint, of apparatus known to him to be defective, he assumes the risks of the apparatus, he does not assume such risks when the defects are latent, unknown to him, and not discoverable by the exercise of due care. Whether the servant