Krause v. Emmons

Citations

• 29 Del. 104
• 6 Boyce 104

Syllabus

<p>1. Witnesses—Competency—“ Transaction with Decedent.”</p> <p>Rev. Code 1852, amended to 1893, p. 798 (16 Del. Laws, c. 537), declares that in actions by or against executors or administrators neither party shall be allowed to testify against the other as to any transaction with or statement by deceased, unless called by the opposite party. An employee in a brewery was injured while assisting to move a condenser under the direction of the owner’s vice-principal. The owner was not present and had no control over the work. Held, that the servant, notwithstanding the owner’s death, might testify as to the accident in an action against the owner’s executor, as the servant’s testimony did not relate to a transaction with a_ deceased person, which might be said to be an occurrence or action as to which both deceased and the other party had knowledge.</p> <p>2. Trial—Instructions—Requests—Injuries to Servant.</p> <p>In a servant’s action there was evidence that the injury was caused by the negligence of fellow servants. The court charged generally that a servant assumes the ordinary risks of his employment, which includes the carelessness and negligence of those in the same employment; but the charge on the facts declared that if the servant was appointed to a post of danger by the master’s vice-principal, and injury resulted by reason of his incompetency, the master was liable if he knew or should have known of such incompetency, unless the servant was guilty of negligence proximately contributing to his injury. This portion of the charge further recited that the servant assumed the risk of negligence of fellow-servants. Held, that the charge was not a sufficient presentation of the fellow-servant rule, and so the refusal of a charge specifically submitting that rule was error.</p> <p>3. Master and Servant—Injuries to Servant—Fellow Servant.</p> <p>A brewery employee, who had charge of all brewing operations and controlled the servants, is the master’s agent or represen