Ray v. Diamond State Steel Co.

Citations

• 18 Del. 525
• 2 Penne. 525
• 47 A. 1017
• 1900 Del. LEXIS 26

Syllabus

<p>Case—Personal Injuries—Damages—Negligence—Master and Servant—Primary Duty of Master—Assumption of Risk— Conflicting Testimony—Measure of Damages.</p> <p>i. Primary duty of the master stated. If he fails to perform such duty and injury results from such failure alone he is liable. And a master may not relieve himself of this duty by delegating it to a fellow-servant of the person injured.</p> <p>2. An employee assumes all the ordinary risks of-his employment, and such dangers as are patent, but does not assume those risks which may not be seen and known. Where machinery is defective in the knowledge of the employee, yet if the master promises to remedy the defect and the employee, relying upon that promise, continues to use it for a reasonable time he does so at the master’s risk. Two or three days would be such reasonable time. Notice of defects given to foreman is notice to the company and the foreman’s promise to remedy the defect is the promise of the company.</p> <p>3. In order that the plaintiff may recover in an action for personal injuries he must show by a preponderance of proof that they were caused by the negligence of the defendant, and of the defendant only; for if the plaintiff contributed proximately in any way to the accident, he may not recover.</p> <p>4. If the plaintiff at the time of the accident was acting outside of the scope of Ms employment, without the order of the defendant, he cannot recover, and much less if he disregarded the warning of defendant.</p> <p>5. What jury must do when testimony is conflicting.</p> <p>6. Measure of damages stated.</p>