CHARGE. It is a primary duty of the master, to provide suitable and reasonably safe tools and machinery, for the servant, with which to perform the particular work in which he is engaged. If the master shall fail in the performance of this primary duty, he is liable to the servant for whatever injury he may suffer resulting alone from such failure. In the performance of this duty, the master must use all reasonable care and prudence for the safety of the servant; having regard to the character of the work to be performed. Such care must always be in proportion to the danger of the employment. The servant has the right to rely upon the master for the proper performance of this duty without inquiry on his part. The choice of tools and machinery lies with the master. They must be suitable for the work and reasonably safe. It is not necessary, that they should be the latest, the newest, the most improved, the safest or the best. Neither is the use of like tools and machinery in other establishments the test of fitness. The true test is not alone that others use them, but whether they are reasonably suitable and safe for the work to be done, and not whether other persons do in fact use them, but whether they are such as reasonably careful and prudent men would use under like circumstances. Where the master has performed this primary duty, the servant assumes the ordinary risks and hazards incident to the business in which he is engaged. He is presumed to have contracted with reference to such risks and hazards and in contemplation of the dangers great or little that surround his peculiar occupation. He holds himself out for such work and is presumed to know and contemplate its ordinary risks and dangers. The distinct question is, whether the plaintiff provided in that derrick a reasonably suitable and safe machine for hoisting and handling that frame. This is to be determined by you, from the evidence in this case, under the rules of law above stated. If that derrick was reasonably suitable and safe for that work, at the time of the accident, then your verdict should be for the defendant. In that case, the accident did not result from the negli CHARGE. gence of the defendant, but was the result of one of the risks which the plaintiff assumed in his employment. It would be a mere accident, without negligence, for which the defendant would not be liable. The case of the plaintiff rests upon the negligence of the defendant. No recovery can be had for the plaintiff, unless you are satisfied by the preponderance of the evidence that the injuries complained of resulted from the negligence of the defendant. Negligence is never presumed; it must be proved. There is practically no dispute about the law in this case. We have called your attention to the principles of law involved, so that you may apply them to the facts. The issue is essentially one of fact to be determined by you from the evidence. It is for you to say whether the derrick at that time, and for that work, was a reasonably suitable and safe machine. If it was, then your verdict should be for the defendant. If it was not, then your verdict should be for the plaintiff. If you find for the plaintiff, it should be for such sum as in your judgment, under the evidence in this cause, the deceased would probably have earned in his business during life, and left as his estate; taking into consideration, the age of the deceased, his ability and disposition to labor, and habits of living and expendi tures. In this you are to be governed not by mere speculation or conjecture, but by the reasonable rules governing human experience in the acquisition and retention of property, under the circumstances and environments surrounding such a life. In other words, you are to ascertain from the evidence, what estate the deceased would have left at the termination of his probabilities of life as proved in this case. The jury disagreed. SYLLABUS. IN RE PETITION OF SAMUEL J. LEVY TO OPEN JUDGMENT. Upon an application to open a judgment the practice is to take a rule on the defendant to show cause why the judgment should not be opened. (May 4, 1900.) JUDGES SPRUANCE, GRUBB and BOYCE sitting. Henry Ridgely, Jr., for petitioner. Superior Court, Kent County, April Term, 1900. FOREIGN ATTACHMENT (No. 58, April Term, 1899.) The Petition was in the following form: The petition of Samuel J. Levy, of the City and County of Philadelphia, and State of Pennsylvania, respectfully represents, That at the October Term, A. D. 1899, of this Court, a judgment upon foreign attachment proceedings at the suit of William F. Smalley, Jr. (the same being of record in the office of the Prothonotary of said Court in C. D. 17, page 162) was recovered against your petitioner for the sum of five hundred and thirty-eight dollars; that the said writ of foreign attachment upon which said judgment was obtained was issued out of this Court on the eighth day of April, A. D. 1899, the same being No. 58 to the April Term of said Court, 1899; that your petitioner had no notice or knowledge of any of the said proceedings, nor of the issuance of said writ of foreign attachment, nor of the recovery of the said judgment thereon, until the eleventh day of December, A. D. 1899, after the entry of said judgment, and that he was not present either in person or by attorney at the rendition of the judgment aforesaid nor during any stage of the proceedings aforesaid. That your petitioner never was informed by the said William F. Smalley, Jr., nor by anyone for him of any claim against him, OPINION. nor did he know that any such existed until after the entry of said judgment and the holding of the inquisition thereon; that he, to the best of his knowledge and belief is not and was not at the time of the issuing of said writ of attachment indebted to the said William F. Smalley, Jr., in any amount whatever. That on the sixth day of January, A. D. 1900, the said judgment was assigned by the said William F. Smalley, Jr., to Arthur L. Foster, as by an entry upon said judgment will appear. That your petitioner is not and was not at any time prior to the entry of said judgment indebted to the said Arthur L. Foster. And that your petitioner has a just and legal defense to the whole of the cause of action in the said suit. Your petitioner therefore prays that the said judgment may be opened, and that he may be permitted to appear in this Court and disprove or avoid the said debt or claim, and he will ever pray, etc. Mr. Ridgely:-I make a motion upon the affidavit and petition that the judgment be opened and that we be permitted to come in and plead and give security. Rev. Code, Ch. 104, Secs. 20 and 13; Taylor vs. Rossiter, 6 Houst., 486. cause. SPRUANCE, J.:-This is an application for a rule to show Mr. Ridgely:-That is not my application. SPRUANCE, J.:-A great many things are done on rules which, if we had no practice, might be done out of order. But we have a practice, and when you want to open a judgment you take a rule on the defendant to show cause why judgment should not be opened. We will grant you the rule to show cause, returnable at the next term of this Court. We cannot grant you anything more. SYLLABUS. Criminal STATE vs. EDWARD BRISCOE. Law-Indictment - Larceny - Evidence-Character- 1. The following questions propounded to a witness for the defendant, viz. : “Did you ever hear of this man's stealing ?” "Do you consider the defendant's character good or bad?" held to be inadmissible. 2. Where recently stolen property is found in the possession of a person, that person is presumed in law to be the one who stole it, unless he accounts satisfactorily to the jury for his possession of the property. 3. Where lost property is found by a person it is the duty of the finder to make an effort to ascertain who is the owner, if the circumstances are of such a character that the owner might be known by the exercise of ordinary and reasonable care and diligence. 1900. (May 16, 1900.) JUDGES GRUBB, PENNEWILL and BOYCE, sitting. Robert C. White, Attorney-General, for the State. Martin E. Smith for the defendant. Court of General Sessions, New Castle County, May Term, INDICTMENT FOR LARCENY. At the trial, it was proved that on the 27th of March, 1900, while the defendant and another man were moving the household goods of Mary LeCompt, in the City of Wilmington, the latter missed a lady's gold scarf pin, set with pearls, valued at five dollars. The pin was afterwards recovered and traced to the possession of Briscoe. The defendant, being placed upon the stand, testified that he |