OPINION. The uncontradicted testimony is to the effect that the accident would probably not have occurred had the shop car and the cabin car been coupled together with the usual coupling, and that the usual, safe and proper place for a car with a broken coupler is behind the cabin car. Conductor Larimore testified that if he had been using his own judgment he would have put said car behind the cabin car, but that he understood the said telegram to mean that he should put it next before the cabin car-and for that reason he did so. We think that the said telegram was sufficiently explicit, and was not misleading, and that the conductor erred in his interpretation of it, and that in so doing, and in putting said car before the cabin car, and in attaching them together as was done, he was guilty of negligence-but, as before stated, he was the fellow-servant of Shuster, and such negligence is not sufficient to charge the defendant in this action. It is claimed by the plaintiff that the defendant was guilty of negligence in failing to give to its car inspectors proper notice of the dangerous condition of the injured car. It is in evidence that it was the custom of the defendant to give notice to all concerned of the condition and destination of crippled cars by placing upon them what were known as shop cards, which denoted that they were injured and were to be taken to the shops for repair; and also that the crippled car in this case had on each side of it, in the usual place, a shop card of this character. It will be observed that in this case the injured car, at the time of the accident, was not being used by the defendant in its business. It was empty, had been laid off at Seaford because it was not fit for use, and was being carried to the shop for repairs. This case differs essentially from that of Rodney vs. St. Louis S. W. Railway Co., 28 South West Rep. 887, where the defendant was held liable for injuries to an employee while coupling a damaged car. In that case the car had some time before been laid off at damaged and marked as such, but at the time of the accident it OPINION. was without any danger mark and was being used in the ordinary business of the company. Under all the circumstances of this case we think that there was no negligence on the part of the defendant in failing to give other notice of the damaged car than was given. It was urged by the plaintiff that the defendant was guilty of negligence because it failed to provide proper rules for the conduct of its large and complicated business, in that it had no written or printed rule fixing the place in a train in which a crippled car should be put, or prohibiting car inspectors from riding upon a train while it was being run in upon the track for inspection. As the proper place in a train for a crippled car would depend upon the character of its injury, it would be impracticable to prescribe by a general rule the place in which all such cars should be placed. It appears to have been usual for the car inspectors to ride upon trains while being run in on the tracks for inspection, and that this, if not absolutely necessary, was a convenience to them in the prosecution of their work. We are of the opinion that there was no negligence on the part of the defendant in failing to provide rules. Having found that the death of Shuster was not occasioned by any negligence for which the defendant is liable in this action, it is not necessary to consider whether there was contributory negligence on the part of Shuster. Nor is it necessary for us to consider the assignments of error relating to the rulings of the Court below as to the admission and rejection of testimony, as this subject was not discussed in the argument before us, and none of said rulings appear to affect in any way the question as to the negligence of the defendant. We are of the opinion that there was no evidence upon which the jury would have been justified in finding a verdict for the plaintiff, and that the jury were properly instructed to find for the defendant, and that the judgment below should be affirmed. And it is so ordered. SYLLABI. EDGE MOOR IRON COMPANY, a corporation corporation existing under the laws of the State of Delaware, defendant below, plaintiff in error, vs. THE BROWN HOISTING MACHINE COMPANY, a corporation, etc., plaintiff below, defendant in error. Supreme Court-Writ of Error-Case-Action for price of Machine-Breach of Warranty-Injury to Defendant's Servant-Damages paid by Defendant-Recoupment thereof; When available as defense. 1. In an action brought to recover the price of a machine sold to the defendant with a warranty, the defendant cannot avail himself of a breach of the warranty as a defense, by way of recoupment, for damages which he paid to the widow of a deceased servant whose death was caused by the failure of the machine to perform the service it was warranted to do. 2. The doctrine of recoupment has attained a wider and more extended application in this country than in England. American Courts have allowed the defendant to recoup damages not only for the purpose of affecting the value of goods sold or of work done, but also damages suffered by him from any fraud, breach of warranty, or negligence of the plaintiff, growing out of and relating to the transaction in question for the purpose of avoiding needless delay and litigation. 3. When the character of the defendant's defense involves, among other things, its liability to the widow of a deceased servant, and there is in his claim for special damages the element of fault or negligence on its part, it is not practicable to adjust the defendant's claim in the plaintiff's action. Such damages, if recoverable at all, must be recovered in a separate action. (January 16, 1906.) NICHOLSON, CH., and PENNEWILL and BOYCE, J. J., sitting. William S. Hilles for plaintiff in error. Saulsbury, Ponder and Curtis for defendant in error. Supreme Court, June Term, 1905. WRIT OF ERROR to the Superior Court for New Castle County. BOYCE, J., delivering the opinion of the Court: The plaintiff brought an action of assumpsit against the defendant to recover an alleged balance due on the price of a ten-ton travelling crane, sold to the defendant, as averred, with OPINION. a warranty, together with certain other items set forth in the bill of particulars filed. The defendant sought to avail itselfiof breach of warranty as a defense, by way of recoupment. The plaintiff filed a general demurrer to the notice of recoupment. The Court below sustained the demurrer as against the claim of the defendant for special damages, set up in the notice of recoupment. The defendant elected to take a final judgment. And the case comes before this Court on a writ of error, sued out by the defendant. Briefly stated, the defendant claims that the crane, having been put in use by it, at its yards, with one of its servants on it for the purpose of operating it, upset by reason of the failure to perform the service which it had been warranted to do and killed the servant. And the defendant avers that it was forced to and did pay to the widow of the deceased servant (without suit or consent of the plaintiff) the sum of $2,734.90 as damages, and also paid other items for repairs, etc., of the crane. The chief question raised by the assignment of errors and the only one which we will now consider is whether the facts set forth in the notice of recoupment respecting the special damages alleged to have been paid by the defendant to the widow of the deceased servant, entitled the defendant to set up such special damages by way of recoupment, in reduction of the claim sued upon by the plaintiff. That part of the notice of recoupment which was not allowed, is as follows: "The defendant further gives notice that it will at the trial of the above entitled cause prove, by way of recoupment, as follows: "That the said crane, mentioned in the declaration, was purchased by the defendant from the plaintiff, the manufacturer thereof, under an express contract; that in and by the said contract it was provided, among other things, that the said crane on a track four feet eight and one-half inches gauge would have power, strength and stability to safely handle the following loads at the given radii, and would swing these loads through a OPINION. full circle without clamping the crane to the track, and would move the same along tracks with boom in any position, to wit: At 8-14 feet radius. At 26 feet radius. 20,000 fbs. 13,800 lbs. 9,500 lbs. "And that the said crane, under its own steam, would have the functions of hoisting, rotating, and track travel, which might be utilized simultaneously, with full load within the limits of stability noted above at the following speeds: Hoisting, full load, 42 feet per minute. Rotating, full load, four complete turns per minute. "That the said defendant, relying upon the said agreement and guaranty of the said plaintiff, purchased the said crane and put the same in use at its yards at Edge Moor in New Castle County, Delaware, to wit, on or about the first day of September, nineteen hundred and three; "That at the time aforesaid, and place aforesaid, the said defendant, relying upon the representations and warranty contained in the said contract with the said plaintiff, told one Horace O'Day, who was then and there a servant in the employ of the said Company, to get upon the said crane for the purpose of operating it; that the said Horace O'Day was unskilled and unfamiliar with the said crane and its workings, but under the belief and reliance of this defendant upon the warranty aforesaid, he was told to operate the said crane, and while operating it, with due care on his part, within the radii, weight and speed provided in the said contract and warranty, to wit, with the weight of about 10,800 pounds, with a boom radius of about 20 feet, and at a speed of less than four rotations per minute, and while the same was being operated upon a track of four feet, eight and one-half inches, gauge, on practically level ground, the said crane upset, thereby killing the said Horace O'Day, who was then and there in the employ of the said defendant as aforesaid; that the said crane upset and the death of the said Horace O'Day was caused by and due to the fact that the said crane would not as aforesaid, comply and come up to the war |