MASTER AND SERVANT.-Continued.
death was caused by the failure of the machine to perform the service
it was warranted to do. Edge Moor 1. Co. vs. Brown etc. Co., 10.
10. When one person is injured by the negligence of another, the
wrong-doer is liable for all the usual and natural effects and results of
such injury. It does not avail him to say,that if the injury had been
more speedily or more skilfully treated the actual suffering and re-
sults would not have been so great, The question is, not whether the
injured person took the wisest counsel or applied the best remedies
to the wound, but whether the extent of the injuries complained of
was caused by and naturally grew out of the injuries inflicted by the
negligence of the wrong-doer. It is the duty of the injured person,
however, to use all reasonable care and precaution in effecting a cure.
Graboski vs. New Castle Leather Co., 145.
11. The primary duties of the master defined.
12. The relation of master and servant held to have existed be-
tween defendant and deceased. Coughlan vs. P. B. & W. R. R., 242.
13. Primary duties of the master defined. Id.
14. Where an unskilled servant is directed by the master to per-
form dangerous work with which he is not acquainted, and where the
dangers are latent, that is, not manifest or apparent, it is the duty of
the master to instruct such servant as to his duties, and to give warn-
ing respecting the danger. It is also the duty of the master to see
that the number of servants engaged upon any particular work is
sufficient to secure the reasonable safety of each of them. Id.
15.
The defendant would not be liable if the danger complained of
was apparent to a person of ordinary intelligence and care, or if, at
the time of the accident the deceased was using the dangerous ap-
pliance without any order to do so, or contrary to the orders given by
the defendant. Id.
16. If the deceased saw and knew of the inadequacy of the crew,
and continued to work without objections; or if a part of the crew
were temporarily absent in an emergency not reasonably to be an-
ticipated by the master, the defendant would not be liable. Id.
17. It is never a test of the application of the fellow-servant
doctrine to any given case whether or not the injury was received by
the servant during working hours or when he was at work after work-
ing hours. The sole test of its application thereto is whether at the
time of the injury the servant was doing something which it was his
duty, or he had a right, to do under the contract. If he was so acting,
the doctrine applies; if not, it does not apply. Taylor vs. Bush &
Sons' Co., 306.
18. The plaintiff was injured in the defendant company's stable
yard at the end of his day's work, immediately after getting his pay
slip and money, and just as he was about to enter a stable door for
the purpose of getting his dinner pail, in accordance with his custom.
The injury occurred on the defendant's premises where his work was
in part performed while he was enjoying a privilege allowed by the
defendant to the plaintiff in his capacity of servant, and involved in
his service. Held that the relation of master and servant was then
subsisting. Id.
19. The injury having been caused by one of the defendants,
drivers, a servant engaged in the same kind of employment, by drop-
ping upon the plaintiff's head without warning a bale of straw, and it
MASTER AND SERVANT.-Continued.
not being claimed that this servant was known in any way to be in-
competent, or that the master was guilty of any negligence in em-
ploying him, or in failing to provide other methods for the transfer of
the straw from the loft to the horses' stalls; held that the case came
clearly within the fellow-servant doctrine, and the employer was not
liable. Id.
20. An averment of negligence contained in the plaintiff's declara-
tion, being simply that the employee, who was an Italian, did not
understand English, and was put under the charge of people who did
not understand Italian, held insufficient. Valente vs. American
Bridge Co., 556.
21. Held, that the specifications contained in the plaintiff's decla-
ration did not show that the employments were such as that the
question of an unsafe place would arise. Id.
22. The specifications in regard to rules contained in the declara-
tion failing to show that any injury resulted from the absence of rules,
held insufficient. Id.
23. A count in the declaration averred that the injury resulted
from failure on the part of the defendant to employ a sufficient num-
ber of fellow servants to assist in the work that was being done.
Held, sufficient, although the ignorance of the employee of the risk
was not averred. Id.
24. If the servant is inexperienced and unacquainted with the dan-
gers incident to the employment in which he is about to engage, it is
the duty of the master to give him proper instructions as to the em-
ployment and to warn him against its dangers. The master may, in
giving him such instructions and warnings, in the absence of knowl-
edge to the contrary, assume that the servant has the knowledge and
discernment which a person of his age and intelligence ordinarily
possesses. Id.
25. The servant assumes no risk as to the primary duties of the
master, but does assume all the ordinary risks incident to the em-
ployment, including the negligence of a fellow servant. Id.
26. The question, whether the persons engaged in loading iron
columns on a car were, or were not, the fellow servants of the plaintiff
engaged in painting the iron column which was first placed on the car,
submitted to the jury for determination. Id.
1 Where goods are injured during transportation, under such cir-
cumstances as to render the carrier liable, the measure of damage is
the difference between the value of the goods in their damaged state
and what would have been their value if delivered in good order, un-
less there was a special agreement between the parties fixing some
other mode for the ascertainment of such damages. Carpenter vs.
Measure of damages to automobile. Garrett vs. Peoples Ry., 29.
3. The case not considered by the Court a proper one for punitive
or exemplary damages, the measure old amages would be simply the
value of the dog as shown by the testimony. Harrington vs. Hall, 72.
4. The measure of damages for relfusa to accept and pay for the
corn would be its value at the price agreed to be paid less whatever the
MEASURE OF DAMAGES.-Continued.
corn was subsequently worth to the plaintiff, who kept it and who
would be liable for whatever would be a fair value for it, using it for
other purposes.
Pancoast vs. Vail, 183.
5. Where goods are sold at an agreed price, to be delivered at a
future time, and the purchaser refuses to receive the same in accor-
dance with the contract of sale, the seller may re-sell the same at the
market price, if the commodity has a market price, and recover from
the purchaser the loss on such re-sale. But if the purchaser tenders
himself ready to receive the goods in accordance with the conditions of
sale, the seller cannot recover for any loss upon a resale thereof.
Reese vs. Hoffecker, 198.
6. Any disease or infirmity of a horse, not visible and palpable, at
the time of sale, which impaired his value or usefulness, would consti-
tute unsoundness, and, whether known to the plaintiff or not, would
constitute a breach of a warranty of soundness. The measure of dam-
ages would be the difference between the value of the horse in his un-
sound condition, and his value if he had been sound, at the time of
sale. Ellison vs. Simmons, 200.
7. Measure of damages to person, horse and vehicle. Heidel-
baugh vs. Peoples Ry., 209.
8. Measure of damages in an action to recover for obstructing
right of way. Poole vs. Greer, 220.
9. Measure of damages for injuries to personal property while in
possession of bailee. Bowen vs. Isenberg Bros. Co., 230.
10. Measure of damages for injuries to person in automobile
accident. Simeone vs. Lindsay, 224.
11. Measure of damages for injuries to horse. Stidham vs.
Delaware City, 359.
12. Measure of damages for destruction of valuable spring. Little
vs. Telephone Co., 374.
13. Measure of damages for personal injuries. Smithers vs. The
Wil. City Ry., 422; Heinel vs. Peoples Ry., 428; White vs. Peoples Ry.,
14. With respect to the payments made before such settlement,
however, where a depositor has failed in his duty in respect to the ex-
amination of his pass-book and vouchers with reasonable care and
diligence, held; that in the absence of negligence or want of due and
reasonable care on the part of the bank in making such payments, the
depositor becomes liable to the bank for all damages sustained by the
bank in consequense of such omission of duty. The extent of the
liability of the depositor is commensurate with the loss sustained by
the bank in consequence of his neglect of duty, no more, no less.
National Dredging Co. vs. Farmers Bank, 580.
15 Neither the doctrine of ratification nor estoppel can be in-
voked, but the damages sustained by the bank as a result of the ne-
glect of duty by the depositor are susceptible of proof and measure-
ment as in any other case of breach of duty imposed by contract. Id.
MEDICAL TESTIMONY.-See EXPERT TESTIMONY,
1. If the jury are satisfied from the evidence that the obligor, by
MENTAL INCAPACITY.—Continued.
reason of old age, was mentally unsound and incapable of transacting
business before the execution of the note, they may presume that such
unsoundness and incapacity continued until, and existed at the time
when the note was executed, unless the contrary is shown by the evi-
dence. Rogers vs. Rogers, 267.
2. If the obligor at the time that he executed the note was capable
of exercising thought, reflection and judgment, knew what he was
doing and had sufficient memory and understanding to comprehend
the nature and character of the transaction, he was capable of making
the note. Id.
3. In determining whether the obligor was prevailed upon by de-
ception and deceit to execute and deliver the note, fraud is not to be
presumed but must be proved by the party alleging it. And it must
be shown that the fraudulent influence alleged was such that the ob-
ligor was too weak to resist, such as deprived him of his free will, and
such as substituted the will of another for his own. The degree of in-
fluence necessary to control the will of the obligor would depend upon
his mental and physical condition at the time. Id.
MINOR, SELLING INTOXICATING LIQUOR TO
1. In cases where it is not perfectly manifest that the person seek-
ing to obtain intoxicating liquor from a licensed dealer is twenty-one
years of age, such dealer, his agent or servant, is bound to use all
reasonable means to ascertain whether the person desiring the liquor
is in fact twenty-one years of age. State vs. Salkowski, 472.
2. In many cases a liquor dealer would not meet the requirements
of the act by simply asking a person applying for intoxicating liquor
if he or she is twenty-one years of age, and relying upon an affirmative
answer, make a sale to one under twenty-one years of age. Id.
See INTOXICATING LIQUOR.
While an attempt to procure one to commit perjury is not specifi-
cally provided for by statute, it comes within the terms of the general
statute which provides that offenses indictable at common law, and
not specifically provided by statutes, shall be deemed misdemean-
ors. State vs. Shaffner, 576.
MISTAKE IN ESTIMATE-See ESTIMATE FOR BUILDING MATERIALS.
Even though the publication complained of is libellous, and un-
justifiable in law, the jury may take into consideration, in mitigation
of damages, any and all facts and circumstances disclosed by the
evidence, which tend to show that the article was published with a
proper motive, and without intent or desire to injure the plaintiff.
Todd vs. Every Evening P. Co., 233.
1. Exclusive, adverse and continuous possession for twenty years
is ground upon which the law presumes a legal title. But where the
MIXED POSSESSION.—Continued.
possession relied upon is for a less period than twenty years, or where
it is of a mixed character, as where the possession has been shared
with some other person or persons, no conclusive presumption arises
as to the ownership of the legal title from such possession. Nevin vs.
Disharoon, 278.
2. If it appears from the evidence that there was a mixed posses-
sion of the premises; that is, if acts of ownership have from time to
time been exercised by both parties, the law adjudges the right of
possession to be in that party who has shown a legal title. Id.
See EJECTMENT.
But even if such a contract could be regarded as a conditional sale
if the vendor has agreed, under the terms of a mortgage given to him
by the vendee, that the property in question should become fixtures,
and as such a part of the realty covered by the lien of the mortgage
under which the property was subsequently sold by the sheriff, he
cannot maintain an action of replevin therefor. Knowles Loom
Works vs. Knowles, 185.
MOTION TO DISMISS APPEAL.-See APPEAL.
1. It is the duty of those having control of the streets of a town or
city to exercise due care in keeping them in a reasonably safe condi-
tion, free from holes, pits, excavations or obstructions, so that they
may be safe for the traveler on foot or otherwise, who may use them
in a lawful and careful manner. Stidham vs. Delaware City, 359.
2. While the city is not an insurer against all injuries which may
result from holes, or obstructions in the public streets, it is liable for
such injuries as are the result of its negligence or default, or the neg-
ligence or default of its duly authorized agents, in the performance of a
duty imposed upon it by law. Id.
3. In the absence of any knowledge to the contrary the traveler
has a right to assume that the streets are in a reasonably safe condi-
tion, and in such case he is not bound to look or search for holes or
obstructions. But he must use due care, and not disregard any warn-
ing of danger. Id.
4. In an action against the city of Wilmington for personal in-
juries, a citizen is not incompetent to serve as a juror because he is a
citizen of the municipality and therefore interested as a taxpayer in
any verdict that might be rendered against the city. Anderson vs.
Wilmington, 485.
5. If a hole in the street of a city is dangerous to public travel and
had so existed for a time before the accident reasonably sufficient for
the city to have known of its existence and condition, the law pre-
sumes or implies that the city had received knowledge of it, and its
failure in a reasonable time after such notice or knowledge to fill or
repair the same, or to place about it proper safeguards, would be neg-
ligence. The city is not bound for injuries occasioned by holes in the
streets resulting from sudden storms or wash-outs, until it has a reas-
onable time to fill or repair the same, or place proper guards about
them. Id.
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