Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1894-11-22

ter by what name he may be designated, |
cannot be fellow servant, he is an agent,
and the rule applicable to principal and |
agent must apply" Mckinney, sec -;
which attaches to and should be performed
by the master as such, he represents the
MASTER and does not hold the relation OF
fellow servant to the other employe who
may be injured by his negligence.
Therefore, "Where a master uses due
diligence in the selection of capable and
trustworthy servants, and furnishes them
with suitable means 10 perform the service
in which he employs them, he is not an
swerabe to one of them tor an injury re-
ceived by him in consequence of the care
lcssness of another while both are engaged
in the same SERVICE" mckinney, Sec. 0.
The duties OF the master may be summed
up as follows: He must furnish fol-, his
employees reasonably safe place i'll which
to work, reasonably safe machinery and
appliances with which to work; he must
exercise due care and caution in selecting
competent and trustworthy co-workersi
and it may be he should make and pro-
mitigate rules for the government OF his
establishment whenever it is SO large or
complicated, as to make ms personal
supervision impracticube. These are the
masters positive duties negligence in
meeting any of which makes the master
liable We think this is probably the ex-
tent of his liability. When the servant IS
performing any of these duties, he is the
agent and representative OF the master.
and the master is liableto an injured EN-
| ploye for the negligence OF the offending
servant therein. When this rule does not
apply, the co-employes are fellow servants
! and the master is not liable.
This is the doctrine as it now has become
crystallized ia the reports of the Supreme
Court of the United States; beginning with
the case of Randall vs.. Il. n o. r. X. Co.
| 1903 u. s.. p. ASH, and running through
| the cases of the B.. IL o. r. X. Co. vs..
Baugh, 149 U. S., 800 Northern PACIFIC
II. r. Co. VS.. Hambly, l54 U. s., $40, and
| the later cases in the United States courts
| of appeal 1t is also the doctrine OF the
courts in the States of Pennsylvania, New
York, Massachusetts. Maryland aud
| majority of the other States of the Union.
| Indeed we may say, by the overwhelming
majority OF all of the well considered and
well reasoned cases on this subject. 1t was
| the uniformly English doctrine prior to
the statutes on this subject
It is the one reasonable and philosophic
| rule that lifts us out Of the uncertainty
and confusion that has clonded this branch
| of the law. and furnishes us uniform
| and clear test.
Apply this test to the case at bar, and
see how easily the problem of the relation
of Galway and Wheatley to each other IS
solved. There is no proof that the place
where Wheatley worked, that is the road
bed, track &c, were not reasonably safe;
there is no PROOF that the machinery and
appliances with which he worked, that is
the engine switches, &c, were not reasona-
bly, safe; there is no proof that reasonable
care was not taken in selecting capable
and skilful co-workers: indeed it is proved
that Galway had had seven years experi-
ence; there is no proof that effective rules
were not promulgated for the government
of the employees indeed, it is in evidence
that there were such rules, and that theil
observance on that very night and al
Porters Station, had worked the safety Of
both life and properly with respect to this
very train No, II and another train aheac
of it.
Therefore, from the evidence, none Of
these duties of the master have beer
omitted. II is apparent, therefore, tina
the duty of Galway in signaling the trair
in no way related to any of these positive
duties of the company, but was duty
ministerial in its character, and of execti
tive detail, which must of necessity b.
, vested in the faithfulness of the employe
This therefore fixes his position relative II
Wheatley as that of fellow servant ant
not as the representative or agent of tn
/ master; and il his negligence alone causet
. the accident which resulted III the death Q
! Wheatley, the company cannot be he'll
! liable.
I'd. But it has been urged with grea
, force and earnestness by the plaintiff
: counsel that even if Galway was fello,
servant, and the accident was caused b.
a reason of his negligence, that there wa
: other negligence on the part of the dt
y PENDANT that combined with the negli
, gence of Galway in causing the injury
! and therefore the defendant should
I held. This proposition is true If the ev
g dence sustains it.
2 But is there any such proof in this case
= We must be governed not by conjectur,
= but by the proof. The counsel has SUI
- gested that at the time of the accident TIL
10 'I'' and the main track were to some e.
|, tent INSTRUCTED and congested by reason {
an accident at St. AIMS the day befor
y which delayed peach and passenger train
i and us interfered with the safe operatio
of the road; that the danger signal at I'll
Il target station was not used; that the Gel
4 trial agent at Clayton had not stopped NJ
/, 81 by orders, and other suggestions in til
i line. After careful examination we al
:. unable to find any evidence which SNOW
% that these matters so suggested were in an
il wise the result of negligence on the pa
i of the defendant, or that they in any r
d spect were the proximate cause of IL
n accident which resulted in Wheatley
y DEATH
y From the evidence of the plaintiff,
- appears that the accident resulted alor
. from the negligence of George W. Cal
y way while he was in performance
y duties, Heretofore described, which were
:. ministerial character or of executive detai
N and that in the performance of such duti
=. we conclude that he was fellow servai
"a of Wheatley, and that the defendant
!. not liable 10 such negligence. 1t was Cal
n ways negligence, for which he is liabl
= but is not the negligence of the compan
:. and may not be imputed to it.
q. it is with great reluctance that coul
take cases away from the jury, but whe
NJ the evidence on the part of the plaintiff
- such that if verdict was found for b
y, plaintiff, the court would be constrain
40 40 to set it aside, it is not only reasonat
- y but it is the duty of the court to stop t
~ case at that point Such in our judgme
i, is the case at bar.
~ The plaintiffs case has been handl
" with great ability and earnestness. I
n defect is not in its treatment by couns
- but is inherent in the nature of the CT
az itself. We therefore order that non-sl
~, ~ be entered.
- "TE NE'ER SHALL P.ARE"