Pbnhewill, J.,
Charging the Jury :
Gentlemen of the Jury :—In this case the plaintiff, Nicholas Murphy, seeks to recover from Eugene Hughes, Charles Hughes and Anson Bangs, trading as Hughes Brothers & Bangs, the defendants, damages for personal injuries sustained by him in April, 1897, and. which he alleges were caused by the negligence of the defendants. The plaintiff charges, among other things, that the defendants were negligent in the employment of an incompent servant as engineer, and that by reason of such in.competency he, the said plaintiff, who was at the time acting as an employe or servant of the defendant, was injured as alleged in his declaration.
[258]*258The defendants contend that they were not guilty of any negligence; that they exercised all reasonable and proper care, and that the accident was caused by the contributory negligence of the plaintiff; thus denying all liability whatsoever for the injury to the plaintiff.
With the facts in the case, gentlemen, the Court have nothing to do, for of them you are the sole judges. The evidence is for your consideration and determination, after applying thereto the law as the Court shall declare it to you.
The principles of law applicable to this case have been so clearly settled by the courts of this State, that we do not see that it is at all necessary to look beyond the reported decisions of our own courts for the rules to guide us and you in the consideration and determination of the present action.
Negligence has been defined to be the want of ordinary care, that is, the want of such care as a reasonably prudent and careful man would exercise under the circumstances. What constitutes negligence is a question of law for the Court, but whether negligence in fact exists is a question of fact for your determination from the testimony in the case. It is for you to determine whether there was any negligence that caused the injury complained of, and if so, whether it was the negligence of the defendant or the plaintiff. And as was said by this Court in Mills vs. the Wimington City Ry. Co., 2 Hardesty, 34, "the defendant could only be held liable for such negligence as constituted the proximate cause of the injury. ’’
It is a rule of law that when a servant enters into the employ of another he assumes the risks ordinarily incident to the business, and is presumed to have contracted with reference to all the hazards and risks incident to the employment; that the employer is not bound to employ the latest or best machinery, but only to see that what he does employ is safe and suitable; and also that he is not the guarantor of their safety or sufficiency. Yet it is unquestionably the law, and fully recognized by the courts of this State, that it is the duty of the master to exercise due care and caution in selecting competent and trustworthy co-workers, as well as to furnish his servants with reason[259]*259ably safe machinery and appliances with which to work; and it is such a duty that a master cannot delegate to an agent so as to escape responsibility for the negligent acts of such agent. Such a duty the master owes to his servant, and if the latter is injured because of the failure of the former to exercise such care the master would be liable. This Court has also held that it is the duty of the master to make and promulgate proper rules for the government of his servants and business whenever it is so large or comphcated as to make his supervision impracticable. It is, however, always a question for the jury to determine whether such rules are sufficient for the purpose. One of the tests of such sufficiency is that they have been in force for a considerable length of time, and in such trial have accomplished the purpose sought. The presumption of law is in favor of their sufficiency on a question of negligence.
Rex vs. Pullman Palace Car Co., 2 Marvel.
What would be due care and caution on the part of the master in this regard would depend largely upon the nature of the employment for which the co-worker was selected, because the more dangerous and hazardous the employment the greater the care and caution required on the part of the master in the selection of the person to perform it. Ordinary care would mean that degree of diligence and precaution which the exigencies of the particular service reasonably require.
If you believe that Angelo Zanetti, who was employed by the defendants, was incompetent to properly fill the position for which he was employed, or to which he was assigned by them, and by reason of such incompetency the injury complained of happened, the plaintiff not being guilty of any contributory negligence, and you also believe that such incompetency was known to the defendants at the time of his employment, or became known to them before the injury to the plaintiff happened, or by the exercise of due care and caution it might have been known to them, the plaintiff would be entitled to recover. It is not necessary that the master should have actual knowledge of the incompetency of the co-worker he employs; it is sufficient if by the exercise of due care and caution he could have known [260]*260it. For it is the duty of the master, so far as he is able by the exercise of due diligence so to do, to employ competent servants. Knowledge of the person having charge of an incompetent servant, with power to discharge him, that such servant is incompetent, is in law the knowledge of the employer, because the person having such charge and power is the agent of the master, and such notice to him would be regarded as notice to his principal. It is of course the duty of the master to discharge an incompetent servant if he obtains knowledge of his incompetency, or by the exercise of due care and diligence he could have obtained such knowledge.
But on the other hand, “ When the master uses due dilligence in the selection of capable and trustworthy servants, and furnishes them with suitable means to perform the service, he is not answerable to one of them for an injury received by him in consequence of the carelessness of another while both men are engaged in the same service.” McKinney on Fellow Servants, Sec. p. Even though you should believe, therefore, that the said Angelo Zanetti was incompetent to fill the position he was occupying at the time of the injury to the plaintiff, yet if you are not satisfied that the defendants were aware of his incompetency, or could have become aware of if by the exercise of due care and diligence, the plaintiff would not be entitled to recover.
While the master is bound, as we have already said, to exercise due care and diligence in behalf of his servant, including that of the selection and retention of proper and competent co-employes, and reasonably safe machinery andappliances, and while the servant is entitled to assume that the master has done his duty in this regard, and is not chargeable with notice of the incompetency of his fellow-servant until he has notice thereof by information or by circumstances reasonably sufficient to give it, yet, as was clearly laid down by the court in the case of Parvis P., W. & B. Railroad Co., 8 Houst., 446, “ it is well settled as a principle of law that the plaintiff was also bound at the same time to use ordinary care, prudence and diligence to avoid the accident and injury. That is to say, he is bound to use such care, prudence and diligence as a reasonably prudent man, under the peculiar circumstances of the case would exercise to preserve [261]
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Pbnhewill, J.,
Charging the Jury :
Gentlemen of the Jury :—In this case the plaintiff, Nicholas Murphy, seeks to recover from Eugene Hughes, Charles Hughes and Anson Bangs, trading as Hughes Brothers & Bangs, the defendants, damages for personal injuries sustained by him in April, 1897, and. which he alleges were caused by the negligence of the defendants. The plaintiff charges, among other things, that the defendants were negligent in the employment of an incompent servant as engineer, and that by reason of such in.competency he, the said plaintiff, who was at the time acting as an employe or servant of the defendant, was injured as alleged in his declaration.
[258]*258The defendants contend that they were not guilty of any negligence; that they exercised all reasonable and proper care, and that the accident was caused by the contributory negligence of the plaintiff; thus denying all liability whatsoever for the injury to the plaintiff.
With the facts in the case, gentlemen, the Court have nothing to do, for of them you are the sole judges. The evidence is for your consideration and determination, after applying thereto the law as the Court shall declare it to you.
The principles of law applicable to this case have been so clearly settled by the courts of this State, that we do not see that it is at all necessary to look beyond the reported decisions of our own courts for the rules to guide us and you in the consideration and determination of the present action.
Negligence has been defined to be the want of ordinary care, that is, the want of such care as a reasonably prudent and careful man would exercise under the circumstances. What constitutes negligence is a question of law for the Court, but whether negligence in fact exists is a question of fact for your determination from the testimony in the case. It is for you to determine whether there was any negligence that caused the injury complained of, and if so, whether it was the negligence of the defendant or the plaintiff. And as was said by this Court in Mills vs. the Wimington City Ry. Co., 2 Hardesty, 34, "the defendant could only be held liable for such negligence as constituted the proximate cause of the injury. ’’
It is a rule of law that when a servant enters into the employ of another he assumes the risks ordinarily incident to the business, and is presumed to have contracted with reference to all the hazards and risks incident to the employment; that the employer is not bound to employ the latest or best machinery, but only to see that what he does employ is safe and suitable; and also that he is not the guarantor of their safety or sufficiency. Yet it is unquestionably the law, and fully recognized by the courts of this State, that it is the duty of the master to exercise due care and caution in selecting competent and trustworthy co-workers, as well as to furnish his servants with reason[259]*259ably safe machinery and appliances with which to work; and it is such a duty that a master cannot delegate to an agent so as to escape responsibility for the negligent acts of such agent. Such a duty the master owes to his servant, and if the latter is injured because of the failure of the former to exercise such care the master would be liable. This Court has also held that it is the duty of the master to make and promulgate proper rules for the government of his servants and business whenever it is so large or comphcated as to make his supervision impracticable. It is, however, always a question for the jury to determine whether such rules are sufficient for the purpose. One of the tests of such sufficiency is that they have been in force for a considerable length of time, and in such trial have accomplished the purpose sought. The presumption of law is in favor of their sufficiency on a question of negligence.
Rex vs. Pullman Palace Car Co., 2 Marvel.
What would be due care and caution on the part of the master in this regard would depend largely upon the nature of the employment for which the co-worker was selected, because the more dangerous and hazardous the employment the greater the care and caution required on the part of the master in the selection of the person to perform it. Ordinary care would mean that degree of diligence and precaution which the exigencies of the particular service reasonably require.
If you believe that Angelo Zanetti, who was employed by the defendants, was incompetent to properly fill the position for which he was employed, or to which he was assigned by them, and by reason of such incompetency the injury complained of happened, the plaintiff not being guilty of any contributory negligence, and you also believe that such incompetency was known to the defendants at the time of his employment, or became known to them before the injury to the plaintiff happened, or by the exercise of due care and caution it might have been known to them, the plaintiff would be entitled to recover. It is not necessary that the master should have actual knowledge of the incompetency of the co-worker he employs; it is sufficient if by the exercise of due care and caution he could have known [260]*260it. For it is the duty of the master, so far as he is able by the exercise of due diligence so to do, to employ competent servants. Knowledge of the person having charge of an incompetent servant, with power to discharge him, that such servant is incompetent, is in law the knowledge of the employer, because the person having such charge and power is the agent of the master, and such notice to him would be regarded as notice to his principal. It is of course the duty of the master to discharge an incompetent servant if he obtains knowledge of his incompetency, or by the exercise of due care and diligence he could have obtained such knowledge.
But on the other hand, “ When the master uses due dilligence in the selection of capable and trustworthy servants, and furnishes them with suitable means to perform the service, he is not answerable to one of them for an injury received by him in consequence of the carelessness of another while both men are engaged in the same service.” McKinney on Fellow Servants, Sec. p. Even though you should believe, therefore, that the said Angelo Zanetti was incompetent to fill the position he was occupying at the time of the injury to the plaintiff, yet if you are not satisfied that the defendants were aware of his incompetency, or could have become aware of if by the exercise of due care and diligence, the plaintiff would not be entitled to recover.
While the master is bound, as we have already said, to exercise due care and diligence in behalf of his servant, including that of the selection and retention of proper and competent co-employes, and reasonably safe machinery andappliances, and while the servant is entitled to assume that the master has done his duty in this regard, and is not chargeable with notice of the incompetency of his fellow-servant until he has notice thereof by information or by circumstances reasonably sufficient to give it, yet, as was clearly laid down by the court in the case of Parvis P., W. & B. Railroad Co., 8 Houst., 446, “ it is well settled as a principle of law that the plaintiff was also bound at the same time to use ordinary care, prudence and diligence to avoid the accident and injury. That is to say, he is bound to use such care, prudence and diligence as a reasonably prudent man, under the peculiar circumstances of the case would exercise to preserve [261]*261himself from being injured. ’ ’ This simply means, that if the plaintiff himself was guilty of contributory negligence, which contributory negligence had a causal connection between the defendants’ negligence and the injury, he cannot recover. • Because the law does not permit any one to recover damages from another for an injury if his own negligence has contributed thereto or where by the exercise of reasonable care he could have avoided it. To quote again from the opinion of the Court in the case of Mills vs. Wilmington City Railway Co., “ If, however, the plaintiff was properly warned and disregarded the same, or was in a place of safety and voluntarily put himself in a position of danger whereby the injury occurred, he was guilty of contributory negligene, and cannot recover. ’ ’ And, as was said to the jury in the case of Huber vs. Jackson & Sharp Co., 2 Hardesty, 106, “ If you believe from the evidence that the injury was caused in any degree by the negligence or careless conduct of the plaintiff, your verdict should be for the defendant, as the negligence, if any there was, whether of the plaintiff or defendant, or both, was operating simultaneously and at the instant of the accident. To entitle the plaintiff to recover, he must prove to your satisfaction by a preponderance or weight of the evidence that the negligence of the defendant was the cause of the injury. The law does not presume negligence; it must be proved. ”
In all cases where there is a conflict of testimony or disagreement between the witnesses produced by the respective parties in a suit, the jury should first endeavor to reconcile the testimony so that the whole may be harmonious. If this cannot be done, then it is the duty of the jury to estimate and weigh in their minds the value of the testimony on the respective sides, and give their verdict to that side where the testimony is of the greatest weight or preponderance and most worthy of credit. In estimating such weight the jury are to consider the character of the witnesses as known to them from the testimony, their means of knowledge of the facts about which they speak, their apparent fairness, and all other circumstances or facts with respect to such witnesses as show the reliability of their statements.
[262]*262If your verdict should be for the plaintiff, it should be for such a sum as in jmur judgment from' the testimony will reasonably compensate him for his injuries, including therein his loss of time and wages, for his pain and suffering in the past, and such as may come in the future, resulting from the accident, and may also recover for- permanent injuries received, such sum as, from the evidence, you may believe will cover his pecuniary loss from his damaged ability to earn a living in the future.
If you should believe that it has not been shown by a preponderance of the testimony that the defendants were guilty of the negligence which caused the injury to the plaintiff, or that some other cause than the defendants’ negligence was responsible for the injury to the plaintiff, or if you should believe that the negligence of the plaintiff himself contributed to the injury complained of, your verdict should be for the defendants.
The case, gentleman, is now with you, upon the evidence and the law, and we are satisfied that you will give it fair and careful consideration.
Verdict for defendants.