Boyce, J.,
charging the jury:
Gentlemen of the jury:—We decline to instruct you to find* for the defendant.
This action was brought by the plaintiff, David Samuel Warren, against the defendant, Harlan and Hollingsworth Corporation, to recover- damages for personal injuries to the plaintiff, alleged to have been occasioned by the negligence of the defendant corporation, at the shops of the defendant corporation, in this city on the twenty-fifth day of February, A. D. 1910.
The plaintiff’s declaration contains a single count and, in general language, the negligence charged is that the defendant negligently and carelessly omitted to provide a reasonably careful and competent fellow servant to operate a certain steam hammer around which the plaintiff was working as a helper to a certain blacksmith in the shops of the defendant, in making iron bolster hangers to be used as parts of car trucks; and it is contended that by reason of the incompetency of his co-worker to operate the said machine, he, the plaintiff, was injured.
[189]*189The defendant denies that it was guilty of the negligence charged, and insists that the injury complained of was caused by the negligence of the plaintiff himself.
[2] We shall not attempt a statement of the testimony which has been produced before you. You have patiently and attentively listened to the several witnesses as they have given their testimony, and you doubtless have it clearly in your minds. We are not permitted to charge you on the facts adduced by the witnesses. You are the sole judges of the credibility of the witnesses and of the weight and value of their testimony. The evidence is, therefore, for your exclusive consideration and determination, after applying thereto the law as we are about to declare to you.
[3, 4] This action is based upon the alleged negligence of the defendant, and to entitle the plaintiff to recover you must be satisfied by the preponderance or greater weight of the evidence that the alleged negligence of the defendant, which, it is claimed, caused the plaintiff’s injuries, was such negligence as is described in the plaintiff’s declaration; that is, “that the said Tomlinson was not a reasonably competent and careful person to operate said steam hammer and to control said motion levers, and the said Tomlinson was known to the defendant, or by the use of due diligence might have been known to the defendant, to be a person who did not possess the skill, care and prudence necessary to operate said steam hammer and use said motion levers with safety, but the said defendant, nevertheless, negligently and carelessly employed the said Tomlinson to work and operate said steam hammer and to control the said motion levers of the same.” Such negligence must be proved, and the burden of proving it to the satisfaction of the jury, as alleged, rests upon the plaintiff.
There is no presumption of negligence, either on the part of the defendant, or the plaintiff, from the mere fact that the plaintiff was injured. Whether there was any negligence at the time of the accident, and whose, you must determine from all the facts and circumstances of this case as disclosed to you by the testimony of the witnesses.
[5] Negligence has been defined to be a failure to observe, [190]*190for the protection of the interests of another person, that degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury.
It is conceded that the injuries complained of were inflicted by the hammer being let down on the right hand and forearm of the plaintiff when his said hand was in the pocket or hole in the mould resting on the base or lower die of the hammer machine, and that as a result of the injury the arm had subsequently to be amputated below the elbow.
[6] The ground upon which an employee may recover from his employer for personal injuries inflicted in the latter’s service is that such injuries were caused by the violation or neglect of some duty which the employer owed his employee—that is, the right of recovery for such injuries is based upon the negligence of the employer, or the negligence of another for whose conduct the employer is responsible. And the burden of proving such negligence is on the plaintiff.
[7, 8] It is conceded that the plaintiff and Tomlinson, the hammer man, were, at the time of the accident, employed by the defendant and engaged in a common employment. They, therefore, bore the relation of fellow servants or co-workers. It is the settled law in this state that there can be no recovery from the employer for personal injuries caused by the negligence of a fellow servant, in the selection and retention of whom the employer has used due and reasonable diligence.
[9] It is, therefore, the duty of the employer to exercise-reasonable care in the selection and retention of his employees, to the end that fellow servants or co-employees may not be endangered in the performance of their duties by the conduct of other employees of the defendant who are unskilful or careless in the performance of their duty. The employer is required to employ and retain in his service co-workers and fellow servants reasonably competent and careful for the performance of the particular work in which they are engaged.
The degree of care thus required of the employer in the selection and' retention of his employees is proportioned to the risk or hazard of the particular business in which the employee is engaged.
[191]*191[10, 11] An employee is entitled to assume that his employer has exercised due care and diligence in the selection and retention of reasonably competent and careful co-employees, and is not chargeable with knowledge of the incompetency or carelessness of his co-employees until he has notice thereof by information or circumstances reasonably sufficient for that purpose. Whether an employee is chargeable with knowledge of the general reputation of his co-employee for incompetency or carelessness will depend upon the length of time he has known, or had an opportunity of knowing, the reputation of his co-employee, and upon all the circumstances of the particular case. Giordano v. Brandywine Granite Co., 3 Penn. 423, 52 Atl. 332, and Murphy v. Hughes, et al., 1 Penn. 260, 40 Atl. 187.
[12] A person entering into the employment of another assumes the usual risks of the employment, excluding that of the negligence of the employer, and including that of the pure negligence of the co-employee, whenever doing anything contemplated by his contract of employment. Taylor v. Bush and Sons, 6 Penn. 307, 66 Atl. 884, 12 L. R. A. (N. S.) 853.
[13] If the employer has exercised due and reasonable care in the selection and retention of reasonably careful and competent employees, he is not an insurer of the safety or against the negligence of such employees. Reasonable care means that degree of precaution and diligence which the risks and hazards of the particular service reasonably require.
[14] We now especially direct your attention to the distinction to be made between the negligence of a competent fellow servant and the negligence of an incompetent fellow servant.
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Boyce, J.,
charging the jury:
Gentlemen of the jury:—We decline to instruct you to find* for the defendant.
This action was brought by the plaintiff, David Samuel Warren, against the defendant, Harlan and Hollingsworth Corporation, to recover- damages for personal injuries to the plaintiff, alleged to have been occasioned by the negligence of the defendant corporation, at the shops of the defendant corporation, in this city on the twenty-fifth day of February, A. D. 1910.
The plaintiff’s declaration contains a single count and, in general language, the negligence charged is that the defendant negligently and carelessly omitted to provide a reasonably careful and competent fellow servant to operate a certain steam hammer around which the plaintiff was working as a helper to a certain blacksmith in the shops of the defendant, in making iron bolster hangers to be used as parts of car trucks; and it is contended that by reason of the incompetency of his co-worker to operate the said machine, he, the plaintiff, was injured.
[189]*189The defendant denies that it was guilty of the negligence charged, and insists that the injury complained of was caused by the negligence of the plaintiff himself.
[2] We shall not attempt a statement of the testimony which has been produced before you. You have patiently and attentively listened to the several witnesses as they have given their testimony, and you doubtless have it clearly in your minds. We are not permitted to charge you on the facts adduced by the witnesses. You are the sole judges of the credibility of the witnesses and of the weight and value of their testimony. The evidence is, therefore, for your exclusive consideration and determination, after applying thereto the law as we are about to declare to you.
[3, 4] This action is based upon the alleged negligence of the defendant, and to entitle the plaintiff to recover you must be satisfied by the preponderance or greater weight of the evidence that the alleged negligence of the defendant, which, it is claimed, caused the plaintiff’s injuries, was such negligence as is described in the plaintiff’s declaration; that is, “that the said Tomlinson was not a reasonably competent and careful person to operate said steam hammer and to control said motion levers, and the said Tomlinson was known to the defendant, or by the use of due diligence might have been known to the defendant, to be a person who did not possess the skill, care and prudence necessary to operate said steam hammer and use said motion levers with safety, but the said defendant, nevertheless, negligently and carelessly employed the said Tomlinson to work and operate said steam hammer and to control the said motion levers of the same.” Such negligence must be proved, and the burden of proving it to the satisfaction of the jury, as alleged, rests upon the plaintiff.
There is no presumption of negligence, either on the part of the defendant, or the plaintiff, from the mere fact that the plaintiff was injured. Whether there was any negligence at the time of the accident, and whose, you must determine from all the facts and circumstances of this case as disclosed to you by the testimony of the witnesses.
[5] Negligence has been defined to be a failure to observe, [190]*190for the protection of the interests of another person, that degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury.
It is conceded that the injuries complained of were inflicted by the hammer being let down on the right hand and forearm of the plaintiff when his said hand was in the pocket or hole in the mould resting on the base or lower die of the hammer machine, and that as a result of the injury the arm had subsequently to be amputated below the elbow.
[6] The ground upon which an employee may recover from his employer for personal injuries inflicted in the latter’s service is that such injuries were caused by the violation or neglect of some duty which the employer owed his employee—that is, the right of recovery for such injuries is based upon the negligence of the employer, or the negligence of another for whose conduct the employer is responsible. And the burden of proving such negligence is on the plaintiff.
[7, 8] It is conceded that the plaintiff and Tomlinson, the hammer man, were, at the time of the accident, employed by the defendant and engaged in a common employment. They, therefore, bore the relation of fellow servants or co-workers. It is the settled law in this state that there can be no recovery from the employer for personal injuries caused by the negligence of a fellow servant, in the selection and retention of whom the employer has used due and reasonable diligence.
[9] It is, therefore, the duty of the employer to exercise-reasonable care in the selection and retention of his employees, to the end that fellow servants or co-employees may not be endangered in the performance of their duties by the conduct of other employees of the defendant who are unskilful or careless in the performance of their duty. The employer is required to employ and retain in his service co-workers and fellow servants reasonably competent and careful for the performance of the particular work in which they are engaged.
The degree of care thus required of the employer in the selection and' retention of his employees is proportioned to the risk or hazard of the particular business in which the employee is engaged.
[191]*191[10, 11] An employee is entitled to assume that his employer has exercised due care and diligence in the selection and retention of reasonably competent and careful co-employees, and is not chargeable with knowledge of the incompetency or carelessness of his co-employees until he has notice thereof by information or circumstances reasonably sufficient for that purpose. Whether an employee is chargeable with knowledge of the general reputation of his co-employee for incompetency or carelessness will depend upon the length of time he has known, or had an opportunity of knowing, the reputation of his co-employee, and upon all the circumstances of the particular case. Giordano v. Brandywine Granite Co., 3 Penn. 423, 52 Atl. 332, and Murphy v. Hughes, et al., 1 Penn. 260, 40 Atl. 187.
[12] A person entering into the employment of another assumes the usual risks of the employment, excluding that of the negligence of the employer, and including that of the pure negligence of the co-employee, whenever doing anything contemplated by his contract of employment. Taylor v. Bush and Sons, 6 Penn. 307, 66 Atl. 884, 12 L. R. A. (N. S.) 853.
[13] If the employer has exercised due and reasonable care in the selection and retention of reasonably careful and competent employees, he is not an insurer of the safety or against the negligence of such employees. Reasonable care means that degree of precaution and diligence which the risks and hazards of the particular service reasonably require.
[14] We now especially direct your attention to the distinction to be made between the negligence of a competent fellow servant and the negligence of an incompetent fellow servant. The employer is not liable for the negligence of a competent fellow servant, but he is liable for the negligence of a careless and incompetent fellow servant, in the selection and retention of whom he has not exercised due and reasonable diligence, if it be shown at the same time that the injured co-employee used ordinary care and prudence to avoid the injury.
The plaintiff insists that the defendant was negligent in failing to provide a reasonably competent and careful person to operate the said steam hammer at the time of the accident. Was [192]*192Tomlinson, the hammer man, competent or incompetent to operate the steam hammer at the time of the accident? If you find from the preponderance or greater weight of the evidence that he was reasonably competent for the performance of the duties to which he had been assigned, your investigation of this case should stop there, and you should return a verdict for the defendant.
If you should find that Tomlinson was not reasonably competent for the work assigned to him, had the defendant reason to know it? If the defendant had reason to know that Tomlinson was incompetent, and if knowing it, or by the exercise of due care and caution could have known it, and continued him in its employment, and if the plaintiff was injured by reason of such incompetency, without the fault or negligence of the plaintiff operating at the time, the plaintiff would be entitled to recdver. If the defendant had not reason to know that Tomlinson was not reasonably competent to perform the duties assigned to him, or, as we have said, if the injury to the plaintiff did not arise from his co-employee’s incompetency, the plaintiff cannot recover.
[15, 16] By a competent servant is meant a servant reasonably safe for the performance of the duties assigned to him, considering the nature of the work and the general safety of those engaged with him in a common employment. Incompetency may exist in the disposition with which a servant performs his duties. Although he may be physically and mentally able to do all that is required of him, his disposition toward his work, and toward the general safety of the work of his employer and of his fellow servants, may, or may not, tend to make him an incompetent servant, according to the facts and circumstances of the particular case. Labatt on Master and Servant, § 134.
[17] ■ If it should be found from the evidence that Tomlin-son was not careless or incompetent in the actual performance of his duties, as alleged, but that he had always, prior to the accident by which the plaintiff was injured, performed his duty as a hammer man in a reasonably safe and careful manner, the plaintiff would not be entitled to recover, or, if it should appear from the evidence that Tomlinson had been negligenct only in respect, to the particular act which caused the injury to the plaintiff, the latter cannot recover.
[193]*193The question whether the particular act which caused the injury to the plaintiff was negligent, and if negligent, whether it was merely a temporary lapse, or indicated an unfitness on the part of Tomlinson for the duties assigned to him, you should determine from all the evidence adduced before you.
[18] Proof of the commission of an act by a co-worker by which a fellow servant is injured, satisfactory to the jury, accompanied by like proof that the person charged with the act had a general reputation, among those with whom he worked, for carelessness and incompetency in the performance of his duties, based upon facts and acts, shown to the jury, sufficient in their character to satisfy the jury that the person charged with the act was a careless and unfit person to perform the duties assigned to him, would and should warrant the jury in finding that the person so charged was careless and unfit for the work, and that the particular act complained of was negligent; but such reputation should be based upon facts and acts, shown to the jury, sufficient in their character to satisfy the jury that the person charged with the act by which the plaintiff was injured was careless and unfit for the duties assigned to him. If such reputation be shown to the satisfaction of the jury, it may be taken as evidence tending to show notice to the defendant of the careless and negligent character of the person charged with the alléged negligent act.
[19] The degree of weight to be given such evidence in the proof of notice to the employer of the incompetency or negligence of such employee will depend upon the length of time such reputation existed prior to the accident, and other circumstances of the particular case; the general rule being that the employer is presumed to have known what was generally known to those among whom such co-employee worked or lived, and that the employer is presumed to have known what he might have known by the exercise of due care and diligence. Giordano v. Brandywine Granite Co., supra.
[20] Evidence of reputation for carelessness, not connected with the performance of the duties assigned to Tomlinson, and unconnected with any specific acts of prior negligence with respect to the work to which he was assigned, is alone not sufficient to [194]*194show that he was so careless and unfit for such work that the defendant ought to have known it. And no weight should be given to evidence to the effect that Tomlinson frequently left the steam, hammer and talked with others in the shop near by, between the preparations of ‘ ‘ forges ” or “ heats ’ ’ when his services were not required at the hammer, unless the jury are satisfied from a preponderance of the evidence that his habits in this respect showed such inattention to his duties as to render him unfit for the proper discharge of those duties.
If you should find from the evidence that Tomlinson was, in fact, a careless, unfit person to perform the duty assigned to him, and his incompetency had continued for such a. length of time, before the accident which caused the injury to the plaintiff, that a careful and diligent supervision of the defendant’s business ought to have brought it to light, the defendant would be chargeable with notice of its existence. And if you find he was negligent at the time of the accident, and it was his negligence which proximately caused the injury to the plaintiff, your verdict should be for the plaintiff.
[21, 22] It is the duty of the employer to make and promulgate proper rules for the government of his employees and business whenever it is so large or complicated as to make his personal supervision impracticable; whether such rules are sufficient for the purpose is for the determination of the jury from the evidence in the particular case. One of the tests of their sufficiency is that they have been in force for a long time and have accomplished the purpose intended. Murphy v. Hughes Bros. & Bangs, supra.
[23] The degree or measure of instruction or warning required to be given to an employee as to the dangers of his employment must depend upon the hazards and circumstances of each case.
[24] Before the jury can find for the plaintiff they must be satisfied, from the evidence, not only that Tomlinson was a careless and unfit person to operate the hammer, but that the accicent¡ whereby the plaintiff was injured, was caused by the negligent or careless act of Tomlinson.
[25] The plaintiff was bound to use ordinary care, prudence, and diligence to avoid the accident, and the care and caution he [195]*195was bound to use was in proportion to the danger to be avoided.
If the plaintiff, by his own negligence, proximately caused the accident, he cannot recover.
Counsel for the plaintiff admits that the alleged statements made by Truitt, the blacksmith, admitted without objection for the purpose of contradicting Truitt’s testimony respecting the reputation of Tomlinson, do not bind the defendant, and must be considered by you only for the purpose of contradicting Truitt.
[26] Where there is a conflict of testimony, the jury should reconcile it if they can, and if they cannot, they should weigh and estimate it, and give their verdict for that party in whose favor is found the greater weight or preponderance of the evidence.
In estimating the weight of the evidence the jury should consider the character of the witnesses, their means of knowledge of the facts of which they have testified, their fairness, their intelligence, their interest, and all other circumstances by which the value of their testimony may be properly determined.
[27] If your verdict should be for the plaintiff, it should be for such a sum as in your judgment, from the evidence, will reasonably compensate him for his injuries, including his loss of time and wages, his pain and suffering in the past, and such as he may have in the future as the result of his injuries, and also for his permanent injuries and loss of ability to earn a living in the future. Giordano v. Brandywine G. Co., supra.
Verdict for plaintiff.