Taylor v. George W. Bush & Sons Co., 21 Del. 378

Taylor v. George W. Bush & Sons Co.

21 Del. 378 | Del. Super. Ct. | 1905

Lore, C. J. :

The Court have considered the motion for a nonsuit made in this case and ably and thoroughly argued by counsel on both sides, and are prepared to announce our unanimous opinion.

It appears that the plaintiff, Lewis E. Taylor, on the day of the accident, was in the employ of the defendant company and had been in their employ for about three months immediately proceeding that day; that in the course of his employment, from day to day, he was in the habit of taking his dinner pail to the stable in the morning, eating his dinner on the premises at noontide, and after the day’s work was over, of taking his dinner pail away from the place where he had kept it during the day; that this privilege was incident to and connected with the employment extended to him as an employee and by that right he took his pail there, kept it there and took it away from there at the close of each day; that at the time of the accident he had been actually paid at the office for that day and had gone, as was his custom, to the stable to take home his dinner pail.

He was therefore in the enjoyment of a privilege which was granted to him by his employers only as an employee. It was connected with and incident to his employment at the time of the accident. The enjoyment of it therefore continued unbroken the relation of master and servant, at the time of the accident, between the plaintiff and the defendant company.

*384It further appears that while the plaintiff was engaged in taking away the dinner pail one Blake, who was a driver of the defendant company, employed in the same business, threw a bale of straw down from the loft of the defendant’s stable, which bale fell upon the plaintiff’s head and injured him as has been detailed by the witnesses. It further appears that Blake was not then engaged in any of the primary duties which a master owes to a servant, such as the furnishing of safe tools, a reasonably safe place, etc., but was simply a fellow-servant with the injured man. And if the act of Blake’s which caused the injury to the plaintiff was negligent, Blake would be liable, he being a fellow-servant, but the master or employer would not be liable, because there was no such relation subsisting between Blake and the master in that respect as to make Blake the vice principal of the master or render the latter liable for such injury.

This being the case as disclosed by the evidence of the plaintiff, the relation of master and servant was subsisting and this plaintiff being in the lawful enjoyment of an incident of his employment, connected with his employment and the injury being caused by a fellow-servant, the master would not be liable, under the law. It was a risk assumed by the servant. The Court are unanimously of the opinion that a nonsuit ought to be granted, and much as we regret to take a case from the jury, we feel constrained to direct that a nonsuit be entered.

Mr. Brockson:—If the Court please, the plaintiff declines to take a nonsuit,

Lore, C. J., charging the jury:

Gentlemen of the jury :—For the reasons which we have stated in granting the nonsuit, and others not necessary to name, we now direct you to return a verdict in favor of the defendant.

Verdict for defendant.