Clark v. Diamond State Steel Co. , 18 Del. 522 ( 1900 )

The declaration originally consisted of five counts. The first count was withdrawn. The fifth count, to which a demurrer was filed, was in substance as follows: That the defendant was and is a corporation of the State of Delaware, engaged in operating a certain shop in the City of Wilmington,. Delaware, and being so engaged as aforesaid employed the said plaintiff to work upon a certain machine, known as a header, in its said shop; that said defendant “negligently and carelessly omitted to provide for the repair and keeping in repair of a certain machine known as a header, used by it in its said shop, upon which said machine the said plaintiff was, in the exercise of due care and caution on his part, on the fifteenth day of September, A. D. 1899, at New Castle County aforesaid, employed in his occupation aforesaid, whereby the said machine then and there became and was dangerous, unsafe and improper, and was well known to the said defendant to be so dangerous, unsafe and improper, and unknown to the said plaintiff, whereby by reason of the negligence and carelessness aforesaid, the said machine closed upon the left arm of the said plaintiff”, and thereby the said plaintiff was injured, etc.

The demurrer filed to the above count was as follows: “That it is not alleged in said count in what respect the defendant omitted to provide for the repair and keeping in repair the said machine in said count mentioned.”

Demurrer sustained.