Limberg v. Glenwood Lumber Co.

Defendant appeals from a judgment and

Plaintiff was a teamster of experience, forty-one years of age. He was hired hy defendant to haul lumber with a wagon and four horses. He continued in this employment for a period of eleven months; then, while traveling upon the public road with his loaded wagon, he fell therefrom beneath the wheels, and the loss of a leg was the result. He asserts negligence upon the part of the defendant in this, that the appliances furnished him with which to do the work were defective. These defective appliances consisted of a wagon having no seat, and also of a pair of lines that were too short. It may he conceded that if either of these defects had not existed the accident would not have happened. A short time after the hiring of plaintiff he complained to defendant at two different times that the lines were too short, but never made any complaint as to the lack of á seat upon the wagon. Defendant made no promise to remedy the defective lines, hut remained silent when the complaints were made. From the foregoing state of facts it is insisted hy defendant that the motion for nonsuit should have been granted, and it is also claimed that the evidence does hot support the verdict and judgment. The contention in substance is but a. single one, and the sufficiency of the evidence is the question before the court. Testing the facts of this case hy the law, we cannot see how plaintiff is entitled to recover. It may he conceded that defendant was negligent in not furnishing plaintiff with proper appliances to do the work. Such concession being made, then the question presented is not strictly one of contributory negligence upon the part of the plaintiff, hut, rather, Did plaintiff assume the risk of working with these defective appliances? If there had been an express contract between the master and servant that the work should he done without a seat to the wagon, and with these, identical lines, clearly that agreement would have barred a recovery in this action. This being so, do not the facts indicate an implied contract to the same effect? While the servant only assumes the dangers and risks necessarily incident to the work to he performed, he may, hy contract, either express or implied, also

In this case we lay aside any question as to the lack of a seat upon the wagon. If the wagon was defective in this regard, the plaintiff, an expert teamster, by using it for a period of eleven months, without objection or protest of any kind, assumed all of the risks incident to the use of that kind of a wagon. We have found no case in the books involving anything like a similar state of facts which holds that plaintiff may recover damages for injuries received. We know of but a possible exception to the rule, and that would be a ease where the servant, though aware of the defect, was not aware of the danger incident to it. That exception cannot be urged here. This defect of the wagon was of a character that the servant, as a reasonably prudent man, must have b'een aware of the danger incidental to its use. He cannot be allowed to close his eyes to the danger, and thereafter say, “I did not know it was dangerous.”

As to the defective lines, additional principles of law are involved to those arising upon the defect of the wagon, for, as to the lines, the plaintiff made complaint to defendant on two different occasions regarding their defective character. Yet when we pause to consider that the last complaint was made more than nine months before the accident, and to consider the additional fact, pregnant with materiality here, that defendant remained silent under the complaint of .the servant, and gave no promise to cure the defect, the case as to the two respective defects is not widely variant. Plaintiff knew of the defect, and must have known of the danger that surrounded him by reason of it. Any reasonably prudent man must have been aware of it, and the defendant must be held to be a man of ■ ordinary prudence; indeed, it appears that he was an expe

The law of this question, as declared by text-books and decisions of courts, is in line with the foregoing views. Shearman and Eedfield on Hegligence, a work more friendly to servants than any other standard text-book, declares: “The latest and best authorities hold that the liability of the master for risks caused by his negligence, which did not exist when the servant accepted the employment, depends upon a 'question of fact whether a servant who works on, appreciating the risk, assumes it voluntarily or endures it, because he feels constrained to/ If he voluntarily continues work with full notice of the risk, he assumes it, but not so if he acts under coercion.” There certainly is no question of coercion in this case. It is said in Stephenson v. Duncan, 73 Wis. 408 , 9 Am. St. Rep. 806 : “But if the plaintiff did continue his employment for a reasonable

The question here, then, resolves itself into this: At the conclusion of the introduction of evidence at the trial was there a question of fact for the jury to pass upon, as to whether or not plaintiff remained in the employ of defendant for an unreasonable time after his notification to defendant of the defective character of the lines? If that question ever may become a question of law by reason of any particular state of facts, then it would seem that a question of law alone was presented here. There is absolutely no conflict in the evidence. Plaintiff continued his employment for nine months after a notification to defendant of the defect, without any intimation from his master that the defect would be repaired, during all of which time the defective appliance was constantly before his eyes, and also in his hands. We believe that this delay of nine months is a fact absolutely fatal to plaintiff’s cause of action. We see no difference in a delay of nine months and a delay of nineteen months, and, as a matter of law, this court must say that plaintiff, continuing for this long period of time in the employment of his master after his notification to the master of the defect, by implied agreement released the master from any liabilty resulting from injuries received in the use of the appliance; or, as some of the cases declare, plaintiff must be held to have been guilty of contributory negligence in continuing his employment for this long period of time with this defective appliance, a defective appliance of which he well knew, and the danger of its use ex necessitate ever present to his mind. In the comparatively early case of McGlynn v. Brodie, 31 Cal. 379 , this court said: “Where a party works with or in the vicinity of a piece of machinery insufficient for the purposes for which it is employed,

It was error for the court to admit evidence under objection to the effect that the defects were remedied after the accident. In Sappenfield v. Main Street Ry. Co., 91 Cal. 62 , the court said: “Such a rule puts an unfair interpretation on human conduct, and virtually holds out an inducement for continued negligence.” (See, also, Hager v. Southern Pac. Co., 98 Cal. 311 ; Turner v. Hearst, 115 Cal. 401 .) The materiality of this error under the circumstances need not be considered.

It was not proper to admit the testimony of expert witnesses as to what appliances were safe and what were unsafe. As illustrative of this branch of the case the record discloses the following: “Q. Can you state to the jury whether or not it is more safe for a teamster to sit on a bare load of lumber without a seat, or whether it is more safe with a seat for him?” And again: “Q. Can you state whether or not short lines used to drive horses is as safe as long lines Without knots?” These questions were objectionable for two reasons: 1. It is not material to the case that the wagon would have been safer with a seat than without it; 2. Neither was it material to the case that longer lines would have been safer than shorter ones. ’ Defendant was not bound to furnish the safest appliances that could be had in the market. Again, the questions cover a subject matter not calling for expert testimony under any circumstances. The jury was the best judge of the safety of the appliance used, and as to the safety of other appliances which

We find no merit in the contention that the bill of exceptions cannot be considered.

For the reasons stated the judgment and order are reversed and the cause remanded.

Van Dyke, J., and Harrison, J., concurred.

Hearing in Bank denied.