Spaulding v. O'Brien — 56 N.Y.S. 1095

Majority

p. 1095

(26 Misc. Rep. 184.)

SPAULDING v. O'BRIEN et al.

(Oneida County Court.

January, 1899.)

Headnote

1. Master and Servant—Injury to Servant—Negligence.

Plaintiff was ordered by defendant’s foreman to assist in starting a stalled wagon, and his hand was crushed between the spokes of the wheel and the socket on the wagon. The box of the wheel was so worn, and the wheel had such play, that the spokes struck the socket whenever the wheel turned. Plaintiff, who was not familiar with the wagon, was not warned of its condition. Eeld, that defendant was negligent.

3. Same—Assumption op Risk.

A shoveler who is ordered by his employer to assist in starting a stalled wagon, with which he is not familiar, does not assume the risk of an injury caused by a defect in the wagon which was not visible to him.

Appeal from justice court.

Action by James P. Spaulding against Daniel O’Brien and others From a judgment for plaintiff, defendants appeal.

Affirmed.

C. A. Miller, for appellants.

H. S. Patton, for respondent.

The main question upon this appeal is whether the wagon by which plaintiff was injured was so defective as to make defendants liable for negligence. The evidence shows that the socket was so close to the spokes that as the wheel turned it struck the spokes. It also showed that the boxes in the wheel hub were so worn that the wheel had a great deal of play. It was therefore dangerous for a person to take hold of the spokes to turn the wheel. When the foreman ordered plaintiff to assist the team to start, he did not expect him to take hold of the tugs and pull, nor to get behind the wagon and push; but he evidently expected him to take hold of the spokes, and, using them as levers, to help turn the wheels. It is a matter of common observation that that is the usual way assistance is given in such cases. Plaintiff therefore did precisely what he was directed to do. He was ordered to perform’ an act which was dangerous, and without having been warned of the danger. The act of the foreman in directing plaintiff to assist at the wagon

p. 1096

was the act of defendants. They knew, or should have known, the condition of this wagon, and that the duty with which plaintiff was charged was accompanied by danger. Their failure to disclose that danger to plaintiff before ordering him into a position where he was liable to be injured was a breach of duty for which defendants are liable. A master employing servants in a service which is apparently safe, but which becomes hazardous from causes not discernible by the exercise of ordinary prudence, is bound, upon the strongest principles of morality and good faith, to disclose to them the danger to which they are exposing themselves, if those dangers are known to him. Paterson v. Wallace, 28 Eng. Law & Eq. 51; Baxter v. Roberts, 44 Cal. 187 ; Ryan v. Fowler, 24 N. Y. 410 ; Perry v. Marsh, 25 Ala. 659 ; 2 Ror. R. R. pp. 12, 14.

Plaintiff testified that he had not noticed the defect in the wagon prior to the accident, and that he could see the marks on the spokes by looking behind, but that he could not see them in front. There was no evidence that plaintiff was employed about this wagon in such a way as to charge him with notice of the defect. The evidence is that he did not know of the deféct. As he did not know of the danger, it cannot be said that he assumed the risk.

The questions of fact were properly submitted to the jury, and the judgment should be affirmed, with costs.

Judgment affirmed, with costs.

Cases cited

Baxter v. Roberts 44 Cal. 187 Cal. p. 1096
Ryan v. Fowler 24 N. Y. 410 N.Y. p. 1096