Lundergan v. Graustein & Co.

Rugg, J. This is an action of tort. The plaintiff was a man of mature years and long experience as a driver. While he was driving a gentle horse at a walk on a street in Boston, he noticed that one trace was off the whiffletree and he “ pulled the horse right up quick, pulled her up so she was almost standing.” The back strap of the harness broke, and thereby the plaintiff received his injuries. 1. There was evidence enough to support a finding that the plaintiff was in the exercise of due care. The testimony was conflicting, but the jury might have found that it was no part of the plaintiff’s duty to inspect the harness; that he had no duty of care for it other than to report anything wrong which he might see; that the defendant employed a superintendent, a foreman, and a harness maker as repairer; and that the only duty of the plaintiff was to harness and unharness his horse, oil the wagon and drive; that the harness which broke had come from the defendant’s harness maker about ten days before the accident, and that the plaintiff supposed it to be sound and strong. If these were found to be the facts, there was no failure of duty on the part of the plaintiff in not discovering the weakness of the back strap. The defendant urges that the plaintiff was careless in harnessing, so that the trace became unhitched, and in bringing the horse to a stop too suddenly. The plaintiff testified that the traces had chain ends, the links of which went on the hook of the whiffletree, and that he could put the links over the hook and “ then the trace would not have slipped off, he had fixed it this way before; he had so fixed it on the morning of the accident ”; that he “ always [had] done that ” ; that then it would not “ slip off,” but was “ liable to get off the wagon some way or other.” It could not be ruled as matter of law that this constituted negligence. The inference was warranted that, even when the chain was fastened in the most careful way practicable, it might get off the whiffletree. Nor can the sudden stopping of the horse be said as matter of law to be careless. It was dangerous to continue driving upon a thoroughfare with one tug unhitched. It was the plaintiff’s instant duty to prevent this hazard. The jury well might have found that [534] he had no reason to suppose that the harness would break if he brought his horse quickly to a stop on a level street. Hannan v. American Steel & Wire Co. 193 Mass. 127. Palmer v. Coyle, 187 Mass. 136, 139. 2. The circumstances of the plaintiff’s work justified a finding that the defendant undertook to furnish him with a safe harness. He was given no opportunity for selection, but must use that which was given him. There seems to be now no controversy between the parties as to its being neglected and out of repair in the part which gave way. The failure to replace a worn out part may have been found to have caused the injury. If so, it was a neglect on the part of the defendant not to see that such repair was made. It could not delegate such a duty to a servant so as to relieve itself from responsibility. Moynihan v. Hills Co. 146 Mass. 586. Exceptions overruled.