Sapp v. Christie Bros.

Ames, 0. This is an appeal from a verdict and judgment aivarding damages in.an action for personal injuries. There is no considerable dispute of fact. The plaintiff was a man 25 years of age, reared on a farm, and accustomed to the use of teams of horses, harness and wagons, and their appliances, and somewhat familiar with the streets gnd general conditions of South Omaha, Nebraska, in which city the defendants were engaged in the retail coal and feed business. On a Saturday he applied to the defendants for employment in the driving and management of a delivery wagon in connection with their trade, he to furnish a team of horses and harness. One Sherwood, who was in general charge or management of the defendant’s business, or some branch of it, directed the plaintiff’s’ attention to a light wagon which had been in use about six months, and which he stated the latter would be required to use in case of the [702] hiring. It was noted that the wagon was not then, and never had been, provided with a brake, and that the neck-yoke appeared to be somewhat old and season-cracked, and that the “pole eye,” a leather attachment in which the end of the wagon pole is inserted and by which the latter is supported Avhen in use, was considerably worn and Aveakened. Nothing further Avas said about any of these matters, except that Sherwood furnished the plaintiff Avith some baling wire, which the latter Avound about the neck-yoke, so as to add to. its strength and to that of the leather, and remarked that the defendants Avere rushed with business just then, but that, when they had caught up with their orders, they “Avould have these things fixed up a little better.” The plaintiff engaged for the services of himself and team and harness for the term of six months, and begun work on Monday morning, Avhen the foregoing conversation took place at the time of attaching the team to the wagon. Plaintiff remained in the employment thence continuously until about noon of the folloAving Thursday, Avhen he attempted to deliver a load of feed to one McMasters. A shed or stable to which the delivery was to be made stood adjoining an alley, extending through a block of ground and connecting two streets. It Avas a public way much used or traveled, but the surface of the ground was some 10 or-12 feet lower where the building stood than was that of the street, 61 feet distant, whence the plaintiff approached it. The plaintiff, sitting on the wagon, having reached the summit of the declivity, paused a moment to survey the situation, and then reined his team into the alley and started down the incline. McMasters was present, having first provided himself with a “chuck block” to put under a wheel and stop the descent when necessary. In some manner, no one knows just how or from just what cause, possibly from contact with the coal or fe#d house, one end of the neck-yoke, to which the hame straps were attached, broke off while the wagon was descending, and that end fell doAvn; immediately the leather “pole eye” gave way, the pole dropped to the ground, struck an ob [703] struction., bent and broke, and a piece of it flew upward and bit the plaintiff, knocking him from his seat and inflicting injuries complained of. The team ran away. The answer consists of denials and a plea of contributory negligence. The contention on behalf of the defendants is that the facts are insufficient to support the verdict. Of course, the first matter to be considered in this connection is whether the defendants are guilty of negligence, and this inquiry resolves itself into the preliminary question Avhether it Avas an act of negligence to use the wagon without a brake and Avith the defective neck-yoke for the transportation and delivery of comparatively heavy loads over the steep grades and precipitous streets and alleys of the city of South Omaha. To the eye of natural reason this question, under the circumstances of this case, would, we think, appear to be Avholly immaterial. It is not a case in Avhicli the servant was ordered or commanded by his master to put himself in a place of danger or to use dangerous or defective tools, machinery or appliances, nor is it a case in which the servant relied upon the real or supposed superior knoAvledge, experience or judgment of his master. On the contrary, the plaintiff and the defendants, or Sherwood, the representative of the latter, seem to have been about equally capable and well informed, and the former ■acquainted himself with all the deficiencies of the vehicle and dangers of its use before he entered upon his service Avith it. If such use could have been reasonably anticipated to result in injury to a third person and had done so, or had been a criminal offense under a statute, it cannot be doubted that in the one instance the parties would have been joint tort-feasors, or that in the other they might have been jointly indicted and convicted. How then can it be said that either party can impute to the other the consequences of a wrongful or negligent act in which both participated? The plaintiff was under no compulsion, legal or moral, the relation of master and servant or of employer and employee did not exist, and no contractual [704] obligation was assumed, until after all the elements of danger to which he exposed himself by entering upon the service had become fully known to him. But it is said that the plaintiff relied, and rightfully so, upon the promise of Sherwood to repair. It is hardly a fair construction of the indefinite remark that, “when they caught up with their orders, they would have these things fixed up a little better,” which treats it as a definite promise or contractual obligation to repair. But, supposing it to be such, counsel for plaintiff cites and relies upon two former decisions of this court. The first is Sioux City & P. R. Co. v. Finlayson, 16 Neb. 578, in which it is said that “the true rule might be stated to be that, if the de-, fective machinery, though dangerous, is not of such a character that they may not be reasonably used by the exercise of care, skill and diligence, the servant does not assume the risk. If the servant, in obedience to the requirement of the master, makes use of machinery which, though dangerous, is not so much so as to threaten immediate injury, or where it is reasonably probable it may be safely used by extraordinary caution or skill, the master would be liable for a resulting accident.” This language is quoted with approval and adopted as a basis for judgment in Lee v. Smart, 45 Neb. 318. In both cases the servant well knew the defects and dangers which resulted in his injury. In the latter instance they came to his knowledge at the time he entered upon his employment, and in the former the promise to repair was no better than that above quoted, so that we are unable to distinguish the cases from that now before us. Owing to a lack of mental acumen the writer is unable to reconcile them with the general rules of law or with the principle underlying the doctrine of contributory negligence, but that does not matter. Under the authority of those decisions, if it was negligent to use the wagon for the purpose and under the circumstances above narrated, it was the negligence of the defendants alone, and whether it was such is a question of fact for the determination of the jury. And, in like manner, it was a [705] question of fact for tlie decision of the jury what degree of care and skill was required by the plaintiff in the use of the wagon, and whether he made use of so much on the occasion of his injury. It is not complained in brief or or argument by counsel that these questions were not fairly submitted to the jury by instructions, and the judgment ought therefore, upon the authorities cited, to be affirmed. The following opinion on rehéaring was filed March 5, 1908. Former judgment of affirmance adhered to: Master and Servant: Appliances: Negligence. A servant, who has been induced by a master’s promise of repair to begin or continue to work with defective appliances, may use such defective appliances without being guilty of contributory negligence and without assuming the risk of injury from such defects, so long as he may reasonably expect the master’s promise of repair to be kept, unless _ the danger from using such defective appliances is so obviously imminent and immediate that no reasonably prudent person would begin or continue to work with them. Jackson and Calkins, CC., concur. By the Court: For the reasons stated in the foregoing-opinion, the judgment of the district court is Affirmed.