Wink v. Weiler

Waterman, J. The plaintiff, when injured, was not in the employment of the defendant. His day’s work had ceased, his time was his own, and he was going home. It might, perhaps, be contended that the defendant having sent the plaintiff out to work, was under an obligation to bring him back to the store from which he went, but he was under no 0 3 obligation to take him to his home, especially to send his wagon out of its way in order to carry the plaintiff to his home, or nearer thereto than he would have come in going directly to the store. Plaintiff rode to the place at which he was injured, and got off at the place where he alighted, solely for his own accommodation, and it was not the duty of the defendant to furnish him with a safe and sufficient wagon for the purpose of being carried to such spot. At the time of the injury the relations of the plaintiff and the defendant were such that the defendant owed to him no duty other than that which he was under to any stranger who, by his permission, had been allowed to ride upon his wagon. If the plaintiff instead of being injured by a defect in the wagon, had at this spot been run over in consequence of the negligent conduct of another of defendant’s employes, although such employe was a fellow-servant of the plaintiff, within the meaning of the rule exempting employers from liability for injury caused by the acts of fellow-servants, yet the defendant would have been liable, because at the time of the injury the relation of master and servant for the time being, that is, for that day, had ceased. Wood on Master and Servant, Sec. 404; Packet Co. v. McCue, 17 Wall. 508-514; Washburne v. Nashville R. R., 40 Tenn. 638. So in the present case, the relation of master and servant having ceased for the day, the duty of the defendant charged in the declaration, no longer existed. Wright v. Rawson, 42 Iowa, 329; Belford v. Canada Shipping Co., 35 Hun, 347; Sinclair v. Berndt, 87 Ill. 174; Baird v. Pettit, 70 Penn, St. 477. The court, at the request of the plaintiff, gave to the jury the two following instructions: “If the jury believe from the evidence that the defendant knew, or by the exercise of reasonable care could have known, that the step of the wagon in question was not reasonably safe for the plaintiff to get on and off of said wagon in doing the ordinary business required of him, and if the jury further believe from the evidence that the defendant undertook to fix or repair said step but did it in such a poor and unworkmanlike manner as to still leave it unsafe for plaintiff to get on and off of said wagon, and that thereby the plaintiff was injured while he himself was exercising all due care and caution as defined in these instructions, then the jury are instructed that the defendant is liable for such injury, if any, as they believe from the evidence the plaintiff has sustained by reason of such defective step. Provided you shall further find from the evidence that the plaintiff did not, at the time of the injury, know the real condition of said step.” “ The court instructs the jury that if they believe from the evidence in this case that the plaintiff, Henry Weiler, at and before the time he went upon said wagon on the day of the accident in question, had personal knowledge that the shaft and step of said wagon were defective, broken.and unsafe, and that the plaintiff made use of such defective shaft in attempting to alight from said wagon, knowing it to be defective, broken and unsafe at the time, then the jury should consider such fact in determining whether the plaintiff was in the exercise of due or ordinary care at the time of the injury.” In the first of these instructions no reference is made to the question of whether, at the time of the injury, the plaintiff was in the service of the defendant. The instruction assumes that the defendant owed to the plaintiff a duty, namely, the exercise of reasonable care to see that the step of the wagon was reasonably safe for the plaintiff to use. Such duty depended entirely upon the plaintiff’s being, at the time he was injured, in the service of the defendant. In omitting to .add such a qualification, the instruction was erroneous. The defendant had asked the court to instruct the jury, in effect, that if the plaintiff made use of the wagon knowing that it was broken and defective, he could not recover. Instead of this, the court instructed the jury that if the plaintiff used the defective shaft in attempting to alight from the wagon, knowing it, to be defective, broken and unsafe at the time, then the jury should consider such fact in determining whether the plaintiff exercised due or ordinary care. Such is not the rule. Where a person knowingly makes use of an appliance furnishod by another, containing obvious and patent defects, he can not recover for injuries caused by sucli obvious defects, except in certain instances which are exceptions to the rule, as where a servant has been induced by the master to believe that the defects would be in a short time repaired. Wood on Master and Servant, Sec. 335; Seymour v. Maddox, 16 Q. B. 332; Ryan v. Fowler, 21 N. Y. 410. The judgment of the court below will be reversed and the cause remanded. Reversed and remanded.