McCabe v. Brainard

FOLLETT, J. This action was begun March 4, 1895, to recover damages for a personal injury, caused, it is alleged, by the negligence of the defendant and of his employés. The defendant is a grower of hops, having yards in the vicinity of Waterville, N. Y.; and! in May, 1893, the plaintiff was one of several persons engaged in tying hops in one of the defendant’s yards. It was part of the contract of hiring that defendant should carry the tiers from their residences to the yards in the morning, and from the yards to their residences in the evening. For the purpose of carrying the laborers, the defendant had a one-horse lumber wagon, with seats on both sides; and at the rear end of the wagon were two steps, fastened to the under side of the box and to the end board, to enable the employés to enter and leave the wagon. On the conclusion of work on the 27th of May, 1893, several tiers, and among them the plaintiff, entered this wagon by these steps at the yard, and were taken to their homes. This wagon stopped in front of the plaintiff’s home, to permit her to alight, and on leaving the wagon she fell, and was injured. The plaintiff alleges in her complaint that the steps were insecurely fastened, and that, as she attempted to alight, the lower step gave way, and she was thrown, the horse started, and she was dragged several feet on the ground, and was injured. On the trial two principal questions of fact were litigated: (1) Whether the lower step gave way; (2) whether she was thrown to the ground by [966] the driver permitting the horse to start while plaintiff was in the act oí alighting. If the accident was caused by the act of the driver, the negligence was that of plaintiff’s fellow servant, and she cannot recover. As before stated, the plaintiff alleged in her verified complaint that the horse started, and dragged her several feet on the ground; but on the trial she withdrew from this position, and testified that, so far as she knew, the horse did not start. The driver, who had' been discharged from the defendant’s service, testified that the horse did not move; but two of the plaintiff’s witnesses,—Bridget Landers and Lena Finn,—and Clayton M. McLean, one of the defendant's witnesses, testified that the horse started or moved forward as the plaintiff was in the act of alighting, and she was thrown to the ground. These witnesses were in the wagon at the time, and were in a situation to know what the fact was. The court, in delivering its charge, correctly instructed the jury that, in case they found that the accident was caused by the negligence of the driver of the wagon, the plaintiff cannot recover. After the conclusion of the charge, the counsel preferred various requests, and at folio 255 the counsel for the plaintiff said: “There was something in the charge which I understood to be something in this sense: that if the horse started while the plaintiff was riding, that this plaintiff cannot recover. In pretty near that— The Court: I did not so intend to charge. Mr. Searle: Then, in order that our position may be clearly expressed, I ask your honor to charge in that, respect in this way: that if the plaintiff’s foot, when she was alighting, was upon the lower step, and the steps gave way by reason of a defect, which reasonable inspection would have disclosed, then the fact that there was a movement of the horse which contributed to the breaking—to the injury—defendant would not thereby be relieved. The Court: I- so charge. (To this instruction the defendant excepted.) Mr. Searle: In reference to some of the requests of counsel that the negligence of a co-employé contributing to an injury, where the injury would have happened by reason of some defect of machinery or appliance which reasonable care would have disclosed, does not relieve the defendant of negligence. The Court: I cannot see where that question is in this case. Mr. Searle: Well, it is only to this point: It may be found by the jury that the woman’s foot was upon the step at the time there was a movement of the wagon, and that the two movements—that is, the giving way of the step and the movement of the horse—may have caused or contributed to the injury. The Court: I do not know and you do not know whether the jury— You do not know what the jury will find, but they may find that in her falling out or getting out, that the push or the movement of the horse’s sent the wagon ahead. I won’t charge that.” Again, the counsel for the defendant requested the court to charge: “That the plaintiff cannot recover in this action if the negligence which was the proximate cause of the accident is found to be the negligence of a co-employé. The Court: I refuse to charge in that way.” I think the jury was not properly and clearly instructed in respect to the rule of nonliability of an employer for an accident to one employé caused by the negligence of a co-employé. The jury should have been distinctly instructed that if the accident, was caused by the negligence of the driver in permitting the horse to start while the plaintiff was in the act of alighting, she could not recover; and that, if the accident were caused by the weakness of [967] the step and the negligence of the driver, the defendant was not liable unless they found that the injury would not have been sustained but for the weakness of the step. The judgment and order should be reversed, and a new trial granted, with costs to abide the event. ADAMS and GREEN, JJ., concur.