Marks v. Stolts , 150 N.Y.S. 952 ( 1914 )

McLaughlin, J.:

The defendant moved to set the verdict aside upon the exceptions taken during the trial and that it was contrary to evidence. The motion was granted and the appeal presents the question of whether any of the exceptions would be fatal to the judgment entered upon the verdict, and also whether the verdict is contrary to the evidence. The court charged the jury “That even though you find that the plaintiff knew of the defective condition of the dog, you cannot find from that fact that he assumed the risk of injury therefrom.” This, I think, was an erroneous instruction as to the law and the exception thereto was well taken. The question whether the plaintiff assumed the risk from the defective condition of the brake was for the jury. (Larsen v. Lackawanna Steel Co., 146 App. Div. 238; Gorman v. Millikan, 142 id. 207; Milligan v. Clayville Knitting Co., 137 id. 383; Hurley v. Olcott, 134 id. 631; affd., 198 N. Y. 132; Bria v. Westinghouse, Church, Kerr & Co., 133 App. Div. 346.)

The plaintiff, according to the testimony of his witness Zoeller, knew of the defective condition of the brake and that the car was liable to start, as it is claimed it did on the occasion in question, at least two weeks before the accident occurred. Zoeller testified that he saw it start of its own motion and that he called the plaintiff’s attention to it. The plaintiff was an experienced chauffeur. He had been engaged for upwards of five years in operating automobiles and for three or four weeks the one in question. If he knew that the brake were defective and by reason of that fact the machine liable to start of its own motion, then it was for the jury to say whether, by placing himself in the position which he did immediately prior to the time he was injured he did not assume that risk. Under such circumstances, as was pointed out by Mr. Justice Miller in Hurley v. Olcott (supra), the assumption of risk had to be submitted to the jury. He said: “The evidence shows that the plaintiff was an experienced workman, that he had observed the rope used for the boom line and knew of its being broken, and that the practice of piling the columns one above the other had been continued for some time to his knowledge. It d oes not appear that he knew that the derrick was out of plumb. However, a jury might well have found that the plaintiff fully understood and appreciated the dangers of the work as it was prosecuted, and that by continuing in the service he assented thereto. But under the statute that question had to be submitted to the jury. ”

In Milligan v. Clayville Knitting Co. (supra) a judgment in favor of the plaintiff was reversed because the court had, in effect, withdrawn from the jury the question of assumption of risk. Mr. Justice Spring, who delivered the opinion of the court, said:- “If the risk is an obvious one, plain to be seen by the employee and due to the omission of the employer, the employee has no right to assume that his master has performed his duty and made the place safe. It is obvious that the master has not performed his obligation to the servant and the latter performs his work knowing of this delinquency. He cannot then, if injury results by reason of this apparent, plain omission of his employer, relieve himself from assuming the risks upon the ground that the master did not perform his duty.”

The plaintiff not only knew that the brake was out of repair but he also knew, if the testimony of one of his witnesses is to be believed, that it had not been repaired during the time plaintiff had been operating the machine.

I am also of the opinion that the verdict is against the evidence. Defendant’s witness Stolts, one of its officers, testified that a short time before the accident he asked the plaintiff if the brake had been repaired and a new dog put in and the plaintiff told him that it had; that he put the new dog in himself. Stolts was corroborated by defendant’s witnesses McCarthy and Shepard. The plaintiff had been furnished tools with which to make repairs of this kind and he testified that to put in a new dog would take but a short time. It is improbable that the plaintiff, with his experience in operating automobiles, would risk his own life, to say nothing of the lives of others, by taking the car out with a defective brake when it could be remedied in a very short time. It is equally incredible that the defendant, with knowledge that the brake was defective, would assume the responsibility of sending the car out when the repairs could have been made at a very slight expense and in a very short time.

There is another reason which it seems to me should be fatal to a recovery in this action. In a populous city like New York, where thousands of people are in the streets at all hours of the day and night, an experienced chauffeur, unless it be under exceptional circumstances, who runs an automobile in the street knowing that the brake is defective, ought to be estopped as matter of law from recovering damages against his employer for injuries occasioned by such defect.

I think the order appealed from should he affirmed, with costs.

Ladghlin and Dowling, JJ., concurred; Ingraham, P. J., and Hotchkiss, J., dissented.