Spaulding v. O'Brien , 56 N.Y.S. 1095 ( 1899 )

Dunmore, J.

The main question upon this appeal is whether the wagon by which plaintiff was injured was so defective as to make defendants liable for negligence. The evidence shows that the socket was so close to the spokes that as the wheel turned it struck the spokes. It also showed that the boxes in the wheel bub were so worn that the wheel had a great deal of play. It vas, therefore, dangerous for a person to take hold of the spokes o turn the wheel. When the foreman ordered plaintiff to assist he team to start he did not expect him to take hold of the tugs ad pull, nor to get behind the wagon and push; but he evidently tpected him to take hold of the spokes and using them ass levers i help turn the wheels. It is a matter of common observation tit that is the usual way assistance is given in such cases. Plaint:, therefore, did precisely what he was directed to do. He was olered to perform an act which was' dangerous and without havú been warned of the danger. The act of the foreman in direing plaintiff to assist at the wagon was the act of defendants. Tly knew or should have known the condition of this wagon, and th: the duty with which plaintiff was charged was accompanied byanger. Their failure to disclose that danger to plaintiff before orqing him into a position where he was liable to be injured wat breach of duty for which defendants are liable. A master em>ying servants in a service which is apparently safe, but which becomes hazardous from causes not discernible by the exercise of ordinary prudence, is bound upon the strongest principles of morality and good faith to disclose to them the danger to which they are exposing themselves, if those dangers are known to him. Patterson v. Wallace, 28 Eng. L. & E. R. 51; Baxter v. Roberts, 44 Cal. 187; Ryan v. Fowler, 24 N. Y. 410; Perry v. Marsh, 25 Ala. 659; Rorer on Railroads, vol. 2, pp. 12, 14.

Plaintiff testified that he had not noticed the defect in the wagon prior to the accident, and that he could see the marks on the spokes by looking behind, but that he coul'd not see them in front. There was no evidence that plaintiff was employed about this wagon in such a way as to charge him with notice of the defect. The evidence is that he did not know of the defect. As he did not know of the danger, it cannot be said that he assumed the risk. The questions of fact were properly submitted to the jury and the judgment should be affirmed, with costs.

Judgment affirmed, with costs.