Agnew v. Wenstrand

PULLEN, P. J.

This appeal is from a judgment in favor of plaintiffs awarding them damages for the death of a minor son.

In August, 1936, Oscar Wenstrand was the owner of a small truck and appellant Harold Wenstrand was the owner of a piano weighing some 800 pounds. Oscar Wenstrand was about 63 years of age and the father of Harold Wenstrand, 35 years of age. On the day in question Harold Wenstrand, with the help of Oscar Wenstrand, was moving his household goods from one home to another, about three miles distant. In the course of moving, Harold Wenstrand went to the home of Harold Agnew, a high school student of the age of about 18 years, and asked if he would help him move an upright piano from the porch to the truck of Oscar Wenstrand. Harold Agnew assented, and the three proceeded to place the piano on the truck. After the piano was on the truck Wenstrand, Sr., said to his son Harold: “Well, don’t you think it would be better if he (Agnew) would go with us and help us unload?” To which Harold replied, “I have a man there that will help us unload.” “Well,” said Wenstrand, Sr., “if that is all right it is all right with me. If he doesn’t want to go along it is all right.” To which implied invitation Harold Agnew replied, “Why, sure I will go along,” and took his place on the truck. Mr. Wenstrand, Sr., took his place as driver of the truck, and also in front with him was Vincent Agnew, a brother of Harold; Wen-strand, Jr., and Harold both took their places on the truck near the piano. After proceeding about three miles, in making a turn into a dirt road, the piano, Harold Agnew and Harold Wenstrand were in some manner thrown from the truck; Harold Agnew was struck by the falling piano and later died from the injuries so received.

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The complaint charges negligence against the two Wen-strands in failing to tie the piano to the truck and in the manner of driving the truck. The answer denied any negligence and pleaded contributory negligence and unavoidable accident. Judgment, however, was entered in favor of plaintiffs, the father and mother of the deceased boy, from which judgment this appeal is taken upon the ground that the judgment is not supported by the evidence.

The court found that the defendants Wenstrands requested Harold Agnew, the deceased, to help them load said piano, and also requested said Harold Agnew to help transport said piano, which was on casters and not fastened to any part of the motor vehicle, and that the death of said Harold Agnew was due to the negligence of defendants and each of them in the operation of the motor vehicle, and in the transportation of the piano.