Williams v. E. W. Robinson Van Lines

SCHAUER, J.

Plaintiff appeals from an adverse judgment, entered upon a verdict, in his action to recover for personal injuries received when he fell from one of defendants’ trucking vans, in which he had been riding. We have concluded that plaintiff’s claim of prejudicial error in failure of the trial court to give certain instructions requested by him is meritorious, and that the judgment should be reversed.

The appeal is presented on a settled statement. (Rule 7, Rules on Appeal.) Therefrom it appears that plaintiff was employed as a caretaker of race horses by one W. J. Hirsch, and that defendants contracted with Hirsch to transport several of such horses. On the day of the accident plaintiff, discharging his caretaker duties, was riding with the horses in one of defendants’ trucking vans when one of its doors opened and plaintiff was thrown to the pavement and injured. He alleges negligence on the part of defendants in failing to fasten the doors.

The settled statement recites that evidence sufficient to support a verdict for either side was introduced at the trial. Plaintiff’s sole ground of appeal rests on the court’s refusal to give two instructions requested by him relating to the hauling contract between Hirsch and defendants.

Under the terms of the contract, admitted into evidence over plaintiff’s objection, Hirsch agreed among other things to save defendants “harmless . . . from all claims, liabilities and demands of every kind, nature and description by reason of personal injuries sustained by said person or persons [caretakers] so in charge of said animals whether the same be caused by negligence or otherwise.” Plaintiff was not a party to the contract and no evidence was introduced by either side that plaintiff had any knowledge of its terms.

Plaintiff requested that if the court allowed the contract to remain in evidence, then the jury be instructed that

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such contract “is to be considered by you only for the limited purpose of ascertaining the status of the plaintiff as a rider in the van. The plaintiff is not a party to the contract and the provisions set forth in said contract as to the respective rights of the various parties are not binding upon him. Therefore, if you should find that the negligence of defendant’s agents proximately caused injury to plaintiff you should return a verdict in his favor.” (The last sentence of the quoted instruction is obviously too broad and should be limited or deleted, but as qualified by the other instructions is not necessarily misleading.)