Tucker v. Cooper

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 665 The plaintiff brought this action to recover damages for personal injuries alleged to be due to the negligence of defendant. The case was tried before the court sitting without a jury, and judgment rendered for the plaintiff. The defendant appeals from the judgment and the order denying his motion for a new trial.

The complaint alleges, in substance, that plaintiff was engaged at the special request of defendant in assisting him in baling hay with a hay-press supplied by defendant; that in the course of such employment he drove the team of horses which furnished power to operate the hay-press; that a short time prior to the accident, and without the knowledge of the plaintiff, the defendant replaced an oak double-tree with a piece of pine wood, which was attached to and thereby became a part of the press, that about ten or fifteen minutes after the substitution had been made, and while the team was pulling and the sweep was in a condition of "great strain," the piece of pine wood broke and released the sweep, which rebounded and sprang back with great force and struck plaintiff, fracturing his right leg in three places and causing the injuries complained of; and that plaintiff was driving the team in full reliance upon defendant having furnished "an ordinarily safe double-tree." It is also alleged that the piece of pine wood was not of sufficient strength or size, or of such material, to withstand the strain which is ordinarily placed upon a double-tree in the prosecution of such work; "that a double-tree of oak is proper"; and that the defendant either knew, or in the exercise of ordinary care should have known, that the piece of pine wood was not strong enough or fitted for such purpose. It is further alleged that the plaintiff incurred as necessary medical and hospital expenses upward of six hundred dollars; that he lost in wages *Page 666 at least five hundred dollars, and, in addition, "suffered great pain and deprivation by reason of said injuries." In the prayer of the complaint plaintiff asks for judgment for damages in the sum of ten thousand dollars and costs. The defendant demurred to the complaint on general grounds, and upon the special ground that the complaint shows that the plaintiff was "acting as a mere volunteer in doing certain employment upon the farm." The demurrer was overruled, and the defendant filed an answer denying that the plaintiff was engaged at his special request, and that he was without knowledge of the substitution of the pine wood for the oak double-tree. The court's findings were in accord with the foregoing facts as they appeared in the complaint, and judgment was rendered for the plaintiff in the sum of $2,997 and costs.