Lonnergan v. Stansbury

HENSHAW, J.

Plaintiff was a teamster employed by defendants, a contracting firm. His horses ran away. He was thrown from the wagon in which he was riding and sustained injuries. His action for damages against his employers resulted in a verdict and judgment in his favor. From that judgment and from the order denying their motion for a new trial the defendants appeal.

The gravamen of the complaint lies in the allegation that defendants furnished to plaintiff a wagon that was dangerous and unfit to be used, in that there was no brake or other appliance provided by means of which the wagon could be impeded or stopped; that the sides of the wagon were loosely and insecurely placed upon and attached to it, and thereby plaintiff’s seat, which consisted of a board placed horizontally across the sides, became insecure and dangerous. It is then alleged that while plaintiff engaged in his work was driving this empty wagon down a -hill, the horses became unmanageable, ran away and because of the swaying wagon box and shifting seat and absence of brake the plaintiff was unable to control them and was thrown from the wagon, when, in their career, they dashed it against the curb.

[490]

The testimony supporting these allegations is sufficient. That of the plaintiff is to the effect that he was experienced in the use of horses; had been a teamster, and had driven this particular team of horses, which, it is conceded, were ordinarily gentle. He was told to put his horses in this particular wagon upon the morning of the accident and to haul bricks from a brick-yard, delivering them at various points where defendants were engaged in work. Prior to the accident he had never driven a wagon that was not equipped with a brake or some appliance for stopping it. When told by the foreman to use this particular wagon he noticed that it was without a brake and told the foreman that he wanted a brake on the wagon. The foreman replied that he needed no brake, as his draught was uphill; that he would have to haul brick but one day, and on the following day would go back to his former employment—-that of driving a dump wagon. There was no seat in the wagon, simply a loose board across the sideboards. The seat shifted so, because of the swaying of the wagon box, that he tried to drive standing in the wagon, but he could not stand because of the swaying of the wagon bed. Once or twice during the day, on down grades, the team had started with him, but he had checked them. At the time of the accident he was returning with the team from his work. The horses had galled necks, the galled places being more inflamed at night after the day’s work than in the morning. As he started down the grade it is probable that the first horse started because of the pain produced by the collar bearing on its galled neck in holding back the weight. The plaintiff at the time “had the lines through his hand.” The other horse became frightened, and the first one lunged ahead and “the two horses just plunged right down that grade.” The wagon box began to swing from side to side, the loose board upon which he was sitting fell off and precipitated plaintiff on his back in the wagon. He recovered himself as quickly as possible, but too late to prevent the wagon striking the curb.