21 N.Y.S. 773 | City of New York Municipal Court | 1893
This action was brought to recover damages for alleged negligence in causing the death of plaintiff’s intestate. Plaintiff had a verdict, and this appeal is taken from the judgment entered thereon, and the order denying motion for a new trial. The negligence with which defendants were charged, as,alleged in the complaint, was “that they furnished to him, [deceased,] and caused him to drive, a defectively constructed truck,” from which deceased was thrown, “owing to the defective construction of said truck,” thereby sustaining injuries which caused his death. The complaint further alleged that said “truck was unskillfully, negligently, and wrongfully constructed, and was out of repair, visibly and patently, to defendants’ knowledge, * * * in many respects, and in that one of the wheels of said truck was larger than its mate;” and that decedent’s death was caused by such “defective constructions, and either of them1.” It appeared from the evidence adduced on behalf of the plaintiff that Michael Coyle, the deceased, had been employed for over 10 years as a truck driver by the defendants, who were engaged in the hay and feed business. On September 16, 1891, which was the day that deceased received the injuries which caused his death, he was driving the truck in question along Water street, near Main street, in this city, when, owing to a lurch of the truck, he fell, or was thrown, to the street, and received the injuries which caused his death. One Whalen, a witness called on behalf of the plaintiff, testified that he had been a truck driver in defendants’ employ for some time previous to the accident, knew this truck, and had often driven it; that one of the hind wheels was about six inches smaller than the other, which made the truck lean or droop more to the right than it did to the leit,—gave it a lurch; also, that the springs were out of order, so that one
We are of the opinion that the motion to dismiss should havebeen granted, and that defendants’ exception to the refusal to dismiss was well taken. It is well-settled law that if a servant knows, or, by the exercise of ordinary observation, might know, that any appliance with which he is to labor, is unsafe or unfit in any particular, and he continues in the employment, without objection or complaint, he is deemed to have voluntarily assumed all the risks of the employment incurred by reason of any. such defects, and cannot recover for any injuries he may sustain in consequence of such defects.^ This proposition has been so frequently enunciated that it is needless to cite the numerous authorities that go to support it. It seems to us that the case made by the plaintiff comes within this rule. Deceased had been working as a truckman for over 10 years, and we may safely assume that, with that long experience, he had become fairly familiar with trucks and their construction. He knew the truck in question; had frequently assisted in loading it; knew that his felloV servant, Whalen, had been thrown or fallen from it while driving it; had told Whalen that “he didn’t believe it was fit to run;” and yet, without complaint or objection, he undertook to drive it. Not only does the complaint allege that the truck “was out of repair, visibly and patently,” but the witness Clifford also testified that, immediately on seeing the truck approaching him, he noticed the disparity in the size of the hind wheels, which made “the body of the truck go shaky,” and also that the leaves of the springs were loose, and the light shone be