Opinion by
On October 31, 1947, the plaintiff in this case, Harry R. Kunkle, left New York with a trailer truck destined for Cleveland. Rolling over the highway on this journey he attempted at a point near Progress, Pennsylvania, to pass around an automobile which had suddenly slowed down as if to make a turn. While performing this manеuver the trailer tilted to the left causing the driver to lose control over the steering, with the result that the huge vehicle ploughed acrоss the highway and crashed into the inevitable telegraph pole along the road. Kunkle was considerably injured and his vehicle considеrably damaged.
The ensuing lawsuit propounded one important question of fact. Did the trailer lose balance because its cаrgo had been improperly loaded or because the driver failed to exercise the skill and care required to successfully accomplish the maneuver already described?
Aboard the truck was a lithographing machine weighing some 16,000 pounds. It had been loaded on the extreme left of the trailer, and rested on its 6" side with its 5' 5" width extending almost to the top of the trailer. The rest of the cargo was madе up of bulky, light material weighing about 7500 pounds.
*135 The loading had been done under the supervision of one Dupres employed by the defendant Continental Transportation Lines, Inc., for which firm the plaintiff was transporting the load in question. The defendant company averred that if the lithographing machine was improperly loaded, the plaintiff was as much at fault in this respect as the defendant because he, the рlaintiff, was present at the time of the loading process. The plaintiff explained in meeting this charge that although he was present, sitting in thе cab of the vehicle at the time, he purposely refrained from taking any part in the loading operation because the loaders were union men and resented any interference on the part of an owner-driver.
The defendant company maintained furthеr that the plaintiff had the right of inspection and it was his duty to ascertain if the cargo had been properly stored before starting on his jоurney, especially in view of the fact that the plaintiff admitted that the trailer listed somewhat before leaving New York.
The case was twice tried and both juries returned verdicts for the plaintiff. The second trial was ordered because of an excessive verdict.
The issues in this litigation were exclusively factual and they were properly submitted to the jury. The jury found (and, of course, here we speak only of the second trial which is the one before us,) that it was the negligence in loading and not the manner of driving which caused the accident; it found furthеr that the driver was not guilty of contributory negligence in failing to inspect the loading operation.
It is undisputed that Dupres was an employе of the defendant company and that he was ordered to the loading operation by the Assistant Terminal Manager of the defendant company. It was not incumbent upon the plaintiff, as defendant’s counsel urge in their *136 brief, to prove agency on tbe part of Duprеs beyond tbe facts presented tbat Dupres was acting for the defendant company. The Trial Judge specifically covered this mаtter in his charge when he said: “In order to recover he must meet the burden of proving to you that the man — I think his name was Dupres — who was sent alоng with the plaintiff when the truck was to be loaded, that he was supervising the loading of that truck. If you don’t find that as a fact, even though you find there wаs negligence in the loading of the truck by the riggers, unless you find it was done under the supervision of the defendant there would be no responsibility, and yоur verdict Avil have to be for the defendant.”
The defendant cannot escape responsibility for the improper loading of the lithоgraph machine on the ground that the riggers who loaded it were employed by independent contractors. Those riggers did hot know, nor сould they be expected to know, after loading the lithograph machine what the remainder of the load would consist of. For all that came to their attention they' could have believed that an equally heavy item would be placed on the right side of the trailer. Thе defendant’s employe, however, was aware, or should have been aware, of the remaining items to be loaded, and it was his responsibility to see that no dangerous condition would be created by what Avas going aboard finally.
Those final items were actually lifted into thе trailer by employes of the defendant and they should have realized that a proper loading of comparatively light objeсts would necessitate a redistribution of the cargo in order to effect the proper balance. When they sealed the door of the trailer with 16,000 pounds of a total load of 23,500 pounds concentrated oh the left side of the trailer, they were subjecting the plaintiff, who was *137 within the foreseeable orbit of risk of harm, to great danger.
The defendant relies on the case of
Dorris v. Bridgman & Co.,
Judgment affirmed.