57 Minn. 303 | Minn. | 1894
Plaintiff, a driver of defendants employed to drive a delivery wagon, was, while so employed, injured, as he claims, through a dangerous defect in the wagon he was using. The evidence was such as to justify a finding that the wagon was defective to such a degree as to be dangerous to the driver, and that the injury to plaintiff was in consequence of its dangerous condition.
Both parties, employer and employé, knew equally well the dangerous condition of the wagon, so that, under ordinary circumstances, it would be a case of the assumption of risk by the employé continuing to use it.
But it is a well-settled rule that where the servant, though he knoAvs the dangerous condition of the instrumentality furnished him, is induced to continue its use by the request of the master, and his promise to remedy the defect after complaint made to him by the
The most logical reason for the rule is that, under such circumstances, it must be taken as understood between them that the continued use in the then condition of the instrumentality, being for the convenience and purposes of the master, is to be at his risk, and not at the risk of the servant.
The cases in which the rule has been applied have been cases where-there was a promise on the part of the master to remedy the defect. But we can see no difference in principle between such cases and those where, upon the servant’s objecting to continue the use, the master, for his own convenience and purposes, induces the servant to continue it for a short time, upon the promise that the use shall be discontinued at the end of such time. What, for instance, could be the difference on the matter of assuming the risk between a promise to remedy the defects of this particular wagon and a promise to furnish another without such defects? We can see none.
Of course, though in such a case the risk incident to the dangerous condition of the instrumentality is on the master, if the servant, by his own negligence in the manner of using it, bring injury on himself the master will not be liable.
Whether that was this case, and whether the wagon was so imminently and immediately dangerous that an ordinarily prudent man would refuse to use it longer, was for the jury.
Judgment affirmed.
(Opinion published 59 N. W. 188.)
