
    John Wooster, App’lt, v. Joshua A. T. Bliss, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 16, 1895.)
    
    Master and servant—Eon-liability on master.
    While an employer is required to furnish his employe with reasonably safe appliances with which to perform the work he requires him to do,and cannot carelessly expose the employe to greater danger than the latter, in the exercise of due care, has reason to anticipate, yet, if the employe has, by his superior knowledge or information, means of knowing or appreciating the probable danger not possessed by the employer, the latter is not liable for injuries sustained by the employe, though the work was undertaken upon his order.
    Motion for a new trial on exceptions, ordered to be heard at general term in the first instance.
    
      Emory P. Glose, for app’lt; H. J. Swift, for resp’t.
   Lewis, J.

This action was brought to recover damages for injuries sustained by the plaintiff, caused by the alleged negligence of defendant The plaintiff was thirty-five years of age when he received the injuries of which he complains. He had, from his? childhood, been about horses, and was familiar with their habits. He had worked as a coachman from twelve to fourteen years. He had worked for the defendant in that capacity for thirteen months prior to the accident. The defendant purchased a team of western horses in the spring of 1892, at Bast Buffalo. The plaintiff brought them from there to the defendant’s barn, in the city of Buffalo, and had charge of them, caring for and driving them as a coachman, for four to five weeks before he was injured. They were young horses, high-spirited, and somewhat fractious. They had not been out of their stable for four or five days previous to-the occurrence in question, on account of the weather being inclement. They were kept in a barn at defendant’s home, in Buffalo. The plaintiff was called as a witness in his own behalf, and gave the following account of what occurred at the time of the accident:

“They (the horses were) in first-class condition, I thought, by the way they acted in the barn. * * * Mr. Bliss came to the barn about 1 o’clock, and he said, 1 John, I want the team, about half-past 2, on the two-seated surrey, and I want you to take off the blinders.’ I said, 1 Mr. Bliss, I do not think it is safe to take those horses out without blinders on.’ He says, ‘Never you mind. I want yon to take off those blinders. I am going to drive this team myself. All I ask of you is to bring the horses to the house when I ring to you.’ And I said, ‘ All right. It does not make any difference who is going to drive them. It is not safe.’ He said : ‘ I will risk it. You bring out those horses when I ring for you to bring them out, at half-past 2.’ I hitched the horses up, and got into the surrey. My nephew pulled the door open, and I drove the horses out. When they got beyond the shadow of the barn, and the sun struck the carriage, they jumped, and got on a full run, and I did all I could to hold them. They ran out in front, and ran into a big elm tree. It was a two-seated surrey, with lamps on the sides; silver-mounted lamps, with glass in right by the forward seat. Could see the sun glinting on the silver when the horses started. As soon as we got in the sun, it kind of glittered, and the horses jumped. * * * Soon as they drove out there was a little curve to make, and they threw their heads back, and saw the carriage, and started. They ran as fast as I ever rode in a carriage. One horse ran on one side of the tree, and the other on the other side, and smashed the carriage up together, and threw me out, and broke my jaws. The horses got loose, and I found myself on the other side of the street.”

The account thus given was uncontradicted, and at the close of the evidence the plaintiff was nonsuited. The question is whether, upon these facts, there was any question which should have been submitted to the jury. Upon the undisputed evidence, the plaintiff had had much better opportunity to know the habits and disposition of the horses than had the defendant. He had been with them daily for four or five weeks; handled and driven them. He was quite as competent, and probably more so, than the defendant was, to judge as to the safety of driving them without blinders. He only consented to hitch them to the surrey upon the assurance of the defendant that he, and hot the plaintiff, was to drive them. Plaintiff testified that he would not have driven them without blinders. We do not see, upon these facts, what question there was which should have been submitted to the jury. We have examined the many authorities referred to in the brief of the appellant’s counsel. Many of them were cases where servants were permitted to recover in actions against their masters for injuries sustained while performing work which was apparently dangerous, by the direction of the master, upon his assurance that it was safe so to do. It is a well-settled rule of law that an employer is required to furnish his employe with reasonably safe appliances with which to perform the work he requires him to do ; and if the employer carelessly exposes the servant to danger greater than the servant, in the exercise of due care, "has reason to anticipate, or if the employer has, by his superior knowledge or information, means of knowing or appreciating the probable danger not possessed by the employe, the employer may be liable for injuries sustained" by the servant. It cannot be claimed, with propriety, that this case comes within these rules of law. Whether it was probably safe to drive these horses without blinders was a matter ■of judgment, based upon facts which, as we have seen, were better known to the plaintiff than they were to the defendant. The plaintiff’s experience with these horses and their habits, and his knowledge of horses generally, enabled him to form a more correct judgment in the matter than the defendant. According to his own testimony, he was not in much doubt about the danger. He felt quite certain that it was unsafe and dangerous to drive the horses without blinders. Entertaining that opinion, he should bave declined, under the circumstances, to have driven them. He could, had he chosen so to do, have led them to the house, instead of driving them. It cannot, with propriety, be claimed that he was under any coercion, for he testified that he would not have driven the horses without blinders. We are not aware of any reported case, upon such facts as are here presented, where a party has been permitted to recover damages. Statements may be found in some of the cases which seem to sustain the plaintiff’s contention, but, when examined, they will be found to be easily distinguishable from this case.

The nonsuit, in our opinion, was properly granted. The motion for a new trial should be denied, and judgment directed for the defendant upon the nonsuit.

All concur.  