
    Charles A. Limerick, Respondent, v. William H. Holdsworth and Percy J. Holdsworth, Doing Business under the Firm Name of William H. Holdsworth & Son, Appellants.
    Second Department,
    January 28, 1913.
    Master and servant — negligence — injury to driver by breaking of wagon tongue — evidence — issues.
    In an action to recover for personal injuries it appeared that while the plaintiff, a servant of the defendant, Was backing a team from a shed the tongue broke, permitting the right wheel to turn under the floor of the truck, thereby throwing a heavy casting upon plaintiff’s leg. The ' plaintiff claimed that the tongue was “defective, rotten and worn out,” and the single issue presented on the question of defendant’s negligence was whether he furnished a reasonably safe tongue or pole.
    Evidence examined, and held, that since the presence of alleged sun cracks in the pole did not impute negligence to the defendant; that since the evidence failed to show the injurious presence of worm holes discoverable upon inspection, or that, if they visibly existed, they made the pole unsafe, and since the court submitted to the jury the question as to the grain of the wood, which was not an issue raised on the trial, a judgment for the plaintiff should be reversed and a new trial granted.
    Appeal by the defendants, William H. Holdsworth and' another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 27th day of May, 1912, upon the verdict, of a jury for $17,000, and also from an-order entered in said clerk’s office on the 28th day of May, 1912, denying the defendants’ motion for a new trial made upon the minutes.
    
      Frank Verner Johnson [Amos H. Stephens with him on the brief], for the appellants.
    
      Ralph G. Barclay [Robert Stewart with him on the brief], for the respondent.
   Thomas, J.:

Plaintiff, defendants’ servant, has recovered damages for injuries received by the upsetting of a truck driven by him, Whereby a heavy casting fell upon his leg. While backing the team from a shed the pole broke, the right wheel turned under the floor of the truck, which tipped over on its left side and the casting was .thrown upon him. Whether the plaintiff backed out straight and the pole broke, allowing the right front wheels to turn under the truck, as plaintiff contended; or whether the rear wheels of the truck went to the right so as to throw the right wheel under the truck and cause it to turn over, thereby breaking the pole, as the defendant Percy J. Holdsworth affirmed, was an issue decided by the jury, presumably in respondent’s favor. Thé single issue tendered on the question of defendants’ negligence was whether they furnished a reasonably safe tongue or pole. The plaintiff particularized that the tongue was “ defective, rotten and worn out.” The pole had been made about three months before; and there is,no evidence of destructive wear. The contest between the parties related to worm holes and sun cracks. ' The proof is that the pole was fashioned from partly green oak timber, showing sun cracks at the time but not worm holes; that a stick not-wholly seasoned was preferable for making a pole; that the sun cracks with drying would and did close up without serious impairment of the strength of the article, and the jury would not be justified in predicating defendants’ negligence upon such condition, and it was error to permit them to consider it. There was some evidence of worm holes after the accident, but the contrary appeared when the pole was made three months before, and there was no reliable evidence that what could be seen was sufficient to give the defendants, in the course of requisite inspection, notice that the pole was unreliable. The plaintiff had handled it or been in close proximity to it for months. He had often taken it out and replaced it; he -had harnessed his horses to it and detached them on many occasions; he never noticed the alleged defects, and although he had often backed his truck loaded from the weighing shed, no sign of defect had been given or warning received. In brief, he saw nothing wrong about it. But who testified to. the worm holes ? Plaintiff’s brother, Thomas Limerick, improperly permitted to relate his denunciations to one of the defendants of the insufficiency of; the truck, stated that he found worm holes, Something a little bigger than pinheads — a good deal bigger,” and when the pole was broken he could rub off sawdust, but he said that it was something he could not see until after the pole broke. It is'noticeable that this witness did not testify to cracks on the former trial, and he also testified: “ The only worm holes I saw were on the surface of this break, in a space of about twelve inches.” The witness’ testimony is open to the criticism that it was recast to meet the exigencies of the second trial. Another witness for the plaintiff was Mason, who, as he said, had been convicted on two occasions in his earlier years for not very grievous offenses. He testified with reference to the place where the break was, that it crumbled away and was rotted, and he further stated that he did not see anything the matter with the pole excepting on the surface of this break,” and that it could not he seen if it had not been broken, which he ascribed to the fact that the pole was dirty. Walsh, who made the pole about three months before the accident, testified as to the sun cracks and the length of them; that he did not see any worm holes or knots, and that upon a present inspection of the pole he saw but few; that such cracks disappear as the pole grows oldér, and that the sun cracks have not much effect upon the pole. One Shad bolt, a truckbuilder called by the defendants, testified that the pole was a tough, fibrous piece of oak,” that he could not see any worm holes in it, and that he did not see any indications of weakness about that pole before the pdle broke, and that the sun cracks have very little if any effect upon the strength of the pole. He further stated that invariably in making poles lumber not thoroughly seasoned was used, and that the sun cracks do not indicate that the pole was weak or defective, and that they were an indication of the toughness of the lumber. The pole has been presented to the court, and I do not observe that a witness has pointed out the worm holes. In any case, it is not made to appear that such as exist, and that were not latent, would give notice to an experienced inspector that the pole ' was weakened thereby, while there is ample and uncontradicted evidence that ■ the sun cracks did not have that effect. It would seem, - then, that the finding that the defendants were negligent in not furnishing a reasonably safe pole is not sustained by the weight of the evidence, nor is there evidence to sustain a finding that there were worm holes discoverable upon external inspection that lessened its strength. After the trial had been practically finished, the witness Shadbolt was recalled by the defendants for further examination, and when that had been concluded, the court conducted an examination of the witness with relation to the manner in which the grain of the wood ran, whereby it appears that the break was from the bottom edge of the pole and ran diagonally through it to the end of the break for the approximate distance of three feet ten inches, and in doing so it followed the grain.' The witness, after stating that in forty years’ experience he had not seen a pole in which the grain ran the entire distance of the pole, considered that such a pole, non-existent in his knowledge, would be stronger 'for the continuous grain. Ho such issue had been raised. It is not contemplated by the bill of particulars, it was not litigated upon the trial, yet the court charged the jury to consider “ the nature of the break and just .how it runs, and the grain of the wood and how it runs,” and said: “Perhaps it may not be without the province of the court and the province of the jury to take some account of the question of the grain of the wood. You will consider the way that pole is broken, either from the bottom to the top or the top to the bottom, as the case may have been. Does that fact disclosed in the pole itself, that the particular piece of wood of which it was made was of the quality to sustain the strain of a backing team, hitched to a wagon with heavy iron on it ? Jurymen are not supposed to banish the knowledge that th'ey have acquired in life when they enter the jury box. Perhaps it is quite within the knowledge of all of you that a team pulling a wagon, apply very little strain to the pole, and that the pole is intended to guide the wagon; but a team backing applies great strain to the pole, because the strain is communicated from the front part of the harness to the pole, and the power is there applied, it follows that the weight of the wagon has to be pushed by the pole when a team is backing. Perhaps this is a matter within your own knowledge. Whether or not this particular piece of wood with the grain running in. it as it appears to be running, was a piece of wood suitable to be used in a wagon which was to be backed, heavily laden, is a question for you to determine as experts, which you become.” There is no evidence that the grain could have been discovered, or that the cross grain is excessive or unusual, that it is other than what is used by good and prudent men in the business. Above all, it was not the issue that the parties went to the court to litigate, or that they did litigate. Therefore, for the reasons that the sun cracks did not impute negligence to the defense, that the evidence does not show the injurious presence of worm holes discoverable upon requisite inspection, or that, if they visibly existed, they made the pole unsafe, and because the court submitted to the jury an issue not within the pleadings nor litigated, the judgment and order should be reversed and a new trial granted, costs to abide the event.

Jerks, P. J., Carr, Woodward and Rich, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event. 
      
       So in record.— [Ref.
     