
    Cornelius Deane, Plaintiff, v. The City of Buffalo, Defendant.
    
      Negligence — injury to an employee of a third person while standing on the pole of defendant’s wagon — contributory negligence—exceptions oi'dered to be heard at the Appellate Division in the first instance — case reviewed although no exception was in fact taken.
    
    In an action brought to recover damages for personal injuries it appeared that the defendant, a city, employed an independent contractor to transport the city garbage to a crematory, the contractor owning the teams and employing the drivers and the city supplying the wagons; that the plaintiff, who was the driver of a garbage wagon, got upon the pole of his wagon for the purpose of adjusting a strap not connected with the footboard; that while in this position the horses started and the plaintiff grasped the reins with one hand and the footboard with the other; that, owing to the unusual strain thus placed upon the footboard, it broke at a point where it had been previously split and caused the plaintiff to fall to the ground and sustain the injuries in question.
    
      Held, that, assuming the city to have been under an obligation to keep the wagon in a reasonably safe condition for the use for which it was designed, it could not be held liable for the breaking of the footboard while being used for a purpose for which it was not designed;
    That it did not appear that the plaintiff was free from contributory negligence. Where a complaint is dismissed upon the trial and the exceptions are ordered to be heard at the Appellate Division in the first instance, the latter court will review the ruling, although no formal exception was in fact taken to the dismissal of the complaint.
    Motion by the plaintiff, Cornelius Deane, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, on the dismissal of the complaint by direction of the court after a trial at the Erie Trial Term.'
    
      When the plaintiff first rested the court intimated an intention to nonsuit the plaintiff .and to allow an exception to such ruling. Thereupon the plaintiff asked leave to submit further evidence and was permitted to do so. Thereupon the plaintiff’s counsel renewed his motion for a nonsuit, which was granted, but no exception was taken.
    The action is to recover for the alleged negligence of the defendant. ■ .
    
      Charles Oishei, for the motion.
    
      Henry W. Killeen, opposed.'
   Hardin, P. J.:

(1) Although the plaintiff did hot take a formal exception ‘at the time the motion for a nonsuit was actually granted, he is entitled to have this court treat the case as though an exception had been taken, as the exceptions were, ordered here. (Woolsey v. Lasher, 35 App. Div. 108.)

(2) At the time the plaintiff received the injuries complained of he was a teamster in the employ of Bristow, a contractor who was engaged in hauling garbage for the city, under a contract, to a distant place in 'the city where it was cremated. The contractor owned the teams and employed the teamsters to carry on the business of his contract. The plaintiff was,' therefore, a servant of the contractor and not of the city. The relation of master and servant did not exist between the plaintiff and the city at the time he received the injuries of which he complains. (Wyllie v. Palmer, 137 N. Y. 248.)

The wagon which was carrying the tank belonged to the city. It is alleged that the footboard, which was constructed for the purpose of resting the feet of the teamster, was split, and when it was .subjected to the unusual strain placed upon it by the plaintiff it gave away by reason of the split and the plaintiff lost his balance, fell to the ground and received the injuries from the wagon passing-over his leg. The footboard was mot constructed for the purpose to which the exigencies of the case subjected it at the time the plaintiff received his injuries. When the plaintiff discovered that there was something loose about the forepart of the wagon he got down off the footboard onto the pole, and while he was adjusting a strap which was loose (which was not connected with the footboard) his horses started, and he held the lines in cne hand and grasped the footboard with the other, and by the strain put upon the footboard by his weight and the unusual strain so placed upon it, the foot-board gave away and let him down onto the ground, and he received the injuries to his leg.

Even if it be assumed that the wagon belonged to the city and the city was under an obligation to keep the wagon in a reasonably safe condition for the use for which it was designed, there is no evidence in the case that it was designed for the purpose of furnishing support to a person placed in the situation in which the plaintiff was at the time ho caused it to break, and, therefore, no liability can be asserted against the city by such assumption. (Wright v. N. Y. C. R. R. Co., 25 N. Y. 562, 565 ; Hickey v. Taaffe, 105 id. 26, 34.)

In the case of Fetch v. Allen (98 Mass. 572) it was said: “ The evidence reported does not show that the cause of the plaintiff’s injury was anything which the defendants, or either of them, had provided to be used by him in the manner in which he used it; or which they knew or had any reason to suppose he would use in that manner. * * * But if the servants undertake to use machinery or instruments for purposes for which they were not designed, and for which the employer had no reason to suppose they would be used, it is their own fault or folly if harm comes from it.”

The same principle was laid down in Finnell v. D., L. & W. R. R. Co. (129 N. Y. 669).

The plaintiff, according to his own testimony, placed himself in a position of peril, and while he was making resolute efforts to escape from such position, he subjected the footboard to an unusual and extraordinary strain, causing it to break at the point where it had been cracked. As soon as the horses started the plaintiff seized the lines in one hand and the footboard with the other, and while so endeavoring to hold himself on, it turned out that his own weight and the strain put upon this piece of board, together with the amount of force he was exerting to pull up his team, were too much for the footboard.

The plaintiff himself testified: “ I think I have got as good a grip as anybody in this town. I am good and strong and had a good grip. I put a good deal of force in that grip, and exerted a great deal of strength on that footboard in order to hold myself.” It is, therefore, quite clear that the plaintiff subjected the footboard to an unusual and extraordinary strain in the manner in which he used, the same. .

(3) There is no evidence that satisfactorily establishes that the plaintiff was free from contributory negligence at the time he received the injuries for which he seeks to make the city liable. We think that no error was committed by the learned trial judge in directing a nonsuit.

All concurred.

Plaintiff’s exceptions overruled, and motion for a new trial denied, with costs, and judgment ordered for the defendant, with costs.  