
    Ann Coyle, Adm'rx, Resp't, v. Daniel D. Mangam et al., App'lts.
    
      (City Court of Brooklyn,
    
    
      General Term,
    
    
      Filed January 25, 1893.)
    
    Master and servant—Negligence—Assumption op risks.
    Where a servant, with knowledge of the defects in an appliance furnished by the master, undertakes to use the same without objection or complaint, he assumes the risks of the employment incurred by reason of such defects, and no recovery can be had against the master for injuries sustained in consequence thereof.
    Appeal from judgment in favor of plaintiff, entered on verdict, and from order denying motion for a new trial on the minutes.
    
      Henri Pressprich, for resp’ts ;
    
      Jones & Crane, for app’lts.
   Osborne, J.

This action was brought to recover damages for alleged negligence in causing the death of plaintiff’s intestate. Plaintiff had a verdict, and this appeal is taken from the judgment entered thereon, and the order denying motion for a new trial.

The negligence with which defendants were charged, as alleged in the complaint, was “ that they furnished to him, deceased, and caused him to drive a defectively constructed truck,” from which deceased was thrown, “ owing to the defective construction of said truck,thereby sustaining injuries which caused his death. The complaint further alleged that said “ truck was unskillfully, negligently and wrongfully constructed, and was out of repair visibly and patently to defendant’s knowledge, * * * in many respects, and in that one of the wheels of said truck was larger than its mate,” and that decedent’s death was caused by such “ defective constructions and either of them.."

It appeared from the evidence adduced on behalf of the plaintiff that Michael Coyle, the deceased, had been employed for over ten years as a truck driver by the defendants, who were engaged in the hay and feed business. On September 16, 1891, which was the day that deceased received the injuries which caused his death, he was driving the truck in. question along Water street near Main street in this city, when, owing to a lurch of the truck, he fell or was thrown to the street, and received the injuries which caused his death.

One Whalen, a witness called on behalf of the plaintiff, testified that he had been a truck-driver in defendant’s employ for some time previous to the accident, knew this truck and had often driven it, that one of the hind wheels was about six inches smaller than the other, which made the track lean, or droop, more to the right than it did to the left, gave it a lurch; also, that the springs were out of order, so that one could see daylight through the leaves, and that he had “ lost two or three leaves at times.” This witness further testified that in December, 1890, he fell from this truck while driving it; that the cause of his falling was a lurch of the truck caused by his striking the car-track; that when he came back to work in May, 1891, he told Coyle that he had fallen from the truck, and that Coyle “ said he did’nt believe it was fit to run.” He also testified that Coyle had assisted in loading this truck several times, and that between the time he, Whalen, came back to work in May, 1891, and the time Coyle was hurt,, the truck was not fixed, that it was in the same condition when Coyle was hurt that it was when he was hurt. Another witness for the plaintiff, one Clifford, testified that he was on the comer of Water and Main streets and saw the track approaching, and also • saw Coyle fall from the truck; as he saw the truck coming, he said to a companion “ Here comes aduckety track ” * * * ‘When I say a duckety truck, I mean a truck where the springs is loose and one wheel being smaller than the other will make the body of the truck go shaky.” He further testified that one of the hind -wheels was about three or four inches smaller than the other, and that the laps of the springs were so loose that one “ could see the light right through them, and the earth ; ” that his first intention was to apply for the job of driving this truck, but when he saw the condition of the truck, he changed his mind.

At the close of the plaintiff’s case the learned counsel for the defendants moved to dismiss the complaint, upon the ground,' inter alla, that the complaint alleged, and the evidence showed, that the defects in the truck were visible and known to decedent. This motion was denied, and defendants duly excepted.

We are of the opinion that the motion to dismiss should have been granted, and that defendants’ exception to the refusal to dismiss was well taken.

It is well settled law that if a servant knows, or, by the exercise of ordinary observation, might know, that any appliance with which he is to labor is unsafe or unfit in any particular, and he continues in the employment without objection or complaint, he is deemed to have voluntarily assumed all the risks of the employment incurred by reason of any such defects, and cannot recover for any injuries he may sustain in consequence of such defects. This proposition has been so frequently enunciated that it is needless to cite the numerous authorities that go to support it.

It seems to us that the case made by the plaintiff comes within this rule. Deceased liad been working as a truckman for over ten years, and we may safely assume that with that long experience he had become fairly familiar with trucks and their construction ; he knew the truck in question; had frequently assisted in loading it; knew that his fellow servant, Whalen, had been thrown or fallen from it while driving it; had told Whalen that “ he didn’t believe it was fit to run,” and yet, without complaint or objection, he undertook to drive it. Not only does the complaint allege that the truck “ was out of repair visibly and patently,” but the witness Clifford also testified that, immediately on seeing the truck approaching him, he noticed the disparity in the size of the hind wheels which made “ the body of the truck go shaky,” and also that the leaves of the springs were loose and the light shone between them.

It is plain to us from the evidence that deceased was well aware of the defects in the truck, that they were plainly visible, and that he voluntarily assumed all the risks of driving it.

We are, therefore, of opinion that the judgment and order denying motion for new trial must be reversed, with costs to' abide the event.

Clement, Ch. J., concurs.  