
    Nicholas Smith, by his Guardian ad Litem, Catherine Smith, Appellant, v. Jose Berre King and George R. King, Respondents.
    
      A servant injured by the tipping of a cart, in consequence of the masters failure to supply a harness provided with a girth—when a question is presented for the jury.
    
    In an action to recover damages for personal injuries sustained by the plaintiff, a lad eighteen years of age, while engaged in moving gravel with a horse and cart, furnished by the defendants, by whom the plaintiff was employed, it appeared that the harness so furnished was not provided with a girth passing under the belly of the horse, so as to prevent the cart from tipping backward and throwing the shafts upward. The plaintiff testified that he called the attention of the defendants’ foreman to the defect and asked him for a piece of rope; that the foreman replied that he had none and told him to go on with his work; that the plaintiff then proceeded to pull out the tailboard of the cart when the shafts flew up and the cart struck the plaintiff, breaking his leg.
    
      Held, that it was error for the court to set aside a verdict in favor of the plaintiff on the theory that the recovery could not be upheld because the plaintiff knew the condition of the harness and appreciated the danger of using it in such a condition;
    That, upon the evidence, it could not be said that the plaintiff was guilty of contributory negligence as matter of law.
    
      Semble, that it is not to be deemed conclusive evidence of contributory negligence that a plaintiff continues to employ unsafe appliances, when he does so by the express orders of the defendant and is not fully aware of the effects to be expected from obeying such order.
    
      Appeal by the plaintiff, Nicholas Smith, by his guardian ad litem,.Catherine Smith, from a judgment, of" the Supreme Court in favor . of the defendants, entered in the office of the clerk of the county of Nassau on the 8th day of May, 1901, upon an order of the Supreme Court made at the Nassau Trial Term and entered in the office of the clerk of the county of Nassau on the 8th day -of May 1901, vacating and setting aside the verdict of a jury .in favor of the plaintiff for $500, and directing'a verdict in favor of the defendants dismissing the complaint.
    
      Grosvenor Nicholas, for the appellant.
    
      Herbert C. Smyth and L. Sidney Carrere [Edward P. Mowton with them on the brief], for the respondents.
   Willard Bartlett, J.:

This is an action for negligence in which the tidal court submitted the case to the jury, and after a verdict of $500 had been rendered in favor of the plaintiff, entertained a motion to set aside the verdict upon a stipulation that should, the court decide to grant the motion, a verdict in favor of defendants might thereafter be directed with the same force and effect as though the jury were present.

This motion was subsequently decided in favor of the defendants, and a verdict was directed, upon which judgment was entered accordingly. From the order and judgment, the plaintiff now appeals.

The. plaintiff was injured while at work with a horse and cart, moving gravel for the defendants, who furnished the vehicle and harness, which he employed. There is some question as to whether he was in the service of the defendants or of a truckman named. Lannon, who was also employed by the defendants at ,the time of the accident, and through whose instrumentality the plaintiff was called upon to go to work for them. I think-on the-whole evidence, however, that the jury would have been justified in finding that the relation of master and servant existed between the defendants and the plaintiff at the time he was hurt. (See Baldwin v. Abraham, 57 App. Div. 67, 74.)

The plaintiff appears to have been injured in consequence of the fact that the. harness which, the defendants furnished for his use was not provided with a girth passing under the belly of the horse so as to prevent the cart from tipping backward and throwing the shafts up. According to his testimony, he called the attention of the defendants’ foreman to this defect and asked him for a piece of rope. The foreman said he had none, and told the plaintiff to go on with his work. The plaintiff then proceeded to pull out the tailboard, when the shafts flew up and the cart hit the plaintiff on the side, throwing him down upon a scow and breaking his leg.

In setting aside the verdict the learned trial judge said that he did not see how the plaintiff could prevail under the law, and cited the case of McGuire v. Board (58 App. Div. 388), indicating that in his opinion the recovery could not be upheld, because the plaintiff knew the condition of the harness and appreciated the danger of using it in that condition.

The difficulty with adopting this view arises from the absence of evidence in the present case that the plaintiff had any such knowledge of the danger which he would incur by continuing to use the harness as it was, so as to render him chargeable with contributory negligence as matter of law. He was a lad eighteen years of age, and up to the time of the accident nothing had occurred to warn him of the probability that the cart would tip back in the manner it did. Furthermore, although ho was undoubtedly aware of the absence of the girth, or of a rope such as is sometimes used to fulfill the same purpose, he was acting, to some extent, under constraint in going on with his work at the time when he was hurt. The defendants’ foreman, whom he had asked for a piece of rope, called out to him that there was another driver there to go in for a load of gravel, and this foreman shouted to the plaintiff to take his cart out. He could hardly have reasonably been expected to refuse obedience to this order under such circumstances, and the case, therefore, seems to fall within that class of decisions in which it has been held that it is not to be deemed conclusive evidence of contributory negligence that a plaintiff continues to employ unsafe appliances when he does so by the express orders of the defendant, and is not fully aware of the effects to be. expected from obeying such orders. (See Hawley v. Northern Central Railway Co., 82 N. Y. 370; Kain v. Smith, 89 id. 375, 385.)

Upon a consideration of all the evidence I am not satisfied that this is one of the exceptional cases in which it can be held that contributory negligence has been so conclusively established that nothing is left either of inference or of fact' to be determined by a jury. (Kettle v. Turl, 162 N. Y. 255.)

I am; therefore, of the opinion that the judgment should be reversed.

All concurred.

Judgment reversed and new trial granted, costs to abide the event.  