Swanton v. Hastings Pavement Co.

Hooker, J.:

The plaintiff, an inspector in the employ of a trolley road, was riding on the running board on one of its open cars, and was hit and thrown therefrom by a projecting part of a concrete mixer, which was being used by the defendant in the repair of the highway. It seems to be undoubted that there was sufficient evidence to establish the negligence of the defendant. The nonsuit was granted on the ground that the plaintiff had not shown himself free from contributory negligence. Admitting that when he boarded the car he could have seen the mixer for a distance ahead, and, had he seen it, supposed that it was too near the track; and admitting that the mixer was in plain view from the time he boarded the caito the time he was thrown off the running board, yet he was not guilty of negligence on his part, as a matter of law, for the reasons: First, that he was under no legal obligation to look ahead before getting upon the car to anticipate possible obstructions in the track or near it; and, second, he had his duties to perform, which he was doing after he boarded the car; these duties required his attention elsewhere than to the track ahead, and he had a right to rely upon other users of the highway performing the duty they owed to the trolley company and to passengers upon its cars, not dangerously to obstruct their passage.

If the thing was caused by the negligence of both the defendant and the motorman, a fellow-employee of the plaintiff, the defendant would still be liable.

The judgment must be reversed and a new trial granted, costs to abide the event.

Jenks, Gaynor, Rich and Miller, JJ., concurred.

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