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February 25, 1977

M. M. PHILLIPS et al.
Robert F. ALLEN et al. v. M. M. PHILLIPS

The opinion of the court was delivered by: KNOX

 The within case arose out of an unfortunate incident which occurred at Commodore Downs Racetrack in Fairview Township, Erie County on May 25, 1973, when one horse was killed and three others injured by an electrical shock while attached to a horsewalker manufactured and allegedly installed by the defendant Robert F. Allen.

 At the trial it developed that the plaintiffs had placed their horses in charge of Ralph Phillips, husband of M. M. Phillips for purposes of training and running at the track where they were kept in a stable. The original complaint charged that Robert F. Allen and John R. Allen were engaged as partners in the business of "Satellite Walkers". However, the jury verdict specifically found that John R. Allen was not a partner of his father Robert F. Allen so the only question that remains is the individual liability of Robert F. Allen. Also at the trial M. M. Phillips wife of Ralph Phillips, as third party defendant was not shown to be involved in any way in the damages to the interests of the others in the horses and therefore a verdict was directed in her favor as third party defendant.

 A horse walker is a device similar to a carousel which is turned by an electric motor. The top is like an umbrella on a pole and the horses are attached to the arms of the umbrella which then is rotated in a circle at varying speeds to exercise the horses thus saving time of an individual trainer.

 The walker was manufactured by defendant Robert F. Allen and delivered to Phillips at the track on May 18, 1973. At that time, it was installed with a conduit to run to the power source inside the barn at the track. Phillips then asked to see the device operate. He had purchased it under hire-purchase agreement whereby he would pay for it in installments during the term of the lease. Allen thereupon installed a temporary ordinary extension cord to connect to the electrical source inside the barn and demonstrated to Phillips that the device would rotate. He cautioned him, however, at that time according to testimony believed by the jury that a permanent electrical connection should be provided that he himself was not an authorized electrician and that the electrical connection should be made by a three-phase wire so as to avoid possibility of shorts and the electrocution which did occur.

 On May 25, 1973, the plaintiff's agent Ralph Phillips attached four horses to the walker. After the device had been in operation a short time one of the horses was killed by an electric shock and the other three allegedly suffered severe injuries. Particularly, the horse named Sweet Emma was killed, and Canadian Air, Anita Boro and Miss Sara James suffered electrical injuries.

 At the trial of the case, the jury returned a special verdict. With respect to interrogatory No. 1 they found that the Allens were not engaged in business as a partnership. With respect to Interrogatory No. 2 they found that defendant Robert Allen was not guilty of negligence. With respect to Interrogatory No. 3 they found there was no breach of warranty. On Interrogatory No. 4, they found that any negligence or breach of warranty by the defendant Robert Allen was not the proximate cause of plaintiff's damage. On Interrogatory No. 5 they found that Ralph D. Phillips was guilty of assumption of the risk so as to bar recovery by the plaintiffs. The result of course was that no damages were awarded to plaintiff and the court thereafter on September 9, 1976 entered a judgment order directing judgment be entered in favor of the defendants. At the argument on plaintiffs' motion for new trial plaintiffs abandoned their argument that a partnership existed between the Allens father and son. However, plaintiffs did press their motion with respect to the failure of the jury to find negligence, to find breach of warranty and also the jury's finding that plaintiffs were barred by assumption of the risk.

 With respect to negligence, the court fully instructed the jury with respect to § 388 of the Restatement of Torts which reads as follows:

"One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier
(a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and
(b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and
(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous."

 The court further told the jury that the fact that the walker was on lease at the time of the injury and title had not passed to the plaintiffs made no difference since under § 407 of Restatement of Torts 2d, a lessor leasing a chattel dangerous for the purpose for which it is intended is subject to the same liability as a supplier.

 There was evidence in the case which the jury could have found that the temporary extension cord hooked up made the chattel dangerous for the use for which it was intended. There was, however, also ample evidence from which the jury could have found that the defendant Robert Allen warned the plaintiff's agent Ralph Phillips not to use the walker for exercising horses in it until a proper three-phase electrical connection had been made. It was a violation of these warnings given by Allen which caused the demise of one horse and injury to the others. This therefore brings the case within subsections (b) and (c) of 388 inasmuch as the defendant had no reason to believe that Phillips would not realize its ...

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