153 Iowa 523 | Iowa | 1911
One It. L. Cruse had loaded a wagon with two-inch plank, a foot wide and thirty feet long, and had driven along the east side of a railroad car with his team toward the south. The wagon reach had been lengthened, but the planks extended over the back bolster about thirteen feet. The lines extended to the rear hub and were laid on the ground east of the wagon and the outside tug unhooked. The front end of the wagon was opposite the car door. Employees of defendant assisted Cruse in removing the lumber from the wagon into the car. In doing this, Cruse stood at the rear of the wagon, lifted the end of a plank so as to place it on the east hind wheel, and, by bearing down and swinging out, lifted the other end so as to clear into the doorway of the car. One man then seized the other end of the plank and drew it in through an opening at the south end of the car until the other could take the plank through the doorway. Cruse had placed a plank on the wheel and swung the end over, when it caught in the edge or jamb of the car door frame. According to his story: “-This happened because I suppose I misjudged my distance in raising it and did not raise it high enough at the south end. It caught about midway up from the door. At that time, there was a man standing at the car door, and he could have reached it. When it got caught, I attempted to raise it up by bearing the north end of it down. While I was doing this, it broke loose from the door, fell, and struck the west horse.” The team immediately started to run, and, after they had gone a little ways, the hind wheel caught on a post and swung the team around, and at the same time the lumber slid off, striking the plaintiff, who was in the street, and throwing him upon the pavement, causing serious injuries.
It is alleged that Cruse and the other employees were negligent: (1) In that they failed to tie, secure, or un
The ruling on the first two grounds turns on the issue as to whether Cruse, in handling the team, was the servant of defendant, for he was not shown to have been negligent in the manner of unloading the plank, and, if guilty of any fault, this was in allowing the team to stand without hitching, or where, in event of a plank falling, they would be likely to be struck and frightened thereby. Was there sufficient evidence to carry the case to the jury on either of these issues ? This necessarily depends on whether, in the handling of the team, he was the servant and under the control of defendant. The evidence disclosed that defendant owned the wagon, but that the team and harness belonged to Mrs. W. W. Wright. Long prior to the accident, her son had inquired of defendant’s foreman if he could use another team. The foreman answered that he could, and asked whose it was, and, being told that it belonged to Mrs. Wright, and that it was a good team, directed him “to send him on down to work.” One Mason came with the team in the morning and hauled lumber with it several months. He then arranged with Cruse to take his place, and after that Cruse drove the team, from July 18, 1907, until long after the accident, which occurred in May, 1908. The arrangement between Mrs. Wright’s son and Mason was that he receive one half the earnings and Mrs. Wright the other half, and, without any conversation concerning the matter, she and Cruse divided the earnings in the same way. Defendant’s bookkeeper inquired of her, when each began, whether payment should be made to her or to the driver, and she directed payment to the latter, as she trusted him. Compensation was made at the end of each week
The company seems to have had nothing to do with the way Cruse cared for or handled the team. The employment at the Century Lumber' Company was somewhat irregular, and he was sent occasionally to do hauling for the Charles Weitz Sons, contractors, the foreman directing him so to do, but he was paid always by defendant. If Charles Weitz Sons desired the team to haul, after Cruse had quit for the day, they would telephone at the instance of the foreman to Mrs. Wright, and she would tell Cruse what was wanted. He did not drive the same team all the time, as Mrs. Wright had five horses, and he and the driver of the other team, who was her son, sometimes changed teams, and, during the winter, he teamed considerably for others than the defendant and the Charles Weitz Sons. According to his testimony, neither the Century Lumber Company nor Charles Weitz Sons had anything to do with the care or handling of the team, and Charles Weitz, a director of defendant, testified that the yard foreman “used
The facts have been recited in detail because of the paucity of direct evidence relating to the employment of the team and of the driver. The relation of the parties
The rule laid down in Shear. & R. Neg. (4th Ed.) 269, is that: “He is to be deemed the master who has the supreme choice, direction, and control of the servant and whose will the servant represents not merely in the ultimate result of the work but in all its details. The payment of an employee by the day, or the control and supervision of the work by the employer, though important considerations, are not in themselves decisive of the fact that the two are master and servant. . . . Servants who are employed and paid by one person may nevertheless be ad hoc the servants of another, in a particular transaction.” As said in Butler v. Townsend, 126 N. Y. 105 (26 N. E. 1017) : “One may be employed without being a servant. The relation exists where the employer selects
The question as to which employer, the general or the one employing from him, is responsible for the acts of a servant, seems to have been first considered in Laughor v. Pointer, supra, where Littledale, J., in the course of an opinion, to which little has been added in subsequent decisions, said: “Houses and land • come under the fixed use
In Quarman v. Bennett, 6 M. & W. 497, it appeared that the defendants, two ladies, who kept a carriage, had been for a period of about three years, in the habit of hiring for the day or for the drive horses and a coachman from a job mistress. They had during that time always been driven by the same coachman, to whom they paid a
In Stewart v. California Improvement Co., 131 Cal. 125 (63 Pac. 177, 724, 52 L. R. A. 205), the city of Oakland hired a steam roller of defendant for use in leveling a street under the direction of the superintendent of streets. Plaintiff was injured on account of the negligence of the engineer in letting off steam and frightening plaintiff’s horse. The court, in holding the company liable, said:
The principle was well stated by Campbell, L, in Frerker v. Nicholson, 41 Colo. 12 (92 Pac. 224, 13 L. R. A. (N. S.) 1122) : “In the case at bar the negligence relied upon was that of the driver, the servant of defendant. The undertaking company hired of the defendant a carriage, horses, and driver, and exercised no control whatever over the driver further than to tell him in a general
A case much like that at bar was Huff v. Ford, 126 v Mass. 24 (30 Am. Rep. 645). The defendant therein kept horses and wagons for hire and let the horse and wagon in question to the city of Boston and furnished a driver by the day. The outfit was under the direction and control of the city as to where to go and where to unload and what to do in the performance of the work of paying. The driver, who was employed by the week by defendant, had the entire management of the horse, selected the route to travel, and fed and cared for the horse at defendant’s barn, and it was his business to see that he was properly shod. A large plate glass window was broken by the horse kicking a loose shoe through it after he had been violently struck twice by the driver. The defendant, rather than the city, was held liable for the negligence, if any, of the driver in the manner of driving and shoeing the horse.
In Morris v. Trudo, 83 Vt. 44 (74 Atl. 387, 25 L. R. A. (N. S.) 33), Lavalley, in the performance of his duty
On no theory, save that Cruse in the handling of the team was acting for defendant, can it be said that the latter is responsible for his act in allowing the horses to stand unhitched at a place where likely to be frightened by a falling plank. But he was intrusted with -the team by Mrs. Wright, rather than the defendant; she only might discharge him as the driver of the team. All three from long custom had recognized Cruse’s right to handle and control the team, and we are of opinion that therein he was not acting as the servant of defendant. Decisions reaching another conclusion will be found to differ radically in the facts on which based. Thus in Brown v. Smith, 86 Ga. 214 (12 S. E. 411, 22 Am. St. Rep. 456), the owners of a team of mules let them with their driver to work for one Dixon, and as the latter was given full control over both, with authority to discharge the driver and substitute another, he, and not the owners, was held to be responsible for the driver’s, negligence. In Jones v. Scullard (1898) 22 B. 565, the defendant was being driven in his brougham, when the driver lost control of the horse, and it bolted into the window of plaintiff’s shop doing - considerable damage. The vehicle, harness, and horse as well as the livery worn by the driver, belonged to defendant; -but the driver was in the employment of one Walker, a livery stable keeper at whose stable defendant kept the brougham and horse. The horse had been purchased recently, and owing to circumstances unnecessary to relate, the question as to the driver’s negligence was left to the jury; but Lord Chief Justice Russell, aftei* reviewing previous decisions, held the defendant liable, distinguishing the case from Quarman v. Bennett, supra, by saying: “The materiality of the ownership of the horse lies in this: So long as the hirer contracts with the livery stable keeper for the supply of a complete equipage to drive him by the day or hour, as
In Howard v. Ludwig, 171 N. Y. 507 (64 N. E. 172), truckmen furnished defendants each day with a truck, horses, and driver. There was testimony on the part of the defendants that the truckmen were to deliver all their Staten Island sales for $30 per week, and that for every truck used by defendant for deliveries in New York he should pay $5 per day, and, if packages were lost, the truck-men should be responsible for them. In behalf of the truckmen, the testimony tended to show that, in case there were no' deliveries for Staten Island, the defendants should use the man, truck, and team for their New York deliveries. On the truck used was printed defendants’ name, and they paid the ferriage in going from New York to the island. The majority of the court, in disposing of the case, said:
But facts of the case at bar do not bring it within the rule announced by the majority even for there defendants might have been found generally to have used and con