275 Mass. 279 | Mass. | 1931
This is an appeal from an order of an Appellate Division which reversed a finding for the plaintiff by a judge of a district court and directed entry of judgment for the defendants. The plaintiff declared in two counts, one under the employers’ liability act, G. L. c. 153, § 1, the other at common law, for an injury caused by the caving in upon him of a trench which he was digging to furnish sewer and water
The report states that “The issue between the parties is whether the defendants had the control and management of the digging of the trench in question or retained the right and did supervise the digging of the trench.” By the terms of the contract Williams was an independent contractor. He undertook to dig, complete and deliver a sewer trench. No words of the contract retain to the Newfells any right to
The trial judge, however, found that it was not. The parties could modify or end it by mutual agreement. The judge has found that, despite the contract, Philip Newfell did retain the right to control and manage the digging. He saw and heard the witnesses. There was evidence of hiring by Newfell for digging, and of paying for digging, — significant, though not controlling; factors in deciding whether a direct relationship of master and servant is created. See Dutton v. Amesbury National Bank, supra, at pages 156, 157. There was evidence of work by Williams, of continual caving as fast as he dug, and of a caving in accident, all before the plaintiff was employed by Newfell on June 18, of absence of Williams before the employment, of full payment of the contract price to Williams, also before that employment. The judge may have concluded from the
There well may be question whether there was sufficient evidence in the report to justify the finding that the defendants were negligent. The report shows, however, that it was drawn simply to present the issue stated above. It states that it contains all the evidence material to the questions reported. Plainly, evidence on other issues was not fully set out. In view of the findings of negligence and of due care, which in the absence of all the evidence we ought to assume were justified, and of the language referred to, we think the issue of negligence- is not open properly on the report. Accordingly the order will be
Order of Appellate Division reversed.
. Judgment for plaintiff on finding of trial judge.