176 A. 439 | Pa. | 1934
The H. C. Aberle Company, hosiery manufacturers, desiring to move several large and heavy pieces of machinery from one part of their plant to another, consulted appellant, Proctor
Schwartz, Inc., from whom they had bought the machines, for expert advice as to the manner of moving. Pointing out that it was dangerous to move the machines without taking them apart, Proctor Schwartz, suggested that they should send one of their skilled mechanics to do the work, at a charge of $1.75 an hour for the man's time. The Aberle Company agreed to this arrangement, and subsequently Proctor Schwartz sent a written acknowledgment of the order. In the moving of the machines, one of them fell upon the minor plaintiff, and to recover damages for the injuries thus sustained, her father, as next friend of his daughter and in his own right, brought this action against Proctor Schwartz, who now appeal from the judgments entered against them below. The facts relating to the accident need not be stated in detail as no question of negligence is here raised. Moreover, a case involving the same accident was before the Superior Court in Festi v. Proctor Schwartz, Inc.,
The Superior Court held in the Festi Case that the question as to whether Taylor, the man sent by appellant to move the machines, was a servant of the Aberle Company in doing this work or a servant of the appellant was one for the jury to determine, and that there was sufficient evidence to sustain the jury's finding that he was the servant of appellant. Appellant here hopes to avoid the conclusion reached by the Superior Court by showing that in this case the evidence was different. In the Festi Case this appellant submitted no evidence. In the case before us appellant submitted evidence on this point, but all that it amounts to is a contradiction of appellees' testimony. If true, Taylor was not acting as appellant's agent at the time of the accident, but the credibility of the witnesses was clearly for the jury. The evidence presented by appellant was not of the quality that could control the case as a matter of law; as it was all oral testimony, it was bound to go to the jury.
So much has been written on the subject of a loaned servant, that it is unnecessary to repeat what is said in the Superior Court's opinion. There was ample evidence in the case on which to base the conclusion of the jury: that at the time of the accident Taylor was an employee of appellant and not of the Aberle Company, in whose plant he was working and whose machines he was moving. While six or seven laborers, as well as lumber and tools, were furnished him by the Aberle Company, the work was done under Taylor's *366 direction without any supervision from the company; the employees of the company merely obeyed his orders. The proper interpretation of the situation is, we think, that appellant, anxious that the work be done properly, decided to do it themselves, and sent their man, Taylor, to take charge of its execution, while the Aberle Company loaned to appellant laborers to assist Taylor.
Appellant urges that, in allowing the jury to determine, from the facts, whose employee Taylor was at the time of the accident, the court below really permitted the jury to construe the contract between the Aberle Company and appellant with regard to the moving of the machines. While it is true that the interpretation of a written contract is for the court and not for the jury (McColligan v. P. R. R. Co.,
The other questions argued in appellant's brief, mainly as to the alleged excessive verdicts, are not raised in either the assignments of error or in the statement of questions involved, and will not, therefore, be considered.
Judgments affirmed.