32 S.W.2d 167 | Ark. | 1930
This is the second appeal of this case. See Ellis Lewis v. Warner,
It is next insisted that the court permitted an issue to be tried which was not joined by the pleadings, to-wit: Whether appellants were negligent in employing Cooper to operate the truck in hauling gravel. The complaint is the same in this case as it was in the former trial, no additional pleadings being made by either side. Appellee alleged that Jack Cooper, the driver of the truck that injured him, was an employee of the appellants, and negligently ran his truck against him, causing the injuries complained of. Appellants defended then and now on the ground that Cooper was an independent contractor, was not their employee, for whose acts and negligence they were in no way responsible. In the former case appellants asked the trial court to declare as a matter of law that Cooper was an independent contractor and to instruct a verdict in their favor, which the court refused to do. It then asked the court to submit the question as to whether Cooper was an independent contractor to the jury, which the court refused to do. We held on the former appeal that the court did not err in refusing to *617 declare as a matter of law that Cooper was an independent contractor, but that it was a question for the jury, and that the court did err in not submitting it to the jury. We there said: "Even though the jury should fluid that this relationship did exist, still appellant might be held liable, if the jury should further find that appellants were negligent in employing Cooper as an independent contractor to do this work. He was only seventeen years old, was driving rapidly in loose rock over an important highway, which appellants knew — one much used by the public, and which the public had the right to use. The jury would or should take into consideration all the facts and circumstances in the case in determining this question." On the retrial of the case, from which this appeal comes, the court submitted this question to the jury under instructions 1, 2, 3 and 4. We do not think a new question has been injected into the case which is not covered by the pleadings. As above stated, appellee sued on the theory that Cooper was an employee, and the defense was interposed that he was an independent contractor. In our former opinion we quoted from 3 Elliott on Railroads, 3d Ed., 1407, p. 70, stating the general rule to be that: "When an independent contractor is employed to perform a work lawful in itself and not intrinsically dangerous, the company, if it is not negligent in selecting the contractor, is not liable," etc., so in submitting the case to the jury it was proper for the court in announcing the rule relative to independent contractors to submit the question as to whether the employer was negligent in selecting the contractor. This might be done in one instruction or in separate instructions. In this case the court submitted the question on instructions separate from the definition of an independent contractor. We think no error was committed in this regard. It is further said that the instructions on the subject given by the court are conflicting and contradictory. We have examined them carefully and do not think the jury could have been misled. The instructions announced correct *618 principles of law in accordance with our former holding in this case.
It is next said that the court should have told the jury as a matter of law that Cooper was an independent contractor for whose acts appellants were in no way responsible, and that appellee was guilty of contributory negligence. Both of these questions were considered on the former appeal and decided adversely to appellants' contentions, and since the evidence in the case on this trial is substantially the same as in the former, the decision of the court on the former appeal becomes the law of the case, and appellants' contentions in this regard must be overruled.
We find no error, and the judgment is affirmed.