255 P. 449 | Colo. | 1927
THE Fulton Investment Company, plaintiff in the district court, recovered judgment against the Farmers Reservoir and Irrigation Company, and the latter brings the case here for review. They will be hereinafter designated as in the trial court.
Two causes of action were alleged: first, trespass vi et armis, in taking and carrying away a certain pipe line theretofore installed for the carriage of water to plaintiff's premises; and second, negligent conduct in the removal of the pipe line, resulting in a fire which destroyed the stubble on plaintiff's wheat field. Before the case went to the jury, plaintiff voluntarily dismissed the first cause. The verdict was for plaintiff on the second cause.
1. This case has received our attention before. FultonCo. v. Farmers Co.,
2. Another defense was that the work of removing the pipe line was under the exclusive control and direction of an independent contractor, by reason of which defendant pleads non-liability for the damage. But the evidence is otherwise. Hayes was the chief engineer of the Farmers company and Seeley, according to the company, the contractor. Seeley, defendant's witness, testified on cross-examination, without objection, that Hayes was the supervising engineer of the Farmers company; that Hayes was on the work many times; that "he (Hayes) was supposed to be my boss." "Q. (To Seeley) This particular work was done under his supervision? A. It certainly was. He was the inspector. Q. And if you didn't take the pipe out and do the work according to his ideas of what was right about it, he could have stopped you? A. He no doubt could." Hayes, also defendant's witness, testified that he inspected every piece of pipe that was taken out to see that it was all right; that he knew the weather was dry; that the wheat had just been harvested, was subject to fire and very inflammable.
It is not always easy to say whether one is a servant, or an independent contractor. It must be determined by all of the facts of the employment. Defendant gave evidence of the terms of Seeley's employment, that is, how he was to be paid, but this is not necessarily controlling.Arnold v. Lawrence,
3. With the questions concerning negligence and that Seeley was defendant's servant having both been resolved against defendant, the matters of trespass, and what the result would have been if Seeley had been an independent contractor, become immaterial. Defendant assigns error because of admission of testimony on plaintiff's first cause of action, but since the action was dismissed as to the first cause, and plaintiff took nothing by it there was no prejudice. We find no error in the admission or refusal of evidence, nor in the instructions.
Judgment affirmed.
MR. CHIEF JUSTICE BURKE, MR. JUSTICE CAMPBELL and MR. JUSTICE BUTLER concur. *73