18 N.Y. St. Rep. 376 | New York City Court | 1888
(after stating the facts.) The plaintiff brought this action to recover damages for injuries sustained on Hovember 26,1886, while
Whether Enoch Swain was a contractor or employe of the defendants is to be determined by a rule laid down in a recent case in the court of appeals. Judge Miller, in the case of Hexamer v. Webb, 101 N. Y. 385, 4 N. E. Rep. 755, says: “The test to determine whether one who renders service to another does so as a contractor or not is to ascertain whether he renders the service in the course of an independent occupation, representing the will of his employer only as the result of his work, and not as to the means by which it is accomplished. ” The defendants admit that they furnished Swain with' a room in their factory to work in; also with machinery and stock; and, if the testimony of plaintiff was true, with labor. And it appears that Swain did no work except for defendants, and was employed for no fixed time. There is also the fact that plaintiff received his pay from the defendants. Although the jury should find that Enoch Swain agreed with plaintiff as to his wages, we think there was other testimony in the ease to require the submission of the question to the jury whether Swain was a contractor or employe. While defendants might not have exercised power of control over the work of Swain, yet if they retained the right to exercise such power during the progress of the work, then, within the authorities, he was their servant, and not their contractor.
The question of the negligence of the defendants was also one for the jury to decide. If Swain was their employe, then he was their foreman in charge of the work; and it was a question of fact whether or not it was in the line of his employment to set plaintiff at work on the machine on which he was injured. If the jury should decide that he represented the defendants in what he did, then, of course, they would be liable for his acts. The question of contributory negligence was also one of fact. It is unnecessary to review the
Van Wyck, J., concurred.