277 Mass. 283 | Mass. | 1931
This action of tort, originally heard in a district court, comes here on the appeal of the defendant from the decision of the Appellate Division of that court dismissing the report of the special justice.
The following facts appear in the report: After dark on the night of June 14, 1929, in Hadley, Massachusetts, there was a collision on a public highway between an automobile owned by the plaintiff and the defendant’s trailer, which caused the damages alleged to have been sustained by the plaintiff at the time of said collision. The trailer referred to was of the platform style, weighed about ten tons, had no motive power of its own, and was equipped with a hand brake, made necessary by its weight. Prior to, and at the time of said collision, the trailer was being hauled by a four-ton motor truck, operated by a paid employee of a firm called Gleason Brothers. This firm had hired the trailer of the defendant. The hire of the trailer included the services of one of the defendant’s servants, whose task was to have general charge of it and of the lights thereof, and to remain on it while it was being hauled. The rent charged by the defendant for the use of the trailer included the pay of the employee who accompanied the trailer. The terms of the hiring required that the trailer be returned to the defendant at a designated place in Hadley, and it was being hauled there by the truck of Gleason Brothers at the time of the accident.
The driver of the truck testified, in substance, that he was in the employ of Gleason Brothers and on the day in question took his orders from that firm; that he took no orders from the president of the defendant corporation; and that he was instructed by his employer to return the trailer to a designated place in Hadley. The president of the defendant corporation testified that he drove on ahead of the truck and trailer and waited at a narrow bridge which
The defendant does not deny that the employee who had charge of the trailer at the time of the collision was negligent, but contends that such negligence was not the cause of the injury which the plaintiff sustained. The several requests for rulings made by the defendant and denied at the hearing are restated in the defendant’s brief in the following form: “(1) that the defendant’s employee, who was in charge of the trailer at the time of the accident, became the servant of Gleason Brothers of Northampton, under the terms of the contract of hire of the trailer; (2) that at the time of the accident the trailer was under the exclusive control of the driver of the propelling truck, who at the time was acting under the instructions only of his employers, the said Gleason Brothers; (3) that the defendant is not liable, therefore, for the negligence in this case.”
We consider the case on the assumption that the above statement of the defendant’s contention marks the limits of its defence. It could not have been ruled, as requested, that the servant of the defendant became, under the terms of the hiring, the servant of the owner of the propelling truck, because in the absence of clear terms in the contract to that end it was a question of fact on all the evidence whether the owner of the trailer had surrendered for the time being its control over its servant, who was to have general charge of the trailer and was to accompany it until it was returned to the owner, and whether such servant assented to become the servant of the owner of the propelling truck while he was in charge of the trailer. Reagan
So ordered.
