145 Iowa 495 | Iowa | 1909
Plaintiff, a boy, barely twelve years of age, received severe and permanent injuries, to his' leg as the result of an accident, while, in charge of the horses, he was riding the sweep of a circular horse power used on defendant’s premises in baling hay. The questions involved in determining the correctness of the court’s ruling in directing a verdict for the defendant are almost entirely of fact, relating, first, to. the inquiry whether the relation of master and servant existed between plaintiff and defendant at the time of the injury; and, second, to the inquiry whether there was contributory negligence on the part of plaintiff causing or contributing to his injury.
There was some evidence, therefore, that defendant must have known of plaintiff’s return to the work of driving the i horses on the power, riding on the sweep, and that this was with his assent, for defendant himself says that he commenced to drive the horses on the power that morning, and was unable to continue to do so on account of his lame foot, and he does not indicate .that he secured any one else than plaintiff to do this work. It is true defendant testified that he was under no obligation to McElroy to drive the team or furnish any one to do so, but it clearly appears that he had undertaken to do this work, and he had on Wednesday put plaintiff at it, and on Friday had paid him for his employment on Wednesday. The jury might very well have found, therefore, that defendant was undertaking to.drive the team on the power or furnish some one to do so; that on Friday morning he knew plaintiff was so employed; that he knew plaintiff was still there át noon when he came in with the men to dinner; and that to his knowledge some one was to continue to do that work for him in the afternoon. We think the jury might, therefore, have found that it was with defendant’s knowledge and without objection that plaintiff resumed the driving of the team during the afternoon when he was injured. Plaintiff testified, that, after dinner, he went to the machine, and assisted in hitching up the horses and started to drive them, and that defendant was about the barn at that time. The testimony is very meager as to how it came about that plaintiff resumed the driving of the horses in the afternoon, but we are impelled to reach the conclusion that the jury might have found that he continued to drive the horses in the afternoon with defendant’s implied assent. This would clearly be sufficient to establish the relation of master and servant between the defendant and the plaintiff.
We reach the conclusion that a verdict for the defendant should not have been directed, and that the judgment must be reversed.