15 Mont. 582 | Mont. | 1895
— Plaintiff’s complaint is for damages for personal injuries sustained while riding on defendant’s horse streetcar. The district court, upon the trial, directed the jury to find for the defendant. Plaintiff appeals from the judgment assigning error in that order. Such order must be treated as in the nature of a nonsuit, in this respect, that, if the evidence tended to prove plaintiff’s cause of action, it will be taken on appeal as proved. (McKay v. Montana Union Ry. Co., 13 Mont. 15; Creek v. McManus, 13 Mont. 152; Mayer v. Carrothers, 14 Mont. 274.)
There was evidence that the plaintiff, a boy five years of age, was riding on the front platform of the horsecar, with the knowledge of the driver, and that the ear struck a stone and jolted the plaintiff off) and ran over him, inflicting the injuries complained of.
One ground of the motion to direct the jury to find for the
Upon this point we quote as follows from Pittsburgh etc. Ry. Co. v. Caldwell, 74 Pa. St. 421: “It is clear, from all the evidence in this case, and under the instructions of the court, the jury must have found that the accident which resulted in the loss of the plaintiff’s leg would not have happened if shehad not been permitted to ride on the front platform of the defendant’s car. If the rules of the company had not forbidden it there can be no doubt that it was gross negligence for the driver to allow children as young as the plaintiff and her companion to get on the front platform and to ride there. If they got on without his permission, instead of consenting that they might remain on the platform, it was his duty to compel them to go on the inside of the car, or to stop and put them off; and, if the plaintiff was injured by his negligence in allowing them to ride on the platform, the company is clearly liable for the injury, unless the plaintiff’s negligence contributed to produce it. But negligence cannot be imputed to one who has not sufficient capacity or discretion to understand the danger and to use the proper means to guard against it. In this case it is conceded that negligence is not imputable to the plaintiff, who was an infant of tender age, and not of sufficient capacity to foresee the danger to which she was exposed.” (See, also, the following cases cited by appellant, which are in pbint: Muelhausen v. St. Louis Ry. Co., 91 Mo. 344; West Philadelphia Ry. Co. v. Gallagher, 108 Pa. St. 524; Philadelphia City Ry. Co. v. Hassard, 75 Pa. St. 367; Metropolitan St. Ry. Co. v. Moore, 83 Ga. 452. See, also, O’Mara v. Hudson Ry. Co., 38 N. Y. 445; Robinson v. Code, 22 Vt. 213; Lynch v. Murdin, 1 Q. B. 29; 2 Thompson on Negligence, 1180, et seq; Pay on Negligence c. 36, and cases cited; Shearman and Redfield on Negligence, § 49.) We are satisfied that, under the authorities, the evidence of negligence in this respect was sufficient to go to the jury.
Our view upon this point of the motion to direct a verdict
The question presented is whether the person immediately causing the injury to plaintiff stood in £he relation of a servant of defendant, or whether he were the servant of an inde-pendant contractor, for whose acts of negligence the defendant was not liable. The' defendant was the owner of a streetcar franchise in the city of Great Falls. He had built a car track extending over six or seven blocks, and had one or two cars on the track. Defendant lived in Helena. J. O. Gregg of Great Falls was his agent, acting for him in relation to this streetcar franchise, track, and cars. Greggs was also one of the owners of the railway. Defendant Barbour was trustee of the railway. He was sued apparently as trustee, and also personally. It seems that the railway people were not operating their line very extensively, for Mr. Gregg testified that he, as agent for the trustee, hired one Vaughn to run the car one trip a day. Gregg says that the contract with Vaughn was that he was to be paid so much money per month to haul the car over the line once a day each way, and to furnish a driver. In pursuance to this arrangement Vaughn furnished the driver and was moving the car along the track at the time the plaintiff was injured. Defendant contended that by virtue of this employment Vaughn was an independent contractor, and that defendant was not liable for the negligence of Vaughn’s driver. Mr Gregg, however, testified that there was nothing as to collecting fares in this contract with Vaughn. In fact fares were not collected.
Without expressing any opinion as to whether these railway people could lease their road and rolling stock to another, for the purpose of operating it, it is sufficient to note here that no such lease was made. The track and rolling stock were not delivered into the possession of Vaughn at all. He did nothing more than to haul the car one trip a day.
Mr. Gregg further testified that he spoke to the plaintiff’s father in regard to keeping his boys away from the cars; that
Under these facts the district court held that Vaughn was an independent contractor, and that the defendant was not liable for his negligence.
To draw the distinction between independent contractors and servants is often difficult; and the rules which courts have undertaken to lay down on this subject are not always simple of application. A rule as often quoted as any is stated in the syllabus of the case of Bibbs v. N. & W. R. R. Co., 87 Va. 711, after an able review of the authorities, as follows: “Independent contractor is one who renders service in the course of
Brackett v. Lubke, 4 Allen, 138, is also a leading case. The opinion states as follows: “The distinction on which all the cases turn is this: If the person employed to do the work carries on an independent employment, and acts in pursuance of a contract with his employer by which he has agreed to do the work on certain specified terms, in a particular manner, and for a stipulated price, then the employer is not liable. The relation of master and servant does not subsist between the parties, but only that of contractor and contractee. The power of directing and controlling the work is parted with by the employer, and given to the contractor. But, on the other hand, if the work is done under a general employment, and is to be performed for a reasonable compensation or for a stipulated price, the employer remains liable, because he retains the right and power of directing and controlling the time and manner of executing the work, or of refraining from doing it, if he deems it necessary or expedient. This distinction is recognized in the cases adjudged by this court. (Sproule v. Hemmingway, 14 Pick. 1; Stone v. Codman, 15 Pick. 299; Hilliard v. Richardson, 3 Gray, 349; Linton v. Smith, 8 Gray, 147.)”
In 2 Thompson on Negligence, page 909, et seep, we find the following:
“ Sec. 35. In every case the decisive question is, Had the defendant the right to control, in the given particular, the conduct of the person doing the wrong? On this question the contract under which the work has been done must speak conclusively in every case, reference being had, of course, to surrounding circumstances. This being so, the mere fact that the agent who did the injury carried on a separate and independent employment will not absolve his principal from liability. (Brackett v. Lubke, 4 Allen, 138; Sadler v. Henlock, 4 El. & Bl. 570.) ‘If such were the rule a party would be exempt from responsibility even for the negligent acts of his domestic servants, such as his cook, coachman, or gardener.’ ”
“ Sec. 39. Perhaps the most usual test by which to deter*591 mine whether the person doing the injury was a servant or an independent contractor is to consider whether he was working by the job or at stated wages — so much per day, week, or month. (Schular v. Hudson River R. Co., 38 Barb. 653.) A person who works for wages, whose labor is directed and controlled by the employer, either in person or by an intermediate agent, is a servant, and the master must answer for the wrongs done by him in the course of his employment. A person who, for a stated sum, engages to perform a stated piece of labor in which he is skilled, the proprietor of the work leaving him to his own methods, is an indepen ent contractor; the proprietor does not stand in the relation of superior to him, and is not answerable for the wrongs done by him or his servants in the prosecution of the work, unless special circumstances exist making him so. (Morgan v. Bowman, 22 Mo. 538.) The rule has been applied so as to exempt a railway company from liability for the negligence of a contractor who had engaged to do a piece of filling at twenty cents per yard, although the company furnished track, trestle, cars, mules, and drivers. (Central R. Co. v. Grant, 46 Ga. 417.) The fact that the employee was hired, not for a definite time, but to perform a particular job, does not, however, of itself negative the relation of master and servant, for under such a contract the employer may well retain full control over him; and it must constantly be borne in mind that the power to control, on the part of the employer, is the essential fact establishing the relation.”
We also find it staled in Shearman and Bedfield on Negligence, sections 76 and 77, as follows:
“Sec. 76. Although, in a general sense, every person who enters into a contract may be called a ‘contractor/ yet that word, for want of a better one, has come to be used with special reference to a person who, in the pursuit of an independent business, undertakes to do specific jobs of work for other persons, without submitting himself to their control in respect to all the petty details of the work. It is not altogether easy to give an accurate definition of the word ‘ contractor/ as it is used in the reports, and as we shall use it hereafter; but we think we have approximated to accuracy. The true test, as it seems to us, by which to determine whether one who renders*592 service to another does so as a contractor or not, is to ascertain whether lie renders the service in the course of an independent occupation, representing the will of his employer only as to the result of his work, and not as to the means by which it is accomplished.”
“Sec. 77. One who has an independent business, and generally serves only in the capacity of a contractor, may abandon that character for a time, and become a mere servant or agent, and this, too, without doing work of a different nature from that to which he is accustomed. If he submits himself to the direction of his employer as to the details of the work, fulfilling his wishes not merely as to the result, but also as to all the means by which that result is to be attained, the contractor becomes a servant in respect to that work. And he may even be a contractor as to part of his service, and a servant as to a part. Whether he works as a contractor or as a servant is a question of mingled law and fact, which it is scarcely possible to decide by any fixed rule which will accurately govern those cases where the one occupation borders closely upon the other. In most instances the distinction is easily observed.”
Applying the principles of the decisions to the facts of the case at bar we cannot hold that Vaughn was an independent contractor.
The question raised by the appellant as to whether the railroad people could, under their charter, delegate the running of their cars to another, is not necessary to discuss, for the reason that we are of opinion that Vaughn was not in the relation of an independent contractor. Neither the franchise, the roadbed, or the rolling-stock was leased to Vaughn or given into his control. He was simply employed by the month to run a car one trip a day. We cannot understand that his position differed materially from that of a driver employed to drive a car ten trips or twenty trips a day. All drivers are employed to perform certain services, and to some extent they perform them in their own way, as does one’s cook, his gardener, or his coachman, as remarked in the case of Brackett v. Lubke, supra.
Referring again to the rule as laid down in Bibbs v. N. & W. R. R. Co., supra, the respondent argues that Vaughn represented the will of his employer only as to the result of his
In addition to these views mentioned we have the fact in this case, that the railway people did not part with the possession or the right of possession or control of the railway plant. It would perhaps be difficult to draw a clear distinction between the relations which Mr. Gregg held to the railway property and the drivers and that of any person admittedly having supervision over them. No superintendent assumes control over every minute detail of an employee’s work. In all work which demands sufficient intelligence to require a man instead of a machine the man must be left to direct his own movements to some extent. But it is clear, from our review of Mr. Gregg’s testimony, that he did not consider the driver of the car as the servant of a contractor independent of the railway people. (See his testimony cited above.) Mr. Gregg qualified his statements somewhat by an attempt to disclaim any supervision of the actual moving of the car, but we think that his testimony, as a whole, did not place Vaughn in the position of an independent contractor.
After stating any rule which is to determine whether one is an independent contractor or a servant it is very easy, by a little casuistry, to construe any person who performs a service
The judgment is therefore reversed, and the case is remanded for a new trial.
Reversed.