86 W. Va. 79 | W. Va. | 1920
At the time of the injury to plaintiff, to recover damages for which this suit is brought, he was engaged with others in unloading from a wagon pipe which was intended to be used in the construction of a pipe line for the defendant, extending from Clendennin, Kanawha county, to Cedarville, in Gilmer County. The injury to the plaintiff was caused by a section of the pipe being thrown from the wagon and striking him in the back, from which he claims to have sustained serious permanent injury. The accident resulted from-the negligence or carelessness of his fellow servants in throwing the pipe from the wagon upon the plaintiff, but inasmuch as tire defendant has not complied, with the provisions of the Workmen’s Compensation Law it cannot excuse itself from liability because the injury was caused by _ plaintiff’s fellow servants, if it is otherwise liable. The plaintiff showed in support of his case that he was employed by the foreman in charge of the work of hauling and unloading the pipe; that he had only been at work about a week at the time of the injury, and at that time had not yet received any pay for his services; that after the injury he continued in the same service for awhile, and was then placed in another employment of cutting roads, and still another employment as sub-foreman on a ditch that was being dug in order to receive the pipe, and that for all of his services he was paid by the checks of the defendant. The defendant admits that it is the owner of the pipe line, and that the same was being constructed for it; that it furnished the pipe; and that it excavated the ditch and laid the pipe in it; but it contends that it is not liable to the plaintiff because it had made a contract with another to haul the pipe and distribute it along the right-of-way of the pipe line; and that the plaintiff was the employe of this contractor, at the time of his injury. This is the sole defense ma'de in .this case.
Another question presented for decision is, does it devolve upon the plaintiff or upon the defendant to show the relationship existing between the defendant and the party who was hauling and unloading the pipe? If the defendant’s defense is made out by simply showing that there was such a contract, then that has been done. If on the other hand, after the plaintiff has shown such a state of facts as prove prima facie that he, as well as his fellow-servants were employes of the defendant, it then devolves upon the defendant to prove this defense of independent contractor, it has failed in this regard. There is no doubt that the plaintiff proved sufficient facts to show prima facie that he and his coemployes were servants of the defendant. He showed that they were working upon a pipe line being constructed by the defendant for its use, and that for all the work that he did thereon he was paid by the defendant. This was entirely sufficient to justify the conclusion that he was a servant of the defendant, in the
Our conclusion is, therefore, to affirm the judgment complained of.
Affirmed.