64 W. Va. 278 | W. Va. | 1908
F. U. Knicely, injured' while unloading lumber from a car of the West Virginia Midland Railroad Company on its tracks, by the jarring or removal thereof without notice, recovered a judgment against said company for damages, resulting from the injury, amounting to $3,250.00, to which a writ of error was allowed.
The principal inquiry is whether the plaintiff and the switching crew of the defendant, who ran a train of cars against the standing car on which the former was at work, when injured, were fellow servants. This relationship, if it existed, precludes recovery and renders practically unnecessary the consideration of every other question raised.
Want of power in the plaintiff and his immediate employer to supervise and control the work and operations on the premises on which he was working, and the form of said, •employer’s contract, are the facts mainly relied upon as
In the lack of power of the plaintiff and Cowgill over his surroundings, and subserviency to the orders of the railway company, while engaged in the transaction of its business, lies the very basis of the relationship he denies, and the lack ■of the independence he asserts on behalf of Cowgill. It shows the latter was not, in any substantial or practical sense, master. He was wholly without dominion or power the very essence of mastery, and unless the mere fact that
In assuming that he was the servant of Cowgill and that Cowgill was an independent contractor, the plaintiff totally denies the relation of servant to the railway company. The present inquiry is not whether he was a fellow servant with the other railway men, but whether he was a servant at all, and that depends upon whether Cowgill was a servant. If he was, he could not have a servant as against the railway company. If he was not a servant, he was an independent contractor, and having been master of the work, could have had a servant. In the law of liability for negligence inde-pendency of contract and servantcy bear to each the relation of opposition. They are incompatible. Where the one exists the other cannot. Shearman & Redf. on Neg., section 181.
The courts have prescribed several rules for guidance in seeking the true relation of the parties. In Singer Mfg. Co. v. Hahn, 132 U. S. 518, Mr. Justice Gray said: “And the relation of master and servant exists whenever the employer retains the right to direct the manner in which the business shall be done, as well as the results to be accomplished, or, in other words, ‘ not only what shall be done, but how it shall be done.’” See the application of this test in Railroad Co. v. Hanning, 15 Wall. 649, in which the person, held to be a servant had a contract to build a wharf, furnishing all the materials and labor. In Clapp v. Kemp, 122 Mass. 481. the plaintiff had been injured by falling through a coal-hole, connected with defendant’s store,, while a teamster, employed by the coal dealer, was delivering coal for the store, and the following instruction was approved: “That the defendants, if they were occupants of
Having thus determined that the plaintiff was a servant of the defendant, we inquire whether he was a fellow servant with the switching crew. They were all engaged in the service of a common master, about the same business and in such close proximity as to influence the conduct of, and be subject to injury by, one another. Under the rule prevailing throughout the country, and adopted in this State, were they not fellow-servants? They are obviously within the rule prescribed in Jackson v. N. & W. Ry. Co., 43 W. Va. 380, for determining who are fellow-servants. “Under the general^ prevailing rule, fellow-servants are engaged in a common employment when each of them is occupied in service of such a kind that all the others, in the exercise of ordinary sagacity, ought to be able to foresee, when accepting their employment, that his negligence would probably expose them to the risk of injury.” Shear. & Redf. on Neg.,. section 236. In Jackson v. Railroad Co. abundant authority, showing that different train crews on the same railroad are fellow-servants, is cited. How much closer is the relation of two sets of men handling freight on the same yard and from the same cars in different capacities? Except in a few of the states in which the rule in force in this State is not recognized, common employment “includes all employed in the same factory, mill, shop, ware house or office, all employed in operating
We are called upon to say whether the evidence should have been excluded on the ground of variance, because it shows the injury to have been inflicted in a manner somewhat different from that stated in the declaration. This difference relates to mere matter of detail. The declaration says the collision caused lumber to be thrown on the plaintiff, while the proof is that it caused him to fall from the car. There are general averments of negligence. This is mere erroneous matter of specification, and the variance, if any, is immaterial. Hanley v. Railway Co., 59 W. Va. 419, and cases there cited. For the position of the attorneys for plaintiff in error, Hawker v. Railway Co., 15 W. Va. 628, is cited, but it was radically different from the present case in this, that it charged negligence at a particular time and the court gave instructions, authorizing the jury to find the defendant guilty of negligence at a different time.
For the reasons stated, the judgment will be reversed, the verdict set aside and the case remanded for a new trial.
Reversed. Remanded.