154 Wis. 448 | Wis. | 1913
The first question presented by the appeal is the correctness of the trial court’s ruling that Schmidt was an independent contractor and not a servant or agent of the defendant. The evidence upon which the ruling was based is not in conflict, so it resolves itself into a determination of whether or not the correct legal conclusion was drawn from the undisputed fact's. The definitions of the term “independent contractor” found in the decisions are uniformly fin harmony and may be summarized as “one who, exercising an independ
Applying these principles and tests to the case before us, we find that Schmidt was working for stated wages; that the ultimate right of direction and control was reserved in the defendant; that' Schmidt was not responsible for any specified result, and might have been discharged at any time without breach of contract; that his discharge would operate to discharge the men hired by him; that the defendant might stop the work at any time or materially change the plan or extent thereof without in any way rendering itself liable to Schmidt for any damages. The only two significant indicia that Schmidt sustained the relation of an independent contractor were that he undoubtedly had, up to the time of plaintiff’s injury, actually controlled the details of the work and was carrying on the business of a mason. But when all
It is urged that the court should hold as a matter of law that plaintiff was guilty of contributory negligence or assumed the risk, and hence the nonsuit was properly granted; that the ladder was a simple appliance whose condition and position were easily ascertainable, and that plaintiff should have stepped lower than the third rung in starting to descend. The evidence showed plaintiff was the last of several men to go up and the first to come down. The case, therefore, falls within sec. 1636 — 81, Stats. 1911, but that does not bar the defense of assumption of risk or contributory negligence. Koepp v. Nat. E. & S. Co. 151 Wis. 302, 139 N. W. 179; Van Dinter v. Worden-Allen Co. 153 Wis. 533, 142 N. W.
By the Court. — Judgment reversed, and cause remanded for a new trial.