New Orleans, Baton Rouge, Vicksburg & Memphis Railroad v. Norwood, 62 Miss. 565

New Orleans, Baton Rouge, Vicksburg & Memphis Railroad v. Norwood

62 Miss. 565 | Miss. | 1885

Cooper, J.,

delivered the opinion of the court.

The appellee’s mule was killed by the negligent running of a train upon the defendant’s road. The liability of the company turns upon the question whether the persons in charge of the train were the servants of the company or of one McDonald, an independent contractor, who was engaged in widening a cut in defendant’s road. By the contract between the company and McDonald, *568lie was to be paid sixty cents per cubic yard for all earth removed from the cut, and in addition, to this the company was to furnish him with a construction train and engineer to manage the same. This train was required by the defendant to be upon the side-track fifteen minutes before the schedule time of each one of its trains, and was prohibited by the defendant from running at any time at a greater rate of speed than thirteen miles per hour. No other regulations were prescribed by the company,, and, subject to these, the control, management, and direction of the train was wholly with McDonald. The engineer was selected by the company, and it alone had the right to discharge him, and it paid him his wages, which, however, were charged to McDonald and deducted from the sum due him under the contract. It was the duty of the company to discharge the engineer upon complaint made by McDonald and to supply his place with another, and since the killing of the appellee’s mule this has been done.

On these facts, which were agreed on in the court below, we are of opinion that the judge correctly held that the engineer was the servant of the company.

Among the numerous .tests which have been, from time to time suggested for the determination of the question, Whose servant is this ? are the following, each of which has in some case been considered as conclusively fixing the existence of the relation : .

(1) The right of selecting the servant; (2) the right to discharge the servant; (3) the right to control the servant; (4) that he is not a master who is interested in the ultimate result of the work done as a whole, but not in the details of its performance.

Of these four supposed conclusive tests, it will be seen that, applying them to the facts of this case, two of them determine the engineer to have been the servant of the company and the other two make him the servant of McDonald;. for the company had the right to select and to discharge the engineer, while, on the other hand, McDonald had the right of controlling him and was alone interested in the details of the work done by him, the- company having no interest therein, its interest being solely in the result of the work — the widened cut.

*569In the application of these supposed tests to particular cases, great confusion and conflict of authority has arisen, but amid it all there seems to be a class of eases in which there has been uniformity of decision, and to this class the case before us is obviously assignable. The cases referred to are those in which a person hires the personal property of another and that other supplies, also under the contract of hiring, the servant who is .charged with the general management and control of the property, in which cases, though the hirer acquires to a limited degree a dominion over the servant, with a right to superintend and direct his conduct, he still in legal contemplation continues the servant of the owner, who is responsible for his negligence, though it occurs in the performance of that work which he does for the hirer and in which the hirer alone is interested. As where one hires horses and a driver from a jobman to draw his carriage, the owner and not the hirer is liable for the negligence of the driver. Dean v. Braithwaite, 5 Esp. 35 ; Samuel v. Wright, Ib. 262; Laugher v. Pointer, 5 B. & C. 311 ; Quarman v. Burnett, 6 Mee. & W. 499. Or where one sends his team, wagon, and driver to work for a neighbor. Michael v. Stanton, 10 N. Y. 462. Or where a vessel and crew are chartered by the day or for a voyage, the crew are the servants of the owner, even though, as a part of the contract, the hirer is to pay to the owner the wages of the crew. Dalyell v. Tyrer, El. Bl. & El. 899; Fenton v. Dublin Packet Co., 8 A. &. E. 835.

The reason is that the hirer, though he controls and directs the servants in a limited degree, does so not by reason of a contract with the servant, but under the contract with the owner; he directs them, not as his servants, but as those from whom he hired them. Shearm. & Red. on Neg., § 74.

In the case at bar there was a hiring of the train and the engineer by the company to McDonald; the reward was paid by the diminished price at which the excavating was to be done. If the engineer selected and furnished by the company had through negligence or incompetency exploded the engine committed to his care, it is evident that the company could not have recovered from McDonald for the injury as one caused by the negligence of his servant.

The judgment is affirmed.