Norman v. Middlesex & Somerset Traction Co., 71 N.J.L. 652

Norman v. Middlesex & Somerset Traction Co.

71 N.J.L. 652 | N.J. | 1905

The opinion of the court was delivered by

Vroom, J.

This was the second trial of this case at the • Circuit. At the first trial the jury was directed to find a verdict for the plaintiff, and on the removal of the ease to *655this court by writ of- error it was held that this direction was manifestly wrong, for at the trial there was no question but that the collision injured the plaintiff and was the result of negligence on the part of the defendant company, and that the question tried was whether the plaintiff was not also in the employment of the same company, so that the negligence by which he was injured was that of a fellow-servant. The per curiam opinion then said that there were two views that could be taken of the evidence — one, that Lesher, who employed and paid the plaintiff, acted, in so doing, as the mere agent of the defendant company; the other, that Lesher had some contract with the defendant company respecting the repair of its tracks, and having employed the plaintiff in respect to his business, had transferred plaintiff’s services pro hac vice to the defendant company, with plaintiff’s consent; and that there should have been a submission to the j ury whether there had been such transference of services with plaintiff’s consent. Norman v. Middlesex and Somerset Traction Co. 39 Vroom 728.

When the case came on for trial the second time the evidence was practically the same as at the first trial, with the exception that the plaintiff was able to secure the evidence of Lesher, whoso testimony showed that he had the entire direction and superintended the repair work, mostly personally, and had as his assistant Hughes, who was also his timekeeper. He further testified that he paid for the stone to be used in the repair work, and sent the car to be loaded directly off the wagons which delivered it. He further stated that he. gave to Eick, the motorman, the orders as to the running of the car, but admitted that Eick was not paid by him. At the close of the case a motion was made to direct a verdict for the defendant, and, disposing of the motion, the trial judge said that it must be conceded that Lesher & Son' were independent contractors, and that the plaintiff, Norman, was the employe of that firm, and that Eick, the motorman, in all that he did for Lesher & Son, was a fellow-servant of the employes of Lesher & Son. He, however, granted the motion, on the ground that the risks incident to the operation of the *656car were risks of the business of Lesher & Son, and all such risks the plaintiff, Norman, must be held to have assumed as an incident of his employment; that in the operation of the car under the system of notice, Lesher & Son’s servants and the defendant’s servants were engaged in the same line of work- — all in the work of a common nature, and all subject to the risks incident to the failure to observe the custom. The work of the employes of the defendant was the work of the defendant company. They were all operating cars over the line of the defendant company, in the clefendánt’s work,, about the defendant’s business, and were in that employment in operating the cars, all fellow-servants in that particular respect. In that condition, among the risks assumed and incident to the business, were the risks resulting from the negligence of the servants of the defendant.

The difficulty with this instruction to the jury is that it ignores entirely the two questions that were distinctly held by this court to be matters which should be submitted to the jury, and, as contended by the plaintiff in error, rendered immaterial the fact whether Lesher was an independent contractor or merely a foreman or agent of the defendant company, and whether there had been a transference of plaintiff’s services, with his consent.

To assume, as was done by the trial judge, in order to warrant the direction of a verdict for the defendant, that the plaintiff and the servants of the defendant were, under the evidence, all fellow-servants of the company, and that all were operating cars over defendant’s road, and about defendant’s business, was error; and this seems the more apparent, independently of taking so vital a question from the juiy, from the fact that the trial judge had distinctly stated that there was proof from which the jury might find that Lesher & Son were independent contractors, and that the plaintiff was an employe of that firm.

It does not seem to me to admit of any doubt but that', under the evidence, the jury could have found that in the doing of the work Lesher & Son were independent contractors, and also that the plaintiff was exclusively in the *657employ of Lesher & Son, and not in that of the defendant company. Whether the services of the plaintiff had been transferred by Lesher pro hac vice to the defendant, with the plaintiff’s consent, was also, as pointed out in Norman v. Middlesex and Somerset Traction Co., supra, an important question. This transference can be established only by showing that the plaintiff assented, expressly or impliedly, to the transfer, and, as held, in Delaware, Lackawanna and Western Railroad Co. v. Hardy, 30 Vroom 35, “it may be established by direct proof that he agreed to accept the new master and to submit himself to his control, or by indirect proof of circumstances justifying the inference of such assent.”

The judgment below should be reversed, and a venire de novo awarded.

For affirmance — None.

For reversal — The Chancellor, Chief Justice, Dixon, Garrison, Garretson, Pitney, Swayze, Bogert, Vredenburgh, Vroom, Green. 11.