46 F. 506 | U.S. Circuit Court for the District of Southern New York | 1891
The plaintiff was run over by a horse and truck driven by one Murphy, by the negligence of Murphy, who at the time was performing a service for the Western Electric Company, but was in the employ of the defendant, and was driving its horse and truck. The question in the case is whether Murphy was the servant of the defendant or of the Western Electric Company. If he was not the servant of the defendant, the instructions given to the jury on the trial were incorrect, and the verdict for the. plaintiff cannot stand. The pertinent facts are
The rule of restpondeat superior rests on the power which the superior has a right to exercise, and which, for the protection of third persons, he is bound to exercise, over the acts of his subordinates. It does not apply to cases where the power of control does not exist, and the power does not exist when the primary employer has no voice in the selection or retention of the subordinate. The following citations illustrate the application of the rule: Laugher v. Pointer, 5 Barn. & C. 560, was an action to recover damages done to plaintiff’s horse. The defendant owned a carriage, and hired of a stable-keeper a pair of horses and a driver to draw it for a day or a short time. The injury was done through the carelessness of the driver, while the owner of the carriage was riding in it. The plaintiff was nonsuited, on the ground that the driver was the servant of the stable-keeper, and not of the owner of the carriage. In Quarman v. Burnett, 6 Mees. & W. 497, the defendant owned the carriage, and hired a pair of horses and the driver for a short time, during which an injury was done to the plaintiff’s horses. It was held that the defendant was not liable, the court stating: “That person is undoubtedly liable who stands in the relation of master to the wrong-doer; he who has selected him as his servant, from the knowledge of or belief in his skill and care, and who could remove him for misconduct, and whose orders he was bound to receive and obey.” Littledale, J., said: “He was the servant of one or the other, and not the servant of one and the other. The law does not recognize a several liability in two principals.” In Jones v. Mayor, etc., 14 Q. B. Div. 890, one Dean contracted with the defendant to furnish a horse and driver to draw a watering-cart belonging to defendants, under the supervision of inspectors employed by defendants, whose duty it was to direct the drivers of the wa
The motion for a new trial is denied.