40 Wis. 589 | Wis. | 1876
The case of the plaintiff necessarily depends upon the existence of the fact that he was in the service of the defendant company when he received the injuries of which he complains. TJnless he then sustained that relation to the defendant, the latter is not liable in this action. The learned circuit judge held, upon the evidence, that the plaintiff was in the service of the defendant, when injured, and that if he has
Tbe plaintiff testified that, when injured, be was working for Mr. Lawler, who paid him for bis work on tbe bridge; that be bad been at work about nine months on tbe pile-driver, tbe most of that time for tbe defendant, tbe balance of it for Mr. Lawler; that be bad been on tbe pay roll of tbe defendant until be went to work for Mr. Lawler; and that be made no contract with tbe latter to work on bis bridge. It does not appear that plaintiff knew of tbe existence of any contract between Lawler and tbe defendant. One McGraw testified that in 1873 be was foreman of carpenters for tbe defendant; that be worked on tbe transfer bridge; that it was built under tbe direction of John Lawler; that “it was tbe general understanding that tbe railroad company bad nothing to do with tbe building of tbe bridge further than to build tbe approaches to low water mark; ” that be made no contract with Mr. Lawler, but tbe latter requested him to work on tbe bridge, and be did so by order of tbe chief carpenter of tbe defendant; and that be looked to Lawler for bis pay, and was paid, by him for bis work.
There is other testimony to tbe same effect. Loomis, tbe foreman of tbe pile-driver, testified as follows: “ Tbe railroad company, while we were at work on Lawler’s bridge, did not, by its agents or otherwise, give us any directions what to do, and did not attempt to control tbe management in any way while we were there. "We bad been at work a week or two on tbe transfer in 1873, when tbe plaintiff was injured.” It was admitted on tbe trial, that tbe bridge was Mr. Lawler’s, and
The foregoing testimony tends to prove that the plaintiff, when injured, was doing Mr. Lawler’s work under the sole direction of Mr. Lawler, who might have discharged him from such employment at any time; that he looked to Lawler for his pay, and was paid by him; and that, during the time he was employed on the bridge, the company exercised no control over the plaintiff or his work, and did not recognize its liability to him for his wages. Had the question been submitted to the jury, whether the plaintiff was the servant of the company or of Lawler, when he received the injuries complained of, this testimony is sufficient to support a finding that he was then the servant of Lawler and not of the company. "We do not say that such a finding would be sustained by a preponderance of evidence, but only that it would not be entirely unsupported by evidence. It necessarily follows from these views, that the circuit court erred in taking that question from the jury, and in holding that if either is liable to the plaintiff for his injuries, it is the defendant company, and not Mr. Lawler. This error is fatal to the judgment, and we are relieved from the duty of passing upon certain other questions argued at the bar and in the briefs of counsel.
Attention is invited to the late case of Rourke v. White Moss Colliery Co., L. R., Part X (October, 1876), Common Pleas Division, p. 556, which contains some discussion, and in which several English cases are cited, bearing upon the question of the defendant’s liability in this action. On the general subject of a master’s liability for an injury suffered by his servant in the course of his employment, see Strahlendorf v. Rosenthal, 30 Wis., 674; Brabbitts v. C. & N. W. R’y Co., 38 id., 289.
By the Court. — Judgment reversed, and a new trial ordered.