111 Ark. 91 | Ark. | 1914
(after stating the facts). The principles of law governing the liability of the defendant in this class of cases was discussed in the case of the Standard Oil Co. v. Anderson, in 212 U. S. 215. The court said:
“It sometimes happens that one wishes a certain work to be done for his benefit and neither has persons in his employ who can do it nor is willing to take such persons into his general service. He may then enter into an agreement with another. If that other furnishes him with men to do the work, and places them under his exclusive control in the performance of it, those men became pro hac vice the servants' of him to whom they are furnished. But, on the other hand, one may prefer to enter into an agreement with another than that other, for a consideration, shall himself perform the- work through servants of his own selection, retaining the direction and control of them. In the first case, he to whom the workmen are furnished is responsible for their negligence in the conduct of the work, because the work is his work and they are for the time his workmen. In the second case, he who agrees to furnish the completed work through servants over whom he retains control is responsible for their negligence in the conduct of it, because, though it is done for the ultimate benefit of the other, it is still in its doing his own work. To determine whether a given case falls within the one class or the other we must inquire whose is the work being performed, a question which is usually answered by ascertaining who has the power to control and direct the servants in the performance of their work. Here we must carefully distinguish between authoritative direction and control, and mere suggestion as to details or the necessary co-operation, where the work furnished is part of a larger undertaking.”
Thus it will be seen the right to control the work, as distinguished from the actual exercise of control, is an important element in determining the liability of the defendant in cases like this. The control of the work reserved in the employer is the control not only of the result of the work, but also of the means and manner of the performance thereof. And, therefore, where the employee represents the will of the employer not only ns to the result of the work, but also of the means and manner of accomplishing it, he is an independent contractor. In the present case, according to the testimony adduced by the plaintiff, he had entirely abandoned all control of the driver to the foreman in charge of the gang for the railway company, who, for the time being, appropriated and controlled his services in carrying on its business. The evidence of the plaintiff shows that the control of the driver passed to the railway company during the performance of the work, and that at the particular time the injury occurred, the driver was acting under the direction of the railway company. The foreman .of the railway company had the right, not only to direct where the load should be dumped, but how and where the driver should leave the dump. The foreman of the railway company denied that either he or his assistants had any authority to direct how the driver should go off the dump after his scraper was unloaded, but the plaintiff and another one of the foreman’s assistants both testified that he had such authority, and that they were accustomed to exercise it under his directions. It appears from the testimony of the foreman himself that he had general charge of the work, and had the power to hire teams and drivers, and to discharge them at will. According to the testimony of plaintiff, his team and its driver was actually placed under the exclusive control of the railway company while engaged in doing the work, and under all the facts and circumstances adduced in evidence, the question of the defendant’s negligence was one of fact for the jury to determine, rather than a question of law for the court.
The respective theories of the parties to the suit were fully covered in the instructions given by the court to the jury.
The son of the plaintiff testified that he was strong enough to handle a scraper, and did handle it, and that he knew how to do so. At the request of the defendant, the court, in effect, instructed the jury that if it found from the evidence that had a grown person possessing ordinary care and caution been in charge of plaintiff’s team at the time the mule was injured, such injury would probably not have occurred, then it would be its duty to return a verdict for the defendant. The court further instructed the jury that if it found that plaintiff’s mule was injured from any negligence or inability on the part of the boy to handle the team as a reasonably prudent person of adequate strength could and would have handled it under like circumstances, then it should return a verdict for the defendant.
Many objections have been made by counsel for defendant on account of the instructions given by the court, as well as those refused; but they all are predicated upon the theory that under the facts of the case there was no liability on the part of defendant. But, as we have already seen, the liability of the defendant was a question of fact for the jury, and not one of law for the court.
We think the case was fairly submitted to the jury, under proper instructions, and the judgment will be affirmed.