It is strenuously argued on the part of the appellant that the, plaintiff was guilty of contributory negligence. Diagrams are presented and distances are delineated thereon to indicate that the plaintiff could have seen defendant approaching when he was upwards of 200 feet east- of Madison street, the conclusion being that had he exercised care he'would have seen the approaching .team and avoided the accident. There is no -evidence that the plaintiff was driving at an excessive rate of speed. There is evidence
Upon the meager facts concerning the cause of this collision it was. plainly a jury question. The evidence was .abundant to show negligence on the part of Lardinois, and the jury was plainly justified in exonerating the plaintiff of any negligent conduct. Not only the testimony of Lardi-nois but his subsequent actions are strongly indicative of guilt. He did not pause to see what had become of the automobile. He made no effort to find out who the owner was. He did not even notice that the automobile had collided with a tree. He proceeded at a smart pace on his way. He paid for the broken sleigh tongue upon demand without protest. He denied having been in a collision when questioned by the Hurlbut Company. It is plain that the verdict of the jury in this respect cannot be disturbed.
The important question in the case is whether the defendant is liable for Lardinois’ negligence, and this depends upon whether, in the performance of the negligent act resulting in the collision, Lardinois was the servant of Larsen. It is contended by appellant that he was the servant of Hurlbut and not of Larsen and that the doctrine of respondeat superior is applicable to the Hurlbut Company and not to Larsen. “It is well settled at common law that where an employee with his own consent was loaned to a special employer he became the servant of such employer.” Cayll v. Waukesha G. & E. Co. 172 Wis. 554, 179 N. W. 771; Standard
The reason is that the hiring is not-of the team distinct from the driver or of the driver distinct from the team, but is the hiring of the entity composed of the two. While the hirer acquires dominion or authority over the entity to designate the work that shall be done and direct the manner of doing it, he acquires no authority to direct how the team shall be driven, managed, or cared for, nor can he divide the entity by separating the driver from the team. Pie may
The last load of coal delivered by Lardinois on the day in question contained 'three tons for three different customers. The coal company could direct the route he should take, the customer he should first serve, to sprinkle the coal, and to collect before delivery, etc. In all such respects he was acting as the servant of the coal company, and if he had driven the heavily loaded wagon over an adjacent lawn in approaching a customer’s dwelling the coal company would no doubt have been liable for the damage. But this collision resulted from his negligence in the immediate handling of the team. In this respect he was not the servant of the coal company. He was the servant of Larsen, and for his negligence Larsen and not the coal company is liable.
In this case the jury found that Lardinois, at the time of the collision, was not the servant or employee of the F. Hurlbut Company in the driving or handling of the team and sleigh. Under the instructions given by the court in submitting this question to the jury, its answer to the question was tantamount to a finding that the coal company
Attorneys for appellant have dwelt upon the proposition that Larsen is not the principal contractor, hence not liable. We agree that Larsen was not a principal contractor, but we have demonstrated, we trust, that his liability is not. dependent upon that fact. By the application of. well-settled principles of law to the facts as found by the jury the liability of the defendant is plain. The judgment must stand.
By the Court. — Judgment affirmed.