Hasty v. Sears

• Citation: 157 Mass. 123,31 N.E. 759
• Parties: HASTY v. SEARS.
• Decision Date: 08 September 1892
• Court: United States State Supreme Judicial Court of Massachusetts

157 Mass. 123

31 N.E. 759

HASTY v. SEARS.

Supreme Judicial Court of Massachusetts, Suffolk.

September 8, 1892

COUNSEL

Henry Hyde

Smith, for plaintiff.

J Lowell, Jr., and S.H. Smith, for defendant.

OPINION

BARKER J.

The plaintiff cannot recover if he was a fellow servant with the boy who negligently lowered the elevator car upon him while he was at work in the elevator well, upon a stepladder standing on the bottom of the well. The plaintiff was a carpenter, employed by the hour by the firm of C.A. Noyes & Co. They told him that there was some work to be done at the defendant's building, and that the superintendent of the building would tell him what was to be done. He went to the building, and the superintendent instructed him what work was to be done, namely, that the framework of the elevator door wanted fixing, and that the door needed loosening at the top. To do this work it was necessary to stand on a ladder or steps in the elevator well, and to take the door off. The elevator was in operation, and the superintendent, in the presence and hearing of the plaintiff, gave orders to the elevator boy not to run the car below the second story until he was notified that the plaintiff had finished his work and had left the well. The boy, when the orders were given, said that he understood them, and that he would not run the car below the second story. The plaintiff then began his work standing on the stepladder; and, while he was ascending it in order to take out the door which needed repairs, the boy ran the car down below the second story, so that it struck and injured the plaintiff.

It is obvious that C.A. Noyes & Co. were not contractors. The transaction between them and the defendant was the loan by them to the defendant of their servant, the plaintiff, who was to be under the control of the defendant, by his superintendent, while engaged in the work. This made the plaintiff pro hac vice a servant of the defendant. The principle is thus stated by COCKBURN, C.J., in Rourke v Colliery Co., 2 C.P.Div. 205, 209: "But when one person lends his servant to another for a particular employment, the servant, for anything done in that particular employment, must be dealt with as a servant of the man to whom he is lent, although he remains the general servant of the person who lent him." The plaintiff was not acting under the immediate orders of his general masters, C.A. Noyes & Co., but was acting under the orders of the defendant's superintendent, and thus became the defendant's servant notwithstanding that he remained the general servant of Noyes & Co., and was paid by them. Purnell v. Railway Co., 1 Q.B.Div. 636, as stated by MELLISH, L.J., in Rourke v. Colliery Co., 2 C.P.Div. 210. The same doctrine has been laid down by this court in cases in which one has been held liable for injuries caused by the negligence of a person in the general employment of a third person, but at the time engaged in the defendant's business. Forsyth v. Hooper,11 Allen, 419; Kimball v. Cushman, 103 Mass. 194, 198; Clapp v. Kemp, 122 Mass. 481; Linnehan v. Rollins, 137 Mass. 123; and also in cases in which, as in...