Brophy v. Bartlett

• Decision Date: 17 January 1888
• Citation: 15 N.E. 368,108 N.Y. 632
• Parties: BROPHY v. BARTLETT.
• Court: New York Court of Appeals Court of Appeals

108 N.Y. 632

15 N.E. 368

BROPHY

v.BARTLETT.¹

Court of Appeals of New York.

January 17, 1888.

Appeal from general term, supreme court, Second department.

Tort for personal injuries to the plaintiff, Brophy, while on the dock of the defendants, where he had been sent by a Mr. Rowle, with a horse, which had been hired by a Mr. Devaney. While he was standing by the horse, a Mr. Merritt, the foreman of the defendants in charge of the defendants' work on the dock, came and took him to four trucks, picked out three of them, and directed plaintiff to go to work with them, at carting hogsheads of sugar from a vessel lying at the bulkhead, across the dock, to the defendants' stores. While using, for the first time, one of the trucks furnished him by Merritt, one of the hogsheads of sugar was caused to roll from the truck, and seriously injured the plaintiff for life, by reason of defectiveness of the truck. The suit was dismissed, on the ground that the relation of master and servant is not shown to exist between plaintiff and defendants. Plaintiff appeals.

J. Stewart Ross, for appellant.

James Moffett, for respondent.

FINCH, J.

The evidence in this case admits of different and discordant inferences. One is that plaintiff was not employed by anybody to work upon the dock until directed to use a truck by the foreman of the defendants, and so become the defendants' servant; while the other, which led to the nonsuit, was that he remained the servant of Rawle, or, if he became that of Devaney, no liability attached, since the latter was an independent contractor to do the trudking. The question of the true relations of the parties to each other seems to us to be a mixed question of law and fact, not to be solved without the aid of a jury. The plaintiff appears to have been in the employ of Rawle, who kept horses for hire. Devaney, needing a horse for his work, hired one of Rawle. The latter seems to have understood that this implied a driver as well as a horse, and sent Brophy, the plaintiff, with the horse to work upon the dock. But Devaney swears that he hired only the horse, and paid only for that, and never at all took plaintiff into his employ. If that was true, the plaintiff had no duty on the dock except to deliver the horse to Devaney, and then to back to his master. But he stayed in charge of the horse, and the foreman of defendants, doubtless supposing him to be one of Devaney's men, set him at work with the truck, which is alleged to...