Busby v. Anderson Water, Light & Power Co.

• Decision Date: 21 February 1905
• Docket Number: 564.
• Citation: 136 F. 156
• Parties: BUSBY v. ANDERSON WATER, LIGHT & POWER CO.
• Court: U.S. Court of Appeals — Fourth Circuit

136 F. 156

BUSBY v. ANDERSON WATER, LIGHT & POWER CO.

No. 564.

United States Court of Appeals, Fourth Circuit.

February 21, 1905

In Error to the Circuit Court of the United States for the District of South Carolina, at Greenville.

B. F Martin, for plaintiff in error.

T Moultrie Mordecai and Simon Hyde, for defendant in error.

Before GOFF and PRITCHARD, Circuit Judges, and BOYD, District Judge.

BOYD District Judge.

In this action the plaintiff in error, who was also the plaintiff in the court below, seeks to recover of the defendant in error damages for personal injuries. The Anderson Water Light & Power Company, the defendant in error, is a corporation under the South Carolina laws, and in the year 1901 was constructing an electric power plant at a place called 'Portman Shoals,' on the Seneca river, in Anderson county, S.C. The location of the plant was several miles distant from the railway station, and the machinery for its equipment had to be transported on wagons from the railroad to Portman Shoals. In his complaint the plaintiff in error alleges, in substance, that, on or about the 19th day of January, 1901, being at the time employed as a servant of the defendant company, and engaged by its direction in assisting to unload from a wagon a piece of machinery weighing about 7,000 pounds, because of the negligence of the defendant in not furnishing safe and proper appliances for the work, and its failure to provide help sufficient to safely handle the piece of heavy machinery, the same slipped and fell upon plaintiff, crushing his foot and leg so that amputation became necessary. On the trial the defendant offered no evidence, but, at the conclusion of plaintiff's testimony, requested the court to direct a verdict for defendant on the ground that the testimony of the plaintiff was not sufficient, in law, to sustain his contention. The court so held, and, in obedience to instructions, the jury returned a verdict for the defendant, and the case comes here by writ of error.

There are several assignments of error, but they are all based on the ruling of the court that, upon the plaintiff's testimony, he was not entitled to recover. The question of primary importance in the case was whether the plaintiff was in the employment of defendant at the time of the injury. The burden was upon the plaintiff to prove this as a fact, by sufficient evidence. Upon examination of the testimony in the record, we find that the plaintiff not only failed to establish the fact that he was employed by the defendant company, but by his own witnesses it was shown that the company had contracted with one J. R. Williamson to haul the machinery from the railroad station and deliver it at the plant; that Williamson was an independent contractor; and that the company did not retain the control or direction of his work. It is true, it was shown that, after Williamson made the contract and undertook its performance, bad weather so affected the roads that he found he was losing money, and the president of the company, in order to induce him to go on with the work, assured him that he should not lose by it, and it is also true that an arrangement was made by which the company furnished the money to meet Williamson's pay rolls and other expenses incident to his work; and thereupon the plaintiff insists that the court should have permitted the jury to pass upon the question as to whether the work of transporting the machinery at the time of the injury was being conducted by Williamson as an independent contractor or whether the contract had been abrogated, and the work was being carried on by the defendant company itself. But in our opinion there is not sufficient evidence to warrant...