Cain v. Hugh Mann Contracting Co.

• Decision Date: 22 May 1909
• Citation: 88 N.E. 842,202 Mass. 237
• Parties: CAIN v. HUGH MANN CONTRACTING CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

202 Mass. 237

88 N.E. 842

CAIN v. HUGH MANN CONTRACTING CO.

Supreme Judicial Court of Massachusetts, Suffolk.

May 22, 1909

COUNSEL

Vahey, Innes & Vahey, for plaintiff.

Gaston Snow & Saltonstall, for defendant.

OPINION

BRALEY J.

While not expressly conceded, the plaintiff's due care was not controverted at the argument, and the question for decision is whether there was any evidence for the jury of the defendant's negligence. The accident occurred about midnight, by the plaintiff's carriage coming into collision with a pile of loose earth left unguarded in a public way by one Beckwith, while employed as a driver of a tip cart in hauling earth excavated by the defendant to a scow, upon which it was to be loaded. It appeared, from the evidence introduced by the plaintiff, that the team was owned by one Woodbury, by whom Beckwith was employed, and paid, and under whose orders the team had been driven to the subway where the earth was to be taken on, and removed. The testimony of Woodbury showed that the defendant for a stipulated price had hired the team with the driver, and that after the team left at night, and until its return in the morning, during which time the work was to be performed, he gave no directions to the driver. If until he arrived at the subway the driver was the general servant of another, upon arrival and during the period of service, he received and obeyed orders when to load, and where to go, from the defendant's foreman. It may be assumed that, so far as reasonably necessary to care for and preserve the property, the driver as the owner's representative retained control of the team. Kimball v. Cushman, 103 Mass. 194, 4 Am. Rep. 528; Huff v. Ford, 126 Mass. 24, 30 Am. Rep. 645. The inferences which should be drawn from the evidence as to the relations of Beckwith to Woodbury, and to the defendant, were not matters of law as the defendant contends, but questions of fact to be decided by the jury under suitable instructions. Preston v. Knight, 120 Mass. 5, 8; Driscoll v. Towle, 181 Mass. 416, 63 N.E. 922; Bowie v. Coffin Valve Co., 200 Mass. 571, 86 N.E. 914. When the ordinary test where a servant has been hired or lent to another is applied to ascertain whether at the time of the accident Beckwith was engaged in the defendant's work, or the service of his general employer, there was evidence from which the jury could find that, within the designated period, he was subject only to the authority of the defendant, to whose control he had voluntarily submitted himself. If they so determine, then Woodbury correspondingly had relinquished any right to command his movements while thus engaged, and a further inference that in the matter of transportation he acted solely as the defendant's servant would have been warranted. Coughlan v. Cambridge, 166 Mass. 268, 44 N.E. 218; Driscoll v. Towle, 181 Mass. 416, 63 N.E. 922; Delory v. Blodgett, 185 Mass. 126, 69 N.E. 1078, 64 L. R. A. 114, 102 Am. St. Rep. 328; Oulighan v. Butler, 189 Mass. 287, 290, 291, 75 N.E. 726; Bowie v. Coffin Valve Co., 200 Mass. 571, ...