Hazlerigg v. Dobbins

• Decision Date: 18 November 1909
• Citation: 123 N.W. 196,145 Iowa 495
• Parties: MARSHALL J. HAZLERIGG, by next friend, Appellant, v. P. M. DOBBINS
• Court: Iowa Supreme Court

123 N.W. 196

145 Iowa 495

MARSHALL J. HAZLERIGG, by next friend, Appellant, v. P. M. DOBBINS

Supreme Court of Iowa, Des Moines

November 18, 1909

REHEARING DENIED TUESDAY, JANUARY 18, 1910.

Appeal from Buchanan District Court.--HON. FRANKLIN C. PLATT, Judge.

ACTION to recover damages for personal injuries alleged to have been received by plaintiff while in defendant's employ, and resulting from defendant's negligence. At the conclusion of the evidence, there was a directed verdict for the defendant. From judgment on this verdict, plaintiff appeals.

Reversed.

E. E Hasner, for appellant.

A. M Cloud and Springer & Smith, for appellee.

OPINION

MCCLAIN, J.

Plaintiff, a boy, barely twelve years of age, received severe and permanent injuries to his leg as the result of an accident, while, in charge of the horses, he was riding the sweep of a circular horse power used on defendant's premises in baling hay. The questions involved in determining the correctness of the court's ruling in directing a verdict for the defendant are almost entirely of fact, relating, first, to the inquiry whether the relation of master and servant existed between plaintiff and defendant at the time of the injury; and, second, to the inquiry whether there was contributory negligence on the part of plaintiff causing or contributing to his injury.

I. With reference to the existence of the relation of master and servant between the plaintiff and the defendant at the time of the accident, defendant, as a witness, testified that the hay press was procured by him and brought upon his premises at the instance of one McElroy, who contracted to do the baling at a specified price per ton, defendant to furnish the help necessary to place the hay on the table, and McElroy to furnish the needed help and power for operating the machine, and that defendant hired to McElroy the team with which the circular horse power propelling the machinery was operated. According to his account of the transaction, plaintiff, a boy temporarily living in the neighborhood with his aunt, but whose home was in town, was secured by defendant to lead the horse which should furnish the power for operating a hay fork to get the hay from the barn to the machine, but, when the boy arrived, he was directed to drive the horses attached to the circular power operating the hay press, which he did at first by walking behind them. Later in the day, becoming tired, the boy was told by defendant that he might ride on the sweep back of the horses, but that he must be careful. The boy returned to his aunt's at the end of the first day of employment (Wednesday) with the arrangement that, if he were needed further, he would be telephoned for. On the next day the hay press was not operated, but on Friday morning plaintiff, without having been previously telephoned for, came to defendant's place, and defendant gave him fifty cents for his previous day's work, and told him he would not be needed further. Plaintiff did not, however, at once leave defendant's place, but came in with the men to dinner, and after dinner was again told by defendant that he was not needed. Defendant testified that he had no knowledge of plaintiff's employment about the horse power during the afternoon of that day when plaintiff was injured. Plaintiff testified, however, that, after he was paid off by defendant Friday morning, he was told that he was not needed because defendant thought he could drive the team himself, although he had a lame foot as the result of an accident while he was working on the press on Wednesday, but later in the forenoon he was told by defendant's employee who was throwing the hay down to the machine that he should go and start the horses on the power, and he did so while defendant was standing by the side of them trying to make them go, and that he then got on the power and started to drive the horses, and defendant walked around to the front of the barn.

There was some evidence, therefore, that defendant must have known of plaintiff's return to the work of driving the horses on the power, riding on the sweep, and that this was with his assent, for defendant himself says that he commenced to drive the horses on the power that morning, and was unable to continue to do so on account of his lame foot, and he does...