Jensen v. Barbour

• Decision Date: 08 April 1895
• Citation: 39 P. 906,15 Mont. 582
• Parties: JENSEN v. BARBOUR.
• Court: Montana Supreme Court

39 P. 906

15 Mont. 582

JENSEN v. BARBOUR.

Supreme Court of Montana

April 8, 1895

Appeal from district court, Cascade county; C. H. Benton, Judge.

Action by Walter H. Jensen, by S. R. Jensen, as his guardian ad litem, against A. K. Barbour personally and as trustee. Judgment for defendant, and plaintiff appeals. Reversed.

F. C Parks, for appellant.

Ed. L Bishop and Ashburn K. Barbour, for respondent.

DE WITT, J.

Plaintiff's complaint is for damages for personal injuries sustained while riding on defendant's horse street car. The district court upon the trial directed the jury to find for the defendant. Plaintiff appeals from the judgment, assigning error in that order. Such order must be treated as in the nature of a nonsuit in this respect: that, if the evidence tended to prove plaintiff's cause of action, it will be taken on appeal as proved. McKay v. Railway Co., 13 Mont. 15, 31 P. 999; Creek v. McManus, 13 Mont. 152 32 P. 675; Mayer v. Carrothers, 14 Mont. 274, 36 P. 182. There was evidence that the plaintiff a boy five years of age, was riding on the front platform of the horse car, with the knowledge of the driver, and that the car struck a stone, and jolted the plaintiff off, and ran over him, inflicting the injuries complained of. One ground of the motion to direct the jury to find for the defendant was that it was not shown that the defendant was guilty of any negligence. We are of opinion, however, that to allow a boy of such tender years to ride on the front platform of a horse car was evidence of negligence sufficient to go to the jury. Upon this point we quote as follows from Railway Co. v. Caldwell, 74 Pa. St. 421: "It is clear from all the evidence in this case, and under the instructions of the court, the jury must have found that the accident which resulted in the loss of the plaintiff's leg would not have happened if she had not been permitted to ride on the front platform of the defendant's car. If the rules of the company had not forbidden it, there can be no doubt that it was gross negligence for the driver to allow children as young as the plaintiff and her companion to get on the front platform, and to ride there. If they got on without his permission, instead of consenting that they might remain on the platform, it was his duty to compel them to go on the inside the car, or to stop and put them off; and if the plaintiff was injured by his negligence in allowing them to ride on the platform, the company is clearly liable for the injury, unless the plaintiff's negligence contributed to produce it. But negligence cannot be imputed to one who has not sufficient capacity or discretion to understand the danger and to use the proper means to guard against it. In this case it is conceded that negligence is not imputable to the plaintiff, who was an infant of tender age, and not of sufficient capacity to foresee the danger to which she was exposed." See, also, the following cases cited by appellant, which are in point: Muehlhausen v. Railroad Co., 91 Mo. 344, 2 S.W. 315; Railway Co. v. Gallagher, 108 Pa. St. 524; Railway Co. v. Hassard, 75 Pa. St. 367; Railroad Co. v. Moore, 83 Ga. 452, 10 S.E. 730. See, also, O'Mara v. Railroad Co., 38 N.Y. 445; Robinson v. Cone, 22 Vt. 213; Lynch v. Nurdin, 1 Q. B. 29; 2 Thomp. Neg. p. 1180 et seq.; Ray, Neg. Imp. Dut. c. 36, and cases cited; Shear. & R. Neg. § 49. We are satisfied that under the authorities the evidence of negligence in this respect was sufficient to go to the jury.

Our view upon this point of the motion to direct a verdict in favor of respondent disposes of the whole of that motion, except the sixth ground thereof, which is as follows: "That the evidence shows that the negligence complained of, if any, was the negligence of the independent contractor, Vaughn, or his servant, and not that of the defendant or his servant or agent." The question presented is whether the person immediately causing the injury to plaintiff stood in the relation of a servant of defendant, or whether he were the servant of an independent contractor, for whose acts of negligence the defendant was not liable. The defendant was the owner of a street-car franchise in the city of Great Falls. He had built a car track extending over six or seven blocks, and had one or two cars on the track. Defendant lived in Helena. J. O. Gregg, of Great Falls, was his agent, acting for him in relation to this street-car franchise, track, and cars. Gregg was also one of the owners of the railway. Defendant, Barbour, was trustee of the railway. He was sued apparently as trustee, and also personally. It seems that the railway people were not operating their line very extensively, for Mr. Gregg testified that he, as agent for the trustee, hired one Vaughn to run the car one trip a day. Gregg says that the contract with Vaughn was that he was to be paid so much money per month to haul the car over the line once a day each way, and to furnish a driver. In pursuance to this arrangement Vaughn furnished the driver, and was moving the car along the track at the time the plaintiff was injured. Defendant contended that by virtue of this employment Vaughn was an independent contractor, and that defendant was not liable for the negligence of Vaughn's driver. Mr. Gregg, however, testified that there was nothing as to collecting fares in this contract with Vaughn. In fact fares were not collected. Without expressing any opinion as to whether these railway people could lease their road and rolling stock to another for the purpose of operating it, it is sufficient to note here that no such lease was made. The track and rolling stock were not delivered into the possession of Vaughn at all. He did nothing more than to haul the car the one trip a day. Mr. Gregg further testified that he spoke to the plaintiff's father in regard to keeping his boys away from the cars; that he also told other parties to keep their boys away; that they did not want the boys there. He said that he notified those living along the car line to keep their small boys away; that they interfered with the running of the cars by stealing almost the cars, carrying off pieces, breaking out windows, pushing the cars and jumping on them, and interfering with the business of the railway people in every way, and also breaking the padlocks they had put on the cars. Gregg also said: "I have always objected to the boys riding on the cars when they were being driven. I had no direct control over the drivers, but I ordered Mr. Vaughn to see that the drivers kept the boys away. I was trying to protect the property. I had driven the plaintiff off the cars several times. The contract with Vaughn was that I was to pay him so much money a month to haul the car over the line each way once a day, and furnish a driver. I had nothing to do with the drawing of the car backward and forward, or directing the manner in which it should be done. I sometimes spoke to Vaughn about matters concerning the protecting of the property and driving the boys off. Whenever I saw the boys running about the cars, either when being driven or standing idle, I chased them away. I don't remember that I told the drivers to keep them away, but I remember telling him one day to skin them with his whip. There might have been other times that I gave these orders, but I don't remember any particular date. Whenever I saw the boys, if the driver was around, I would speak to the driver, but I always made it a point to see Mr. Vaughn about it, and Vaughn and myself very frequently went over. We chained the cars once or twice to keep the boys away." Under these facts the district court held that Vaughn was an independent contractor, and that the defendant was not liable for his negligence.

To draw the distinction between independent contractors and servants is often difficult, and the rules which courts have undertaken to lay down on his subject are not always simple of application. A rule as often quoted as any is stated in the syllabus of the case of Bibb's Adm'r v Railroad Co., 87 Va. 711, 14 S.E. 163, after an able review of the authorities, as follows: "Independent contractor is one who renders service in the course of an occupation, and represents the will of his employer only as to the result of his work, and not as to the means whereby it is accomplished, and is usually paid by the job." Brackett v. Lubke, 4 Allen, 138, is also a leading case. The opinion states as follows: "The distinction on which all the cases turn is this: If the person employed to do...