Knicely v. West Virginia M.R. Co.
| Decision Date | 31 March 1908 |
| Citation | 61 S.E. 811,64 W.Va. 278 |
| Parties | KNICELY v. WEST VIRGINIA M. R. CO. |
| Court | West Virginia Supreme Court |
Rehearing Denied June 10, 1908.
Syllabus by the Court.
When a question arises as to whether a person performing work or doing business for another is a contractor for whose negligence the employer is not liable, or a servant for whose acts the employer is responsible, the character of the contract of employment, the nature of the business, and all the circumstances are to be considered in determining it.
Though payment for work "by the job," and the right and power of the person doing the work to employ assistants, to be paid by himself, are circumstances tending to prove the relation of contractor and contractee, and so make him an independent contractor, they are not conclusive, and must yield, if it appears that he is merely working under a general employment, having no dominion or control over the premises, is subject at all times to the orders of the employer as to when and how he shall work and the results to be accomplished, and may be discharged at any time. Under such circumstances the relation of master and servant exists.
An assistant employed by a servant, paid according to the work done, not the time of service, is a servant of the person in whose business his immediate employer is engaged. As there is no direct contract between him and the master, he is a sort of voluntary servant of the latter.
[Ed Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 1211.]
Under the law relating to negligence in the work of operating or prosecuting the master's business, not provision or maintenance of a safe place in which to work or suitable machinery and appliances with which to work, all persons engaged in the business of a common master, and so related that each, in the exercise of ordinary sagacity, ought to foresee, when accepting his employment, that he would be exposed to injury in the event of negligence on the part of the others, and they to injury from his, are fellow servants.
[Ed Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 486.
For other definitions, see Words and Phrases, vol. 3, pp 2716-2730; vol. 8, p. 7662.]
In an action for damages resulting from injury by negligence, a variance of the evidence from the declaration in respect to specification of mere matters of detail concerning the manner, not the time or place at which, or the instrumentalities by which, the injury was inflicted, is immaterial.
Error to Circuit Court, Braxton County.
Action by F. U. Knicely against the West Virginia Midland Railroad Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded.
Jake Fisher and Brown, Jackson & Knight, for plaintiff in error.
Morrison & Rider, for defendant in error.
POFFENBARGER P.
F. U. Knicely, injured while unloading lumber from a car of the West Virginia Midland Railroad Company on its tracks by the jarring or removal thereof without notice, recovered a judgment against said company for damages resulting from the injury amounting to $3,250, to which a writ of error was allowed.
The principal inquiry is whether the plaintiff and the switching crew of the defendant, who ran a train of cars against the standing car on which the former was at work when injured, were fellow servants. This relationship, if it existed, precludes recovery, and renders practically unnecessary the consideration of every other question raised. The defendant company's road is a narrow gauge railroad, connecting with the Baltimore & Ohio, a standard gauge road, about a mile from the small town called Palmer. At Palmer it has an extensive lumber yard, in which the vast quantities of lumber carried by it as a common carrier are transferred to cars of the Baltimore & Ohio, which are run into the yard on a three-rail track for both narrow and standard gauge cars and engines laid on the premises of the defendant. The transfer is effected by running the empty standard gauge cars alongside of the loaded narrow gauge cars, from which men remove the lumber by hand, using a pointed stool or stand called a "jack," and the point of which operates as a pivot on which the man balances the board and swings one end of it from one car to the other. A switching crew, kept at the yards for handling the loaded and empty cars, shifts them as occasion requires, and independently of any direction or control by the men who actually transfer the lumber from one car to the other. The plaintiff had no direct contract of employment with the defendant. He was employed by one Cowgill, whom the company had employed to transfer the lumber, paying him for the service a certain price per 1,000 feet, or who, in another view, was removing the lumber as a contractor, and not as a servant of the company. The evidence leaves the manner of the injury somewhat in doubt, but there is evidence tending to prove that plaintiff had removed practically all the lumber from the car on which he was working, and the train with loaded cars, one of which was to take the place of the car from which he had made the transfer, was coming in on the track as he stooped and lifted the end of a board, and while he was engaged in transferring it the train struck the car and caused him to fall therefrom, in doing which his foot was caught between a wheel and the reach or sidebar of the car, and his leg broken over the wheel. Plaintiff's face was, at the time, turned away from the approaching train, and no warning was given him.
Want of power in the plaintiff and his immediate employer to supervise and control the work and operations on the premises on which he was working, and the form of said employer's contract, are the facts mainly relied upon as the basis of the contention against the existence of the fellow-servancy relation. All the cars and servants in charge of them were paid by, and subject to the orders and control of, the railway company, as were also the lumber the plaintiff was handling, and the grounds upon which the operations were conducted. The plaintiff was paid for his services by Cowgill, who was paid by the railway company for the handling of the lumber at a certain price per 1,000 feet. The work in which all were engaged was the transportation of lumber, the business of the defendant, all conducted and carried on confessedly in accordance with its orders and directions. Plaintiff's immediate employer had no control of the yard, the cars, the men, nor, indeed, of the lumber. He unloaded such cars and in such manner as the defendant company directed, and placed it where he was ordered to put it. Had he performed this work with his own hands, he would personally have worked on the company's premises and cars among its servants, and without the slightest dominion or authority over any of them, or over himself or any of its property, beyond the mere handling of such lumber as he was directed to handle. If, in addition to all this, he had been paid daily, weekly, or monthly wages, instead of so much per 1,000, it would be extremely difficult to conceive even a pretext upon which he could have been regarded as an independent contractor, within the meaning of the law of the subject under consideration. What better situation can his employé occupy? Is his position higher than that of his employer would have been, had he been standing in the shoes of the former and suffered the injury himself? Can a stream rise higher than its source? Can a man confer upon another a greater right or more power than he himself possesses? In the lack of power of the plaintiff and Cowgill over his surroundings, and subserviency to the orders of the railway company while engaged in the transaction of its business, lies the very basis of the relationship he denies, and the lack of the independence he asserts on behalf of Cowgill. It shows the latter was not, in any substantial or practical sense, master. He was wholly without dominion or power, the very essence of mastery, and, unless the mere fact that he was paid by the piece and not by the day made him an independent contractor, he was a servant of the company along with its other employés. What sort of a contract had Cowgill? He had no engagement to handle any specific or any stipulated quantity of lumber, or lumber generally, for any agreed period of time. The scope of his powers and the tenure of his position were the same as if he had been working by the day, except that he had the right to employ assistants and was paid by the piece, not by the job, for he had not even a job so far as the evidence discloses. In assuming that he was the servant of Cowgill, and that Cowgill was an independent contractor, the plaintiff totally denies the relation of servant to the railway company. The present inquiry is not whether he was a fellow servant with the other railway men, but whether he was a servant at all, and that depends upon whether Cowgill was a servant. If he was, he could not have a servant as against the railway company. If he was not a servant, he was an independent contractor, and, having been master of the work, could have had a servant. In the law of liability for negligence independency of contract and servancy bear to each the relation of opposition. They are incompatible. Where the one exists, the other cannot. Shearman & Redf. on Neg. § 181.
The courts have prescribed several rules for guidance in seeking the true relation of the parties. In Singer Mfg. Co. v Rahn, 132 U.S. 518, 10 S.Ct. 175, 33 L.Ed. 440, Mr. Justice Gray said: "And the relation of master and servant exists whenever the employer retains the right to direct the manner in which the business shall be done, as well as the results to be accomplished, or, in...
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