Morris v. Trudo

• Decision Date: 12 November 1909
• Citation: 74 A. 387,83 Vt. 44
• Parties: MORRIS v. TRUDO.
• Court: Vermont Supreme Court

74 A. 387

83 Vt. 44

MORRIS

v. TRUDO.

Supreme Court of Vermont. Addison.

Nov. 12, 1909.

Exceptions from Addison County Court; Zed S. Stanton, Judge.

Action by Lewis Morris against Andrew Trudo. From a judgment for defendant entered on sustaining a motion to direct a verdict, plaintiff excepts. Reversed and cause remanded.

Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.

Brown & Hopkins, for plaintiff. P. W. Tuttle, for defendant.

HASELTON, J. This was an action on the case to recover damages for injuries which the plaintiff received July 3, 1907. The injuries to the plaintiff resulted from his falling from the defendant's wagon, which at the time was driven by Charles Trudo, a brother of Andrew Trudo, the defendant, and the action is based on the claim that the fall resulted from the negligent driving of Charles as the servant of the defendant his brother. At the time of the accident the city of Vergennes was carrying on work on its streets and sidewalks. This work was under the supervision of one Henry Lavalley, who was then acting as superintendent of streets. It was the duty of Lavalley to hire men and teams for the prosecution of the work, and, as his position implied, to superintend and direct the same. In the discharge of his duties, he hired the plaintiff as a laborer to do whatever might be required of him, and he also hired of the defendant a double team with a driver. The driver, furnished in accordance with the hiring, was Charles Trudo, above referred to as the brother of the defendant. By the terms of the hiring Charles, the driver, was to do with the team whatever work he was set to do by Lavalley—whether moving stones or using a scraper or drawing gravel. In the drawing of gravel it was for Lavalley to direct where the gravel should be taken from, where it should be unloaded, and how it should be placed. At the time of the accident the plaintiff, by direction of Lavalley, was assisting Charles in shoveling out a load of gravel, and the unloading was practically done when the horses either started up or were started up by Charles, and the plaintiff who was at the rear end of the wagon box, with one foot on a wheel, fell or was thrown to the ground. At the close of the plaintiff's evidence the defendant moved that a verdict be directed in his favor on three grounds, which were, in substance, these:

First. That the evidence did not tend to show that the plaintiff's injuries resulted from negligence on the part of the driver.

Second. That in the circumstances disclosed by the plaintiff's evidence, if the driver did negligently start up the horses, he was not, in the management of the team, the servant of the defendant; that the defendant was not in such control of the team, or driver, as to render him liable in consequence of the latter's negligence.

Third. That there was no evidence tending to show freedom from contributory negligence on the part of the plaintiff.

The motion was sustained. A verdict was directed for the defendant, and the plaintiff excepted.

We first consider whether on the evidence the relation of master and servant in respect to the thing complained of existed between the defendant and the driver. The precise question is whether or not, though the team and driver had been temporarily hired out by the defendant, the driver in the specific detail of managing or handling the team remained the servant of the defendant of whom the team was hired. One to whom the servant of another is temporarily lent or hired has for the time being the responsibilities of a master in so far, and only in so far, as he may exercise the authority of a master. Bailey v. Troy & Boston R. Co., 57 Vt. 252, 261, 52 Am. Rep. 129; Pawlet v. Rutland & Washington R. Co., 28 Vt. 297, 300. The contract by which the defendant hired his team with its driver to the city of Vergennes or its superintendent of streets was an oral one, and the case as...