Nicholson v. Feindel

• Decision Date: 29 December 1914
• Citation: Nicholson v. Feindel, 219 Mass. 490, 107 N.E. 353 (Mass. 1914)
• Parties: NICHOLSON v. FEINDEL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

219 Mass. 490

107 N.E. 353

NICHOLSON v. FEINDEL.

Supreme Judicial Court of Massachusetts, Middlesex.

December 29, 1914

COUNSEL

Geo M. Poland and Loring P. Jordan, both of Boston, for plaintiff.

Eden K Bowser, of Wakefield, and Hamilton & Eaton, of Boston, for defendant.

OPINION

CROSBY J.

This is an action to recover for personal injuries received by the plaintiff while in the employ of the defendant as a teamster.The presiding judge ruled that the plaintiff could not recover under the second count, and the case was submitted to the jury upon the first and third counts.The first count alleged that the defendant negligently failed to furnish the plaintiff with a safe and proper wagon with which to perform his work and negligently overloaded it, by reason of which it broke and the plaintiff was injured.The third count alleged that the defendant negligently furnished the plaintiff with a defective wagon and negligently overloaded it and that the defendant negligently failed to inspect the wagon and the load upon it, whereby it broke and the plaintiff was injured.Both counts were for the same cause of action.

The wagon was not owned by the defendant, but was borrowed from the owner by one Patton, who had caused it to be loaded with old lumber which he desired to have carried from Wakefield to Melrose.It was in controversy as to whether the plaintiff was in the employ of the defendant in driving the team on the afternoon of the accident.The defendant testified that he told the plaintiff that he(the plaintiff) could use the defendant's horses, but that he had no wagon suitable for such a job.There was evidence to show that the defendant had nothing to do with hauling the lumber, and that the plaintiff was not in his employ at that time but had finished his work that day at noon.

On the other hand, the plaintiff offered evidence to show that the defendant ordered him in the course of his employment to take a pair of the defendant's horses and haul the wagon loaded with lumber to Melrose.There was further evidence to show that the defendant was present when the wagon was being loaded, and that he stopped the men at that time from putting on any more lumber.This was denied by the defendant.The plaintiff testified that in driving towards Melrose with the loaded wagon he stopped in front of the defendant's shop and that he told the defendant it was a heavy load for the wagon; that the defendant replied in substance that he thought the load was all right and that he(the plaintiff) was not obliged to drive the wagon if he did not want to do so.

In the...