Pasquale Pappillo's Admx. v. Rene Prairie

• Decision Date: 07 February 1933
• Parties: PASQUALE PAPPILLO'S ADMX. v. RENE PRAIRIE
• Court: Vermont Supreme Court

164 A. 537

105 Vt. 193

PASQUALE PAPPILLO'S ADMX. v. RENE PRAIRIE

Supreme Court of Vermont

February 7, 1933

January Term, 1933.

Automobiles---Jury Question---Master and Servant.

1. If there was any evidence fairly and reasonably tending to show that driver of truck which injured plaintiff's intestate was truck owner's servant, question was for jury.

2. Where person engaged in trucking business sent truck and driver to work for construction company at its request on paving job, and while working thereon plaintiff's intestate was injured by truck driven by such driver question as to who was master is determined by who had right to control servant.

3. In

ACTION OF TORT against person engaged in trucking business, who had sent truck and driver to work for construction company at its request on paving job, during which work plaintiff's intestate was injured by such truck, held that, on record relation of master and servant between defendant and truck driver had never been suspended, hence that latter's negligence, if any, was negligence of defendant.

ACTION OF TORT for negligence. Plea, general issue. Trial by jury at the September Term, 1931, Chittenden County, Bicknell, J presiding. On defendant's motion, verdict was directed in his favor, and judgment thereon. The plaintiff excepted. The opinion states the case.

Reversed, and remanded.

J. A. McNamara and F. D. Foley for the plaintiff.

M. G. Leary and K. Paul Fennell for the defendant.

Present: POWERS, C. J., SLACK, MOULTON, THOMPSON, and GRAHAM, JJ.

OPINION

POWERS

The State Construction Co., Inc., was engaged in laying a cement pavement on a highway in the town of Colchester, under a contract with the State. The decedent, Pasquale Pappillo, was one of its employees. The defendant was engaged in the trucking business, and in response to a request from the Construction Company he sent a truck and driver to work on the paving job by the hour. All there was to this contract between the Construction Company and the defendant according to the testimony, was that the former asked if they could have a truck and driver and the latter replied that they could. But it is a fair inference from the record that the driver of the truck was to be under the direction of the Construction Company as to what he should draw, where he should get it, where he should deposit it, and, in short, as to what he should do to cor-relate his work to the general undertaking which the Construction Company was carrying on. But the evidence went no further. The defendant, alone, so far as shown, could control the driver in so far as the care, management, and operation of the truck was concerned. He hired the driver; he paid the driver; and he and no one else could discharge the driver, put him on another truck or at other work, or substitute another driver in his place. The Construction Company could lay off or discharge both truck and driver. But they could not put another driver on the truck or set the defendant's driver to other work.

In the progress of the paving undertaking it became necessary from time to time for the defendant's truck to haul "batches" of paving material. This work required the use of "batchboards" which raised the body of the truck so as to prevent the driver from seeing the road or objects behind the truck. When these were in place, a "batch," consisting of sand, stone, and cement in separate compartments of the truck body and in correct proportionate quantities, were hauled to the mixing machine. At the time of the accident here in question, the defendant's truck and six or eight others were made ready for batch drawing and entered upon that work. This is the way it was done: A power mixer and paver moved along the road as necessary, mixing and depositing the paving material in its proper place. The materials were brought to this machine by the trucks, each, in turn, taking a position between the side forms some distance ahead of the mixer; then, on signal, the truck was backed toward the mixer until it reached the proper location, and the contents were then dumped into the "skip" of the mixer, which by the power of the machine was raised so that the materials slid into the mixer. The truck then ran forward and away for another load. Another truck, almost immediately, took its position between the forms, backed up, and deposited its load in the same way. And so the work went on without interruption or delay. When the batchboards were on, the only way the driver could see to guide his truck and keep from injuring the forms was by opening the left-hand door of the cab, and looking down to the ground and watching the left-hand form. By keeping the proper distance from that, he could guide his truck until signaled to stop.

The decedent was in his place between the skip and the backing truck. It was his job to keep the space between the side forms properly leveled. He did not see the defendant's truck as it backed toward him, the driver couldn't see him, and a warning shout from a fellow workman who saw his peril did not reach the decedent in time to save him. The truck hit him and inflicted injuries from which he died.

The evidence tended to show that Godin, the driver of this truck had been told by the Construction Company's boss to back in slowly and sound his horn. The suit is by...