Philadelphia & R. Coal & Iron Co. v. Barrie

• Decision Date: 23 March 1910
• Docket Number: 3,170.
• Citation: 179 F. 50
• Parties: PHILADELPHIA & R. COAL & IRON CO. v. BARRIE.
• Court: U.S. Court of Appeals — Eighth Circuit

179 F. 50

PHILADELPHIA & R. COAL & IRON CO. v. BARRIE.

No. 3,170.

United States Court of Appeals, Eighth Circuit.

March 23, 1910

M. H Boutelle and N. H. Chase, for plaintiff in error.

Owen P McElmeel (Paul J. Thompson, on the brief), for defendant in error.

Before SANBORN and ADAMS, Circuit Judges, and RINER, District Judge.

RINER District Judge.

This was an action to recover damages for personal injuries alleged to have been sustained by the defendant in error hereafter called the plaintiff, as a result of the negligence of the plaintiff in error, hereafter called the defendant. The record discloses the following facts:

The defendant had for some time prior to the accident been engaged in the general wholesale and retail coal business in the city of St. Paul, Minn., where various yards were maintained by it for storage, and from which coal was delivered in ordinary course to its customers as ordered. The defendant did not own its own teams, or furnish drivers in making local deliveries, but employed teams from other dealers from time to time. In this particular case it employed the team of one J. J. Martin, a dealer in coal in St. Paul, for which it agreed to pay him a certain amount per hour for the use of the team and driver, and agreed to settle with him twice a month for the number of hours his team or teams were employed in hauling and delivering the coal for the defendant. On the day of the accident to the plaintiff Martin had furnished one of his teams to the defendant to haul coal for it, furnishing with the team a driver by the name of McQuistran. Further than furnishing the team and driver to deliver coal for the defendant at so much per hour for the time the team was actually employed, Martin had nothing whatever to do with the delivery of coal from the defendant's yards. The drivers, including McQuistran, received their instructions from the defendant as to the delivery of coal. The defendant directed from which of its yards the coal should be taken, how much, and where it was to be delivered, and issued all orders to the driver in connection with the delivery of coal to purchasers in various parts of the city.

On the 11th day of January, 1909, McQuistran, the driver, was directed by the defendant to deliver a load of coal to Tibbs, Hutchings & Co.'s store in St. Paul, and between 5 and 6 o'clock in the evening of that day he was engaged in unloading this load of coal, by shoveling the same from a wagon into a coal hole in the sidewalk in front of the store. The evidence shows that this coal hole, when not open for the purpose of delivering coal, was covered with an iron plate, or covering, set into the sidewalk a sufficient depth to bring the top of the upper side of the iron plate level with the top of the sidewalk. The plaintiff, as the record shows, was a customer at Tibbs, Hutchings & Co.'s store on the evening in question. She came out of the store with some bundles in her hands, and started to walk rapidly across the sidewalk for the purpose of taking a car to Minneapolis. She had only taken a few steps, when she fell into the open coal hole and was injured. Just what the driver was doing at the time plaintiff fell into the coal hole is not clear from the evidence. He testified that he noticed her as she came out of the store and stood for a moment on the steps, looking towards the street car, and did not see her again until he saw her prostrate on the sidewalk near the coal hole. Whether part of her body was in the coal hole he was not certain, but he testified that he thought not. He further testified that, upon discovering her, he went to her assistance, and, with the aid of another lady that came along at that time, lifted her up and helped her into the store. The evidence of all of the witnesses was to the effect that it was quite dark at the time the accident occurred, and the driver testified that the only guard placed about the hole to keep passers-by from falling into it was a few chunks of coal which he had placed around it.

Several errors are assigned, but the one relied upon is that the Circuit Court erred in refusing the defendant's motion, at the close of all the evidence, to direct a verdict in its favor. This motion is based upon two grounds: First, that McQuistran, the driver, was not the servant of the defendant, but the servant of an independent contractor; and, second, that the plaintiff was guilty of contributory negligence. The defendant admits that the weight of authority sustains the action of the Circuit Court in submitting the issue of contributory negligence to the jury. This admission is in harmony with our views, and it becomes unnecessary, therefore, to discuss the second ground of the motion. Mosheuvel v. District of Columbia, 191 U.S. 247, 24 Sup.Ct. 57, 48 L.Ed. 170, and cases there cited.

We come, then, to consider the first ground of the motion. The servant himself is, of course, liable for the consequences of his own carelessness; but when, as in this case, an attempt is made to impose upon the master liability for the negligence of the servant, it becomes necessary to inquire who was the master at the very time of the negligent act or omission. Standard Oil Co. v. Parkinson, 152 F. 681, 82 C.C.A. 29. It is elementary, notwithstanding the liability of a servant for his own negligence, that one who employs a servant to do his work is answerable to strangers for the negligent acts or omissions of the servant committed in the course of the service; but this is the extent of the master's liability. If the servant is engaged in work outside of the line of service for which he was employed, as, for instance, doing his own work, or doing the work of some person other than the master, the master is not liable for his negligence.

The reason that the master, in any case, is held liable for the negligent acts of his servants is not because the servant, in his negligent conduct, represents the master, but upon the distinct ground that he is conducting the master's affairs, and the master is bound to see that his affairs are so conducted that others are not injured. Farwell v. Worcester & Boston Railway Corporation, 4 Metc.(Mass.) 49, 38 Am.Dec. 339.

It is a rule universally recognized by the courts that, while one may be in the general service of another, yet he may, with respect to particular work, be transferred, with his own acquiescence, to the service of a third person in such a way that he becomes the servant of that person, with all the legal consequences of the new relation; and...