St. Louis, Iron Mountain & Southern Railway Co. v. Yates ( 1914 )

Smith, J.,

(after stating the facts). We think the evidence clearly shows that at the time of the injury, Claus was merely loaned by the Virginia Bridge & Iron Company, his general employer, to the railroad company, and, although he received his salary directly from the bridge company, he was in fact in the service of the railway company, and that even the wages which he and his helpers received were charged back to the railroad company. In the case of Wylie et al. v. Palmer et al., 137 N. Y. 248, it was said: ‘ ‘ The fact that the party, to whose wrongful or negligent act an injury may be traced, was at the time in the general employment and pay of another person, does not necessarily make the latter the master and responsible for his acts. The master is the person in whose business he is engaged, at the time, and who has the right to control and direct his conduct. The rule on this subject is well stated by a learned author on the law of negligence as follows: ‘He is to be deemed the master who has the supreme choice, control and direction of the servant, and whose will the servant represents, not merely in the ultimate result of his work, but in all its details. The payment of an employee by the day, or the control and supervision of the work by the employer, though important considerations, are not in themselves decisive of the fact that the two are master and servant. * * * Servants who are employed and paid by one person, may, nevertheless, be ad hoc the servants of another in a particular transaction, and that, too, where their general employer is interested in the work. They may, without consulting their master, but in good faith, assist a person independently employed to do something which shall benefit their master, but with which neither he nor they have any right to interfere, and in which they act entirely under the control of such other person. In none of these cases is the nominal master responsible to strangers for their acts or omissions.’ ” Sherman & Redfield on Negligence (4 ed.), 269.

The question of special service was reeéntly considered in the case of Arkansas Natural Gas Co. v. Miller, 105 Ark. 477, and the authorities were there reviewed, and the following language was quoted with approval from the case of Coughlan v. Cambridge, 166 Mass. 268; “It is well settled that one who is the general servant of another, may be lent or hired by his master to another for some special service, so as to become, as to that service, the servant of such third party. The test is whether, in the particular service which he is engaged to perform, he continues liable to the direction and control of his master or becomes subject to that of the party to whom he is lent or hired. ”

Instructions numbered 1 and 2, given at the request of appellee, may be discussed together. Appellant says appellee was employed to make a dangerous place safe, and that this was therefore one of the exceptions to the rule which requires that care be used to furnish a reasonably safe place, and that the second instruction is erroneous because it assumes that there was evidence that appellee did not know of the danger of stepping on the cog wheels, and that the instruction was abstract and misleading in that appellee’s testimony showed that he knew these cog wheels were likely to move at any moment, and that they were liable to injure him. It is admitted that these instructions announce correct declarations of law, but it is said they are abstract. We do not think the instructions are abstract, but it does appear that the second instruction does 'not accurately fit the issues of fact submitted to the jury. Appellee was not engaged in making a dangerous place safe, but he was merely preparing to cover the pit to protect the machinery therein from weather. The place was not dangerous, when the servant entered it to perform his labor, and would not have become so had the machinery not been started. This first instruction permits a recovery if the jury finds the railway company failed to exercise ordinary care in furnishing a safe place, unless appellee was guilty of contributory negligence. The ease was tried upon the theory that a safe place was made dangerous, by an act of the master of which the servant had no notice. If this second instruction told the jury that the railway company was under any duty to warn appellee, on account of his inexperience, that the cog wheels were dangerous, if the machinery was put in motion, it would be erroneous and prejudicial, because appellee needed no such, warning, and appellant was under no obligation to give that warning. What we understand these instructions to mean, when read together, and in connection with all the other instructions in the case, is that if appellee was directed to a place where, by the exercise of ordinary care, he might safely work, so long as there was no change in the conditions under which he worked, that these conditions should not be changed, so as to make the employment dangerous, without advising him that this change had taken place, or might take place, provided the jury found that appellee, because of his ignorance of appellant’s method of work, did not know that the place where he was employed would become dangerous by the unexpected starting up of machinery, of which he had no notice. Appellee testified he had been away from the bridge for several,days before his injury, and had only returned to the job that morning, and was injured a few minutes after he began work, and that he did not know there was any danger of the machinery starting up without warning being given. And these instructions submit that question to the jury, but in a very unhappy manner. However, as has been stated, the court gave, at the request of appellants, instructions which clearly defined the duty in regard to furnishing a safe place to work and the duty to give warning. There were many of these instructions, and, without setting them out in full, it may be said that their purport was, that if appellee knew, or ought to have known, that the cog wheels were liable to turn at any time without notice to him, and that notwithstanding such knowledge he placed his foot in a dangerous position, and was injured thereby, he would be guilty of contributory negligence, and could not recover.

As has been stated, the court refused to give defendant’s sixth instruction, set out in the statement of facts, and we think this instruction was properly refused. This instruction declares it to be negligence, if one voluntarily or carelessly does an act which results in his injury when lie could have avoided the injury by using other means at hand for the purpose of performing his work. But “this court has held that where there are two ways in which a duty may be performed by the servant, and the one selected proves less safe than the other, the servant can not be held guilty of contributory negligence as a matter of law.” Sligo Iron Stove Co. v. Guist, 103 Ark. 627. But this rule, of course, would apply only where either method appeared to be reasonably safe, but the one selected proved to be more dangerous than the other method would have been.

It is of no defense that Claus did not know of appellee’s presence in the pit, when he set the machinery in motion, provided the railroad company was under the duty of advising him that this might be done, without warning. In the case of St. Louis, I. M. & S. Ry. Co. v. Harmon, 85 Ark. 503, it was said: “The plaintiff went into the caboose under the direction of his superior. He was rightfully there, and was entitled to the exercise of ordinary care for his protection. His employer could not put him in a place of danger, and ignore his presence there. It owed him the duty of protection, and could not escape liability on account of failure to perform that duty, merely by showing that the particular servant whose act caused the injury did not know of his presence.” See, also, St. Louis, I. M. & S. Ry. Co. v. Baker, 110 Ark. 241.

It is not claimed that the verdict is excessive, and upon the whole case we think the cause was fairly tried, and the judgment of the court below will be affirmed as to the railroad company, and dismissed as to the bridge company.