Vary v. B., C. R. & M. R. Co. , 42 Iowa 246 ( 1875 )

Miller, Ch. J.

We do not deem it necessary to discuss and decide the question whether it is essential to the right of the plaintiff to recover for personal injuries caused to him through the negligence of a railroad company, that the relation of master and servant should exist, since, as we understand the allegations of the petition in this case, this relation is shown to have existed. The effect of these averments is, that by virtue of an arrangement or agreement between the plaintiff and the two railroad companies named, it was the duty of plaintiff to switch and couple and uncouple the cars of both railroads; that although he was in the general employment of the Chicago & Northwestern Eailway Company, he was jointly paid by both companies, and it was his duty and a part of his work and employment to perform certain services for the defendant; that at the time of performing these services he was injured by reason of the negligence of defendant. While engaged in performing this service for the defendant, with the knowledge and agreement on its part that plaintiff should perform this service and for which defendant agreed to and did pay, plaintiff was the servant of defendant. lie was performing services for defendant under an agreement that he should do so, and for which the defendant was to and did pay.

1. master and era!ami speciai relation, These facts are sufficient to create the relation of' master and servant, and the fact that' plaintiff was in the general emjrloyment of another company does not change master, since a person may be the general servant of one and the.special servant of another; that is, he may perform special services for one while he is the general servant of another, and while performing such special service he will be the servant of the one for whom such services are performed, as to that particular service. See Laugher v. Pointer, 5 B. & C., 559.

2__.. tium personal injury. We are of opinion that the petition shows plaintiff to have been in the performance of service for the defendant at the time he was injured, by virtue of a contract ketweei1 them that plaintiff should do so. This makes the plaintiff defendant’s servant in that transaction. If, however, the averments of the petition be' understood as showing that plaintiff was the joint servant of the two railroad companies, (and we think it cannot be construed to do less than this,) still plaintiff has. his election to •sue one or both of them. This principle is elementary, and needs no citation of cases in its support.

We do not think the case of Winterbottom v. Wright, 10 Mees. & Wel., 189, cited by appellee,.is in point. The cases are entirely different. Nor is our conclusion herein inconsistent with the other authorities cited by appellee.

Reversed.