Winslow v. Wellington ( 1920 )

It can be found that Smith was subject to the defendant's control in respect to the details of the work, consequently it can be found that he was not an independent contractor. Paro v. Sav. Bank, 77 N.H. 394.

It cannot be said therefore that the court erred when it denied the defendant's motion for a directed verdict, for it can be found that the staging was defective and that Smith was acting for the defendant when he built it.

The court first instructed the jury as to the test it should apply to determine whether Smith was an independent contractor, and then instructed it that, if it found that Smith was an independent contractor and as such employed Flannigan to do the plastering, that was the end of the case. The defendant in excepting to this said "my contention is that if the jury find that Smith was an independent contractor, that is the end of the case in respect to who employed Flannigan. I want to except to any other inference in the charge." If this language is given any meaning of which it is fairly capable, the only question raised by this exception is whether there is any evidence to warrant the findings (1) that Smith was an independent contractor and (2) that the defendant employed Flannigan to do the plastering.

It is a sufficient answer to the contention to say that Flannigan testified that the defendant employed him to do that work and that it could be found that Smith was an independent contractor in so far as the carpenter work on the house was concerned, and also the defendant's agent in charge of the work, and that he was acting in that capacity when he built the staging in question.

The defendant, however, both in his brief and in oral argument contends that that is not the question intended to be raised by this exception. He says the charge was misleading in that it gave the jury to understand that if it found that he employed Flannigan it could find for the plaintiff, but could not find for him. The facts, however, do not sustain this contention; for the case shows that the court, after giving the instructions to which exception was taken, instructed the jury in terms that it must find for the defendant even if it found that the defendant employed Flannigan to do the plastering, unless it also found (1) that the defendant provided the staging, on which the plaintiff was working when the accident happened, as a completed structure for the use of Flannigan and his men, and (2) that the plaintiff was not guilty of contributory negligence.

Exceptions overruled.

WALKER, J., was absent: the others concurred.