Burton v. American Bridge Co.

Memorandum by the Court. Action to recover damages for personal injuries arising out of the negligent operation of a crane. Plaintiff had a verdict against the American Bridge Company. On motion the verdict was set aside and a reserved motion to dismiss the complaint was granted. Plaintiff appealed from the order setting aside the verdict and dismissing the complaint and from the judgment entered thereon. “The identity of the master at the time of the negligent act charged must always he determined with reference to the particular facts of each ease.” (Hallett v. New York Central & H. R. R. R. Co., 167 N. Y. 543, 547.) The record discloses that defendant American Bridge Company did not undertake to remove the posts or post which were involved in the accident and which the Arthur A. Johnson Company, a subcontractor, was under contract to remove. It discloses that the American Bridge Company loaned the crane and its operator to the Johnson Company and surrendered all dominion and control thereof and that the latter assumed complete control for the purpose of doing its own work. It also discloses that the American Bridge Company had no interest in or concern with, and was not convenieneed or favorably affected by the doing of that work. Under these circumstances the operator of the crane became the ad hoo servant of the Johnson Company, and the American Bridge Company may not be cast in liability for his negligence while acting for and on behalf of the Johnson Company. The factual base for nonliability on the part of the American Bridge Company is stronger here than was the situation in respect of the Paramount Publiz Corporation in Irwin v. Klein (271 N. Y. 477). That case required a dismissal of the complaint herein as to the American Bridge Company. In Hartell v. Simonson & Son Co. (218 N. Y. 345, 349) it is stated: “A servant in the general employment of one person, who is temporarily loaned to another person to do the latter’s work, becomes, for the time being, the servant of the borrower, who is liable for his' negligence. But if the general employer enters into a contract to do the work of another, as an independent contractor, his servants do.not become the servants 793 of the person "with whom he thus contracts, and the latter is not liable for their negligence.” (See, also, McInerney v. Delaware & Hudson Canal Co., 151 N. Y. 411, 415-416.) Order and judgment, insofar as appealed from, affirmed, with costs. The findings of fact implicit in the verdict of the jury are affirmed.