Hickey v. Merchants & Miners Transportation Co.

Field, J. The contention of the plaintiff is, that he was hurt through the negligence of one Marks, and that Marks was the servant of the defendant. The ruling of the court was, in [41] effect, that there was no evidence for the jury that Marks was acting as the servant of the defendant when he threw the bale of cotton by which the plaintiff was hurt into the hold of the lighter. Marks was hired by the defendant, and wheeled the cotton into the lighter by the direction of the stevedore of the defendant. It was the duty of Marks, under the arrangement which existed between the defendant and the lighter company,, to take the direction of some agent of the lighter company “ into which side of the hold the cotton should be thrown, and at what time each bale should be thrown.” The plaintiff was a servant of the lighter company, and was at work in the hold stowing the cotton, and in the performance of his duty it was necessary that he should go to the place where the cotton fell when thrown into the hold, and he relied upon being'warned by some one on deck when the eotton was to be thrown into the hold. Barter, the engineer of the lighter company at the time the accident happened, was standing by the side of the hatch for the purpose of directing the servants of the defendant when and where they should throw in the cotton, and for the purpose of warning the servants of the lighter company in the hold when and where the cotton would be thrown in. There was evidence that Marks carried this particular bale of cotton on a truck from the wharf into the lighter, and threw it at once into the hold without “being told or in any way ordered to do so by said Barter, or by any other person, and without any warning being given to the men in the hold either by him or any other person, and before the said Barter could prevent the throwing of said bale, or could give any warning to the men in the hold, or either of them.” We think that there was evidence for the jury that Marks continued to be the servant of the defendant until after he threw the bale of cotton into the hold. There was evidence that he did not, in fact, put himself under the control of the officers or agents of the lighter company, and that in throwing the bale into the hold he was not in fact acting under their directions. The defendant had undertaken the duty of putting the cotton on board the lighter, and of throwing it into the hold. Marks was the defendant’s servant, and until the «bale was thrown in it had not passed out of his possession, which was the possession of the defendant. If [42] at the moment before he threw it in he had been ordered by the defendant’s stevedore not to throw it in, but to wheel it back to the wharf, it would have been his duty to obey. It was only for a few moments that the servants of the defendant, if they submitted to the control of Barter, would be under his control, and then only to the extent of obeying his directions as to the place in the hold where, and the particular time when, the cotton should be thrown into the hold. There was evidence that Marks, in throwing in this particular bale, acted on his own judgment, and was not acting under the control of Barter, and that he, in effect, neglected to obey the directions of the stevedore of the defendant in not submitting himself to the control of Barter as to the time and place of dumping the cotton. See Warburton v. Great Western Railway, L. R. 2 Ex. 30; Blaikie v. Stembridge, 6 C. B. (N. S.) 894. Exceptions sustained.