Reagan v. Casey

Morton, J. The question in this case is whether there was evidence that fairly warranted the jury in finding that the driver of the team was at the moment of the injury to the plaintiff the servant of the defendant. We think there was. O’Brien had general supervision of the work of digging the trench, and of the men engaged in it, and had the right to direct where the teams should back up, and the place to which the dirt should be carted. But we think that there was evidence that in the management and control of the team while engaged in doing the work for which it and the driver had been hired, the driver was the servant of the defendant. The plaintiff testified that “ he had seen the defendant there two or three times, and saw him speak to this teamster”; and the defendant when asked, “Did you exer 379 cise any control at all after the team left the barn, or at any time while on the Commonwealth Avenue sewer?” answered, “ I passed there three or four times,” which the jury may have considered so equivocal as to warrant an inference that he did exercise control. The driver was the general servant of the defendant, and was paid by him, and not by O’Brien, and for aught that appears the driver fed,' harnessed, and unharnessed the horses, and managed and drove them as he thought best; and there is no evidence that fairly warrants the inference that O’Brien controlled or directed him in any of these respects. One object in hiring a team with a driver may have been to have some one who would be responsible for the management of the horses. We do not think that, if a third person had been injured by the carelessness of the driver while going to or from the dumping ground, O'Brien would have had such exclusive control of the driver that the city would be liable. See Kimball v. Cushman, 103 Mass. 194; Huff v. Ford, 126 Mass. 24. The defence that Sullivan and the plaintiff were co-servants cannot avail. In order to make that defence available, it must appear that the plaintiff and the driver were engaged not only in working to a common end, but that at the time of the injury complained of, and in doing that which caused the injury, the driver was subject to the control and direction of O’Brien. Morgan v. Smith, 159 Mass. 570, 571. In the case of Johnson v. Boston, 118 Mass. 114, on which the defendant relies, the plaintiff was subject to the exclusive control of the defendant’s foreman when engaged in the work in which he sustained the injury complained of, and was a fellow servant with others under the charge of the same foreman, and engaged in excavating the trench. Kxceptions overruled.