Hanlon v. Thompson

Allen, J. 1. There was evidence sufficient to warrant a finding that the plaintiff was in the employment of the defendant. It is true that the plaintiff was not hired by the defendant personally, and that both Cushman and the defendant testified that Cushman had agreed to fill the icehouses, and that the men were employed by Cushman to do the work. But from the other testimony the jury might think that these statements ought not to be taken as literally accurate. Cushman’s testimony was somewhat qualified by his cross-examination. And the defendant, on cross-examination, admitted that he employed one or two teamsters to haul ice from the pond to the icehouses, and another witness testified that he worked for the defendant in delivering ice from the icehouses to customers. There was also evidence that the defendant owned all the teams and other personal property used in the business, and that the men were paid at his office by his agent. 2. The jury might also find that the shed where the accident occurred was occupied by the defendant. The lease to Cushman embraced “ sheds ” in the plural, and the jury might find that this shed was included in it. The accident was not till February 27. Cushman sold out his business and property on or about February 14, and the defendant assumed payment of the rent from January 1. The defendant at first testified that he had an assignment in writing of the lease; but he afterwards [197] qualified this statement by saying that he would not be positive. The jury might believe that he had such an assignment. Certainly the evidence tended to show that it was well understood that he was to succeed Cushman as tenant of the leased premises ; that he had bought Cushman’s ice business and teams; and that he was engaged in carrying on that business by aiding at least in filling the icehouses, and by delivering ice to customers. The jury might find that he was in possession as tenant of the shed in question, as well as of the other buildings included in the lease. 3. There was also some evidence, the weight of which was forth e jury, of an implied invitation or permission by the defendant for the men to pass through the shed on their way to and from their work. The situation of the premises might be taken into account. Several witnesses testified that the men were in the habit of going that way. If the way through the shed was commonly used by men in the defendant’s employment, it might be inferred that he knew of this practice, and that is some evidence of an implied invitation or permission for the plaintiff also to use it, if he also' was in the defendant’s employment, and was at work with the others. See Dolphin v. Plumley, ante, 167. 4. The question of the plaintiff’s due care was also for the jury. It cannot be held, as matter of law, that he was bound to look underneath, to see if the timbers were sound and strong. Upon all the evidence, the case was properly submitted to the jury- Exceptions overruled.