Cain v. Hugh Nawn Contracting Co.

Braley, J. While not expressly conceded, the plaintiff’s due care was not controverted at the argument, and the question for decision is, whether there was any evidence for the jury of the defendant’s negligence. The accident occurred about midnight, by the plaintiff’s carriage coming into collision with a pile of loose earth left unguarded in a public way by one Beckwith, while employed as a driver of a tip cart in hauling earth excavated by the defendant to a dump, where it was to be unloaded. It appeared from the evidence introduced by the plaintiff that the team was owned by one Woodbury, by whom Beckwith was employed and paid, and under whose orders the team had been driven to the subway where the earth was to be taken on and removed. The testimony of Woodbury showed that the defendant for A stipulated price had hired the team with the driver, and that, after the team left at night and until its return in the morning, during [239] which time the work was to be performed, he gave no directions to the driver. If until he arrived at the subway the driver was the general servant of another, upon arrival and during the period of service, he received and obeyed orders when to load and where to go from the defendant’s foreman. It may be assumed that, so far as reasonably necessary to care for and preserve the property, the driver as the owner’s representative retained control of the team. Kimball v. Cushman, 103 Mass. 194. Huff v. Ford, 126 Mass. 24. The inferences which should be drawn from the evidence as to the relations of Beckwith to Woodbury and to the defendant were not matters of law as the defendant contends, but questions of fact to be decided by the jury under suitable instructions. Preston v. Knight, 120 Mass. 5, 8. Driscoll v. Towle, 181 Mass. 416. Bowie v. Coffin Valve Co. 200 Mass. 571. When the ordinary test where a servant has been hired or lent to another is applied to ascertain whether at the time of the accident Beckwith was engaged in the defendant’s work or in the service of his general employer, there was evidence from which the jury could find that, within the designated period, he was subject only to the authority of the defendant, to whose control he had voluntarily submitted himself. If they so determined, then Woodbury correspondingly had relinquished any right to command his movements while thus engaged, and a further inference, that in the matter of transportation he acted solely as the defendant’s servant, would have been warranted. Coughlan v. Cambridge, 166 Mass. 268. Driscoll v. Towle, 181 Mass. 416. Delory v. Blodgett, 185 Mass. 126. Oulighan v. Butler, 189 Mass. 287, 290, 291. Bowie v. Coffin Valve Co. 200 Mass. 571. Standard Oil Co. v. Anderson, 29 Sup. Ct. Rep. 252. But if he could be found to have become the defendant’s servant, it is urged that he was not acting within the scope of his employment in leaving either the whole or a part of the load in the street. A master is liable for the wrongs committed by the servant when done in the prosecution of the master’s business, but if the servant departs from his employment for purposes of his own, he alone is responsible for his tortious acts. The company in using the public ways for the prosecution of its business [240] could not render them dangerous and unsafe without being liable in damages .to travellers who were injured. It undoubtedly was the duty of Beckwith, to whom the transportation had been intrusted, to proceed to the place of destination and not to leave the earth in the street, yet his failure, while in transit, to obey the order does not exonerate the defendant. George v. Gohey, 128 Mass. 289. Grant v. Singer Manuf. Co. 190 Mass. 489. In leaving a portion of the earth where it had fallen, when the whole could have been removed, he was still about the defendant’s affairs and acting within the limits of his employment, whether the load had been deposited through the accidental loss, of the pin causing the cart automatically to unload, or because he dumped its contents. Bayes v. Wilkins, 194 Mass. 223. The defendant accordingly must be held responsible for the injury to the plaintiff. Exceptions overruled.