Packet Co. v. McCue

Mr. Justice DAVIS delivered the opinion of the court. It is- insisted on the part of the plaintiff in error that a master is not responsible to-a servant for injuries caused by the negligence or misconduct of a fellow-servant engaged in the same general business. Whether this general proposition be true or not it is not necessary to determine in the state of this, record. It is conceded, if the employment o'f McCue by the company terminated before the injury complained of was suffered, that the company is liable, and this the jury have found to be-the fact. [514] But it is said it was the province of the court, and not the jury, to determine the point .of .time at which the service was ended; that as the facts were undisputed, it was a question of law, and the court should have told the jury the relation of master and servant subsisted when the accident happened. We do not think so. One of the theories on which the suit was prosecuted was that McCue’s special employment had ceased when he was injured. This theory was resisted by the defence, and the court, not taking upon itself to determine as an absolute proposition when the employment terminated, left it to the jury to find how the fact was. This ruling, in our opinion, was correct.. It was for the jury to say, from the nature of the employment, the manner of engaging the hands, the usual mode of transacting such a business, and the other circumstances of the case, whether the service had or had not ceased at the time of the accident. The point'was submitted .fairly to the jury, with no more comments than the evidence justified. It was argued by the plaintiff in error that the employment of necessity terminated on the laud, because it was there McCue was en.gaged to do the work, and he had the right to be provided with the proper means of reaching it from the boat. On the contrary, the defendant in error contended the special service ceased’when McCue had finished his work and was paid off; that after this he was not subject to the control or direction of the officers of the boat, but at liberty to stay on the boat or go off as he pleased. The jury took this latter view of .the relation of the parties, and we cannot say that they did not decide correctly. At any rate, their decision on a question of fact is not subject to review in this court. The defence at the best was a narrow one, and in our opinion more technical than just. Judgment apeirmed. [See Railroad Company v. Fort, infra, p. 553.]