Opinion
December Term, 1902.
Myron N. Tompkins, for the appellant.
P.F. McAllister, for the respondent.
We are of the opinion that the trial court correctly submitted to the jury the question of negligence upon the part both of the plaintiff and of the defendant. The fact that the boxes were so insecurely fastened that they fell is sufficient evidence of the negligence of the defendant to warrant the submission of that fact to the determination of the jury. The plaintiff was standing in his wagon, as he had been accustomed to do, for the purpose of receiving the boxes as they were lowered and of guiding them into the proper places in the wagon. That the horse was not hitched was not negligence as a matter of law, as the horse was a kind one with which plaintiff's intestate had had no difficulty theretofore, and, moreover, the lines were within easy reach of plaintiff's intestate and could easily be caught by him except for the sudden jump of the horse, which he might well have failed to anticipate. There is no such preponderance of evidence, therefore, on the part of the defendant upon either question as would justify us in disturbing the verdict of the jury.
The more important question in the case arises upon the defense that the injury was caused by the negligence of a co-employee of plaintiff's intestate. It is claimed that, in the act of transporting the defendant's freight back and forth, the plaintiff's intestate was the defendant's servant, and, inasmuch as the negligence which caused the injury was the negligence of another servant, that the plaintiff assumed the risk of such negligence and has no cause of complaint against the defendant. It will hardly be claimed that if the plaintiff's intestate had upon a single retainer taken the freight from the defendant's factory to the station he would thereby become a servant of the defendant. His relation would be simply a contract relation for this specific purpose, which would have in it none of the elements which attach to the relation of master and servant. ( Murray v. Dwight, 161 N.Y. 301.) It is very clear that in such a case the defendant would not be liable for his negligence in driving to and from the freight office. He was a common carrier and would be engaged in his business as a common carrier and not as defendant's servant. We are unable to see how the legal relation is changed by the fact that he was frequently employed, or by the fact that for such service he was to receive a gross sum, and was not paid by the piece, as was the original custom. He was at the time of the accident a common carrier, transporting light baggage and freight for any one who might call upon him therefor, and was not in our judgment a servant of the defendant, either to impose upon the defendant any liability for the acts of its servants or to save it from liability by reason of the assumed risk of the negligence of a co-employee. The case was fairly and properly submitted to the jury, and we are unable to find any reason for disturbing their conclusion.
Judgment and order unanimously affirmed, with costs.