
    Joseph Brophy, App’lt, v. Edward B. Bartlett, Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed January 17, 1888.)
    
    Master and servant—When relation exists.
    It appeared from the evidence that the plaintiff was in the employ of • one Rawle who kept horses for hire. That Devanny needing a horse for his work, hired one of Rawle, who sent it, and the plaintiff Devanny swore that he only hired the horse and never took the plaintiff into his employ. Plaintiff stayed in charge of the horse, and the foreman of defendant set him at work with the truck which was alleged to have been defective, and from which the injury arose. Devanny supplied his own men and horses, and was hired by the hour to do all of defendant’s trucking, but he- seemed to have been under the control of their foreman and subject to his orders and direction, and there was some proof tending to show that the foreman had authority over Devanny’s men. Held, that the question as to the relations of the parties to each other should have been submitted to the jury; that to non-suit the plaintiff was error.
    Appeal from a judgment entered upon an order of the supreme court, general term, second department, affirming a judgment of the supreme court, Kings county, dismissing the plaintiff’s complaint at circuit.
    The action to was recover damages for injuries alleged to have been incurred by plaintiff through defendant’s negligence.
    On May 16, 1884, a vessel commenced discharging her cargo of sugar at bulkhead in front of Harbeck’s stores, in the city of. Brooklyn. The stores are leased and occupied by defendants as storage warehouses.
    Neither the vessel nor the cargo were consigned to the defendants, but the cargo was being delivered to defendants as warehousemen. The agent of the vessel had contracted with Messrs. Kilberg & Troyfore, stevedores, to land the hogsheads of sugar from ship tackle on trucks on the wharf. The defendants had contracted with John Devanny, a truckman, to do all the trucking for their warehouses at an agreed price per hour for every horse employed.
    The tracks used were three wheel platform trucks, and were owned by defendants.
    The horses were all furnished by Devanny, pursuant to his contract. On this occasion Devanny, not having a. horse to put on this work, hired one from Patrick Eawle, another truckman; Eawle sent the plaintiff with the horse to drive it. Devanny did not hire the plaintiff, simply the horse, and paid Eawle for the.horse alone; Eawle employed and paid the plaintiff. While the plaintiff was driving the horse owned by Eawle and hired by Devanny, attached to the truck owned by the plaintiff, one of the hogsheads was thrown from the truck, as plaintiff alleges, by reason of a defect in the truck, and caused the injury for which this action was brought.
    At the close of plaintiff’s case defendant moved for a non-suit on the ground that the plaintiff, not being in the employ of defendants, and there being no privity of contract between them, the defendants- owed him no duty in regard to the truck furnished to Devanny.
    The court granted the motion.
    
      J. Stewart Boss, for app’lt; James Moffett, for resp’t.
    
      
       Reversing 37 Hun, 642, mem.
      
    
   Finch, J.

The evidence in this case admits of different and discordant inferences. One is that the plaintiff was not employed by anybody to work upon the dock, until directed to use a truck by the foreman of the defendants, and so became the defendant’s servant; while the other, which led to the non-suit, was that he remained the servant of Eawle, or if he became that of Devanny, no liability attached since the latter was an independent contractor to do the trucking. The question of the true relations of the parties to each other seems to us to be a mixed question of law and fact, not to be solved without the aid of a jury.

The plaintiff appears to have been in the employ of Eawle, who kept horses for hire. Devanny, needing a horse for his work, hired one of Rawle. The latter seems to have understood that this implied a driver as well as a horse, and sent Brophy, the plaintiff, with the horse to work upon the dock. But Devanny swears that he hired ■ only the horse and paid only for that, and never at all took plaintiff into his employ. If that was true the plaintiff had no duty on the dock, except to deliver the horse to Devanny and then go back to his master. But he stayed in charge of the horse and the foreman of defendants, doubtless supposing him to be one of Devanny’s men, set him at work with the truck, which is alleged to have been defective and from which the injury arose. If the evidence of Devanny is believed to its full extent the plaintif never was employed by anybody to work on the dock, unless by the foreman of defendant, for Devanny did not hire him, nor authorize Rawle to so set him at work. A jury_might very well take Devanny’s statement as doubtful, in view of the facts, and conclude that when he hired the horse it was implied and understood that a man was to come with the animal to drive and manage it, but we cannot disregard the direct and explicit testimony of the witness.

If, however, Brophy was hired by Devanny, there yet remains the question whether the latter was an independant contractor.

The evidence again admits of different inferences. He supplied his own men and horses, and was hired by the hour to do all of defendant’s trucking, but he seems to have been under the control of their .foreman and subject to his orders and direction, both as to what to do and how to do it, and some of the proof warrents the idea that the foreman had authority over Devanny’s men. The whole arrangement was verbal and it is not easy to reconcile the conflicting inferences.

We are of opinion, therefore, that both questions referred to under proper directions from the court should have been submitted to the jury.

The judgment should be reversed, and a new trial granted, costs to abide the event.

All concur.  