
    Samuel Goldman, App’lt, v. Joel W. Mason, and others, Resp’ts.
    
      (City Court of Brooklyn, General Term,
    
    
      Filed October 22, 1888.)
    
    1. Master and servant—Contractor—Negligence—Questions of fact TO BE CONSIDERED BY JURY.
    This action was brought to recover damages for injuries sustained by the plaintiff, while, as alleged by him in the defendants’ employ. The answer put in issue the fact of his employment by the defendants, and testimony was given by the defendants tending to show that he was employed by a.contractor of the defendants and not a servant.^ Held, that the circumstances of the employment being such that the_ plaintiff might infer that he was the servant of the defendants, the question should have been submitted to the jury,
    8. Contractor — Test by which to determine whether a person is CONTRACTOR OR SERVANT.
    
      Held, that the test to determine whether one who renders service to another does so as contractor or not, is to ascertain whether he renders the services in the course of an independent occupation representing the will of his employer only as to the result of his work and not as to the means by which it is accomplished, and that if the defendants retained the right of control over the work of the party active in employing the plaintiff, he was their servant.
    3. Negligence and contributory negligence — Existence of to be determined by jury.
    
      Held, that the questions of negligence and contributory negligence were for the consideration of the jury.
    4. Nonsuit—Evidence of plaintiff must be taken as true.
    
      Held, that in determining the propriety of a nonsuit, the testimony of the plaintiff should be taken as true.
    Appeal from a judgment entered upon a direction at the trial term, at the close of the whole case, dismissing the complaint.
    This action was brought to recover damages for injuries sustained by the plaintiff on the 26th day of November. 1886, while in the employment, as he alleged, of defendants, who were manufacturers of furniture, carrying on business in the city of New York. The plaintiff called at the office of the defendants, at their factory, in October, 1886, and saw McDowell, their superintendent, and asked him for work, and was told to call again next day. Plaintiff called the next day, and saw McDowell, who took him to one Enoch Swain, who set him to work as a laborer, his wages being fixed at $6.50 per week. Prior to this employment, plaintiff had been a peddler; he had never learned any mechanical trade, and had never operated machinery before going to the defendant’s factory. Plaintiff had been employed at this factory about seven or eight weeks, under the immediate direction of Enoch Swain, when the accident in question happened. He had worked under the direction of Swain, on a sand-papering machine, and as a laborer and general round-about, assisting Swain and another mechanic.
    Plaintiff testified that on the day of the accident he was engaged at the sand-papering machine (a machine not at all dangerous to work upon) when he was directed by Swain, after finishing at that machine, to take up work on the planing machine. This machine was a rotary bed planer, of complicated construction, driven by steam power, and having a knife or cutting head, making about 4,000 revolutions per minute under power, and requiring a skilled and experienced workman to operate it. Plaintiff had never before worked upon the planer, and had never received any instruction in its use, although he had seen Swain and another _ workman do work upon it. Swain gave hiiri no instructions as to its use or management, except to tell him how to start and stop it, but told him to put certain bundles of wood through the machine, and after he had finished he might go home. Swain then left the factory. The plaintiff opened several of the bundles of wood, and started to work the planer. He had put some ten or twelve pieces of wood through the machine, when the accident happened. It seems that, being wholly ignorant of the use of the planer, he started to put through a piece which at one end was of a size fitted for the gouge of the machine, but at the other end was too thick for the gouge as then set. It caught in the machine, and his right hand was drawn into the rollers and very nearly severed and permanently disabled.
    Defendants claim that they were not liable for plaintiff’s injuries, because he was not employed by them, but by Enoch Swain, who, they claimed, was an independent contractor; and while plaintiff was taken to Swain by McDowell, defendant’s sxiperintendent, yet that McDowell had no authority to employ men, and had merely undertaken to procure a workman for Enoch Swain, at the latter’s request. Swain testified that he had not directed the plaintiff to work at the planing machine at all. The defendants’ testimony tended to show that there prevailed in their factory a so-called- “contract” system, and Enoch Swain was one of a number of contractors employed by them. Swain was a son of one of the defendants, and had been with them for seven years.
    He worked under agreements with the defendants to make seat frames at an agreed price per piece, varying according to the work. The work was done by him in defendants’ factory. The defendants furnished him with the stock in the rough, cut according to the seat patterns, with the machinery, the power and the room to work in, and kept the machinery in repair. He worked for no one but the defendants, and there was no fixed term to his employment, and it was liable to be ended at any time at the instance of the defendants. Defendants’ foreman instructed him what seats to make, and was at liberty to reject any work he turned out. He was assisted by from two to six men, the number varying at different times, and he and the defendants testified that he hired and discharged those assistants and fixed and paid their wages, and that he had employed plaintiff and fixed and paid his wages. It was also testified that the defendants had no authority or control over the help employed by Enoch Swain. At the end of each week Enoch Swain presented a bill to Littlefield, the clei’k of the defendants, stating the amount of work that had been done by him during the week and how much was due to plaintiff and another assistant. This bill was presented to defendants’ superintendent, who took it to Littlefield after certifying that it was all right. Littlefield paid the plaintiff and the other assistant, and the balance due was paid to Swain. Enoch Swain had no competition in the work done by him for the defendants.
    At the close of the whole case defendants’ counsel moved to dismiss the complaint on three grounds:
    
      First. That the evidence did not show .that the defendants were guilty of any negligence resulting in the injury of the plaintiff.
    
      Second. That the evidence failed to affirmatively disprove contributory negligence on the part of the plaintiff.
    
      Third. That the plaintiff was not in the employ of the defendants or under their protection or control, and that they owed him no duty of instructing him in the use of the machine at which he was injured.
    Plaintiff’s counsel requested the court to leave all these questions to the jury, which request was denied and the motion for nonsuit granted.
    
      Louis S. Phillips and L. A. Wray, for app’lt; Benjamin F. Tracy and Charles A. Flammer, for resp’ts.
   Clement, Ch. J.

The plaintiff brought this action to recover damages for injuries sustained on November 26, 1886, while in the employ, as he claimed, of defendants, which allegation was denied, and testimony was given by the defendants tending to show that he was in the employ of Enoch Swain, and that said Swain was a contractor with defendants, and not their servant. The complaint was dismissed by the learned trial judge, and from the judgment of dismissal this appeal is taken. The counsel for plaintiff asked to have submitted to the jury the questions whether or not the relation of master and servant existed between plaintiff and defendant, and whether or not the same relation existed between the defendants and Enoch Swain. Counsel also asked that it be left to the jury to decide if the defendants were guilty of negligence in not instructing' the plaintiff how to use the machine on which he was working when he sustained his injuries; also that the question of contributory negligence be left to the jury. The requests were denied, and exception duly taken.

We are of opinion that the question whether Enoch Swain" was a servant of or a contractor with the defendants should have been submitted to the jury. There was testimony on the part of plaintiff tending to show that he was employed by McDowell, the superintendent of defendant’s factory, and not by Swain. While it is true the testimony of plaintiff was contradicted by McDowell and Enoch Swain, yet there is no dispute that he sought work of McDowell and was taken by him to Swain, and the defendants concede that he received his pay from them, though they claim to have paid him as the agents of Swain.

The plaintiff sought employment of defendants and was set to work in their factory by their foreman, and was paid by them, and if his testimony is true, thought, from the acts of defendants, that he was m their employ, and if, from their acts, he might so infer, it seems to us that the same acts should be passed upon by the jury for them to draw their inference. While we do not say or mean to intimate that the defendants and their witnesses did not tell the truth, yet to some minds the suspicion might arise that they attempted to contract out all their work on dangerous machinery to avoid liability for injuries sustained by employees. They certainly had a right to contract as to all their work, but whether they did or not in the present case was a question for the jury.

Whether Enoch Swain was a contractor or employee of the defendants is to be determined by a rule laid down in a recent case in the court of appeals. Judge Miller, in the case of Hexamer v. Webb (101 N. Y., 385), says: “ The test to determine whether one who renders service to another does so as a contractor or not, is to ascertain whether he renders the service in the course of an independent oc cupation representing the will of his employer only, as the result of his work, and not as to the means by which it is accomplished.” The defendants admit that they furnished Swain with a room in their factory to work m, also with machinery and stock; and, if the testimony of plaintiff was true, with labor. And it appears that Swain did no work except for defendants, and was employed for no fixed time. There is also the fact that plaintiff received his pay from the defendants.

Although the jury should find that Enoch Swain agreed with plaintiff as to his wages, we think there was other testimony in the case to require the submission of the question to the jury, whether Swain was a contractor or employee. While defendants might not have exercised power of control over the work of Swain, yet if they retained the right to exercise such power during the progress of the work, then, within the authorities, he was their servant, and not their contractor.

The question of the negligence of the defendants was also one for the jury to decide. If Swain was their employee, then he was their foreman in charge of the work, and it was a question of fact, whether or not it was in the line of his employment to set plaintiff at work on the machine on which he was injured. If the jury should decide that he represented the defendants, in what he did, then, of course, they would be liable for his acts. The question of contributory negligence was also one of fact. It is unnecessary to review the testimony on this point. In reviewing the case, we have taken the testimony of plaintiff as true, as is the rule in the case of a non-suit, and disclaim any intention to express any opinion as to the facts, except to hold that as to certain facts, the testimony was conflicting, and that different inferences could be drawn from many of the facts which were not in dispute.

Judgment reversed, and a new trial granted. Costs to abide the event.

Van Wyck, J., concurs.  