State v. Swayze

The opinion of the court was delivered by Garrison, J.

If the relation of master and servant existed between the defendant below and the man whom he employed to trim trees for him, the former cannot escape liability for the negligence of the latter. The state of facts agreed upon by counsel discloses a clear case of negligence in aid of the presumption to the same effect, which follows the *131 judgment into this court. Upon the argument, the force of this legal conclusion was sought to be broken by presenting the employe of the defendant in the light of an independent contractor. It is undoubtedly a rule of law, that where one employs a contractor exercising an independent employment to do a work not in itself a nuisance, the contractor alone is liable for an injury resulting from the negligence of himself •or of servants hired by him, provided the employer is not in default in selecting as a contractor an unskillful or improper person. Cuff v. Newark and New York R. R. Co., 6 Vroom 17 .

In the ease before us, however, the defendant can derive •small benefit from the abstract existence of this rule of law. The facts agreed upon present, in the clearest manner, prima facie a case of employment as master and servant. If the employer seeks to avail himself of the protection afforded him •by the less intimate relation of employer and contractor, it is incumbent upon him, by proof, to establish the facts essential to the applicability of the rule of law he invokes.

There is nothing in the present case to suggest, in the remotest degree, that the man whom the defendant employed was in the exercise of an independent employment. The circumstance that he was to cut the trees for the wood instead •of for cash, indicates merely the mode of his payment; it throws no new light upon the nature of his employment. Indeed, the presumption arising from this mode of payment militates against the notion of an independent employment in respect to which the employer had surrendered all control; the parts of the tree to be cut must have been at the election of the employer, else the workman might take the whole tree as his compensation for trimming it. And the question of control over the work, while not conclusive in all cases upon the question of service, is to be regarded as a test of the greatest importance.

The state of the case is silent, also, as to the skillfulness of the person selected by the defendant to do the work for him; the presumption on this record must be that he was unskillful, since he has been adjudged negligent. The selection of such *132 a person at a time when, from the i’ecent occurrence of a precisely similar accident, the master was charged with the duty of exercising extraordinary care, places the liability of the defendant in the strongest light, and justifies the decision rendered in the court below.

Upon the question of costs, the judgment of the Court of Common Pleas is also correct. The judgment recovered before the justice having been set aside, and a judgment entered for a less amount, the plaintiff was not entitled to-cost's in the Court of Common Pleas, where he was unsuccessful in maintaining his judgment for the full amount, but he was entitled to retain the costs awarded him in the court for the trial of small causes, where he was successful in obtaining a judgment. Housel v. Higgins, 18 Vroom 72 .

The judgment of the Court of Common Pleas should be affirmed, with costs.