Opinion
No. 34134.
November 25, 1940.
1. TRIAL.
In action for death of decedent who was struck by train when he jumped or fell from truck at crossing, where evidence showed that truck driver was familiar with location of crossing and was aware of fact that he was approaching crossing on occasion in question, it was not shown that railroad's failure to maintain stop sign proximately caused or contributed to accident, and trial court charged that verdict should be against railroad if it was guilty of any negligence, court erred in peremptorily instructing that failure to maintain stop sign was negligence.
2. RAILROADS.
In action for death of decedent who was struck by train when he jumped or fell from truck at crossing, whether defendant railroad was negligent in failing to ring bell or blow whistle as train approached crossing was for jury under conflicting evidence.
3. TRIAL.
An instruction that if jury believed from evidence that any witness was mistaken upon any material fact concerning which he might have testified, or that any witness wilfully and corruptly swore falsely to any material fact, jury had right and duty to disregard the entire testimony of such witness, provided jury believed such testimony to be untrue, was erroneous as calculated to mislead and confuse jury concerning its duty in regard to the entire testimony of a witness who might have been merely mistaken about the material fact testified to.
4. TRIAL.
An instruction that if decedent was not at time of crossing accident directing or controlling movements of truck on which he was riding, negligence, if any, of truck driver could not be imputed to decedent was erroneous as omitting qualification that a passenger must do something for his own safety and protection, such as give seasonable warning or remonstrance, where the evidence in jury's opinion may disclose that he is aware of impending danger which driver has overlooked or has not observed, or to which driver seems to be indifferent.
5. EVIDENCE.
Permitting deputy sheriff to testify that railroad crossing at which accident fatal to truck passenger occurred was a dangerous crossing instead of requiring him to state merely the facts concerning its condition and surroundings and leaving it to jury to determine whether it was a dangerous crossing was error.
6. MASTER AND SERVANT.
Evidence that defendant oil company which entered into contract with codefendant for construction work at filling station reserved no supervision or control over employment of laborers or over method, manner, or time of performance of their duties, that codefendant had right to hire and discharge laborers and fix their wages, and that codefendant purchased and paid for all materials and furnished his own truck for transporting laborers, showed that "master and servant relationship" did not exist between oil company and laborer who was fatally injured by train when he jumped or fell from truck at crossing, and hence company was not liable for laborer's death.
7. MASTER AND SERVANT.
On question of defendant oil company's liability for death of codefendant's employee in railroad crossing accident, notation, "Estimate No. 7297, Itta Bena, Mississippi. Employee #426-05-8438," above caption of written contract fixing codefendant's relationship to company as that of an independent contractor could not of itself determine relationship, where estimate number was intended to designate particular job let by company under contract, and employee number represented codefendant's social security number.
APPEAL from the circuit court of Webster county; HON. J.E. ALLEN, J.
Owen Garnett, of Columbus, and R.C. Stovall, of Okolona, for appellant, Columbus Greenville Railway Company.
The court erred in refusing to grant a peremptory instruction as to this defendant.
Ordinarily, persons charged with duty, if they testify, are trying to tell the truth, and are more to be depended on than those persons who are not charged with any duty in reference to the matter. As against this assumption we are met with the counter fact that ordinarily a man seeks to justify his own act, or to deny negligence; but where such witnesses are supported by corroborating affirmative testimony of other disinterested witnesses, and the only testimony in opposition is the negative testimony of persons who did not hear the whistle or the bell, their attention being elsewhere, such negative testimony is insufficient to overturn affirmative testimony.
Y. M.V.R. Co. v. Lamensdorf, 180 Miss. 426, 177 So. 50; Weiss v. Central R. Co., 69 A. 1087; Culhane v. N.Y.C.R. Co., 60 N.Y. 133, 137; Keiser v. Lehigh Valley R. Co., 61 A. 903; Urias v. Penn. R. Co., 25 A. 256; Lonzer v. Lehigh Valley R.R. Co., 46 A. 937; Horandt v. Central R. Co., 73 A. 93; Foley v. N YC.R. Co., 90 N.E. 1116; Banister v. R. Co. (Iowa), 202 N.W. 766; Longley v. McGroch (Md.), 80 A. 844; Long v. McCabe (Wash.), 100 P. 1016; Reed v. Flynn (Ky.), 266 S.W. 644; Hank v. Peoria Ry. Co., 154 Ill. App. 473; C. R.I.R. Co. v. Still, 19 Ill. 499.
Mr. Hester was familiar with his surroundings; he knew the crossing was there; and a stop-law sign board on the righthand side of the road could have told him no more than he already knew. In that situation the absence of a stop-law sign could not have been a proximate cause of the accident, and there was not a scintilla of evidence to warrant the jury in so finding.
I.C.R. Co. v. Wright, 135 Miss. 435, 100 So. 1; Kramer Service Co. v. Wilkins, 184 Miss. 483, 186 So. 625; 45 C.J. 904.
It is a maxim that the law looks to the proximate, and not at the remote, causes of an injury. Out of the application of this maxim grows the liability or non-liability of a defendant charged with the infliction of an injury by his negligence. Unless the alleged negligence of the defendant was the proximate cause of the injury of which plaintiff complains, there can be no recovery. For consequences of which his act or omission was only a mere condition or remote cause the defendant is not liable. To constitute actionable negligence, there must be not only a causal connection between the negligence complained of and the injury suffered, but the connection must be a natural and continuous sequence, unbroken by any other cause.
L. N.R. Co. v. Nolan (Ind.), 34 N.E. 710, 712; 45 C.J. 1318.
After telling the jury that they were the sole judges of the weight of the testimony and the credibility of the witnesses, and that they should take into consideration a witness's pecuniary interest, if shown, and his opportunities for knowing the truth of the matters testified about, the instruction included this cracker to make it pop like a bullwhip: ". . . and if you believe from the evidence that any witness in this case is mistaken about any material fact as to which he or she may have testified, or that any witness has wilfully and corruptly sworn falsely to any material fact, you have the right and it is your duty to disregard the entire testimony of such witness provided you believe such testimony to be untrue." We take it to be quite elementary that a jury may disregard the entire testimony of a witness if they believe his entire testimony to be untrue; but merely because he was mistaken as to one of a group of facts would not justify a throwing out of his entire testimony. If it meant no more than that they could disregard the entire testimony of a witness if they believed his entire testimony to be untrue, then why were the words, "if you believe any witness in this case is mistaken about any material fact as to which he or she may have testified," put in the instruction? They had no place in the instruction and could only breed confusion by leading the jury to understand that if they believed any witness was "mistaken about any material fact," it was their right and duty to throw out all of his testimony.
It was a vicious instruction, not justified by the evidence, included confusing matter, and, as said in Corpus Juris, it was "calculated to intimate that in the opinion of the court some of the witnesses had testified falsely." This court has time and again said that the wrongful granting of this form of instruction will alone warrant a reversal of judgment.
Farley v. Smith, 158 Miss. 404, 130 So. 478; D'Antoni v. Albritton, 156 Miss. 758, 126 So. 836; McClure v. State (Miss.), 128 So. 764, 766; Railroad Co. v. McCoy, 85 Miss. 391, 37 So. 706; Wood v. State, 174 Miss. 499, 165 So. 123; Shelton v. State, 126 So. 390, 395; Pickwick Greyhound Lines, Inc., v. Johnson, 160 Miss. 470, 134 So. 566; Sardis D.R. Co. v. McCoy, 85 Miss. 391, 37 So. 706; Perkins v. Knisely, 68 N.E. 486; Felton v. U.S., 24 L.Ed. 875, 876; Hiatt v. Tomlinson, 158 N.W. 383, 384; O.-W. Ry. Nav. Co. v. U.S., 205 Fed. 337, 339; U.S. v. Strickrath, 342 Fed. 151; Ragansky v. U.S., 253 Fed. 643, 645; U.S. v. So. Ry. Co., 1 F.2d 607; Gibbs v. Hanchette, 51 N.W. 691; 64 C.J. 613, sec. 551.
A person occupying a vehicle driven by another over whom he has no control may be required to do something for his own safety and protection, such as to give seasonable warning or remonstrance against assuming the danger which is apparent. Such person is not under the same duty nor charged with the same degree of care as a person driving the automobile or other vehicle, and where the person driving the automobile or other vehicle is a safe and prudent and careful driver, the vigilance of the occupant of such automobile or other vehicle is considerably relaxed, and he may assume that the driver will take such precaution as is reasonable and prudent under the circumstances. But if such occupant of an automobile discovers danger or sees that the driver is taking a dangerous risk or needless exposure, he should caution and remonstrate with the driver and give warning of the danger which the driver has overlooked or has not observed.
C. G. Ry. Co. v. Buford, 150 Miss. 832, 116 So. 817; Y. M.V.R. Co. v. Lucken, 137 Miss. 572, 102 So. 393; G.M. N.R. Co. v. Brown, 138 Miss. 39.
The instruction should have been modified to the extent of making Robert Robinson accountable for the way the truck was being driven to the extent that he may have known of it and acquiesced in it.
The witness Hightower, for plaintiffs, was town marshal of Itta Bena at the time of the accident, and a deputy sheriff at the time of the trial. Allowing him to testify that the crossing in question "was a dangerous crossing at that time," was highly prejudicial. He was evidently introduced as an expert on crossings, but we don't think he should have been allowed to express an opinion, as his official position, while not qualifying him to know any more about crossings than anybody else, may have given his words weight with the jury. The big idea was to make it appear that the situation at that crossing made it incumbent upon the Railway to take extraordinary precautions in moving cars over it.
As bearing upon the acts and conduct of the parties and the cause of the injury it is competent to show the nature and surroundings of the place of the injury. But a witness cannot give his mere conclusion as to the danger or difficulty involved in crossing the track at that point.
10 Encyc. of Evidence 502; S.F. W. Ry. Co. v. Evans, 49 S.E. 308; Railroad Co. v. Spencer, 72 Miss. 491, 17 So. 168; Grace v. G. C.R. Co., 25 So. 875; City of Anniston v. Ivey, 44 So. 48, 50; A.G.S.R. Co. v. Flinn, 74 So. 246; L. N.R. Co. v. Moorer, 70 So. 277.
Green Green and Forrest B. Jackson, all of Jackson, for appellant, Standard Oil Company Incorporated in Kentucky.
W.C. Hester, under the facts of this case, is an independent contractor.
Restatement of the Law of Agency, sec. 220, and Mississippi Anotations, p. 66; Callahan Const. Co. v. Rayburn, 110 Miss. 107, 69 So. 669; N.O., etc., R.R. Co. v. Rayburn, 110 Miss. 107, 69 So. 669; N.O., etc., R.R. Co. v. Reese, 61 Miss. 581; N.O., etc., R.R. Co. v. Norwood, 62 Miss. 565, 52 Am. Rep. 191; Hutchinson-Moore Lbr. Co. v. Pittman, 154 Miss. 1, 122 So. 191; Louis-Werner Sawmill Co. v. Northcutt, 161 Miss. 441, 134 So. 156; Kisner v. Jackson, 159 Miss. 424, 132 So. 90; Crescent Baking Co. v. Denton, 147 Miss. 639, 112 So. 21; Crosby Lbr. Mfg. Co. v. Durham, 181 Miss. 559, 179 So. 285, 287; Till v. Fairbanks Co., 111 Miss. 123, 71 So. 298, 300; McDonald v. Hall-Neely Lbr. Co., 165 Miss. 143, 147 So. 315, 316; Gulf Refining Co. v. Nations, 167 Miss. 315, 145 So. 327; 39 C.J. 1315, sec. 1517; 19 A.L.R. 231.
There is no testimony to support the allegations of appellees that Hester was an employee of the Standard Oil Company, and as stated in Crosby Lumber Manufacturing Co. et al. v. Durham, 179 So. 285, 181 Miss. 595, where there is no evidence introduced the terms of the contract will control. In this case, we not only have no evidence that Hester was an employee of the Standard Oil Company, but we have bountiful testimony by appellees' witnesses that show that Hester was an independent contractor. The only evidence that might be considered such was the fact that across the top of the contract was written: "Employee, #426-05-8438," and this was shown to be Mr. Hester's Social Security number. However, it is a requirement of the Social Security Board that a firm, when they contract with a person to do work, if that person have a Social Security number that they place that Social Security number on the contract. Furthermore, the mere notifications or terms of the contract will not overcome the evidence, for as this court said in Gulf Refining Company v. Nations, 167 Miss. 315, 145 So. 327, it is not the terms of the contract that determine whether a person is an independent contractor, but rather the manner in which the work is done.
W.D. Gary, of Eupora, and Berry D. Brown, of Greenwood, for appellees.
The case of Y. M.V.R.R. Company v. Lamensdorf, 180 Miss. 426, 177 So. 50 is cited by the appellant, Railway Company, in support of its contention that its motion for a peremptory instruction should have been granted. This rule is not applicable to the instant case because in the Lamensdorf case there is no such positive testimony that no signals were given by the railway company as is found in the testimony of the witnesses for the appellees heretofore pointed out. The distinction is clear. The testimony under consideration in the Lamensdorf case was so-called negative testimony, whereas, the testimony presented by this record is positive, or affirmative testimony.
C. G.R.R. Co. v. Lee, 149 Miss. 543, 115 So. 782; Y. M.V.R. Co. v. Beasley et al., 158 Miss. 370, 130 So. 499.
Under the testimony of Hester, the jury was fully warranted in determining whether or not the absence of the railroad stop sign had a causal connection with the injuries of Robert Robinson. It will be observed that the Railroad Company does not contend that a sign of any kind or description was maintained at the Eastern approach to this crossing, and also that the testimony of the railroad flagman that he was standing in the middle of the crossing prior to the time Hester entered the crossing was controverted by the testimony of every witness for the plaintiff.
The jury was fully apprised of the law relating to the question of the neglect of the Railroad Company in failing to maintain the stop sign by the following instruction granted the appellee: "The court instructs you, for the Railway Company, that even if the Mississippi Stop Law sign was not in position as W.C. Hester drove his truck toward the railway crossing; still the court says to you that before you can return a verdict for the plaintiffs against the Railway Company you must believe from the greater weight of credible evidence that failure to have the Stop Law sign in position was a proximate cause, that is to say, an efficient cause of the injury sustained by Robert Robinson. If you believe from the greater weight of credible evidence that W.C. Hester had driven his truck over the crossing often enough to be familiar with it, and that he, in fact, knew of the presence of the railway track over the highway at that place, then the court says to you that you cannot find that failure to have the Stop Law sign in position was a proximate cause of the injury sustained by Robert Robinson." It is, therefore, urged that the appellant, Railway Company, was in no wise prejudiced by the granting of the instruction complained of.
We submit that none of the following cases cited by appellant are in point. The instructions complained of in this group of cases were found to be erroneous because they omitted the word "corruptly." In the instant case, the instruction complained of reads as follows: ". . . or that any witness has wilfully and corruptly sworn falsely to any material fact."
Farley v. Smith, 158 Miss. 404, 130 So. 478; Wood v. State, 174 Miss. 499, 165 So. 123; Pickwick Greyhound Lines, Inc., v. Johnson, 160 Miss. 470, 134 So. 566; Shelton v. State, 126 So. 836; Sardis D.R. Co. v. McCoy, 85 Miss. 391, 37 So. 706; McClellan v. State, 183 Miss. 184, 184 So. 307.
The case of C. G. Ry. Co. v. Buford, 150 Miss. 832, 116 So. 817, in nowise holds as claimed by the defendant railway company that the complained-of instruction should have contained the qualification, "Unless you further believe from the evidence that he was not aware of the negligent driving and the dangerous situation in time to caution and remonstrate with the driver."
The Buford case held that where an instruction was given similar to the one in this record, the defendants are entitled to an instruction that if the deceased saw his danger and did not remonstrate with the driver or caution him of the danger that the deceased was guilty of negligence. No such instruction was requested by the Railway Company in the case at bar, although it could properly have been granted if requested.
The undisputed evidence in this case showed that the deceased was riding on the open body of the truck, facing the opposite direction from that in which the driver was looking, and outside of the enclosed cab in which the driver was seated.
Under the facts disclosed by this record, not only would qualification of the instruction serve no purpose, but such qualification, doubtless, would have appeared ridiculous to the jury.
We respectfully submit that Hightower having been familiar with the activity which was centered in the neighborhood of the crossing and the circumstances and conditions which existed there was qualified to testify that the crossing in question was a dangerous crossing as a fact, and not as a mere matter of opinion. Without Hightower's testimony it was, of course, manifest to the jury that the crossing was a dangerous one, and we respectfully submit that if Hightower's testimony should not have been admitted, which we do not concede to be the case, no error was committed in permitting him to qualify as a witness and render this testimony.
It is the theory of the appellees that the Oil Company, intending to exercise direction, control and supervision over Hester, as one of its work managers, caused the instrument in question to be executed for the purpose of avoiding any liability to the public or to its employees for any acts of negligence committed during the performance of the work which it desired performed and to defeat its liability for taxes to federal or state governments on the wages received by the employees.
On the very top of the instrument itself, as introduced in evidence, appear the typewritten words: "Estimate #7297, Itta Bena, Mississippi, Employee #426-05-8438."
When Hester was recalled to the witness stand for further questioning by the appellees, he exhibited his Social Security Card which bore the employee account number 426-05-8438, corresponding to the number appearing on the instrument which purports to be a contract, and at this time admitted that he had worked for the Standard Oil Company by the day and that deductions had been made from his wages to apply on Social Security benefits.
There is no statutory requirement that Social Security account numbers of independent contractors be placed upon the contracts into which they enter, and the only reasonable inference is that the instrument here involved was in some manner qualified by inclusion of this wording thereon.
But the very first lettering upon the instrument describes it as "Estimate #7297, Itta Bena, Mississippi." Surely these words were intended to have significance. Is this instrument, notwithstanding its subsequent provisions, merely an estimate of the costs of equipping the Oil Company's property in the manner which it desired, or is the language surplusage and of no significance, or is it a qualification of the instrument itself which would operate, as between Hester and the Oil Company, as a defense to any claim or action which Hester might predicate upon it?
The Standard Oil Company, which relied solely upon the contract itself and caused Hester to be interrogated only briefly in its defense, offered no explanation of the language appearing upon the contract. The jury had a right and it was its duty to place a reasonable interpretation upon this language and construe the instrument according to the reasonable import of its provisions.
The appellant, Standard Oil Company, cites numerous sawmill cases in support of its contention that Hester was an independent contractor, but we respectfully submit that these cases are not analogous to the case here presented, and that under all the facts and circumstances disclosed by this record that W.C. Hester was the servant of the Standard Oil Company under the circumstances, and as its foreman or manager, exercised control and supervision over the deceased negro, Robert Robinson, even under the terms and provisions of the instrument here involved, even if the court should consider the instrument to amount to a contract instead of a mere estimate, as the instrument itself is captioned in this language, "Estimate #7297, Itta Bena, Miss."
Kisner v. Jackson, 159 Miss. 424, 132 So. 90; Hutchinson-Moore Lbr. Co. v. Pittman, 154 Miss. 1, 122 So. 191, 193; Caver v. Eggerton, 157 Miss. 88, 127 So. 727; Gulf Refining Co. v. Nations, 167 Miss. 315, 145 So. 327; Pan-Am. Pet. Corp. v. Pate, 157 Miss. 822, 126 So. 480, 128 So. 870; Southern Express Co. v. Brown, 67 Miss. 260, 7 So. 318, 319, 8 So. 425, 19 Am. St. Rep. 306.
Argued orally by Garner Green, Jr., for appellant and by Berry D. Brown, for appellees.
There was rendered in the Circuit Court of Webster county a judgment against the appellant, Columbus Greenville Railway Company, for the sum of $225; the appellant, Standard Oil Company of Kentucky, Incorporated, for the sum of $1,275; and W.C. Hester for the sum of $25, in favor of the appellees, as the sole heirs-at-law of Robert Robinson, deceased, whose injury and death is alleged to have been caused by the concurrent negligence of the said defendants when he fell or jumped from a truck being driven by Hester as it crossed the railroad spur-track immediately in front of a moving train of the defendant railway company at a point where the highway crossed the tracks in the switch-yard in the Town of Itta Bena, Mississippi; and from which judgment the railway company and the oil company prosecute this appeal.
It is the contention of the appellees that the defendant Hester was a servant and employee of the said Standard Oil Company of Kentucky, and was engaged about the duties of his employment as such at the time of the accident when returning from his work at Itta Bena to the City of Indianola on the occasion in question, and that, as driver of the truck on which Robert Robinson was riding, along with other alleged employees of the oil company, he recklessly and negligently undertook to cross the railroad spur-track ahead of the oncoming train of cars in such manner as to cause the said Robert Robinson to fall from the truck as it passed over the railroad crossing, and to be struck and fatally injured by the train; that the railway company failed to cause the bell to be rung or the whistle to be blown as its engine pushed some ten or twelve gravel cars southward toward the crossing so as to warn the occupants of the truck of the approaching train, and failed to maintain a "Mississippi Law Stop Sign" on the north side of the highway and east of the railroad spur-track as the truck approached the crossing, traveling from east to west.
The proof failed to disclose any causal connection between the failure of the railway company to maintain the stop sign and the accident complained of, since it was shown without dispute that the driver of the truck had been crossing the railroad every day at that point, both during the morning and afternoon, for more than fifteen days immediately preceding the accident, and that he was not only familiar with its location on the highway, but was aware of the fact that he was approaching the crossing on the occasion in question, as he watched for some gravel trucks which were usually present at the intersection of the highway and railroad track and engaged in hauling for a road construction company which had its plant stationed near the highway at that point. Moreover, if his attention was so engaged in looking to the south of the highway for gravel trucks that he failed to see the train of cars coming from the north until he was within a few feet of the same, it is not at all probable that he would have seen the stop sign if it had been in position on the north side of the highway. Hence, it was error, as contended here by the railway company, for the court below to have instructed the jury peremptorily that the failure to maintain the stop sign was negligence, in view of other instructions given, to the effect that if the railway company was guilty of any negligence the jury should find for the plaintiffs.
As tending to establish the alleged negligence of the railway company, the record does disclose some testimony to show that neither the bell was rung nor the whistle blown as the train of cars approached the crossing, but the truck driver testified that these signals could possibly have been given without his hearing them, and one of the witnesses for the plaintiffs testified to the correctness of a signed statement given by him to the railway company a few days after the accident, wherein he stated positively that he heard the whistle blow twice and also heard the bell ring before the train of cars, which were being backed toward the crossing, had reached the highway, and that he saw the flagman stand in the middle of the crossing in an effort to get the truck to stop when it was about one hundred yards away, and that he finally had to get off of the crossing to keep the truck from hitting him. There was other testimony on behalf of the plaintiffs which was merely negative in character as to whether these warning signals were given, as against the positive testimony of several witnesses that they were given. It must be conceded, however, that such testimony as was not altogether negative in character on that issue was enough to bring about a contradiction sufficient to warrant the submission of the case to the jury. In other words, the proof on that particular issue in favor of the plaintiffs seems to rise some higher than that which was under consideration in the cases of Yazoo M.V.R. Co. v. Lamensdorf, 180 Miss. 426, 177 So. 50, 178 So. 80; Weiss v. Central R. Co., 76 N.J.L. 348, 69 A. 1087; Culhane v. New York Cent. H.R.R. Co., 60 N.Y. 133, 137; Keiser v. Lehigh Valley R. Co., 212 Pa. 409, 61 A. 903, 108 Am. St. Rep. 872; Horandt v. Central R. Co., 78 N.J.L. 190, 73 A. 93; Foley v. New York Cent. H.R.R. Co., 197 N.Y. 430, 90 N.E. 1116, 18 Ann. Cas. 631. The testimony of two or three of the witnesses amounted to more than a mere "I did not hear the bell ring."
We have concluded, however, that the case should be reversed and remanded as against the defendant railway company because of the giving of the following erroneous instructions: (1) That the failure to maintain the stop sign was negligence, and especially where the jury was otherwise instructed that the verdict should be against the said defendant if it was guilty of any negligence, it not being shown that such failure proximately caused or contributed to the accident. (2) That if the jury "believes from the evidence that any witness in this case is mistaken about any material fact as to which he or she may have testified, or that any witness has willfully and corruptly sworn falsely to any material fact, you have the right and it is your duty to disregard the entire testimony of such witness provided you believe such testimony to be untrue;" the instruction being calculated to mislead and confuse the jury as to its duty in regard to the entire testimony of a witness who may have been merely mistaken about any material fact testified to. (3) That if the deceased Robert Robinson was not at the time of the accident "directing or controlling the movements of the motor vehicle, which was being driven by another, then the negligence of the driver of the motor vehicle, if there was such negligence, cannot be imputed to the said Robert Robinson;" the instruction omitting entirely the qualification that a passenger is required to do something for his own safety and protection, such as to give seasonable warning or remonstrance where the evidence, in the opinion of the jury, may disclose that he is aware of impending danger which the driver has overlooked or has not observed, or to which the driver seems to be indifferent. Columbus G.R. Co. v. Buford, 150 Miss. 832, 116 So. 817; Gulf, M. N.R. Co. v. Brown, 138 Miss. 39, 102 So. 855.
It was also error to permit the deputy sheriff to testify that the crossing in question was a dangerous one instead of requiring him to merely state the facts as to its condition and surroundings and then leave it to the jury to determine the question in controversy.
The appellant oil company was entitled to the peremptory instruction requested for the reason that the proof wholly failed to establish either of the following facts: (1) The relation of master and servant between the said oil company and the truck driver; (2) that the oil company furnished the alleged defective truck complained of to transport the employees of W.C. Hester, who was driving the truck, to and from their work; (3) that the oil company had any knowledge of the fact that such employees were being so transported from Indianola to Itta Bena and return; and (4) that the oil company owed the deceased any duty in the premises, since the proof disclosed that he was an employee only of the said defendant, W.C. Hester.
On the contrary, the record shows that on August 9, 1938, the defendant W.C. Hester entered into a contract with the appellant Standard Oil Company of Kentucky, Inc., to do certain work as an independent contractor at a filling station at Itta Bena, Mississippi, according to plans and specifications, for a contract price of $615.99, and involving the erection of a new wash shed, the installation of a hydraulic lift, the construction of a concrete floor under the shed and out to the street, the installation of a wash trap, and a new auxiliary air tank. The contract was in writing and clearly reserved no supervision or control by the oil company over the employment of the laborers of the contractor nor over the method, manner or time of the performance of their duties. The right to hire and fire the laborers, including Robert Robinson, and the fixing of the wages paid by the contractor was vested solely in the said W.C. Hester. He purchased and paid for all materials used in carrying on the work, such as cement, gravel, roofing, etc., and furnished his own truck for the transportation of his laborers, the oil company furnishing only the manufactured equipment which was being installed. The oil company exercised no control, nor did it reserve the right to control the physical conduct of Hester or his employees in the performance of their duties, or as to the means and methods to be employed in the accomplishment of the net result contracted for. It was merely shown that a district superintendent or manager of the oil company visited the job on occasions to see whether the work was being done according to plans and specifications, but did not undertake to supervise the details or direct the manner in which the work should be done. The relationship of master and servant therefore did not exist under the rule announced under the numerous decisions cited and reviewed in the case of the Texas Company v. Wheeless, 185 Miss. 799, 187 So. 880, and any further discussion of which cases we deem unnecessary in the case at bar.
Some emphasis is laid on the fact that above the caption of the written contract herein referred to, there is contained the following notation: "Estimate No. 7297, Itta Bena, Mississippi. Employee #426-05-8438." It appears that the estimate number was to designate the particular job let by the oil company under contract for work of this character to be done, and that the employee number represents the social security number of W.C. Hester. As to why this notation was made on the contract is not fully explained, but this circumstance of itself could not determine the relationship between the oil company and Hester, since his relationship as an independent contractor was definitely fixed by the terms and conditions contained in the body of the written contract. Moreover, it appears that this contractor performed similar work under contract for other oil companies, and that his time was engaged mostly in taking similar contracts for "small jobs" during the period under consideration, although he had formerly done work for this particular oil company by the day and under the social security number hereinbefore mentioned.
From the foregoing views, it follows that the case must be reversed and remanded as against the appellant railway company, and that the same should be reversed and a judgment entered here for the appellant oil company. It is so ordered.
Reversed and remanded as to the railway company; reversed and judgment here for the appellant Standard Oil Company of Kentucky.
The evidence does not disclose that Robert Robinson was directing or controlling the driver of this truck at the time of the accident, nor that he had any authority so to do. Neither does it disclose that he was aware of the impending danger nor was negligent in not becoming aware thereof. Consequently, the appellant has no just complaint at the giving of the appellee's instruction as to imputing the negligence of the truck driver to Robinson. The error in this instruction is in giving it at all, for on that issue the appellees were entitled to an instruction peremptorily directing the jury not to charge Robinson with the negligence of the truck driver.