Distinguished
Distinguished by Grasso v. The Lisnacrieve, 87 F. 570 (1898)
The claimant calls attention to Transport Co. v. Coneys, 28 C. C. A. 388, 82 Fed. 177, which is easily distinguishable from the case atbar; Murray v. Currie, L. R. 6 C. P. 24, distinguished in Kilroy v. Canal Co., supra; Rourke v. Colliery Co., L. R. 1 C. P. Div. 556, on appeal L. R. 2 C. P. Div. 205; Donovan v. Laing [1893] 1 Q. B. 629; Johnson v. City of Boston, 118 Mass. 314; Ewan v. Lippincott, 47 N. J. Law, 392;…
The opinion
WALLACE, Circuit Judge
(dissenting). I think that the evidence upon the trial presented a question of fact for the determination of the jury, — whether Kirkham & Hon were contractors, exercising an independent calling, and delegated with the responsibility of deciding how the carpenter work which they were to do for the defendant-should be done, subject to the right of the defendant to object to the *181 quality of the work, or -whether the relation between their subordinates and the defendant was that of master and servant. Unless the defendant, pursuant to the understanding or course of business between it and Kirldiam & Son, had the right to direct and control the manner of performing the very work in which the carelessness occurred by which the plaintiff was injured, the employes of Kirkham & Son were not its servants. In my opinion, the trial judge erred in taking this question from the jury, and deciding as matter of law that these employés were the servants of the defendant. I therefore dissent from the opinion of the court.