Eastwood, Bigelow and Schettino. The opinion of the court was delivered by Bigelow, J.A.D. Schettino, J.s.c. (concurring).
This is an appeal from a judgment in favor of defendant, Newark Tidewater Terminal, Inc., entered on a jury's verdict.
The principal questions on appeal are whether the trial court erred in its handling of the issue of respondent superior , and in submitting the issue of contributory negligence to the jury.
Plaintiff was employed by Dade Brothers. Newark Tidewater furnished a dinkey engine and crew to Dade for the purpose of moving freight cars for Dade on Dade's property. Plaintiff was injured by the alleged negligence of the engineer of the dinkey engine. The engineer was one of the crew furnished by Newark Tidewater. Newark Tidewater contended that at the time of the accident, the engineer was under the control of Dade and hence was acting as Dade's employee and not as employee of Newark Terminal.
The testimony was to the following effect: Dade's employees told the engineer "what to do and where to get the cars and where to put them." The members of the crew reported to Dade's employee who "gave us orders what to do and the switching around." It appears that Newark Tidewater received calls from Dade "four or five times a week to move cars around for them" at a charge of five dollars per car moved; that on the day in question, a Saturday, the charge was a flat rate for the day, "no matter if they moved one car or fifty." Both rates were a single rate for the use of the dinkey and for the services of the crew. There was no evidence that Dade exercised any control over the operation of the dinkey crew beyond indicating what cars were to be moved and the places to which they were to be moved.
In this posture of the proof, plaintiff requested the court to instruct the jury as follows:
"1. In order to determine whose servant or agent the operator of the engine was, you may consider the following factors: a. Who owned the engine? b. Who maintained the engine? c. Who paid the salary to the engineer? d. Who had the power to hire or fire him? e. Whether the engineer expressly or impliedly agreed to have his employment transferred from that of employee of Newark Tidewater Terminal, Inc., to that of Dade Brothers.
2. Under the facts testified to in this case, the engineer was the agent and servant of the defendant Newark Tidewater Terminal, Inc., and if you find that the engineer who operated the engine was negligent, then you should bring in a verdict in favor of plaintiff."
The trial court refused both requests.
The court left to the jury the issue whether the engineer of the dinkey engine on the day in question was the servant of the Newark Tidewater or the servant of Dade, and charged that:
"The question of whether the general employer is master turns upon the proposition as to who had the right to exercise control over the servant."
Plaintiff excepted to the court's failure to charge as requested, the failure to define "what constitutes control," and the failure to charge that "the mere fact there was general direction given would not of itself show control of the employees."
It is, of course, apparent that the court's charge did not specify the nature of the right of control which was thus made crucial. If the charge was intended to mean that the right of control as to what work was to be accomplished was decisive, the jury necessarily had to find for Newark Tidewater on the issue, because clearly it was Dade who had the right to dictate what cars were to be moved and to where. If the charge referred to the right to control the means by which a specified result was to be accomplished, that is, how the engine should be operated, then the record scarcely furnished a basis for a finding that that right existed in Dade.
It was held in the early days that the negligence of one in the position of Johnson, the engineer, could not be imputed to Dade, but must be imputed to Tidewater Terminal, unless the relation of master and servant had arisen between Johnson and Dade. Laugher v. Pointer , 5 B. & C. 547; 108 Eng. Repr. 204 (K.B. 1826); New York L.E. & W.R.R. Co. v. Steinbrenner , 47 N.J.L. 161 (E. & A. 1885). To solve the issue of liability, inquiries were made that would be pertinent if the alleged change of employment was permanent: Who paid the wages? Who had the right to discharge the servant? Did the servant consent to the change of masters? This was approximately the position taken by Justice Minturn, and the majority of the court, in Courtinard v. Gray Burial, etc., Co. , 98 N.J.L. 493 (E. & A. 1923). But Judge White, concurring in the result, put aside such questions and expressed the opinion that it is the control or right to control which fixes the liability. The terms "general employer" and "special employer" have come into use, but it will be observed the special employer is not really an employer in the ordinary sense. Rather, he is one who temporarily controls the activities of another man's servant. Busch v. Seaboard By-Product Coke Co. , 100 N.J.L. 304 (E. & A. 1924), advances toward Judge White's position so far as to hold that the important test is that of control of the servant's actions. This test becomes not merely the important one, but decisive in Lacombe v. Cudahy Packing Co. , 103 N.J.L. 651 (E. & A. 1927), and Errickson v. F.W. Schwiers, Jr., Co. , 108 N.J.L. 481 (E. & A. 1932). These two cases further establish that the control which is meant is ordering not only what shall be done but how it shall be done. We are satisfied that this is the law of New Jersey.
We find no error in the court's refusal to charge as requested. The first request proposes tests for determining whether or not the general employer, that is, the defendant, was responsible for any negligence of the engineer, but the tests proposed are not in harmony with our law as we understand it. The second request was properly rejected because
the request, if charged, would have taken from the jury the question of contributory negligence.
But when appellant called attention to the court's failure to charge what constitutes control, the court should have amplified this part of the instructions, for the jury may well have misunderstood what was meant when the court said, "The question of whether the general employer or the specific employer is master turns upon the proposition as to who had the right to exercise control over the servant." We think the court erred in not informing the jury that defendant was answerable for any negligence of the engineer, unless it appeared from the evidence that Dade Brothers controlled, or had the right to control, the manner in which the engineer ran the engine, even though Dade Brothers directed the engineer what cars to move and where to move them.