Opinion
March 13, 1962
This is an appeal from a judgment in a nonjury trial, in favor of the plaintiff for $8,577.64 for personal injuries caused by the negligence of the defendants-appellants. At the time of the accident the plaintiff was employed as a laborer by the highway department of Essex County. The defendant Norton was hired by the county to use his truck for hauling and spreading stone in the resurfacing of a county highway. The defendants Coppins and Defiance Asphalt Corporation were the operator and owner of an oil truck which was engaged in spreading oil in the resurfacing of the highway. On the day of the accident, plaintiff had been following the usual procedure of riding upon the truck belonging to Norton and operating a stone spreader attached to the rear thereof. The defendant Coppins, operating the oil truck, would spread oil for some distance then turn off the oil and drive his vehicle some 30 or 40 feet distant therefrom where he would stop. The defendant Norton then proceeded to back his truck over the oiled area and the plaintiff Miller rode on the rear of the truck operating the stone spreader until the truck reached the end of the oiled surface. When the accident happened, the defendant Coppins, following the usual practice, after traveling some distance stopped oiling the highway and drove approximately 30 or 40 feet beyond the oiled area where he stopped the truck. The defendant, Norton, then proceeded to back his truck over the oiled area spreading stone but, contrary to his usual practice, he did not stop at the end thereof but continued backward until his truck struck the stopped oil truck. The plaintiff was unable to shut off the stone flow completely when the truck reached the end of the oiled surface but signalled with his hand for Norton to stop and hollered "whoa". When he realized there was going to be a collision between the trucks, he attempted to reach a place of safety but his leg was caught, causing the injuries for which damages have been awarded. On this appeal both defendants argue that they were free from negligence and the defendant Norton further contends that the plaintiff was his coemployee and guilty of contributory negligence. We think the record justifies the finding that while both plaintiff and Norton were working for the County of Essex, they were not coemployees. The plaintiff was a laborer, working for an hourly wage as an employee of the county, subject to all the various salary deductions which exist between an employer and employee. Norton, however, was hired by the county to haul stone and under the agreement, he was required to furnish a truck, all necessary supplies, together with a driver and was paid a stated hourly sum for all of these combined services. He was not carried on the county payroll but was required to submit to the county a certified voucher as to the number of hours his truck was used and operated at an agreed price of $5 per hour. The only control which the county exercised over Norton was with reference to the use of his truck, as to where the stone was to be hauled from and how it was to be distributed. From such proof it could be readily found that the supplying of a truck and a driver by Norton was the act of an independent contractor. ( Matter of Morton, 284 N.Y. 167, 172.) What the county contracted and paid for was not Norton's personal services but the use of his truck and a driver. The defendant Norton further contends that the plaintiff was guilty of contributory negligence in failing to shut off the flow of stone which was a signal for the driver to stop the truck. The record shows that the plaintiff waved his hand and called to the driver which he had done under similar circumstances and which signals had, on other occasions, been heeded. The trial court decided from the facts that the plaintiff was not guilty of contributory negligence and we are unable to say that such finding was error as a matter of law. The trial court found that the defendants Coppins and Defiance Corporation were negligent: "(a) In having stopped their * * * vehicle [some 40 feet beyond the tar strip and in same lane as Norton's truck] * * * upon subject highway * * * (b) In failing to give or extend any signal or warning whatever * * * (c) In failing to sound a horn, bell, whistle, or other signal or warning whatever on his said vehicle prior to the collision". The evidence discloses that the westerly side of the highway, which was being resurfaced, was closed to traffic and that one-way traffic was maintained on the east side of the road. The driver of the oil truck followed his usual procedure and relied upon the driver of the stone truck and the operator of the spreader to give a signal to prevent an accident such as happened here. It has been determined that the plaintiff was not negligent but that the operator of the stone truck, Norton, was negligent. Under the circumstances, we find that there was no negligence on the part of Coppins or Defiance Corporation. The codefendant in his brief in this court makes no allegations of negligence as to these defendants and the plaintiff's contention of negligence, if any, is tenuous. There is no evidence that Coppins knew or should have known that on this particular occasion the defendant Norton would not stop his truck in accordance with the usual practice. Accordingly, we determine that the motion made by these defendants to dismiss the complaint should have been granted. We note for the record that no appeal was taken to this court by the plaintiff as to any aspects of the judgment. Judgment reversed, on the law and the facts, as against the defendants Francis Coppins and Defiance Asphalt Corporation and the complaint dismissed, and the judgment is affirmed as against the defendant Merlin E. Norton, with costs to the plaintiff-respondent. Coon, J.P., Gibson, Herlihy, Reynolds and Taylor, JJ., concur.