Lintott v. San Francisco Construction Co.

KERRIGAN, J.

This case is here for review on an appeal from the judgment in favor of plaintiff, and from an order denying defendant’s motion for a new trial.

The action is to recover damages for injuries to certain horses, the property of plaintiff. In August, 1905, the plaintiff, in answer to an advertisement of John McQueston, an employment agent, stating that horses were desired for work upon the Ocean Shore Railway in Santa Cruz county, called upon McQueston, and as the result of the interview twenty-two head of horses belonging to plaintiff were put to work plowing, grading and scraping on the roadbed of said railroad, plaintiff to receive a given price per day for each horse. The complaint alleges that, by reason of the careless

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ness and negligence of defendant, one of the horses was killed, another severely injured; that, by reason of the failure of the defendant to keep its contract to properly shelter the horses, two of them became sick and died, and that the others were injured in health and rendered less fit to work.

The jury brought in a verdict for the full amount demanded in the complaint.

Defendant asserts that there is no evidence that the horses were hired by it, but, on the contrary, shows that they were hired “by another distinct company—or person.”

McQueston was called as a witness, and testified: “I got Lintott to come over here and rent his horses to the construction company. I made arrangements for him to go to work up here at the Ocean Shore road for the San Francisco Construction Company. Livingston was the man I engaged them for. The San Francisco Construction Company paid me for anything I did for them, everything in a lump. I did work for them. They paid me by check. ... I got a check from the San Francisco Construction Company for it. ... I hired other horses for this company besides those from Mr. Lintott. . . . The San Francisco Construction Company paid me. I was paid for the work I did in hiring these horses by check (indicating the form of check). . . . Q. By the San Francisco Construction Company? A. By that company, signed like that.”

The plaintiff himself testified: “I went to what was known as the San Francisco Construction Co.’s camp. There I met a man named Livingston. Livingston wanted to give me a contract on a piece of the road. I told him I didn’t want to take it. I stated to him that I was going to rent the horses, or had rented them, to the S. F. Construction Company. I told him that I had made arrangements with McQueston.”