The defendant in this action, a common carrier of passengers and freight, in the summer of 1926, let a job to Cassius Hurlburt of the town of Cambridge, this State, to saw at Cambridge 160 cords of four-foot wood (purchased by defendant of another person) into 12-inch lengths and load the same on cars at that place, for which he was to be paid and was paid the sum per cord, conceded below. On August 17, 1926, while claimant was working under employment by Hurlburt, assisting him in said work required to be done by him under his said contract with the railway company, claimant was accidentally injured. This accident occurred on the second day claimant worked there, and it arose out of and in the course of the work of his employment.
Acting under the Workmen's Compensation Act, the claimant instituted proceedings before the commissioner of industries, as an employee of the defendant railway company within the meaning of the provisions of that act set forth in G.L. 5758, subsection I.
The commissioner, after hearing the matter, made his award of compensation in favor of claimant, setting forth his findings of fact and the law applicable thereto, according to his views in the premises.
In the hearing there had, claimant by his attorney conceded that Hurlburt "was an independent contractor." And the railway company by its attorney conceded that it bought this wood of a certain man (named) of the town of Cambridge, and intended to use it to heat its stations on the Burlington-Lamoille road in the spring and fall; that there were 162 cords of it which Hurlburt sawed under the contract mentioned, and was to get $1.75 per cord; that it was necessary for the company to heat its stations and the wood was being prepared for that use; and that the company is a common carrier, etc. The case comes here on defendant's appeal.