Stewart

The trial was by the court without a jury. The court found that defendant Conger was, on March 4, 1896, employed by his codefendant, the company, “as engineer to manage a steam roller then owned by said company, and used by it in rolling and leveling streets. The said steam roller was then in the use of the city of Oakland; the same, with the engineer in charge, having been hired by the city of Oakland from the defendant,’’ the company. The *433 company “had selected the said engineer, his services were paid for by said company, and said company had the right to remove him. The relation of master and servant existed between the defendant California Improvement Company and the defendant Conger, and not between the city of Oakland and the defendant Conger.” Appellant contends that, if there is any liability for the accident, it is from the city of Oakland, and not from the company. As this question lies at the threshold of the case, it should first be determined. The evidence on the subject was as follows: The witness Miller, superintendent of streets for the city of Oakland, testified: “The roller was in the employ of the city of Oakland the day of this accident. It ivas hired from…