master. His assent may be established by direct proof that he agreed to accept the new master and to submit himself to his control, or by indirect proof of circumstances justifying the inference of such assent. Such evidence may be strong enough to justify a court in removing the question from the jury, or it may require to be submitted to the jury.” 59 N. J. Laws, 38, 34 Alt. 987.
In the case at bar the court submitted to the jury the question whether the plaintiff Asch at the time of the accident was working as a locomotive fireman in the course of his original employment. In other words, the court submitted to the jury for determination as a matter of fact whether the plaintiff had been transferred from his original employment, and had become an employee of the coal company. And the jury found that he had not been so transferred, but was at the time of the injury working under his employment by the railway administration. As already indicated, there is no evidence that the plaintiff expressly assented to his being transferred to and becoming an employee of the coal company; nor do we believe that the circumstances in the case are such as to, establish, as a matter of law, that he impliedly gave his assent to Such arrangement. It is true the evidence shows that plaintiff received some pay checks issued by the coal company. However, this circum- stance alone was not sufficient to put him on notice that he had been transferred to and had become an employee of the coal company. See Standard Oil Co. v. Anderson, 212 U. S. 215, 225, 29 Sup. Ct. 252, 53 L. ed. 481, 485. The plaintiff was engaged in his usual line of work. He was firing a locomotive under the control of and operated by the Director General. He was under the direction of, and his time was taken each day by, a locomotive engineer in the general employment of the Director General. The locomotive which the plaintiff was firing took all of its water at the water tank of the railway company at Wilton, and all the coal used in operating it was taken from the coal dock of the railway company at the same place. As breakages occurred the engines were taken to the repair shop of the railway company at Bismarck. In going to Wilton he (plaintiff) went at the direction of the employees of the Director General, and in coming away from there he went in accordance with similar orders. The coal company had no right to discharge him; his status so far as concerned seniority in the service of the Railroad Administration was in no manner affected by the work he did at Wilton. In view of all the facts and circumstances, we do not believe
