Brown v. Arrington Const. Co.

Decision Date30 October 1953
Docket NumberNo. 7992,7992
Citation262 P.2d 789,74 Idaho 338
PartiesBROWN et al. v. ARRINGTON CONST. CO. et al.
CourtIdaho Supreme Court

Albaugh, Bloem, Barnard & Smith, Idaho Falls, for appellant.

W. K. Naylor, Idaho Falls, T. Harold Lee, Rigby, for respondents.

PORTER, Chief Justice.

Respondents brought this action to recover damages for personal injuries suffered by respondent, Jesse Brown. By their complaint, respondents alleged that such injuries were the result of shock and burns from an electric current which came in contact with Brown through the negligence of appellant. At the close of the presentation of all the evidence at the trial, appellant moved for a directed verdict which motion was denied by the court. The jury brought in a verdict against appellant in the sum of $5,000. Appellant made a motion for judgment notwithstanding the verdict which motion was denied by the court. Appellant has now appealed to this court from the judgment entered on the verdict of the jury.

About four miles south of Idaho Falls in Bonneville County is located Cotton Siding on the Union Pacific Railroad. Approximately one mile east of Cotton Siding, on what is known as Cotton Road, there is a bridge across the Idaho Canal. In April, 1950, appellant had a verbal contract with Bonneville County to construct a new bridge across this canal. Bonneville County had torn down the old bridge and dynamited the abutments, but had no ready way of removing the debris. The county arranged with appellant for the removal of such debris by a mobile dragline and operator furnished by appellant.

On the morning of April 21, 1950, defendant, Cecil Skinner, as operator, took the mobile dragline or crane to the site of the old bridge. He was there told by employees of the county to remove such debris by the use of his dragline; and that the heavy debris was to be loaded into trucks and the lighter debris piled for future use.

Along the south side of Cotton Road runs an electrical transmission line 28 feet in height and carrying 7,200 volts of electricity. Defendant Skinner located his dragline with its 40-foot boom on the south side of the road and on the east side of the canal and under the power line. The mobile dragline, due to insulation, was not dangerous to the operator from contact with the high voltage transmission line, but any such contact was dangerous to others on the ground. Skinner warned his oiler and some of the county employees, but not respondent Brown of such danger. The dragline came in contact with the transmission line on several occasions while the work was progressing and Skinner was dissatisfied with having to work in such a dangerous position with a 40-foot boom.

On April 22, 1950, the county sent respondent Brown with a road grader to build a detour around the bridge site so that the flow of traffic would be uninterrupted during the construction operations. He had some conversation with Skinner concerning the piling of the debris. About noon on April 22, Brown completed the construction of the detour, drove his machine a short way east along the highway and then on foot approached the dragline. According to the testimony of Brown the dragline was not in operation and the bucket was on the ground when he approached. He knew that it was dangerous to approach the dragline when it was in operation under the power line. He had a short talk with Skinner about the removal of some dirt and then started to leave the dragline. As he started to leave, Skinner put the dragline in operation and moved the bucket. Brown saw a corner of the dragline suddenly seem to be afire. He did not knowingly touch the dragline. Brown was knocked unconscious and thrown to the ground. He received burns and severe shock. In conflict with Brown's testimony, Skinner testified that he was operating the dragline as Brown approached and did not see Brown approaching until the accident, and did not talk with Brown immediately prior thereto.

Appellant makes seven assignments of error with subdivisions, but sets out four general issues in the form of questions upon which it relies and which are discussed in its brief. The first question propounded is, 'Was Cecil Skinner guilty of any negligence imputable to appellant?' In its brief on page 27, appellant says:

'The testimony of Brown as to how the accident happened, standing alone, might conceiveabley sustain a charge of negligence on the part of the operator, based on the theory that the operator recklessly put the machine in motion, knowing that Brown was in a position of danger and of the likelihood of striking the power line.'

Appellant then urges the testimony of Brown cannot be given any credibility because it is impeached by the testimony of his own witness, William Swain. An examination of the entire testimony of Swain does not sustain such contention. Under the conflicting evidence in this case the question of negligence on the part of Skinner was one of fact for the jury. Wheeler v. Oregon R., etc., Co., 16 Idaho 375, 102 P. 347; Carson v. Talbot, 64 Idaho 198, 129 P.2d 901; Mason v. Hillsdale Highway Dist., 65 Idaho 833, 154 P.2d 490.

Appellant further contends that negligence of defendant Skinner could not be imputed to appellant as Skinner was the servant of Bonneville County under the 'loaned servant' doctrine. The testimony on behalf of appellant was to the effect that the dragline and operator were rented to the county on an hourly basis and that the removal of the debris was the work of the county and had no relation to the contract for the building of a new bridge. There is evidence to the contrary as the claim made by the appellant and approved and allowed by the county for the monies due under the contract show a lump sum of $100 for the removal of such debris and such $100 is set up as a part of the total contract price.

In Nissula v. Southern Idaho Timber Protective Ass'n, 73 Idaho 37, 245 P.2d 400, a tractor and its operator were rented to defendant. We recognized that such operator remained the servant of the owner of the tractor as to his acts in handling and operating the machine, but was the servant of the defendant in placing the machine in a hazardous position to its damage upon the order of defendant. And we further said that as to the operator's acts in manipulating the machine, his relationship as servant of the general employer was not altered by the fact that he was subject to the control of the defendant as to where to go and what work to do. The quotation in such case from 1 Restatement of the Law of Agency, Sec. 227, seems particularly appropriate to the case at bar, and is as follows:

"A servant directed or permitted by his master to perform services for another may become the servant of such other in performing the services. He may become the other's servant as to some acts and not as to others.

"Comment:

"a. * * *

"b. Inference that original service continues. In the absence of evidence to the contrary, there is an inference that the actor remains in his general employment so long as, by the service rendered another, he is performing the business entrusted to him by the general employer. There is no inference that because the general employer has permitted a division of control, he has surrendered it.

"c. Factors to be considered. A continuation of the general employment is indicated by the facts that the general employer may at any time substitute another servant, that the time of employment is short, and that the lent servant has the skill of a specialist.

"A continuance of the general employment is also indicated in the operation of a machine where the general employer rents the machine and a servant to operate it, particularly if the instrumentality is of considerable value. Normally, the general employer expects the employee to protect his interests in the use of the instrumentality and these may be divergent from the interests of the temporary employer. If the servant is expected only to give results called for by the temporary employer and to use the instrumentality as the servant would expect his general employer would desire, the original service continues."

As to the facts necessary to establish the relationship of employer and employee see also Pinson v. Minidoka Highway Dist., 61 Idaho 731, 106 P.2d 1020; Laub v. Meyer, Inc., 70 Idaho 224, 214 P.2d 884; Lail v. Bishop, 70 Idaho 284, 216 P.2d 955; Benoit v. Hunt Tool Co., 219 La. 380, 53 So.2d 137.

Appellant urges that the facts not being in dispute, the court should have decided as a matter of law that Skinner was the servant of Bonneville County. It appears to us on the contrary that even under appellant's rental theory the court might well have held that Skinner remained the servant of appellant in the operation of the dragline. Skinner was employed and paid by appellant. Another employee could have been substituted. He was a skilled operator of a valuable and complicated machine and the time of employment was one and one-half days. Further, there was a conflict in the evidence as to whether such work was not done as an extra item in connection with the verbal contract for the building of the new bridge. We see no prejudicial error in the submission of the question to the jury.

The second question submitted by appellant is, 'Was there any direct negligence on the part of appellant?' We presume appellant means negligence other than on the part of the operator, Cecil Skinner. It having been determined there was sufficient evidence to go to the jury on the question of negligence on the part of Cecil Skinner imputable to appellant, it is unnecessary that the record also show other negligence on the part of the company. It may be pointed out, however, that the jury may have considered it negligent for the company to send its dragline with a boom the length of 40 feet to work under the high tension power line.

The third question asked by appellant is, 'Was respondent Brown guilty of...

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