Fehrenbacher v. Oakesdale Copper Min. Co.
| Decision Date | 25 September 1911 |
| Citation | 65 Wash. 134,117 P. 870 |
| Parties | FEHRENBACHER v. OAKESDALE COPPER MINING CO. |
| Court | Washington Supreme Court |
Department 2. Appeal from Superior Court, Whitman County; Henry W Canfield, Judge.
Action by Anton Fehrenbacher against the Oakesdale Copper Mining Company. From a judgment of dismissal, plaintiff appeals. Reversed and remanded.
Robertson & Miller and Tustin & St. Morris, for appellant.
John M Bunn and P. W. Kimball, for respondent.
Plaintiff was employed at the mine of the defendant at Java, Mont. He was injured while loading holes preparatory to setting off a blast in a tunnel. It is alleged that the injury resulted from the negligence of the defendant, in this: That defendant thawed the powder used by appellant at the time of his injury in a careless and negligent manner, and that the defendant's employé whose duty it was to thaw the powder was incompetent. The defenses were that plaintiff was guilty of negligence contributing to his own injury; that he assumed the risk; that his injuries were the result of the negligence of a fellow servant and, further, that at the time plaintiff received his injuries defendant was not operating the mine, but that it was in control of one E. P. Langer, who had contracted with defendant to drive a tunnel 100 feet, or until he struck ore at a cost of $10 per foot; that plaintiff had been employed by, and was at the time of his injury in the employ of, Langer, who at all times had sole and complete charge of the employés working about said mine, as well as of the handling of all powder to be used therein. A motion for a nonsuit was made at the close of plaintiff's case. This being denied, it was renewed after the testimony was all in. Thereupon the court held that it had been established as a matter of law that Langer was an independent contractor, and, further, that the negligence, if any, was that of one Bert Hutchinson, who was an employé of Langer, and for whose negligence defendant would not in any event be responsible. From a judgment of dismissal, directed by the court at the close of all the testimony, plaintiff has appealed.
We cannot agree with counsel for appellant that the defense of independent contractor is not available to respondent because the directors of the company and Langer do not agree as to the terms of the contract. The ultimate fact to be found is, who was in control of the mine, and not whether the parties can agree as to the details of a verbal contract. Nor can we agree with the trial judge that the proof shows that the defense of independent contractor was so clearly made out that no question of fact remained for the jury. Where the contract is certain, the question of whether a person operating under it is an independent contractor or a mere servant is a question of law for the court. But, where the...
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