Long v. Shirrod

• Decision Date: 25 January 1924
• Docket Number: 18070.
• Citation: 128 Wash. 258,222 P. 482
• Court: Washington Supreme Court
• Parties: LONG v. SHIRROD.

222 P. 482

128 Wash. 258

LONG v. SHIRROD.

No. 18070.

Supreme Court of Washington

January 25, 1924

Department 2.

Appeal from Superior Court, Whitman County; Miller, Judge.

Action by H. R. Long against G. F. Shirrod. Judgment for plaintiff and defendant appeals. Affirmed.

M. S Jamar, of Pullman, and Hanna, Miller & Hanna, of Colfax, for appellant.

Fred &amp Butler, of Lewiston, Idaho, and Pickrell & Stotler, of Colfax, for respondent.

MITCHELL J.

The defendant was a wheat grower in Whitman county. The plaintiff, an employee during the harvest season, was injured while engaged in moving a binder in a wheatfield. He brought suit, and recovered judgment on the verdict of a jury. The defendant has appealed.

Oliver Bennett was the superintendent or foreman of the ranch. When respondent was employed he was told 'to do what Bennett said.' He was employed to shock wheat. He knew nothing about the kind of binder in use on the farm, 'never ran one nor done nothing about them.' He and others with the foreman were engaged in shocking. One Bill Carson, who was running the binder, got it into difficulty on a hillside so steep that the horses couldn't move it. He called on Bennett for help. Bennett took the horses from the binder. They discussed the plan of saving the machine by 'easing it down the hill.' Both of them thought it would be dangerous. Bennett testified, 'Well, I told Carson we had better be careful, and let the binder go--take care of ourselves, and let it go,' but that Carson said, 'We will try and save it.' At his request Bennett then called the respondent and another shocker from their work, and ordered the respondent to get on the binder to ride it down the hill so as to keep it from tipping over. Respondent asked if there would be any danger in doing so, and, instead of advising him of their judgment and fears, Bennett replied, 'No, it will go down easy.' The respondent obeyed the order of the foreman. The brakes holding the machine were released, and it soon got beyond the control of the men, and gained such momentum going down the hill that the respondent was thrown off and severely injured.

The defenses to the suit were a denial of negligence, and pleas of contributory negligence, assumption of risk, the negligence of fellow servants, and a written release of any cause of action in consideration of $200 paid by the appellant. In reply to the alleged release it was alleged that at the time it was signed the respondent's mind was so enfeebled by opiates, shock, and pain he was unable to make a contract, and that the minds of the parties never met.

The first assignment relates to the overruling of appellant's objection to the question propounded to Bennett, 'Who had charge of the men doing the shocking?' The objection was that it called for a conclusion, but we do not think so. It related to a question of fact as to who, if any one, had superintendency over the respondent.

The motion for a nonsuit was properly denied. There was no contributory negligence shown, certainly not as a matter of law. Bennett testified that the appellant employed him 'to take charge of the place, and run it, and oversee it, and to go ahead with the work.' The respondent was told at the time he was employed to do what Bennett told him to do. That is, Bennett was a vice principal. In Magnuson v. MacAdam, 77 Wash. 289, 137 P. 485, quoting from an earlier case of this court, it was said:

'As an employee, it was appellant's duty to obey the foreman's orders, unless they were so manifestly dangerous that a prudent man in the exercise of due caution would refuse to obey. * * * Ordinarily a servant yields his judgment to the superior judgment and discretion of the master. If he does, and is injured by reason of his obedience to the master's orders, it will ordinarily become a question for determination by the jury, in such an action as this, whether the danger of obeying the order was so imminent and hazardous as to charge the servant with contributory negligence and preclude him from recovering damages.'

Nor was there as a matter of law, any assumption of risk. In the case of Christiansen v. McLellan, 74 Wash. 318, 133 P. 434, we said:

'The third contention is that the respondent assumed the risk of injury from driving down the embankment, but we think this was a question for the jury. True, the slope was steep, and was obvious to the respondent, but the order of the master directing him to drive thereover contained the implied assurance that it was a reasonably safe thing to do, and the mistake in judgment is the mistake of the master, unless the danger was so plain and apparent that there could be no two opinions concerning it, and whether or not it was so was for the jury.'

Nor does the doctrine of fellow servant apply. The relation between these parties was that of servant and master, the latter acting through one to whom he had delegated his authority. The master had given the foreman instructions to oversee the farm, and go ahead with the work, and the foreman ordered the servant to do certain work. Allend v. Spokane Falls & N. Ry. Co., 21 Wash. 324, 58 P. 244; Jancko v. West Coast Mfg., etc., Co., 40 Wash. 230, 82 P. 284; Jancko v. West Coast Mfg., etc., Co., 34 Wash. 556, 76 P. 78.

The cases relied on by appellant are not applicable. Swanson v. Gordon, 64 Wash. 27, 116 P. 470, was one wherein, as the opinion...