65 Wash. 134 | Wash. | 1911
— Plaintiff was employed at the mine of the defendant at Java, Montana. 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 employee 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 one hundred 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 employees 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 T_,a.nger was an independent contractor; and further, that the negligence, if any, was that of one Bert Hutchinson, who was an employee 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
The fact that the parties cannot agree as to the details of the contract is a circumstance to be considered in the light of all the other facts and circumstances, as disclosed by the evidence. It is an evidentiary fact, but not conclusive in itself. Without going into unnecessary detail, the undisputed facts show that Langer was insolvent at the time he was engaged by respondent to take charge of its mine; that he purchased supplies, groceries, and powder upon the credit of the respondent, all of which were charged to the respondent; that he hired men, fixed their time, which the respondent paid, as it did for the supplies, by bank drafts procured by its secretary at a bank in the town of Oakesdale, its principal place of business, and that these drafts were forwarded by the secretary to the respective payees. The proof of respondent shows that these items were charged to Langer upon his contract. If this were all the testimony, it would probably sustain the judgment of the lower court. But it further appears that respondent furnished all the tools and machinery, except steel, and engaged to pay the bills for labor and supplies without limiting its responsibility as to the amount, or number, or price, or wages; and Langer swears that, while he was to be paid $10 per foot for his contract, it was agreed that, if he went behind, respondent would make him whole to the extent of paying him a miner’s or a foreman’s wages. These qualifying facts make the case,
Reversed and remanded for a new trial.
Dunbar, C. J., Ellis, and Crow, JJ., concur.
