40 Wash. 224 | Wash. | 1905
This is an action to recover damages for personal injuries. The defendant Centennial Mill Company is the owner of a flour mill, situate in the city of Spokane. The complaint alleges, that said defendant was engaged in the construction of certain steel storage wheat tanks, adjacent to its mill; that the defendant American Bridge Company of Hew York carries on the general business of constructing iron and steel structures within the state of Washington, and was engaged in the construction of said tanks as a contractor, subject to the control of its codefendant; that the plaintiff, as a structural iron worker, was in the employ of the defendants, engaged by them to work upon the construction of the tanks; and that, while so at work, he was injured by reason of the falling of a platform, owing to the negligence of the defendants.
The mill company answered, that it entered into a contract with its said eodefendant, whereby the latter was to furnish and deliver all material, and was to manufacture
The cause was tried before a jury. At the close of the testimony submitted by the plaintiff, the defendants each challenged the sufficiency of the evidence, and moved that the case be withdrawn from the jury, and that judgment of dismissal be entered as to each defendant. The motion was granted as to the Centennial Mill Company, but denied as to the American Bridge Company. The latter then submitted its testimony and, at the close of all the testimony, renewed its challenge to the evidence, and again moved for judgment of dismissal. The challenge and motion were denied, and the cause was submitted h> the jury under instructions. A verdict was returned in favor of plaintiff. The verdict was afterwards set aside on motion for new tidal, and a new trial granted. Erom the order granting the new trial, the plaintiff prosecutes this appeal.
It is assigned that the court erred in granting the new trial. The record shows that the court granted the new trial on the theory that there was no competent evidence showing that appellant was employed by, or was working for, the American Bridge Company at the time of the accident. It was contended below, and is contended here, that there was such evidence. We think, however, that the evidence wholly showed that the American Bridge Company sublet the contract for the erection of the tanks to Gerrick Brothers, and that appellant was in the employ of the latter. It is our view that there was no competent evidence to the contrary. It is true, the court permitted appellant to testify,
Appellant alleged in his complaint that he was in respondent’s employ, and the burden was upon him to show that fact. The testimony, however, showed that respondent was not engaged in the actual erection of the tanks, but that the work was being done under subcontract by Gerrick Brothers, and that appellant was in their employ. The contract between respondent and Gerrick Brothers was in writing, was unambiguous, and should have been construed by the court without submission to the jury. Respondent has cited numerous authorities upon this point, but the proposition is so generally established by authority that we shall not reproduce the citations here. Under said contract, Ger-rick Brothers entered upon and prosecuted the work of erecting the tanks, and were so engaged when appellant, as their employee, was injured. One of the Gerricks so testified at the trial, the other having died from injuries received in the same accident. The Gerricks had sole charge of the erection work, controlled the method of doing it, and employed the men for that purpose, of whom appellant was one.
Were they independent contractors? The general test which determines the relation of independent contractor is that he shall exercise -an independent employment, anfi represent his employer only as to the results of his work and
Respondent submitted special interrogatories to the jury on the question of independent contractor. The jury an
When ruling upon the motion for new trial, the court stated that, as there was no competent evidence whatever to sustain the findings) they would be set aside. The court was then convinced that it had misapprehended the evidence at the time respondent interposed its challenge thereto. Such was clearly the case, and it was not error to set aside the findings and also the general verdict.
Respondent asks-, inasmuch as the evidence shows no cause of action against it, that the cause shall be remanded with instructions to dismiss the action. We think this request
The action of the court in setting aside the verdict is affirmed; but the cause is remanded with instructions to vacate so much of the order as grants a new trial, and to enter a judgment dismissing the action.
Mount, C. T., Dunbar, and Crow, JJ., concur.
Root and Fullerton, JJ., took no part.