110 Wash. 444 | Wash. | 1920
This is a personal injury action brought by respondent, acting through a guardian ad litem, as plaintiff. Appellant, who was the defendant below, is engaged in the transfer business in the city of Seattle, operating under the name of “Lynch Transfer & Storage Co.” At the time of the accident complained of, a Mr. Barnes, a potato grower in Eastern Washington, had, by agreement with appellant, engaged a motor truck and driver from him to be used in the delivery of potatoes from the car or warehouse to various retail dealers in the city who had purchased from Barnes under contracts requiring the delivery of the potatoes at the places of business of the several purchasers. Barnes agreed to pay appellant a certain sum per hour for the services of the truck and driver, and the work was carried on by Barnes meeting the truck and driver at the appointed time at the car from which the potatoes were being unloaded, or going to appellant’s warehouse and there waiting for the truck to come in,
On January 26, 1918, while so engaged, and after completing the delivery of potatoes from the truck to a retail merchant in West Seattle, Barnes returned to the truck ahead of the driver, and found respondent, an infant not then six years of age, on the running board of the truck. In response to an inquiry by Barnes, respondent announced his intention or desire to take a ride. Mr. Barnes said, “No you can’t, Sonny,” or words to that effect, and picked the child up and set him off in the street. Barnes then mounted the truck to his usual place on the right of the driver, and was followed by the driver, Nolan, who immediately put the truck in motion, and they proceeded on. their route. After the truck started, or as it started, respondent again climbed on, and took a position upon the tool box fixed to the running board on the left hand side of the truck, immediately to the left of and below the driver’s seat. Barnes saw the boy on the truck shortly after it started, but said nothing to the driver. When they had gone a block or less, the driver saw respondent, and nudging Barnes, said: “Look what we have with us.” According to Mr. Barnes’ testimony, the truck had been running at about ten miles per hour immediately before the driver saw re
“I don’t think that Nolan intended to carry the kid "clear away, as the boy testified; but I don’t believe •Nolan had shut his power off; I know he had not; I don’t think he stopped the truck as soon as it should have been stopped. . . . After he nudged me, I don’t believe he was stopping the truck as fast as he could have stopped it. I do believe he intended to stop soon; I believe he was slowing down for that purpose, but I don’t think he was afraid, at the time he nudged me, that the boy was going to jump; I don’t think that occurred to either him or me, until the boy had already started to slide off. ... I think he was slowing down, but I don’t think' he was slowing down as fast as he could slow down safely; I want to be clear on it.”
The case was tried to a jury, which rendered a verdict in favor of respondent in the sum of ten thousand
The first contention is that the evidence shows that the driver, Nolan, was not the servant of appellant at the time the accident occurred, hut was the servant of Barnes and engaged in his business. It is, of course, well settled law that one who is in the general employ and pay of one person may be loaned, or hired, by his employer to another, and when he undertakes to do the work of the other he becomes the servant of such other, to perform the particular transaction. Standard Oil Co. v. Anderson, 121 U. S. 480; Olsen v. Veness, 105 Wash. 599, 178 Pac. 822, The controlling facts in these cases, and in all others which support the rule, is that the servant must have been in the exclusive control of the one to whom he is loaned, and if so such servant becomes, pro hao vice, the servant of him to whom the exclusive control so passes, and not otherwise. In the case at bar, the evidence fails to establish that the driver, Nolan, was, at the time of the accident, in the exclusive control and direction of Barnes with that clearness and certainty necessary to enable us to say, as a matter of law, that he was then the servant of Barnes and not the servant of appellant. The facts, as we gather them from the record, are such as to warrant the jury in finding that the driver was appellant’s servant. Driscoll v. Towle, 181 Mass. 416, 63 N. E. 922; Kellogg v. Church Charity Foundation of Long Island, 203 N. Y. 191, 96 N. E. 406, Ann. Cas. 1913A 883, 38 L. R. A. (N. S.) 481; Little v. Hackett, 116 U. S. 366; Boe v. Hodgson Graham Co., 103 Wash. 669, 175 Pac. 310.
The respondent was not yet six years of age at the time the accident happened, and when the case was tried some fourteen months later, he was permitted to testify as to the facts surrounding the accident, over
“The following persons shall not be competent to testify:
“2. Children under ten years of age who appear incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly.”
This unfortunate child, the victim of a most serious accident, whose escape from death was little short of miraculous, had spent many months in a hospital, suffered almost beyond his capacity to endure, and had constantly submitted to treatment, skillfully administered it is true,- but most painful, and during the months intervening between the time of the accident and the. trial had often discussed the cause of his injuries with the members of his family, his nurse, and his attorney; and on the trial, when lead by his attorney, gave some testimony which appears to be clear and direct, but at every point where he departed from the principal issue, whether on direct, cross, or re-direct examination, his answers show a complete lack of understanding. After having read and re-read his testimony, we are convinced that, if capable of receiving a just impression of the facts at the time of the accident, the lapse of time and his sufferings had entirely erased those impressions from his mind before the case was tried, and that, at the time of the trial, he was not capable of relating truly the facts which occurred at and preceding the time his injuries were received. The trial court therefore improperly admitted his testimony.
Without the testimony of respondent there is nothing in the record which tends to show that the driver, Nolan, wilfully and wantonly caused the injuries complained of; or, if he owed that duty, in view of respond
In the absence of any competent or admissible testimony that the driver acted wilfully, wantonly, or even without ordinary care, the trial court should have granted some one of the motions directed to that point on appellant’s behalf.
The judgment is reversed with directions to dismiss the action.
Holcomb, O. J., Bridges, Fullerton, and Mount, JJ., concur.