Wessell v. Barrett

NOURSE, P. J.

Plaintiff sued for personal injuries incurred while engaged in loading refuse lumber upon a truck operated by him. At the close of his case the trial court granted defendants’ motion for a nonsuit upon the ground that plaintiff was a special employee of Barrett & Hilp and that the Industrial Accident Commission had exclusive juris

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diction over compensation for the injuries. We refer herein to the copartnership Barrett & Hilp as respondent. The plaintiff has appealed from the judgment, and from the order denying him a new trial.

The facts, of course, all come from the evidence offered by plaintiff, and, in stating them here we follow the general rule of giving to plaintiff the. benefit of all presumptions and inferences most favorable to him. Plaintiff was a truck driver in the general employ of Sibley Grading and Teaming Company. Barrett & Hilp were general contractors engaged at the time in the construction of the National Broadcasting Company building at the corner of O’Farrell and Taylor Streets in San Francisco. The terms of the contract between the Sibley concern and Barrett & Hilp are not disclosed in the evidence, but the parties assume that plaintiff followed his customary practice when he reported with his truck to the foreman or superintendent of Barrett & Hilp. The evidence is that on the morning of the accident he reported to the foreman of Barrett & Hilp pursuant to previous orders of his general employer—and these appear to be the only orders given him by his general employer for the day. He thereafter placed himself under the sole supervision and control of this foreman. The latter instructed him to place his truck under a chute on Taylor Street and load it with refuse lumber which other employees of Barrett & Hilp would send down the chute from the fourth floor. This foreman had a gang of four or five men working with him gathering the lumber on the fourth floor, and he assigned another employee to work with plaintiff in loading the truck. The foreman had complete control over the entire gang of workmen and had arranged with plaintiff and his helpers a system of signals by which those on the truck could warn those on the roof that the chute was clogged and that operations should stop until the chute was cleared. The foreman stood on the firewall of the fourth floor, received the signals from those on the truck to stop or go ahead, and issued orders to the gang on the roof accordingly. These operations continued in this manner throughout the day. As the truck was loaded plaintiff carried the lumber to a vacant lot, under orders of Barrett & Hilp’s foreman, dumped it there and returned for another load. At about 4:00 p. m. the chute became clogged. Plaintiff gave the agreed signal to the foreman on the roof to stop, the signal was acknowledged, but while plaintiff and his helper were cleaning the