Warren McCollum v. Orvil Smith and Chan C. Wilson, Doing Business as S & W Equipment Rentals, a Partnership

339 F.2d 348 Warren McCOLLUM, Appellant, v. Orvil SMITH and Chan C. Wilson, doing business as S & W Equipment Rentals, a partnership, Appellees. No. 18921. United States Court of Appeals Ninth Circuit. November 25, 1964. Rehearing Denied January 4, 1965. Frank D. Padgett, Robertson, Castle & Anthony, Honolulu, Hawaii, for appellant. A. Singleton Cagle, William L. Fleming, Smith, Wild, Beebe & Cades, Honolulu, Hawaii, for appellees. Before CHAMBERS, KOELSCH and BROWNING, Circuit Judges. KOELSCH, Circuit Judge. 1 In this suit to recover damages for personal injuries, the district court directed a verdict against the plaintiff and he has appealed. His assignments of error all concern the validity of that ruling. 2 Plaintiff based his claim on negligence. His complaint was in two counts. In one he charged that the defendants were responsible under the doctrine of respondeat superior for the negligent operation of a crane by their employee, Ed Choy; and in the other, he charged under an exception to the fellow servant rule that the defendants were themselves negligent in employing Choy, whom he alleged was an incompetent operator. 1 3 "Although stated in varying ways at…

(dissenting).

As the Court points out in quoting Nepstad v. Lambert, “[t]he crucial question is which employer had the right to control the particular act giving rise to the injury.” 1 (Emphasis added.) If *353 there was evidence from which the jury could rationally conclude that the machinery-leasing company had the right to control Choy’s performance of that act, it was error to direct a verdict in the machinery-leasing company’s favor.

Appellant’s injury did not arise, as the court seems to assume, from an act relating to when, where, and for what purpose the crane was to be employed. Rather, the injury resulted from an act relating to the mechanical operation of the crane — the manner in which the crane and its crew accomplished the alignment and lifting of beams — a matter quite independent of whether the crane and its crew should be employed in moving a particular beam to a certain position on the structure at a given time. Thus, the precise question in this case is not whether the machinery-leasing company controlled the work the crane was to do, but whether there was evidence from which the jury could rationally conclude that the machinery-leasing company, rather than…

In this suit to recover damages for-personal injuries, the district court directed a verdict against the plaintiff and he has appealed. His assignments off error all concern the validity of that ruling.

Plaintiff based his claim on-negligence. His complaint was in two-counts. In one he charged that the defendants were responsible under the doctrine of respondeat superior for the negligent operation of a crane by their employee, Ed Choy; and in the other, he-charged under an exception to the fellow-servant rule that the defendants were-themselves negligent in employing Choy, whom he alleged was an incompetent operator. 1

“Although stated in varying-ways at different times, the question a. trial court must answer in deciding-whether to direct a verdict (for the defendant) is ‘whether the evidence in its-entirety would rationally support a verdict for the plaintiff, assuming that the jury took, as it would be entitled to-take, a view of the evidence most favorable to the plaintiff.’ ” Phipps v. N. V. Nederlandsche Amerikaansche Stoomvart, Maats, 259 F.2d 143, 145 (9th Cir. 1958), quoting Justice Frankfurter concurring in Wilkerson v. McCarthy, 336 U.S. 53, 65 , 69 S.Ct. 413 , 93…