Employers' Liability Assurance Corp. v. Industrial Accident Commission

The petitioners Tryon & Brain, copartners, were engaged in the operation of certain street-flushing motor vehicles in the city of Los Angeles and Earl A. Booth was the driver of one of them. He was forbidden by his employers to permit any person to ride on the vehicle with him while he was in the discharge of his duty. Nevertheless, upon the occasion which is of interest in this proceeding, he had in company with him one Schilling, while he was engaged in his work. The truck operated by Booth had a seat across the front capable of accommodating two persons. Immediately in front of the right side of the seat was the steering wheel, by means of which the truck was guided, the vehicle being what is known as a right-drive machine. It was on the right side of the seat, therefore, that Booth was accustomed to sit when the truck was in service in his charge. On the occasion now in question, however, Schilling, who was an experienced motor driver, occupied the right side of the seat and operated the ear. Booth* was at his left and, while the truck was moving forward under the guidance and operation of Schilling, was engaged in the manipulation of a lever which controlled the discharge of…

I dissent from this court’s refusal to transfer the case to the supreme court.

The man to whom the Industrial Accident Commission awarded compensation was the driver of a street-flushing motor vehicle. His duty was to operate and guide the machine and, incidentally, to manipulate the lever by which water was discharged upon the street. The only place from which he could perforin these services was the right side of the seat. He was forbidden to allow anyone to ride with him, but, in violation of orders, had permitted another man to take the steering gear while he moved to the left-hand side of the seat. While seated there he endeavored to pick up a wrench from the footboard on that side of the truck, and in so doing lost his balance, fell, and was injured.

It is clear that if the driver had been in the place where his obligation to his employers required him to be, he would not have met with this accident. The fact that he was using the lever for the release of the water—a part of the work intrusted to him—is a false quantity in the problem. His was not a divided duty. He was not required to steer the car part of the time from the right-hand side of the seat and to work the…