The defendant (appellant) is, and during the year 1910 was, engaged at Verdi in an extensive general business of sawing and manufacturing lumber and forest products. In April of that year one Eric Erickson entered into a written contract to haul the lumber sawed by appellant in its mills at Verdi from its trimmer to its yards, and there to pile the lumber, at the price of 80 cents per thousand feet, without help or assistance furnished by, or other expense to, the appellant. The contract did not mention cars, track, or appliances or provide that the defendant should furnish Erickson with any instrumentalities for moving the lumber. It was taken from the trimmer and loaded in the mill and hauled on the cars and track of appellant to the yard, where it was piled. The track was in place apparently for the purpose of hauling the lumber; and, although it was not mentioned in the written agreement, it may be implied that it was to be furnished by appellant, and that it was to be used by Erickson in moving the lumber for appellant's benefit, instead of a team or other track to be constructed by him.
While plaintiff was in the employment of Erickson and partners, and engaged in driving a horse drawing a car of lumber from the trimmer to the yard, over the track,
and while he was standing on a space about one foot wide at the side of the lumber, and holding the lines with one hand and the brake stick with the other, the car went down on one side, the load of lumber slipped from the car, crushed his right leg, and bruised his back and left arm.
In the complaint it is alleged that plaintiff was otherwise injured, wounded and cut, and became sick, sore, lame, disordered, and will so remain during the rest of his life, and that he expended the sum of $690 for medical attention, hospital accommodations, and nursing in attempting to cure himself of the injuries. He asked for damages in the sum of $15,000. By the verdict the jury allowed $3,000.
There was testimony that the lumber was 16 feet long, the car about 6 feet in length and 5 feet wide, and that the load of lumber was piled about 5 feet wide and extended over the ends of the car. The plaintiff testified:
A. I took that car at the mill and pushed it onto that track where the car it is supposed to go, and about three blocks from that mill, where the ties were torn and broken there. I didn't notice it; the rail sank down. I did not have time to get away, and I standing there, and no chance to get away whatever. * * * I hit the spot; I didn't see anything; it was dark. I went down, and I tried to get away. I didn't have time; there was no chance to get away.
Q. Explain, as you drove along, what occurred to the car and the load of lumber. A. It sunk down to one side, that side I was standing on.
[1] It is claimed that the appellant is not liable because plaintiff was not in the employment of appellant, but was in the exclusive employment of an independent contractor, and that there was an assumption of risk and contributory negligence on his part. We conclude that, under the circumstances indicated, these contentions cannot avail the appellant. The instances in which the owners of property become liable to parties injured who have
no contractual relations are very numerous. Liability for accidents resulting from defective sidewalks or excavations carelessly left open or unguarded are illustrations. If the plaintiff had been a mere trespasser, or had been working for some one using the track who had no business relation with the appellant, different questions would arise. It may assumed that the jury properly concluded that under the conditions and custom there it was intended that the company should furnish the track and that the use of it by the plaintiff as an employee of Erickson was with the consent and for the business and benefit of the appellant. We regard the case on principle ...
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