I dissent from the order denying a rehearing and from the judgment of the court.
This case grows out of a contract exactly parallel to a hiring by the hour of a carriage, horses, and driver from a liveryman. In such a case the carriage, team, and driver are put at the sole use and service of the hirer, but he does *Page 215 not assume to direct the driver how to guide his horses, or what precaution he must observe in order to avoid collision with other vehicles. As to such matters the driver takes his orders from his employer, the liveryman, and for any injury caused by his dereliction in those particulars, the liveryman is responsible. But as to the direction in which he is to drive and the places to which he is to go, he takes his orders from the hirer, and if he should be directed by him to drive into an inclosed field on the hirer's ranch and on returning to leave the gate open behind him, allowing cattle to enter and destroy the tenant's crops, I should think the hirer, and not the liveryman, would be responsible for that damage. As I construe this contract, the Frankenheimers hired the dredger and crew, just as one would hire a carriage and driver. They had nothing to do with the operation of the dredger. As to that the crew took orders from the defendant, who by its officers did nothing more than to send the dredger and crew to a point outside the levee selected by the Frankenheimers (just as a liveryman sends his carriage to your door). At that point they took charge to the extent of directing it to cut its way in through the levee, and thereafter to excavate a certain canal. From the time it commenced cutting its way in until it should cut its way out, it was subject, as to its movements, to their exclusive control, and their control was to last just as long as they were willing to pay seventy dollars per diem. When it came to cutting out it was for them to decide whether they would pay at the rate of seventy dollars a day for the time required to construct a back dam, or whether they would take the risk of cutting out without a back dam. Undoubtedly they had the power (and as between them and the defendant were bound to exercise it) to forbid the cutting of the levee before a back dam was constructed, and they should be held responsible for the consequences of their choice. The loss of plaintiff's crops was caused by them — not by the appellant.
As to the rule of damages, the decision seems to be in conflict with the decision in Crow v. San Joaquin etc., 130 Cal. 314, [62 P. 562, 1058].
I think the judgment should have been reversed. *Page 216