(dissenting)-—I cannot distinguish this case from that of Boe v. Hodgson Graham Co., 103 Wash. 669, 175 Pac. 310.
The majority has inclined to a general definition of the word “control,” whereas the word, under the authorities cited, should be given that meaning which will serve the true, and as I believe, the evident, intent of the parties. The reservation of a right to furnish a competent man to operate the engine was *285for the purpose of protecting the instrumentality from misuse and negligent operation. It was to- protect the engine in all things that might depend upon technical skill or knowledge. The majority say:
“The control of the engine and the engineer in the use of the engine for the purpose for which it was leased to he in the hands of the lessee, the engineer taking his orders from the officers and foreman of the logging company,”
and from this argue that the only duty the engineer owed to respondent was to keep the engine in fit run.ning condition. The fallacy of this argument seems apparent, for the actual operation of the engine is as important and as much within the demand of technical skill as the filling of the grease cups, the cleaning of the grates, or the polishing of the brasses.
There were a certain number of cars loaded and ready to move. It is not contended that the foreman, conductor, or brakeman had any technical knowledge of the capacity of the engine. They were not at fault, then, when they stood by—and that is the legal effect of their conduct-—and permitted the one whose competency respondent had vouched for to overload the engine. Negligence — what is negligence, and what is not negligence—has never been subject to arbitrary definition, and from the nature of things it cannot be, but we are not for that reason without a safe guide when deliberating the subject. What would a man of ordinary prudence and judgment have done under the same or a like set of circumstances? We may assume that we are men of ordinary prudence and judgment, and being so, would we have hesi-® tated to follow the judgment of the one whom respondent had furnished because of his technical skill to protect its property? It may be said that appellants’ *286agents, who were not engineers, should have ordered the engineer to pull a lesser load. They might have ordered him to run without sand in the sand box or without sufficient water in the boiler to protect the crown sheet; but the answer to all such arguments is that, although appellants might fix the hours of work, direct which cars to move and where to move them, the engineer was not bound; indeed, he had been sent there to prevent any act which, but for the exercise of technical skill and judgment, might result in damage to the property of respondent.
The judgment should be reversed and the case dismissed.