Opinion
Rehearing Denied Sept. 9, 1975.
Page 1289
Kettelkamp & Vento, P.C., W. C. Kettlekamp, Jr., Pueblo, for plaintiff-appellant.
Frank P. Lynch, Jr., Philip E. Lowery, Denver, Saums & Grant, Wichita, Kan., for defendant-appellee.
PIERCE, Judge.
The complaint in this action sought damages for repair and loss of use of a large self-propelled crane owned by the Rocky Mountain Bridge Company, Inc. (Rocky Mountain). The first claim for relief alleged negligence on the part of employees of Martin K. Eby Construction Company (Eby), and an alternate claim alleged failure to return the crane to Rocky Mountain in the same condition in which it was leased, on a theory of bailment. The trial court found for Eby on both claims. We affirm.
Rocky Mountain agreed to furnish Eby with a large crane to be used at a building construction project over the Fourth of July weekend in 1965. An operator and oiler who were employees of Rocky Mountain were also furnished to Eby. During that weekend, while the crane was being operated by the employee furnished by Rocky Mountain, it overturned and was damaged.
Negligence
At trial, Rocky Mountain contended that the damage was proximately caused by the action of an employee of Eby in motioning to the crane operator to set the boom down at a distant point that was not compatible with the location of the base of the crane. It is apparently its theory that this employee knew, or should have known, that to set the boom down at that distance from the cab of the crane would cause the crane to overturn. There was testimony, however, which would support the view that the accident had as its sole proximate cause the faulty positioning of the propelling tracks of the crane, which operating factor was entirely controlled by the crane operator.
On the conflicting evidence presented, the trial court concluded that the operator had been negligent in the operation of the crane and that his negligence was the sole proximate cause of the damage to the crane. The court further found that Eby had only very minimal control of the operation of the crane through the use of certain hand signals by its employees, that the operator retained substantial control of the operation of the crane, and that the operator remained an employee of Rocky Mountain during his work at the site.
The evidence presented was sufficient to warrant the conclusion that the operator had been negligent and that his negligence was the sole proximate cause of the damages. Further, there is substantial evidence supportive of the conclusion that the crane operator remained an employee of Rocky Mountain under the test set forth in Chartier v. Winslow Crane Service Co., 142 Colo. 294, 350 P.2d 1044. The fact that Eby exercised certain minor incidents of control, such as the selection of the point from which materials were to be picked up, and the appropriate time to start the lift once the materials were attached, does not alter this determination. Great Western Sugar Co. v. Erbes, 148 Colo. 566, 367 P.2d 329. Where, as here, the findings of fact of the trial court are based on competent evidence, we have no basis or authority to rule, as a matter of law, that the sole proximate cause of this accident was the action of an employee of Eby in designating an improper 'pick point.' Denton v. Kumpf, 150 Colo. 453, 373 P.2d 306; Linley v. Hanson, 173 Colo. 239, 477 P.2d 453.
Bailment
Because of the degree of control which Rocky Mountain maintained over the crane throughout the entire operation, the law of bailment is not applicable to the facts of this case. See Simons v. First National Bank, 30 Colo.App. 260, 491 P.2d 602.
Colorado follows the 'right to control and direct' test in determining whether a bailment has occurred. The determinative factor under this analysis is the amount of control retained by the lessor with respect to the work to be performed by the employee or employees operating the machinery. Where a lessor rents a type of machine commonly rented for a temporary purpose, and provides an employee to operate such machine, and the machine requires an operator possessing great skill, and the machine could easily cause harm by unskilled operation, the lessor is liable for damage to or caused by operation of the machine. See Great Western Sugar v. Erbes, supra; Chartier v. Winslow, supra.
Rocky Mountain relies heavily on dicta assertedly supportive of a contrary result in Gallagher Transfer & Storage Co. v. Public Service Co., 111 Colo. 162, 138 P.2d 926. However, that case was distinguished with great particularity in Landis v. McGowan, 114 Colo. 355, 165 P.2d 180, and in Chartier v. Winslow, supra, and as elaborated on in later cases is inapplicable to the present controversy. In Gallagher, there was a finding of primary control in the lessee, as is present in cases where the lessor had directed or authorized its employee to follow the directions of the lessee. See Jacobson v. Doan, 136 Colo. 496, 319 P.2d 975. Such is not the case on the facts before us. Therefore we hold that the trial court was correct in awarding judgment to Eby on all issues.
Judgment affirmed.
VanCISE and STERNBERG, JJ., concur.