Hill, J.
Heretofore, on March 13, 1952, an opinion by Department Two of this court was filed in this cause. Latimer v. Western Machinery Exchange, 40 Wn. (2d) 155, 241 P. (2d) 923. A rehearing was granted and was held November 6, 1952.
We are in accord with the Departmental opinion on all law points except No. 8. While we are convinced, for the reasons set forth in the Departmental opinion, that a self-employed individual engaged in any extrahazardous industry as a trade or business, with or without employees, can, if he so desires, qualify himself as an “individual employer” to receive the protection and benefits of the workmen’s compensation act, “as and under the same circumstances and subject to the same obligations as a workman” (RCW 51.32.030; cf. Rem. Rev. Stat. (Sup.), part § 7675), we' disagree with and overrule the holding that, since he has the right to so qualify himself, he is, as a workman, barred by the proviso in RCW 51.24.010 (cf. Rem. Rev. Stat. (Sup.), part § 7675) from maintaining a common-law action to recover for his injuries against a workman or employer under the act, who at the time of the accident was engaged in extrahazardous employment thereunder. In other words, we now hold that the so-called immunity provision of the workmen’s compensation act, the provision in RCW 51.24.010 just referred to, does not bar an action by a self-employed individual for negligence causing him injury unless he has qualified himself for benefits “as and under the same circumstances and subject to the same obligations as a workman.”
[758]*758The holding in the Departmental opinion that, because the appellant had a right to qualify for benefits under the act, he was barred from maintaining a common-law action for his injuries, is without support either in the statute or in any of our opinions. Department Two, and particularly the author of the Departmental opinion (who is also the writer of this opinion), misconstrued our holding in Koreski v. Seattle Hardware Co., 17 Wn. (2d) 421, 135 P. (2d) 860 (1943), and concluded that we had there held, in interpreting RCW 51.32.030, that, inasmuch as “any individual employer or any member or officer of any corporate employer” engaged in extrahazardous employment may elect to take under the workmen’s compensation act, such persons are bound by the immunity proviso (RCW 51.24.010) because they could have availed themselves of the benefits of the act had they so desired. However, it was not so held in the Koreski case; it was there held that Koreski was a workman within the purview of the act, and that, as a workman, he was barred by the proviso in RCW 51.24.010 from maintaining a common-law action for redress for his injury against another workman or employer under the act in the course of extrahazardous employment thereunder at the time of the accident.
The only causes of action which aré withdrawn from private controversy by the workmen’s compensation act are those of workmen. RCW 51.04.010 (cf. Rem. Rev. Stat., § 7673). Because the appellant in the present case was not, at the time of the accident, a workman within any statutory definition of the word and had not qualified himself under the provisions of RCW 51.32.030 to receive the benefits of the act “as and under the same circumstances and subject to the same obligations as a workman,” his common-law cause of action for injuries sustained by him had not been removed from controversy.
Respondent argues that, on rehearing, the appellant and certain of the amici curiae urge a theory inconsistent with the position taken by the appellant in his reply brief. Appellant has at all times contended that he was not a workman as defined by the act, and that his cause of action was [759]*759not barred. That respondent, appellant, and Department Two of this court apparently misconstrued the effect of the holding in Koreski v. Seattle Hardware Co., supra, does not foreclose the appellant from calling attention to that misconstruction on rehearing, nor foreclose this court from changing the result arrived at in the Departmental opinion as a result of that misconstruction.
Holding as we do that the appellant’s common-law cause of action against respondent was not barred, we must now give further consideration to the respondent’s contention that the trial court’s order granting respondent’s motion for judgment notwithstanding the verdict of the jury in favor of appellant was on the ground that no negligence had been established.
In the Departmental opinion, we did not discuss the issues of negligence and contributory negligence other than to say that we were of the opinion that on those issues “there was sufficient evidence to go to the jury,” and that they would not be discussed because we were convinced that, even if there was negligence, the appellant would not be entitled to maintain the action.
For the purpose of considering the issue of negligence, some amplification of the facts as stated in the Departmental opinion is necessary. In the respondent’s shop, there is a crane which travels the length of the building, operating on tracks some forty or fifty feet above the floor. It is powered by electricity and is controlled by an operator who sits in a “crane box” to one side of the overhead tracks which moves with the crane. A chain with a hook on the end, hereinafter referred to as the crane hook, is operated vertically from the crane and is used to pick up and transport heavy objects within the building. This crane hook can be raised or lowered while the crane is moving. A straddle (or crotch) chain weighing approximately one hundred twenty pounds, with a large ring in the center and hooks on each end, is attached by the center ring to the crane hook when it is desired to use two hooks on an object to be moved. When the straddle chain is hooked onto the crane hook but is otherwise free, that is, when the hooks are not attached to any object, the [760]*760two sections of the-straddle chain, each-, about six and one- • half feet in length, hang straight down from the crane- hook. It was the straddle chain which became ■ disengaged and struck and injured the appellant.
After the donkey engine which appellant and his associates were purchasing had, by the use of the crane, been placed on a truck and trailer, the tin roof over the donkey engine, being too high to afford bridge clearance," was lifted, the crane and straddle chain being used for that purpose. The posts which supported the roof were then removed, and the roof was lowered and laid directly on the donkey engine. What followed this lifting and lowering of the roof of the donkey engine is best told in the words of O. N. Latimer, father of the appellant;
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Hill, J.
Heretofore, on March 13, 1952, an opinion by Department Two of this court was filed in this cause. Latimer v. Western Machinery Exchange, 40 Wn. (2d) 155, 241 P. (2d) 923. A rehearing was granted and was held November 6, 1952.
We are in accord with the Departmental opinion on all law points except No. 8. While we are convinced, for the reasons set forth in the Departmental opinion, that a self-employed individual engaged in any extrahazardous industry as a trade or business, with or without employees, can, if he so desires, qualify himself as an “individual employer” to receive the protection and benefits of the workmen’s compensation act, “as and under the same circumstances and subject to the same obligations as a workman” (RCW 51.32.030; cf. Rem. Rev. Stat. (Sup.), part § 7675), we' disagree with and overrule the holding that, since he has the right to so qualify himself, he is, as a workman, barred by the proviso in RCW 51.24.010 (cf. Rem. Rev. Stat. (Sup.), part § 7675) from maintaining a common-law action to recover for his injuries against a workman or employer under the act, who at the time of the accident was engaged in extrahazardous employment thereunder. In other words, we now hold that the so-called immunity provision of the workmen’s compensation act, the provision in RCW 51.24.010 just referred to, does not bar an action by a self-employed individual for negligence causing him injury unless he has qualified himself for benefits “as and under the same circumstances and subject to the same obligations as a workman.”
[758]*758The holding in the Departmental opinion that, because the appellant had a right to qualify for benefits under the act, he was barred from maintaining a common-law action for his injuries, is without support either in the statute or in any of our opinions. Department Two, and particularly the author of the Departmental opinion (who is also the writer of this opinion), misconstrued our holding in Koreski v. Seattle Hardware Co., 17 Wn. (2d) 421, 135 P. (2d) 860 (1943), and concluded that we had there held, in interpreting RCW 51.32.030, that, inasmuch as “any individual employer or any member or officer of any corporate employer” engaged in extrahazardous employment may elect to take under the workmen’s compensation act, such persons are bound by the immunity proviso (RCW 51.24.010) because they could have availed themselves of the benefits of the act had they so desired. However, it was not so held in the Koreski case; it was there held that Koreski was a workman within the purview of the act, and that, as a workman, he was barred by the proviso in RCW 51.24.010 from maintaining a common-law action for redress for his injury against another workman or employer under the act in the course of extrahazardous employment thereunder at the time of the accident.
The only causes of action which aré withdrawn from private controversy by the workmen’s compensation act are those of workmen. RCW 51.04.010 (cf. Rem. Rev. Stat., § 7673). Because the appellant in the present case was not, at the time of the accident, a workman within any statutory definition of the word and had not qualified himself under the provisions of RCW 51.32.030 to receive the benefits of the act “as and under the same circumstances and subject to the same obligations as a workman,” his common-law cause of action for injuries sustained by him had not been removed from controversy.
Respondent argues that, on rehearing, the appellant and certain of the amici curiae urge a theory inconsistent with the position taken by the appellant in his reply brief. Appellant has at all times contended that he was not a workman as defined by the act, and that his cause of action was [759]*759not barred. That respondent, appellant, and Department Two of this court apparently misconstrued the effect of the holding in Koreski v. Seattle Hardware Co., supra, does not foreclose the appellant from calling attention to that misconstruction on rehearing, nor foreclose this court from changing the result arrived at in the Departmental opinion as a result of that misconstruction.
Holding as we do that the appellant’s common-law cause of action against respondent was not barred, we must now give further consideration to the respondent’s contention that the trial court’s order granting respondent’s motion for judgment notwithstanding the verdict of the jury in favor of appellant was on the ground that no negligence had been established.
In the Departmental opinion, we did not discuss the issues of negligence and contributory negligence other than to say that we were of the opinion that on those issues “there was sufficient evidence to go to the jury,” and that they would not be discussed because we were convinced that, even if there was negligence, the appellant would not be entitled to maintain the action.
For the purpose of considering the issue of negligence, some amplification of the facts as stated in the Departmental opinion is necessary. In the respondent’s shop, there is a crane which travels the length of the building, operating on tracks some forty or fifty feet above the floor. It is powered by electricity and is controlled by an operator who sits in a “crane box” to one side of the overhead tracks which moves with the crane. A chain with a hook on the end, hereinafter referred to as the crane hook, is operated vertically from the crane and is used to pick up and transport heavy objects within the building. This crane hook can be raised or lowered while the crane is moving. A straddle (or crotch) chain weighing approximately one hundred twenty pounds, with a large ring in the center and hooks on each end, is attached by the center ring to the crane hook when it is desired to use two hooks on an object to be moved. When the straddle chain is hooked onto the crane hook but is otherwise free, that is, when the hooks are not attached to any object, the [760]*760two sections of the-straddle chain, each-, about six and one- • half feet in length, hang straight down from the crane- hook. It was the straddle chain which became ■ disengaged and struck and injured the appellant.
After the donkey engine which appellant and his associates were purchasing had, by the use of the crane, been placed on a truck and trailer, the tin roof over the donkey engine, being too high to afford bridge clearance," was lifted, the crane and straddle chain being used for that purpose. The posts which supported the roof were then removed, and the roof was lowered and laid directly on the donkey engine. What followed this lifting and lowering of the roof of the donkey engine is best told in the words of O. N. Latimer, father of the appellant;
“After we had taken those posts out and lowered the roof down and they disengaged the hooks [attached to the straddle chain]. During the time we was in this operation there the noon whistle had blown, and when the hooks was cut . loose and this fellow gave them a signal to lift the hooks up, he lifted them up about 18" or 2 feet above our heads, and shot the crane forward, back towards the other end of the shop where they got the donkey from, and that noise up overhead drawed my attention. I looked up to see what was going on, and these hooks on this crotch chain, the extreme lower end of them, seemed to stand still there for an instant, and the crane drifted quite a distance, and all at once they went with a.jump forward and swung back with a snap, and when they snapped there that 'is when they unhooked' this crotch chain from the main hook, and it was right over our heads in, oh, 10 or 12 feet, and it swung up there and unhooked, and I hollered at the boy and tried to get down under this roof. I got down as far as my legs, was as far as I got, and the chain hit the boy.”
There was testimony that the maximum speed the crane could attain was only a little faster than a walk, and that it could not attain that speed until it had traveled ten or fifteen feet or farther. Respondent’s theory is that the crane could not be moved at a speed or in a manner which could cause the ring in the straddle chain to become disengaged from the crane hook if the ring had been properly placed on the hook; that it necessarily follows that the ring had not been prop[761]*761erly placed on the hook; and that it was not established that any employee or agent of the respondent had anything to do with placing the straddle chain ring on the crane hook and, therefore, no negligence on the part of the respondent was established.
The trial court believed the testimony relative to the maximum speed of the crane and concluded that, if the straddle chain had been properly placed on the crane hook, no whiplash could have been produced that would have disengaged the straddle chain. However, the jury was not obliged to believe that testimony. It had before it, also, the testimony of O. N. Latimer and Elmer Johnson as to the way in which the straddle chain became disengaged from the crane hook; testimony by the appellant that the straddle chain had been attached to the crane hook by some of. respondent’s employees under the direction of its shop foreman; and testimony, admitted without objection, that fol- • lowing this accident a safety catch or device was placed on the crane hook. The jury had a right to believe that the crane operator “shot the crane forward”; that employees of the respondent were responsible for the position of the straddle chain on the crane hook; and that the straddle chain became disengaged just as Mr. Latimer said it did.
We are satisfied that there was more than a scintilla of evidence to go to the jury on the issue of negligence, and we cannot conclude, as did the trial court, that there was no credible evidence to sustain the verdict. We therefore direct that the order granting judgment notwithstanding the verdict be set aside and that the trial court enter judgment on the verdict of the jury.
Alt. Concur.