| Ala. | Jan 18, 1909
Lead Opinion
Under the common law the master is responsible for his own negligence and want of care and this may appear from his failure to furnish proper machinery and materials for the Avork, or from the employment of incompetent servants, or from a failure to make proper rules or establish a proper method for the conduct of his business. As to such acts the agent occupies the master’s place, and the latter is deemed present and liable for the manner in which they are performed. —Ford v. Lake Shore R. R., 124 N.Y. 493" court="NY" date_filed="1891-03-17" href="https://app.midpage.ai/document/ford-v-lake-shore--michigan-southern-railway-co-3619985?utm_source=webapp" opinion_id="3619985">124 N. Y. 493, 26 N. E. 1101, 12 L. R. A. 454. “It is the duty of a railroad company to use reasonable care to see that its cars are properly loaded, so as not to cause injury to its servants.”—
The gravamen of the second count of the complaint is the negligent failure of the defendant to load or cause to be loaded the car in question. There was no direct proof that the defendant caused the car to be loaded, but the evidence afforded an inference from which the jury could find a responsibility for the loading. Nor was there any proof of negligence, apart from what might be reasonably presumed by the jury from the circumstances connected with and surrounding the injury; and this case, therefore, presents for consideration the maxim: “Res ipsa loquitur.” The affair speaks for itself. The burden of proof rests on the plaintiff upon the issue of negligence; and it is a general rule that, when a servant sues his master or employer for damages arising from injuries earned by the negligence of the latter, the plaintiff must prove the.negligence of the defendant, and the proof of the accident and injury alone will not be sufficient to establish negligence. However, it is well settled that the circumstances attending the injury may be sufficient to establish negligence, without any direct proof thereof. — Western Steel Co. v. Cunningham, 158 Ala. 369" court="Ala." date_filed="1908-12-17" href="https://app.midpage.ai/document/western-steel-car--foundry-co-v-cunningham-7363896?utm_source=webapp" opinion_id="7363896">158 Ala. 369, 48 South. 109; Tenn. Co. v. Hayes, 97 Ala. 201" court="Ala." date_filed="1892-07-01" href="https://app.midpage.ai/document/tennessee-coal-iron--railroad-v-hayes-6514921?utm_source=webapp" opinion_id="6514921">97 Ala. 201, 12 South. 98; McCray’s Case, supra. We think the circumstances shown, in connection with the injury and accident, in the case at bar, were such as to authorize the jury to draw an inference of negligence on the part of the defendant in and about loading the car. The car was in the possession of the defendant, and was being unloaded on its track by the direction of its agent. If it had nothing to- do with the loading, or was not otherwise
The trial court erred in excluding the plaintiff’s evidence, upon the assumption that he did not make out a case for the jury. It is intimated in brief of counsel that the trial court proceeded upon the theory that the president or board of directors were not shown to have actually participated in the damnifying act as required in the case of City Delivery Co. v. Henry, 139 Ala. 161" court="Ala." date_filed="1903-11-15" href="https://app.midpage.ai/document/city-delivery-co-v-henry-6520205?utm_source=webapp" opinion_id="6520205">139 Ala. 161, 31 South. 389. The second count, in the case at bar, is unlike the ones to which the rule was applied in the foregoing case. The counts in said case charged a direct corporate trespass, while the count here is in case.
The judgment of nonsuit is set aside, and the judgment rendered against the plaintiff for cost is reversed, and the cause is remanded.
Reversed and remanded.
Rehearing
On Rehearing.
Thfe application was 'considered after Justice Haralson, one of the concurring justices, had vacated the bench. The writer, with Justices Denson, McClellan, and Mayfield, are of the opinion that the opinion is correct, and that the application should be overruled, which is accordingly done.