137 Ala. 481 | Ala. | 1902
On the facts averred in the complaint, both as originally filed and amended, we are unable to see any difference in principle between this case> and that of Dantzler v. DeBardeleben Coal & Iron Co., 101 Ala. 309. According to the averments, the plaintiff was in the employment of the defendant as fireman of a steam shovel operated by an engineer for defendant, and which was used in mining iron ore. The complaint does not aver that the engine of which the engineer had charge or control ivas a locomotive, or engine upon a railway, and therefore not within the provisions of sub-, division 5 of section 1719 of the Code. The shovel was moved back and forth by operation of the engine. Evidently it must have been so connected with Hie engine, as to form a part of the entire machinery equipment necessary to the mining process. It is averred that the engineer had superintendence of the steam shovel, and that through his negligence in the exercise of such superintendence the plainti ff was injured. But the ,additiona 1 facts., as averred, show that the superintendence, and the exercise of such superintendence, consisted in moving the shovel forward and back by operating tbe engine. The negligence charged, was the failure of the engineer to give the customary signal by blowing the whistle, before moving the steam shovel. Under the principle stated in Dantzler v. DeBardelben C. & I. Co., supra, no superintendence within the meaning of the Employer’s Liability Act is shown. The injury colmplained of was the result of the negligent act of a fellow servant, and for which the master is not liable. There was no error in sustaining the demurrer.
The judgment will be affirmed.
