58 So. 447 | Ala. | 1912
Lead Opinion
There is bnt one question raised on this appeal, and that is the correctness of the trial court’s action in giving the affirmative charge for the defendant.
The complaint contained two counts; each being based on the second subdivision of the Employer’s Liability Act (Code 1907, § 3910), Avhich relates to the negligence of a superintendent Avhile in the exercise of superintendence. The specific negligence charged against the superintendent in the first count Avas that he “negligently shoved, or caused to be shoved or pushed or thrown, a certain piece of timber against the plaintiff.” There is no contention that the proof tended to make out a case under the second count, if it failed in the first.
The evidence of the plaintiff himself, who was the only Avitness introduced, proved the relation existing
Counsel for appellant, in his brief, says that all the plaintiff Avas required to prove was, that it was his duty to conform to the orders of the chief carpenter, Allred, and that, as a result of so conforming to those orders, he Avas injured while so engaged. It is suffi
While the statute makes the master liable for the negligence of the superintendent, when engaged in the exercise of such superintendence, to the same extent as if it were the negligence of the master himself, yet, if the master be shoAvn to have done nothing but Avhat -the superintendent is shown to have done in this case, there would be nothing showing or tending to show actionable negligence on- his part. The mere fact that the servant Avas injured while in the performance of his duties, and Avhile acting according to the instructions of the master or the superintendent, does not make the master liable. There must be shoAvn some actionáble negligence on the part of the superintendent, if the action is under the second section of the Liability Act.
Affirmed.
Dissenting Opinion
(dissenting). — The sole error assigned is the giving the affirmative charge for the defendant. Evidence was taken on two counts; both purporting to charge liability under the second subdivision of the Liability Act, § 3910. The particular negligence alleged in the first count is this: “That said Bart All-red, while in the exercise of such superintendence, negligently shoved, or caused to be shoved or pushed or thrown, a certain piece of timber against the plaintiff, while plaintiff, in the discharge of his duties, was in the place where said1 timber was so thrown, pushed, or shoved, removing another piece of timber.” And that alleged in the second count is this: “The said Bart Allred negligently • caused or allowed work of the defendant to be performed in a manner dangerous to the safety of the plaintiff, whereby a piece of timber was pushed, shoved, or thrown against plaintiff where he was at work.” In both counts, it is alleged that the plaintiff was, when injured, in the service of the defendant,- performing the duty he owed his master. Demurrers to the counts were overruled; but no error is assigned upon that ruling.
The bill of exceptions is short. Omitting the parts of it which merely describe the effect of the injury suffered by the plaintiff, the entire bill is as follows: “It was shown that the, defendant was operating a railroad in this county, and in connection therewith a steamboat or boats and barges, transferring cars and passengers
Under the authorities to follow, it is my opinion that the trial court erred in holding, as a matter of law, that the damnifying act of Allred was without the exercise of his superintendence.—Roche v. Lowell Bleachery, 181 Mass. 480, 63 N. E. 943; K. C., M. & B. R. R. Co. v. Burton, 97 Ala. 240, 12 South. 88; Dantzler v. T. C. & I. Co., 101 Ala. 309, 316-317, 14 South. 10, 22 L. R. A. 361; S. S. S. & L. Co. v. Austell, 161 Ala. 418, 49 South. 685; 2 Labatt, §§ 681, 688; Osborne v. Jackson, 11 Q. B. Div. 619; Canney v. Walkeine, 113 Fed. 66, 51 C. C. A. 53, 58 L. R. A. 33.
It has been ruled, to what should be, in view of the unaltered, in the pertinent aspect, readoption of the statute, accepted as a finality, that a superintendent, while exercising the superintendence committed to him who actually, manually assists or co-operates with a laborer in the performance of the duty to which the laborer is directed, does not by that act become divested of his character as superintendent in that particular act or service. — Author, supra. And it should be, for the like reason, also accepted as the established rule, that, where the sole duty of the party charged is as a superintendent, where he has not two segregable duties, one of superintendence and one of manual labor, as was the circumstance in Dantzler’s Appeal, the superintendent’s act in manually assisting or co-operating, in the accomplishment of the work or service over which the superintendent’s authority extends, as a laborer is that of superintendence, not of a laborer; and, if even his .manual act, so performed, is negligent, to the hurt of an employee, the master is liable there
Prom the evidence it was, at least, open to the jury to find that Allred, the “ship’s carpenter,” was invested with superintendence to get the lumber from the warehouse for the repair of the boat; that the “hands” • — the deck hands — assigned to that particular service were subjects of his superintendence in the performance of the service of so getting the lumber; that he placed plaintiff, and designated his duty in the premises; that the failure or refusal of plaintiff to perform the service of receiving and disposing of the timbers, tendered as the bill described, would have been a breach of the duty laid upon him by the direction of Allred, as superintendent; that Allred assumed voluntarily, outside of his particular duty as superintendent, the manual labor of handing the lumber out of the warehouse to the plaintiff; that, had plaintiff seasonably seen the timber thrust at him by Allred, it would have been his duty, fixed by Allred, as superintendent, to receive that piece, and to load it on the wagon; and that when Allred so thrust the timber, injuring him, plaintiff was then actually doing what Allred, as superintendent, had ordered him to do — such act by Allred being done without warning to plaintiff of his intention to do so.
With tendencies of the evidence to invite these findings, it is clear to me that the giving of the affirmative charge was error.