40 So. 211 | Ala. | 1905
The first and second count® of the complaint were eliminated from our consideration on this appeal bv the giving of the general affirmative charge as to each of them at defendant’s request. The third count is framed under the second subdivision of section 1749 of the Code of 1896, known a® the “Employers’ Liability Act.” A demurrer was interposed to this count, but no judgment appears to have been rendered upon it. The objection taken to the sufficiency of its allegations by the demurrer is not, therefore, before us for review.
This count alleges that plaintiff’s intestate ivau injured while-in 'the discharge of his duties a® an employe of the defendant by the falling of a scaffold upon which he was standing while at work in repairing the furnace
The argument is that it was not Williams’ duty to build the scaffold himself. His duty was simply to superintend its construction; that he had the right to delegate its construction to Miller and Spencer, provided they were competent men and properly instructed. This was only a part of the duties required of him. The superintendence intrusted to him imposed upon him the duty, not only to direct the carpenters as he did, but to' overlook or inspect their work; to see that" they built a safe scaffold. —Dresser on Emp. Liability, § 63; Dantzler v. Debardeleben Coal Co., 101 Ala. 314, 14 South. 10, 22 L. R. A. 361; Robinson Mining Co. v. Tolbert, 132 Ala. 469, 31 South. 519. If he trusted its construction to Miller and Spencer, and.they were, negligent, he cannot avoid the responsibility imposed upon him by asserting that they disregarded his orders, any more than a master, independent of the statute, could absolve himiself of liability by delegating to another the duty he owes of ex
We are unable to see how the defendant was prejudiced by that part of the oral charge of the court to which an exception was reserved. It is true the court did not refer to the testimony that plaintiff’s “intestate may have saved some money out of his earnings, which his widow had at the time of hi© death;” but, if that fact had been established, clearly it would not have reduced the amount of the recovery. — L. & N. R. R. Co. v. Trammell, 93 Ala. 350, 9 South. 870.
Affirmed.