97 Ala. 201 | Ala. | 1892
— It is not pretended or insisted that the father of plaintiff and the person employed to load the car which collided with that on which plaintiff was engaged were not- servants of the defendant company. They were employed to load coke on defendant’s cars and were paid by the number of cars loaded, and their work was done, as -the evidence is without conflict in showing, under the immediate supervision and control throughout of the defendant company acting through a superintendent. These men were not independent contractors representing the will of the defendant only as to the result of their labors— the loading of the cars — but mere servants representing and carrying out the master’s will and directions not only as to the result to be accomplished but also as to the means by which it was to be accomplished; and the mere fact that the work was done by the piece or job — that they were paid for each car loaded by them — is not of importance when taken in connection with the uncontroverted fact that their labors were performed under the direction and control in detail of the defendant. — 14 Amer. & Eng. Encyc. of Law, p.
It follows that the defendant company was liable for the consequences of any negligence on the part of the person under whom Bied and his son worked in or about the work upon which he was engaged; and the same rule of liability applies with respect to the results of negligence on the part of Bied and his sons who were employed to assist him in the service, the well settled doctrine being that “where a servant employs a third person to perform an act within the servant’s employment, and injury results to another, the master is liable the same as though his servant employed no agent.” — 14 Am. & Eng. Encyc. of Law, p. 810; Althorp, Admr. et al. v. Wolfe, 22 N. Y. 355 ; Randleson v. Murray, et al. 8 Ad. & El. 109; Booth v. Mister, 7 C. & P. 66; Weihtrecht v. Fasnacht, 17 La. An. 166; Bush. v. Steinman, 1 B. & P. 403 ; Simons v. Monier, 29 Barb. (N. Y.) 419; Snydam v. Moore, 8 Barb. (N. Y.) 358; Montgomery Gas Light Co. v. Montgomery & Eufaula R’y. Co. 86 Ala. 372.
Not only is the defendant liable for injuries caused by the negligence of the Bieds in moving the car upon which they were engaged, but, in our opinion, that liability may be enforced by the plaintiff under section 2590 of the Code, known as the Employers’ Liability Act, under one aspect of the evidence as to the relation existing between plaintiff and the defendant. The undisputed facts in this connection are that plaintiff’s father was employed by the defendant to load its cars at so much each, under the control and direction of defendant’s superintendent or foreman, that plaintiff and his brother were assisting their father in this work, that at the time of the casualty the father had gone off to dinner leaving the boys to continue the work of loading cars and that they were engaged in so doing when plaintiff received the injuries now complained of. Further than this the evidence tended to show that the defendant’s superintendent or foreman who was in immediate charge 'of the work there being done with power to employ and discharge hands, had told the elder Hayes to bring his boys there and put them on the work, and that they were put to Avork there in consequence of this, that he knew plaintiff was so employed, and so far from objecting thereto, treated him as being rightfully so engaged and directed and controlled him as to the manner of doing the work. The defendant had the benefit of plaintiff’s labor thus induced and assented to by its authorized agent, and performed with his knorvledge and under his supervision, if the facts be in line with this tendency
It is contended that there was no evidence on the trial of any negligence on the part of the persons who had charge of the car Avhich collided with that upon which the plaintiff was at the time, and caused the injury; and upon this theory, among others, the general affirmative charge was requested for defendant, and the court was asked also to instruct the jury that there was no evidence of such negligence. The theory is untenable. There was evidence of facts from which the jury might have inferred' negligence on the part of the Rieds. There was some evidence going to show that the car which they attempted to move down the grade had a brake. If that evidence was believed by the jury, they clearly had the right to find negligence from the fact that no effort was made to control or stop the car by means of the brake, an omission which is shoAvn by the testimony of the younger Ried. Again, if Ried’s testimony is believed throughout, the car was not supplied with a brake at all, and he and his father undertook to stop it by putting obstructions on the track in front of it after “pinching” it into motion. That these obstructions were inadequate to the end in view is manifested by the fact that they did not subserve that end- — the car was not stopped by them and here was room for an inference
No plea of contributory negligence was interposed. The case as to this defense falls within the rule declared in K. C., M. & B. R. R. Co. v. Crocker, 95 Ala. 412, that in the absence of such plea rulings of the trial court in respect of contributory'negligence will not be reviewed, and is not within the exceptions to that rule which has more recently been announced in the cases of R. & D. R. R. Co., v. Farmer, ante, 141; K. C., M. & B. R. R. Co. v. Burton, post ---. Whether the refusal to give charges requested by defendant below going to this matter was abstractly correct or not it is not material to inquire.
The plea of former recovery alleged a suit in the name of Elbert Hayes (the plaintiff in this action) by his next friend Bandal Hayes, who was the father of said Elbert, and a judgment in that suit which is set out as a part of the plea as follows: “On this the 8th day of April, 1889, came the parties by their attorneys and issue being joined, and it appearing to the court that in this cause a jury has been waived by the statute in such cases made and provided, the court proceeds to hear and determine the same; whereupon upon the proof produced at the trial of this cause, it is considered and adjudged by the court that the plaintiff have and recover of the defendant the sum of fifty dollars ($50.00), the amount of plaintiff’s debt and damages as ascertained and assessed by the court,” &c., &c. It is thus seen that the plea in substance and effect avers that evidence was introduced on the trial and that upon a consideration of this evidence the court ascertained and assessed plaintiff’s damages to be fifty dollars and rendered judgment for that sum, The repli
That the corirt correctly declared the law in this connection, we do not doubt. The adjudications of this court'support directly or by necessary deduction every proposition given in charge by the court, certainly so when they are referred to and taken, as they must be, in connection with the evidence. In theory a prochein ami is an officer of the court in which a minor sues by him. His only functions are to put his capacity to sue in the place of the infant’s incapacity, and thus to set the machinery of justice in motion. The court is not asked to pass upon any right of his, for he has no rights in the premises, but only to determine the claims of the minor which he perfunctorily brings before it. The character of the necessity for his appearance marks the limitations of his powers. The minor can not get before the court without him, the jurisdiction of the court to hear and determine the cause of action can only be invoked by him, and it is therefore necessary that he should appear. But having appeared, this necessity- having been met, the court having before it a person speaking for the minor, of a competency which is lacking in the minor, proceeds to determine the rights of the minor as between him and the defendant. The next friend has no interest in the result of the proceeding. It is of no consequence to him whether a recovery be had or not, nor whether the amount of recovery be great or small. His being an officer of the court is a basis for the court’s powers over him in the litigation. His lack of interest in the result is a reason for the exercise of that power, the basis of the doctrine of his want of control over the litigation. He can not release the cause of action, nor compromise it, nor submit it to an arbitration the result of which will bind the infant. And being without power to compromise the cause of action, -and the court having the power and being charged with the duty of controlling the suit to the protection of the infant’s interest, an attempted compromise cannot have force and validity injected into it by Ms mere consent to a judgment for the amount he has assumed to
It is not important in this connection that Randal Hayes as the father of Elbert might have sued in his own right for the damages now claimed, and claimed proforma, in the first suit for his son, the present plaintiff. Railing to do so, the son had a right of action, and the father assumed to represent this cause of action which accrued to his son, and not any that he himself might have asserted, throughout the transactions laid in the plea of former recovery and the replications thereto; he acted as next friend and not as father to the plaintiff, and what he did is to be judged as if the relation of parent and child had not existed.
The exceptions reserved to rulings on the admissibility of testimony are without merit. Evidence that Sims, defendant’s superintendent or foreman, was present at the place where plaintiff was loading cars was relevant on the question whether plaintiff was a servant of the defendant. And if this were otherwise, no injury resulted to defendant from overruling the objection to the question put to the witness as to Sims’ presence since he answered that he did not know whether Sims was there or not. We have reached the conclusion above on defendant’s own evidence that the company was responsible for the negligence of the “old man” (Reid), so the admission of testimony going to show -that “this old man was loading coke for the same purpose as Randal Hayes, on the same track and in the same kind of car” could not possibly have prejudiced appellant. The objection to the evidence as to whose duty it was to move the cars being loaded from one place to another along the battery in taking up the several piles of coke is covered, and
"We find no error in the record, justifying or authorizing a reversal of the the judgment of the Circuit Court, and it is therefore affirmed.