Sloss-Sheffield Steel & Iron Co. v. Holway

TYSON, J. 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 [285] of defendant; that his injuries were caused by reason of the negligence of one Williams, to whom the exercise of superintendence had-been intrusted by defendant of the scaffold; that Williams- negligently permitted and suffered the scaffold to be constructed in an unsafe way; in that defective and unfit material was used in its construction, so that it was dangerous and unfit for the purpose for which it was intended. It is conceded that the scaffold was improperly constructed, not -only as to workmanship, but also as to the material used in it. It is also conceded that the evidence shows without dispute that Williams was the superintendent of the carpenters employed at the furnace, and that it was his duty as such superintendent to have this scaffold properly built. It is insisted, however, that because Williams pointed out to Miller and Spencer, the two carpenters who built the scaffold, the proper material to be used in its construction, and directed them to construct it of that material and how and when it should be built, he discharged his full duty to plaintiff’s intestate; that, having done this much, if Miller and Spencer were competent carpenters, the defendant was not liable for their disobedience to his orders. 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 [286] ercising reasonable care in furnishing a safe place to his servant to work by showing that the delegated person was competent and disobeyed his instruction©. The principle upon which the master was held liable in such cases is that his obligation is direct and personal, and, while he may delegate this duty to another, such person is his agent and stands in his place. — McKinney on Fellow Servants, p. 73; 4 Am. Neg. Reports, p. 257, and cases there cited. So here Williams’ obligation to plaintiff’s intestate by virtue of the superintendence intrusted to him was personal, and he could not rid himself of the duty of exercising reasonable care in providing a safe scaffold by delegating the performance of that duty to Miller and Spencer, conceding that 'they were in all respects competent. The several written charges refused to the defendant were not in harmony with these views, and their refusal was proper. _ 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. McClellan, C. J., and Anderson and Denson, JJ., concur.