Collier v. Tennessee Coal, Iron & Railway Co.

McCLELLAN, J. The appeal is from a judgment sustaining a demurrer to the complaint. It contains only one count, and after alleging in the usual way the existence- of the relation of master and servant at the time of the injury, and that at that time he was engaged in the active performance of the duties of his employment, the negligence relied on is thus charged: “Plain [377] tiff avers said injury to have been proximately caused by reason of the negligence of Pampley, a person in the service or employment of the defendant, who had superintendence intrusted to him, whilst in the exercise of such superintendence, which negligence consisted in this: The said Prampley negligently allowed work of the defendant to be performed in a manner dangerous to the safety of the plaintiff, whereby a rock was rolled down from a place above where plaintiff was at work, injuring * *' * him.” This count avers the relation existing when the injury was inflicted, that injury did result to the plaintiff, and that the proximate cause therefor was the negligence of a superintendent of the defendant whilst in the exercise of such superintendence. Unquestionably such averments set forth the duty and the breach of it by one for whose negligence the defendant is responsible under the very letter of subdivision 2 of the liability act (Civ. Code 1907, p. 595, § 3910, subd. 2). Under this subdivision of the act it is not essential that any relation existed at the time of the injury between the party injured and the alleged negligent superintendent. In K. C. M. & B. R. R. v. Burton, 97 Ala. 246, 12 South. 88, it is said: “Under subdivision 2, it is manifest, we think, the liability of the defendant is in no sense dependent upon the relations existing in the service between the negligent and the injured person. If the former has superintendence intrusted to him, and is negligent in the exercise of it, to the injury of any servant or employe in the service or business of the master, whatever be the relation inter se of the servants, the master is made liable thereof by the very terms of the statute.” — 2 Labatt’s Master & Servant, §§ 679-737. Counsel insist that the count undertakes to aver the facts constituting the negligence complained of, and [378] since that is essayed tbe count is demurrable in its failure to make out, by allegations of fact, a case of negligence on the part of Pampley. We do not so construe the count. The gravamen of the count is that the superintendent, while so engaged, negligently allowed work of the master to be performed in a manner dangerous to the safety of plaintiff. Clearly the quo modo resulting in injury is not thereby attempted to be set forth; and the succeeding averment, describing the effect of the asserted negligence of the superintendent, is no more than the allegation of the consequence, including the agency producing it, of the negligence charged. The rock was rolled down, inflicting the alleged injury, and the cause thereof was the generally expressed negligence of the vice principal, Pampley. If the work of the defendant was allowed by the superintendent to be done in a manner dangerous to plaintiff, to whom the defendant and its superintendent owed the duty of reasonable care growing out of the relation existing between the plaintiff and the defendant and the method employed by the superintendent was negligent in respect of the safety of the servant — plaintiff—• the duty enjoined ivas breached, and for an injury proximately resulting therefrom liability attached. This must necessarily follow, since, upon the vice principal— the superintendent — there rested the duty to conserve the safety of servants of the master to the same degree as that duty was upon the master; and, if the safety of the servant was negligently permitted to be endangered by the superintendent, the master is responsible for the consequences. It was his duty to exercise reasonable care to know whether work was being performed in a negligent manner to the endangering of the safety of the servant. — 1 Labatt, § 14. [379] We therefore think that the demurrer was erroneously sustained, and hence reverse the judgment, and remand the cause. [Reversed and remanded. Tyson, C. J., and Aniudrson, J., concur.