Johnson v. Nashville, C. & St. L. Ry.

MAYFIELD, J. 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 [286] between himself and the master and the superintendent, showing that he was working under the direction of the. superintendent at the time injured; that he and the superintendent went together to a warehouse to get some pieces of timber to be used in repairing a boat; that the superintendent went into the warehouse, and picked out a piece of timber and pushed it out across two iron smokestacks in the doorway; that plaintiff picked it up and put it in the wagon; that the superintendent shoved out a second piece as before, and that, while plaintiff was stooping to pick it up, a third piece was shoved out by the superintendent in such a manner that it was about to strike plaintiff in the breast when he first saw it; that he threw up his hand to protect himself from it, and, as he caught it, a splinter of wood the size of a match pierced through his forefinger, hurting him very much. This was all of the evidence which could be said to have any tendency to prove negligence on the part of thé superintendent; and we agree with the trial court that there was in it nothing warranting its submission to a jury. It was not shown that the superintendent negligently threAV the plank across the smokestacks; nor that he had any reason to believe that it would strike, or in any way injure, plaintiff. It Avas not even skoAvn that he saw the plaintiff when he shoved the plank out; the superintendent being inside the Avarehouse, and the plaintiff outside. There was certainly no tendency in the evidence- to shoAV any negligence on the part of the superintendent, without which there could be no recovery. 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 [287] cient answer to this argument to say that there Aims no count in the complaint which sought to recover under the third subdivision of the Employer’s Liability Act, Avhich relates to injuries received by the servant in consequence of conforming to the orders of his superior, to Avhich orders the injured servant was bound to conform, and did. conform. In other Avords, neither count of the complaint sought a recovery under this subdivision. Consequently this part of the argument of appellant’s counsel is inapt. 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. Anderson, Sayre, and Somerville, JJ., concur in the affirmance, upon the ground that the evidence did not tend to sIioav that the superintendent Avas in the exercise of superintendence in the matter of pushing or shoving the plank out at the door, and that the master is not therefore liable. Simpson, J., concurs Avith the writer that the evidence did not tend to show any actionable negligence on the part of the superintendent, [288] and also concurs in the views of Justices Anderson, Sayre, and Somerville. The writer is of the opinion that, if any actionable negligence on the part of the superintendent had been shown it would have been negligence for which the master is made liable under the statute. Dowdell, C. J., and McClellan, J., dissent.