Linderman v. Tennessee Coal, Iron & Railroad

ANDERSON, J. The proposition cannot be doubted that simply because one who is charged with superintendence happens to engage in the discharge of the duties of a subordinate, -or that are performed by one in the capacity of a fellow servant of the plaintiff, he does not thereby cease to be a superintendent. He may act in a dnal capacity, and the things which he does or omits while acting as a fellow servant, and which are incident to the duties of same, are not acts of superintendence. On the other hand, if he negligently does or fails to do something involving superintendence, the act or omission Avould be one of superintendence, notAvithstanding he may at the time of said act or omission be also engaged in performing the duties of a felloAV servant ; but to create a liability under subdivision 2 of section 3910 of the Code of 1907 it is not sufficient merely to shoAv that the injury was caused by reason of the negligence of a person in the service or employment of the master or employer who had superintendence intrusted to him, but it must appear that the negligence occurred Aidiile the offending employee Avas in the exercise of such superintendence. “This is the plain requirement of the statute. If it were held to be enough to constitute a cause of action to show that a superintendent had been negligent, Avithout reference to the nature and character of the act he was performing Avhen negligence occurred,, [383] then the effect would be to read the last clause of subdivision 2 out of the statute and give it no field of operation. The negligence must be that of some agent or employee who is in the exercise of superintendence, and to whose negligence in such exercise the disaster is traced.”—Smith v. Pioneer Co., 146 Ala. 234, 41 South. 475; Drennen v. Smith, 115 Ala. 396, 22 South. 442; Dantzler v. DeBardeleben, 101 Ala. 309, 14 South. 10, 22 L. R. A. 361; Sloss Co. v. Green, 159 Ala. 178, 49 South. 301. The evidence in the case at bar shows that the plaintiff’s injury resulted from the act of the superintendent in applying the air so as to cause the hot rivet to be struck too quick or too hard, and that the negligence, if any there ivas, grew out of the action of the boss or superintendent while acting in the capacity of fellow servant to the plaintiff, and which did not involve any superintendence. “The employer is not answerable for the negligence of a person intrusted with superintendence, who at the time, and in doing the act complained of, is not exercising superintendence, but is engaged in mere manual labor, the duty of a common workman.”—Smith v. Pioneer Co., supra; Cashman v. Chase, 156 Mass. 342, 31 N. E. 4; Dresser on Employer’s Liability, § 62. The trial court did not err in giving the general charge for the defendant. The case of Sloss-Sheffield S. & I. Co. v. Austell, 161 Ala. 418, 49 South. 685, is not in conflict with this holding. There is not a full report of said case, but, as we construe the opinion, it fastened the liability on the defendant as the result of negligence on the part of the engineer while exercising acts of superintendence, in this: That he negligently ordered the plaintiff to prize the engine off of the “top center,” knowing that steam was left in or Avould get in the cylinder, and knowing that said engine would move rapidly the instant it Avas prized off the center. The gravamen of [384] the action seems to.have been the negligence on the part of the engineer, a superintendent, in ordering the plaintiff to do a thing which would probably result in injury to him, and not any negligence on the part of the engineer growing out of a mere manual act of a common workman. The judgment of the city court is affirmed. Affirmed. All the Justices concur.