City Council of Sheffield v. Harris

• Decision Date: 20 December 1893
• Citation: 14 So. 357,101 Ala. 564
• Parties: CITY COUNCIL OF SHEFFIELD v. HARRIS.
• Court: Alabama Supreme Court

14 So. 357

101 Ala. 564

CITY COUNCIL OF SHEFFIELD v. HARRIS.

Supreme Court of Alabama

December 20, 1893

Appeal from circuit court, Colbert county; H. C. Speake, Judge.

Action by Joe Harris against the city council of Sheffield for personal injuries caused by the alleged negligence of the defendant's officers, agents, or servants. There was judgment for the plaintiff, and defendant appeals. Reversed.

Joseph H. Nathan, for appellant.

Kirk &amp Almon, for appellee.

STONE C.J.

The present case was in fact tried on the third or amended count. It avers that plaintiff, Harris, an employe, was injured April 16, 1889, while digging gravel for defendant corporation; "that prior to said date the defendant [city of Sheffield,] through its agents and employes intrusted with the superintendence of said work, buried a dynamite cartridge at the place where said gravel was being dug, and left it there, unexploded, without giving notice or warning to any one that it was so buried, knowing it was dangerous to leave it in that hidden place, unexploded, and that it was endangering the lives of persons who might be engaged in digging gravel. Yet the defendant, its agents or employes, as above stated, carelessly and recklessly, and without having any regard for the safety of persons digging gravel at that place, left said dynamite so buried, without giving any sign or warning of danger, and suffered it so to remain. And on the 16th day of April, 1889, plaintiff was employed by defendant to work on said streets and avenues and was required to dig gravel for that purpose, and instructed to dig where defendant had hid and buried said dynamite; and plaintiff, not knowing that dynamite was buried at said place, began digging gravel, and without seeing said dynamite cartridge, or knowing it was there, struck it, while digging gravel, and caused it to explode," etc. The plaintiff then sets out very serious personal injuries inflicted on him by the explosion. This count clearly sets forth a good cause of action under subdivision 2 of section 2590 of the Code, and the demurrer to it was rightly overruled. We will not consider the sufficiency of the other counts. Even if the court erred in overruling the demurrers to them,-a concession we must not be understood as making, or intending to make,-it would be, at most, error without injury.

Plaintiff received his injury while digging in a bank of gravel which was being used in filling up or coating the streets of Shef field. No question is raised as to the service he was employed in. He was working for the city, being hired for the purpose. Nor is there proof of any negligence on his part which led to the explosion and to the injury. There was no attempt to show that plaintiff was notified that an imperfectly exploded cartridge of dynamite had been left buried in the bank where he was put to work. He had not been in the employ of the city when, three days before, as is claimed, the cartridge was placed there and attempted to be exploded. There is conflict in the testimony as to when or how the cartridge was placed there, and whether the city's authorities or employes had anything to do with it. The testimony for the defense denies all participation in the placing of the cartridge, or knowledge that it was there. If Howard's testimony be true, it would seem the dynamite must have been there before the city commenced working at that place under his superintendency. There is no pretense, however, that plaintiff was notified of its being there, or that he received any warning or caution in regard to it. So no fault is chargeable to the plaintiff. The testimony shows that Howard was in superintendence of the plaintiff and the other laborers who were engaged in digging the gravel. This is not denied, but it is contended that he (Howard) was not elected or appointed to that superintendency in the mode prescribed by law, and that consequently any injury caused by his negligence while serving, or assuming to serve, the city, cannot fasten a charge upon the municipality. There is nothing in this objection. If he served the city in the capacity of superintendent of this work, and the city authorities acquiesced in such service, and took the benefit of his skill and labor, the city will not be heard to deny the legality of his...