Collier v. Tennessee Coal, Iron & R. Co.
| Decision Date | 16 April 1908 |
| Parties | COLLIER v. TENNESSEE COAL, IRON & R. CO. |
| Court | Alabama Supreme Court |
Appeal from City Court of Birmingham; H. A. Sharpe, Judge.
Personal injury action by Charlie Collier against the Tennessee Coal Iron & Railroad Company. From a judgment sustaining a demurrer to the complaint, plaintiff appeals. Reversed and remanded.
Denson & Denson, for appellant.
Percy & Benners, for appellee.
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 "Plaintiff avers said injury to have been proximately caused by reason of the negligence of Jack 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 Pampley 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 So. 88, it is said: ...
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...the same as that interposed to this complaint. Republic Iron & Steel Co. v. Williams, 168 Ala. 615, 53 So. 76. See, also, Collier v. T.C.I. & R.R. Co., supra, and Reiter-Connolly Co. v. Hamlin, supra. Count 6 by express averments met the objection of the demurrer as to the point under discu......
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