Dantzler v. De Bardeleben Coal & Iron Co.

• Decision Date: 14 November 1893
• Court: Alabama Supreme Court
• Parties: DANTZLER v. DE BARDELEBEN COAL & IRON CO.

14 So. 10

101 Ala. 309

DANTZLER v. DE BARDELEBEN COAL & IRON CO.

Supreme Court of Alabama

November 14, 1893

Appeal from city court of Birmingham; William W. Wilkerson, Judge.

Action by S.D. Dantzler, administrator of the estate of W. A. McKay deceased, against the De Bardeleben Coal & Iron Company, for damages for negligence causing the death of plaintiff's intestate, under Code 1886, § 2589. Judgment for defendant. Plaintiff appeals. Affirmed.

Bowman & Harsh and Brickell, Semple & Gunter, for appellant.

Walker Percy, for appellee.

McCLELLAN J.

This action is prosecuted by the personal representative of W. A McKay, deceased, and sounds in damages for the death of plaintiff's intestate, which, it is insisted, resulted from the negligence of the De Bardeleben Coal & Iron Company. The first count of the complaint avers wrong and negligence on the part of the company itself, under section 2589 of the Code. The other courts are drawn under section 2590 of the Code, and severally present causes of action under subsections 1-4, of that section.

The theory of plaintiff under the first count is that the defendant company was negligent in not providing and maintaining a safe place for McKay, one of its employes, and engaged in the discharge of his duties as such when he was killed, to work in. The evidence is without conflict to the effect that McKay was killed by the movement of the piston of a blowing engine. This engine was one of five located in the same room, and all in charge of an engineer named Gould. It became necessary to repair this engine, and to that end it was stopped. It is also shown that when such engine needed repairs, it was Gould's duty to effectually disconnect it from the steam supply, and then turn it over to the repairer after which, and while the repairs were in progress, the engineer's further duty was to keep watch upon it, and prevent any interference with it by third parties, but beyond this he had no further concern with it until the repairs were completed, and the engine turned over to him by the repairers. When the engine had been stopped, disconnected from the steam supply, and turned over to the repairs, it was their duty to further secure its inaction either by inserting timbers in the spokes of the fly wheel, which would, to the extent of the strength of the timbers, prevent its revolution, and consequently all movement of the engine, or, by propping the piston rod with a heavy timber, which would prevent its descending, (its movement is vertical,) and, of consequence, all movement of the machine. These methods are about equally efficacious, and are each intended to guard against any accident by which a connection might be re-established between the boiler and the steam cylinder. In this instance the evidence is without conflict that Gould did all that was required of him in disconnecting the engine from the boiler, and that McKay, before attempting the repairs he was to make, propped the piston rod in the manner indicated. Notwithstanding all this, however, motion was in some way imparted to the engine, the piston rod descended, crushing the beam of wood intended to support it, and crushed and killed McKay, who was inside of the air cylinder, or blowing tub above the steam cylinder, by drawing after it the iron head of the rod which fills the cylinder or tub. Confessedly this movement could have been imparted to the engine in only one way; that is, by reconnecting the engine with the boilers, and turning on the steam. This was done, the inferences are, either by the engineer, or through the interference of some third person. But for this being done, McKay's place of work was a perfectly safe one, and had been made so by the performance by Gould and McKay on their respective parts of the duties which their employment imposed upon them. The company, in other words had required these employes to provide a safe place for one of them to work. They had compiled with the requirement, and the place of safety had been provided. Certainly, to this point, no corporate negligence appears. That the company had discharged its full duty in this regard is demonstrated by the result reached in the actual existence of the conditions it was under an obligation to create. It was under a further duty to maintain the safety of the place while the work was being done. It, however, was not required to insure absolute safety. Its whole measure of duty was to use all reasonable means to that end which a careful and prudent man would resort to under like circumstances. It was not to be expected that the corporation, even were it capable of direct action, would be present in person, so to speak, for the purpose of looking to the maintenance of the safe conditions it had provided. All that was incumbent upon it was to have a proper agent or servant present for this purpose. It could do no more than this, and this it did in the person of Gould, who was charged with the duty of seeing that the safe conditions in respect of the engine be not interfered with by third persons. Gould being a competent person for this service, the company's full duty was performed in having him there to perform it; and any remission of performance on his part was the negligence, not of the employer, but of a fellow servant of McKay, for which the defendant is not responsible at common law in connection with section 2589 of the Code, and not liable at all, unless, under other counts of the complaint, the evidence brings the case within section 2590 of the Code,-the employer's liability act. The trial court did not err, therefore, in giving the affirmative charge for the defendant, so far as the first count of the complaint is concerned.

It remains to be considered whether the case is brought by the evidence within, or rather whether there is any evidence tending to make a case under, section 2590 of the Code. It is manifest that plaintiff's intestate did not come to his death as a proximate result of having gone into and being in the blowing cylinder or tub. His position, but for supervening negligence or unaccountable accident, was a safe one; and hence there is no merit in the contention that he suffered death in consequence of going or being there by the direction of Boyd, to whose orders he was bound to conform under subsection 4 of the statute; and, moreover, had such conformance to Boyd's orders borne the relation of proximate cause to the casualty, there is no evidence whatever that Boyd was negligent in giving the order. These considerations show also the grounds of our conclusion that the case is not brought under subsection 4 of the act; and it is not insisted that the injury resulted proximately from any defect in the ways, works, machinery, or plant of the defendant, within the intent and meaning of subsection 1. The chief contention of appellant is that the evidence tended to prove a case under subsection 2 of section 2590 of the Code, and that, therefore, the court erred in charging affirmatively for the defendant; and our further discussion of the case will be confined to the inquiry whether there is any evidence going to show that McKay's death was caused by reason of the negligence of any person in the service or employment of the master or employer, who had any superintendence intrusted to him, while in the exercise of such superintendence. It is conceded in the outset, for the argument, that the...