Langhorne v. Simington

• Decision Date: 30 June 1914
• Docket Number: 755
• Parties: LANGHORNE et al. v. SIMINGTON.
• Court: Alabama Supreme Court

66 So. 85

188 Ala. 337

LANGHORNE et al. v. SIMINGTON.

No. 755

Supreme Court of Alabama

June 30, 1914

Appeal from Circuit Court, Cullman County; D.W. Speake, Judge.

Action by Henry Simington against E.K. Langhorne and others. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

The first count alleges that defendants were engaged in excavating and constructing a railroad track for the Louisville & Nashville Railroad Company, and in that connection were engaged in operating a steam shovel for the purpose of making an excavation, and on the date of the accident plaintiff was in the service or employment of defendant, and, while engaged in and about the discharge of his duties in the line of his employment in operating a jack under said steam shovel aforesaid, a large stump or piece of log was negligently caused or negligently allowed by defendant to fall or roll down upon plaintiff from a high embankment (and here follows catalogue of injuries), and plaintiff alleges that his injuries and damages aforesaid by reason, and as a proximate consequence, of the negligence of one Wallace Waugh, who was also in the service or employment of defendant in the capacity of walking boss, and who was intrusted by defendant with superintendence, and whilst in the exercise of such superintendence in this, said Waugh, who was in the service or employment of defendant, and who was intrusted by defendant with superintendence, and while in the exercise of such superintendence, negligently caused, or negligently allowed, said stump, piece of log, or other heavy piece of timber to fall from or roll down said embankment aforesaid, and fall upon plaintiff.

Count 2: Same as 1, except Mike Day, who was in the service or employment of defendant in the capacity of engineer, was substituted for Waugh.

Count 3: Same as 1 down to and including catalogue of injuries, and adds:

"Plaintiff alleges that he was injured and damaged as aforesaid by reason of, and as a proximate consequence of the negligence of defendant in this: Defendant negligently failed to provide plaintiff with a reasonably safe place for plaintiff to be engaged in or about said business of defendant at the time he received said injuries as aforesaid."

The following charges were refused defendant:

Affirmative charge as to the third count.

(14) "The court charges the jury that, if you believe from the evidence in this case that the place where plaintiff was at work when injured was in a reasonably safe condition when he commenced work there, and it became in an unsafe condition after plaintiff commenced work there which proximately caused its injury, you cannot find for plaintiff for failure of defendant to furnish him a reasonably safe place in which to do his work, as charged in count 3 of complaint as amended."

(27) "The court charges the jury that, unless each of the jury is reasonably satisfied from the evidence in this case that plaintiff has established in evidence all of the material averments of one count of the complaint, you cannot find for plaintiff in this case."

Charles A. Calhoun, of Birmingham, for appellants.

Jere C King, of Birmingham, for appellee.

SAYRE J.

The first and second counts of the amended complaint proceeded on the superintendence clause of the statute. The third count was framed with the unmistakable purpose of stating a case under the common law. It made mention of no coemployé of plaintiff. It alleged that plaintiff's injury had resulted from the fact that "defendants negligently failed to provide plaintiff with a reasonably safe place for plaintiff to be engaged in or about the said business of defendants."

For plaintiff the evidence tended to show that defendants, as contractors for the Louisville & Nashville Railroad Company were engaged in excavating and removing the earth from a cut through which the company proposed to lay a line of track. The work was done by means of a steam shovel, the operation of which was committed to employés of defendants. To one side, as the work progressed, a sloping wall or bank about 25 feet high was left, and one day the process of excavation undermined and partially dislodged a stump at the upper edge of the wall or bank so that it toppled over and remained suspended above the place where the steam shovel was being worked. Defendants were working day and night shifts, and during the succeeding night natural causes, without further undermining by the shovel, which in the meantime had been moved forward 10 or 12 feet, operated to detach the stump and a considerable volume of earth from the upper edge of the cut, causing it to fall down upon plaintiff where he was at work near the front end of the car or truck which carried the machinery of the shovel, preparing it for further movement forward, and so was brought about the injury of which plaintiff complained. The evidence did not show to what extent, if at all, defendants exercised personal supervision of the work, or whether they had a general manager on the ground, but it did show that defendants had in their service one Waugh, named in the first count of the complaint, and referred to in the evidence as a "walking boss." He was, no doubt, a superintendent in some sort. It may have been inferred also that, in the absence of Waugh, which must have been necessary at times, since his duties carried him to other places, superintendence was committed to Day, named in the second count, whose regular duty, however, was to operate the engine that furnished power to the shovel. It might have been found, further, that Waugh or Day, one or both, were negligent in permitting the work to proceed under the condition created by the suspension of the stump above the shovel, a condition the jury may have found that these superintendents knew, or, in the exercise of due care, should have known.

Construed with reference to the law invoked, the third count of the complaint charged plaintiff's injury to the personal wrong of defendants or of a vice principal for whose wrong defendants are answerable according to the doctrine and postulate of that law. In the evidence, which was addressed to the proposition that defendants were liable for the reason that one or the other of their named superintendents had been derelict in the premises, we are unable to perceive any tenable basis for a finding that either of these superintendents, while acting as vice principal for defendants, had been remiss in respect of the common-law duty in general of defendants to furnish to their employés a safe place in which to do their work.

The character of the work in which defendants were engaged may have been such, its complication and danger such, that a reasonable regard for the safety of their employés demanded that superintendents should be appointed to overlook its progress; but, whether so or not, superintendents were furnished, as plaintiff's evidence went to show, and no complaint of their competency or fitness is found in pleadings or proof, and here, for aught appearing, the common-law duty of defenda...