Appeal
from City Court of Gadsden; John H. Disque, Judge.
"To
be officially reported."
Action
by L. E. Hamlin, administrator of the estate of James
Williams, deceased, against the Reiter-Conley Manufacturing
Company. From a judgment for plaintiff, defendant appeals.
Reversed.
This is
an action for damages on account of the death of
appellee's intestate, who was an employé of appellant
and the original complaint contained six counts. Demurrers
were sustained to all of these counts, and the complaint was
amended by filing an amended count No. 5 and adding counts 7
8, and 9. Demurrers were interposed to the amended complaint
and sustained to all the counts except 5 and 9, and overruled
as to these. The complaint was further amended by adding
counts 10, 11, and 12. Demurrers were filed to these last
counts, and the demurrers overruled. Counts 5 and 11 were
abandoned, and the cause was tried on counts 9, 10, and 12.
The
ninth count was in the following words: "The plaintiff
who sues as the administrator of the estate of James
Williams, deceased, claims of the defendant corporation the
further sum of $10,000 as damages for the negligent killing
of plaintiff's intestate in Etowah county, Ala., on, to
wit, September 1, 1903; and plaintiff avers that at and prior
to the time of said killing his intestate was in the employ
of defendant corporation, and was engaged in the performance
of his duties as such employé of defendant corporation, and
the injury complained of was caused by reason of the
negligence of one Al Reiter, a person in the service or
employment of defendant, who had superintendence intrusted to
him and while in the exercise of such superintendence. Said
negligence complained of consisted in this: That said Al
Reiter, while in the exercise of such superintendence
negligently caused a chain to be slackened while
plaintiff's intestate, in discharge of his duties, was
under a block which was held by the pressure of said chain,
whereby the block was loosened and fell upon plaintiff's
intestate and killed him."
Count
10 was in the following words: "Plaintiff, who sues as
the administrator of the estate of James Williams, deceased,
claims of the defendant corporation the further sum of
$10,000 as damages for the negligent killing of
plaintiff's intestate by defendant in Etowah county,
Ala., on, to wit, September 1, 1903; and plaintiff avers that
at and prior to the happening of the injuries complained of
plaintiff's intestate was in the service or employ of
defendant corporation, and was engaged in the performance of
his duties as such employé of defendant corporation, and the
injury complained of was caused by reason of the act of some
person in the service or employment of defendant corporation
in slackening a chain while plaintiff's intestate in the
discharge of his duties was under a block, which was held by
the pressure of said chain, whereby the block was loosened
and fell upon plaintiff's intestate and killed him; and
plaintiff avers that said act of slackening said chain as
aforesaid was done in obedience to particular instructions to
slacken said chain, negligently given by one Al Reiter, a
person delegated with the authority of the defendant in that
behalf."
Count
12: "Plaintiff, who sues as the administrator of the
estate of James Williams, deceased, claims of the defendant
corporation the further sum of $10,000 as damages for the
negligent killing of plaintiff's intestate by defendant
in Etowah county, Ala., on, to wit, September 1, 1903. And
plaintiff avers that at and prior to the happening of the
injuries complained of plaintiff's intestate was in the
employ of defendant corporation and was engaged in the
performance of his duties as such employé of defendant
corporation; that under his employment it became the duty of
plaintiff's intestate to set an anchor bolt at the base
of a steel or iron column, for the purpose of holding said
column in its erect position; that in the erection of said
column a block of wood had been fastened thereto by the
pressure of a chain which was used in the erection of said
column; that said block of wood was held in its place and
prevented from falling only by the pressure of said chain;
that Al Reiter, a person in the service or employment of
defendant corporation, had superintendence intrusted to him
by the defendant over the erection of said column and over
the work being done by plaintiff's intestate; that said
block was placed directly over plaintiff's intestate;
that the performance of the duties of plaintiff's
intestate required his attention; that plaintiff's
intestate was in a position where the slackening of said
chain would unfasten said block and cause the same to fall
upon plaintiff's intestate; that the danger that said
block would fall upon plaintiff's intestate and injure
him, if the chain was slackened, was well known to said
Reiter, or by the exercise of reasonable diligence should
have been known to him; that it was the duty of said Reiter
in the exercise of his superintendence to use reasonable
diligence to prevent the slackening of said chain; and that
said Reiter in the exercise of said superintendence
negligently failed to exercise reasonable care to prevent the
slackening of said chain, and negligently allowed said chain
to be slackened, whereby said block was loosened and fell on
plaintiff's intestate, and killed him. And plaintiff
avers that said injury proximately resulted from the
negligence of said Al Reiter in the exercise of said
superintendence, in that he negligently failed to exercise
reasonable care to prevent the slackening of said chain, and
negligently allowed said chain to be slackened, whereby
intestate was injured and killed."
Defendant
demurred to the ninth count, and assigned the following
grounds: "(1) For that it fails to give the name of the
person who loosened the chain. (2) For that it does not
appear that the block fell as a result of the chain being
loosened. (3) For that it does not appear that the chain was
used to hold the block in place. (4) For that it does not
state facts showing that the chain held said block and that
the loosening the chain caused the block to fall. (5) For
that it is not made to appear that Al Reiter had any reason
to believe that the slackening of the chain would cause or
allow the block to fall. (6) For that from aught that appears
the chain was not used to hold the block in position, and
that Al Reiter had no reason to believe that the slackening
of the chain would cause or allow the block to fall. (7) For
that it fails to state the alleged particular instructions of
Al Reiter. (8) For that from aught that appears Al Reiter
gave only such instructions as were necessary in the
performance of the work that he and the plaintiff's
intestate were engaged in, all of which was well known and
understood at the time plaintiff's intestate accepted
such service, and that therefore the dangers he encountered
were incident to such employment. (9) For that it shows that
the injury complained of was caused by the act of a fellow
servant. (10) For that it fails to show that Al Reiter had
authority to give the alleged particular instructions. (11)
For that it fails to show the relation of master and servant
between plaintiff's intestate and defendant, except by a
mere conclusion. (12) For that it fails to show that
plaintiff's intestate had a contract of service with the
defendant. (13) For that it fails to show that
plaintiff's intestate was engaged in the performance of
his duties as such employé when he was killed, except as a
mere conclusion."
Demurrers
to tenth count: "(1) For that it does not appear who
slackened the chain. (2) For that it does not appear that Al
Reiter was in the employ of defendant. (3) For that the
alleged particular instructions are not stated. (4) For that
from aught that appears plaintiff's intestate heard said
alleged particular instructions. (5) For that it does not
appear that the alleged negligent instructions were the
proximate cause of the injury. (6) For that the facts
constituting the negligence are not stated."
Demurrers
to twelfth count: "(1) For that it does not appear that
Al Reiter's superintendence extended to seeing that said
chain securely fastened said block. (2) For that it does not
appear that Al Reiter failed to exercise reasonable care and
diligence to prevent said block from falling. (3) For that it
does not appear that said Al Reiter failed to exercise
reasonable care and diligence to secure said block. (4) For
that it does not appear that said Al Reiter failed to
exercise reasonable care and diligence to prevent said chain
from slackening. (5) For that it does not appear that by the
exercise of reasonable care and diligence Al Reiter could
have prevented said chain from slackening. (6) For that it
does not appear that said chain was slackened by the
negligence of said Al Reiter, (7) For that it does not appear
what caused said chain to slacken. (8) For that it does not
appear that Al Reiter superintended the fastening of said
block by said chain in the erection of said iron column. (9)
For that the causal connection between the alleged negligence
and the injury is not shown. (10) For that it appears that
the plaintiff's intestate had the same opportunity of
ascertaining the condition of said chain and block as Al
Reiter."
The
defendant filed the following pleas: The first and second
were the general issue. Plea 3: "For further plea in
this behalf, defendant says that plaintiff's intestate
was guilty of contributory negligence which proximately
contributed to his injury, in that he stood immediately under
said block at a place where it would likely strike...