Sloss-Sheffield Steel & Iron Co. v. Bibb

• Decision Date: 13 January 1910
• Parties: SLOSS-SHEFFIELD STEEL & IRON CO. v. BIBB.
• Court: Alabama Supreme Court

51 So. 345

164 Ala. 62

SLOSS-SHEFFIELD STEEL & IRON CO. v. BIBB.

Supreme Court of Alabama

January 13, 1910

Appeal from City Court of Bessemer; William Jackson, Judge.

Action by Allen Bibb against the Sloss-Sheffield Steel & Iron Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Tillman Grubb, Bradley & Morrow, for appellant.

Allen &amp Fort and J. N. Hanby, for appellee.

EVANS J.

The plaintiff prosecutes this action to recover of the defendant damages consequent upon personal injuries alleged to have been sustained by him through the negligence of the defendant. There was only one count in the complaint when it was filed, but five others were subsequently added by amendment. The cause was tried, however, upon counts 1, 5 and 6; counts 2, 3, and 4 having been withdrawn by the plaintiff.

The plaintiff's case may be understood from the first count, so we transcribe it: "The plaintiff claims of the defendant, the Sloss-Sheffield Steel & Iron Company, a corporation, the sum of $5,000 as damages for that heretofore, to wit, on or about the 10th day of June, 1907, the said Sloss-Sheffield Steel & Iron Company was engaged in and about the business of operating a certain ore mine on Red Mountain, near Bessemer, Jefferson county, Ala., known as Slope No. 2, with a mine track, and cars thereon, said cars being operated on said track by means of a hoisting drum and cable. The plaintiff says that on or about said date he was employed in said mine as a shift runner under the direction and employment of one George Davis as contractor in the above-mentioned mine of the Sloss-Sheffield Steel & Iron Company, and the plaintiff, while engaged in and about his said duties as shift runner, was upon the premises of the said Sloss-Sheffield Steel & Iron Company by permission and invitation of said company. And the plaintiff says that on or about said date, while engaged in the discharge of his duties which required him to be on one of said cars in said mine, he was descending into said mine on a trip of cars, said cars being operated and lowered into said mine by an employé of the defendant in charge of said hoisting drum and cable named Ellard Nunnally, and the plaintiff says that it was the duty of the defendant to employ a skillful and competent engineer or hoister to handle said hoisting drum and cable. And the plaintiff says that the said Ellard Nunnally was unskillful and incompetent in the handling of said hoisting drum and cable, that the defendant employed said Ellard Nunnally with knowledge of his lack of skill and incompetency for said employment, and that such lack of skill and incompetency were not known to plaintiff. And the plaintiff says that while descending into the said mine on said trip of cars, said cars were caused or allowed to descend and go into said mine at a rapid rate of speed greater than was necessary or proper in the operation of said cars, and, by reason of the excessive and dangerous rate of speed at which said cars descended into said mine, the plaintiff was caused to fall or be thrown from said trip of cars, whereby the plaintiff was knocked unconscious, was bruised and broken and wounded in his breast and shoulder and hip and about his head, suffering from said injuries great mental and physical pain, being laid up from his usual occupations for a long time, and being caused to expend large amounts of money in and about his efforts to cure his said wounds and injuries so received. And the plaintiff says that by reason of said injuries he has been permanently injured and rendered less able to perform his usual avocations. And the plaintiff says that he received his said injuries as a proximate consequence of the negligence of the defendant in employing the said Ellard Nunnally in the capacity mentioned by reason of the fact that said Ellard Nunnally was unskilled and incompetent in handling the hoisting drum and engine as aforesaid. All this to plaintiff's damage."

Confessedly the plaintiff was not at the time of the injury complained of in this count a servant of the defendant (Lookout Mountain Iron Co. v. Lea, 144 Ala. 169, Le Sierre v. Gould, 1 Q. B.

493; Sweeny v. Old Colony, etc., Co., 10 Allen (Mass.) 368, 87 Am. Dec. 644; Kahl v. Love, 37 N. J. Law, 5; Newark, etc., Co. v. Garden, 78 F. 74, 23 C. C. A. 649, 37 L. R. A. 725; Southern Railway Co. v. Williams, 143 Ala. 212, 38 So. 1013; B. R. L. & P. Co. v. Jones, 153 Ala. 157, 45 So. 177; 1 Dresser's Employer's Liability, § 83, p. 363. Labatt, speaking of the duty of the master to his employés in respect to the employment of servants, says: "The master impliedly contracts that he will use due care in engaging the services of those who are reasonably fit and competent for the performance of their respective duties in the common service." Labatt, Master & Servant, §§ 177, 178. Under the common-law rule, a servant assumed the risk of negligence on the part of a fellow servant, but not the risk of the failure of the master to exercise due care in the selection of his servants; and in the latter respect the servant could assume that the master had discharged his duty.

In 26 Cyc. (1518), in respect to the master's liability for injuries to third persons, the rule is stated thus: "The master may be liable for the acts of his servant on either of the following grounds: (1) Negligence of the master in selecting his servants or instructing them as to the duties of their positions. * * * (4) The fact that the act of the servant was within the scope of his employment." In Missouri, etc., R. R. Co. v. Freeman (Tex. Civ. App.) 73 S.W. 542, the Texas Court held that "the master is liable to a third person for injuries received in the employment of an incompetent and negligent servant without inquiry." In Holladay v. Kennard, 12 Wall. 254, 20 L.Ed. 390, the same principle is enunciated, where it is held by the Supreme Court of the United States that, where skill and capacity are required to accomplish an undertaking, it is negligence on the part of the master not to employ persons having such qualifications, and that such negligence will render him liable for injuries to third persons occasioned thereby. To the same effect are the holdings of our court. See Alabama, etc., Co. v. Waller, 48 Ala. 459; M. & O., etc., Co. v. Thomas, 42 Ala. 715.

In the instant case the plaintiff was on the premises of the defendant, and in the very position he occupied at the time he received his injuries, under an implied invitation from the defendant, and for a purpose connected with the business in which the defendant was not only engaged, but which it permitted to be there carried on; and therefore there was mutuality of interest between the plaintiff and the defendant in the subject there to which plaintiff's business related. Moreover, the count sub judice shows that the defendant itself, although carrying on the actual mining of the ore through a contractor,...