Thomas v. Saulsbury & Co.

• Decision Date: 23 October 1924
• Docket Number: 2 Div. 844
• Citation: 102 So. 115,212 Ala. 245
• Parties: THOMAS v. SAULSBURY & CO. et al.
• Court: Alabama Supreme Court

102 So. 115

212 Ala. 245

THOMAS v. SAULSBURY & CO. et al.

2 Div. 844

Supreme Court of Alabama

October 23, 1924

On Rehearing, November 27, 1924

Appeal from Circuit Court, Sumter County; John McKinley, Judge.

Action for damages for personal injuries by Howard Thomas against Saulsbury & Co., and Parsons & Dabbs, partnerships, and the individual members thereof. From a judgment for defendants plaintiff appeals. Reversed and remanded on rehearing.

John W Altman and W.A. Denson, both of Birmingham, for appellant.

Patton & Patton, of Carrollton, and Goodwyn & Ross, of Bessemer, for appellees.

BOULDIN J.

The action is for personal injuries received by coming in collision with obstructions upon and across a public highway. The highway was in process of reconstruction under contract with the state highway department. The barrier complained of was placed across the road for the purpose of closing a section of the road to public travel, after obtaining an order to close from the board of revenue of the county.

One who exercises the privilege of closing a public highway by the erection of barriers thereon owes the duty to the public to so construct same as to be readily seen at a safe distance by ordinary observation. This principle is not questioned, but presented one of the issues of fact on the trial. Owing to the turn which the case took, no rulings are here presented on the question whether the obstruction was properly constructed and maintained.

Certain work on the section of road involved was being done by a subcontractor, who erected and maintained the obstruction with which plaintiff came in contact. The primary inquiry here is whether there was evidence tending to support a claim of liability against the contractor for alleged negligence of the subcontractor.

The contract in writing between contractor and subcontractor required the subcontractor to furnish all material, labor and equipment for the construction and completion of the work of clearing and grubbing, rock and earth excavation, and hauling slag and pipe, and providing grass shoulders for the road, all according to plans and specifications on file in the state highway department. The plans and specifications are made a part of the contract, but are not set out in the record.

The evidence shows that the subcontractor was engaged in work on the section of road sought to be closed to public travel; that the contractor, who retained the work of erecting bridges and culverts and concreting the surface, was not to begin until the subcontractor had completed work and turned it over to the contractor; that a short section had been turned over and concreted, and work on culverts was being done at another point, but at the point of the obstruction complained of the road was still under the control of the subcontractor in course of construction. The subcontractor, with relation to the work committed to him, was an independent contractor and not an employee. As a general rule, the law of respondeat superior does not obtain in such case.

An exception, however, obtains where a duty to the public exists in the manner of executing the work undertaken by the contractor. Such duty exists when the execution of the work tends to create a nuisance; when it is dangerous within itself, as in blasting operations; when the work requires the creation of dangerous conditions, such as ditches and the like in a public highway; or generally when the maintenance of safe conditions in connection with the work is essential to the protection of the public. In such case the chief contractor cannot transfer his public duty to a subcontractor. If the contractor places the performance of such duty in the hands of another, to that extent, that other is in law the mere agent, and the contractor is liable for his negligence. Montgomery St. Ry. Co. v. Smith, 146 Ala. 316, 39 So. 757; Scoggins v. Atlantic & G.P. Cement Co., 179 Ala. 213, 60 So. 175; So. Ry. Co. v. Robertson, 16 Ala.App. 155, 75 So. 831; Sloss-Sheffield S. & I. Co. v. Hubbard, 14 Ala.App. 139, 68 So. 571; Adler & Co. v. Pruitt, 169 Ala. 221, 53 So. 315, 32 L.R.A.(N.S.) 889. Our main task arises in making application of these principles in the case before us.

Under the doctrine of respondeat superior liability exists only when the negligent act or omission causing injury is within the line and scope of employment. This applies to all cases alike. It rests upon plain principles of natural justice. Did the injury here arise from a...