Western Ry. of Alabama v. Milligan

• Decision Date: 17 December 1902
• Citation: 33 So. 438,135 Ala. 205
• Parties: WESTERN RY. OF ALABAMA v. MILLIGAN. [a1]
• Court: Alabama Supreme Court

33 So. 438

135 Ala. 205

WESTERN RY. OF ALABAMA v. MILLIGAN. ^[a1]

Supreme Court of Alabama

December 17, 1902

Appeal from city court of Montgomery; A. D. Sayre, Judge.

Action by Jim Milligan against the Western Railway of Alabama. Judgment for plaintiff. Defendant appeals. Reversed.

This action was brought to recover damages for personal injuries alleged to have been received by him while in the employ of the defendant. The negligence complained of was that one Cunningham, who was intrusted with superintendence by the defendant in one of its shops, and who had superintendence over the plaintiff, negligently struck or punched the plaintiff in the side while he was obeying an order given him by said Cunningham, and as a result of such stroke the plaintiff threw his hand forward upon a piece of machinery and had it cut off. The plaintiff claimed $20,000 damages. The facts of the case necessary to an understanding of the decision on the present appeal are sufficiently stated in the opinion.

Among the charges requested by the defendant, to the court's refusal to give which the defendant separately excepted, was the following: "If the jury believe the evidence, they must find for the defendant." There were verdict and judgment for the plaintiff, assessing his damages at $1,200.

George P. Harrison, for appellant.

Hill &amp Hill and Gordon Macdonald, for appellee.

McCLELLAN C.J.

The theory upon which this case was tried, and upon which there were verdict and judgment for the plaintiff, Milligan, was that the railway company is responsible for the act of Cunningham, its alleged superintendent, in playfully punching or pushing Milligan in the side with a small stick when he told the latter to brush off the table of the machine, which was constituted in part of knives set in its center, and at the time rapidly revolving; that Milligan was "goosey," as he expresses it, or ticklish; and that the light punch or push in his diaphragm so upset him as to cause him to throw his hand among the knives, by which it was cut off. We are not of opinion that this act of Cunningham assuming that he had superintendence intrusted to him in respect of having Milligan to brush off the table and that the act was done while he was in the exercise of such superintendence, was an act of superintendence for the consequences of which, under the employer's liability act, the company is liable. There is no pretense that the act was intended or calculated to further the work Cunningham had directed Milligan to do. It bore no sort of relation to that work, but was a mere casual pleasantry, or act of fun-making,...