Woodward Iron Co. v. Boswell

• Decision Date: 05 April 1917
• Docket Number: 6 Div. 344
• Citation: 75 So. 3,199 Ala. 424
• Parties: WOODWARD IRON CO. v. BOSWELL.
• Court: Alabama Supreme Court

75 So. 3

199 Ala. 424

WOODWARD IRON CO. v. BOSWELL.

6 Div. 344

Supreme Court of Alabama

April 5, 1917

Appeal from City Court of Birmingham; C.W. Ferguson, Judge.

Action by Anna Boswell, as administratrix, against the Woodward Iron Company, for damages for the death of her intestate. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Count 8 is under the first subdivision of the Employers' Liability Act (Code 1907, § 3910), and declares for a defect in the furnace. Count A sufficiently appears. Count B is based upon the negligence of the superintendent, in that he negligently caused or allowed work of defendant to be done in a manner dangerous to the safety of plaintiff's intestate, whereby he was killed.

The following are the charges given for plaintiff:

(3) If the work of an employer is allowed by the superintendent to be done in a manner dangerous to an employé, and the method used by the superintendent is negligent in respect to the safety of employés, the duty enjoined by the statute is breached, and for an injury or death resulting therefrom the employer is liable.

(4) Upon a superintendent rests the duty to exercise reasonable care to conserve the safety of the employé, and if his safety is negligently permitted to be endangered by the superintendent, the master is responsible for all injuries or death proximately resulting therefrom.

(1) If you are reasonably satisfied from the evidence that J.M. Wales was defendant's superintendent over deceased at the time of his death, then it would be negligence for him to allow such condition of things to exist as would render an accident probable through the means even of an intervening agent which due care might have foreseen.

(9) If you are reasonably satisfied from the evidence that the gas was one proximate cause of the death, then the fact if it be a fact, that there may have been other concurrent proximate causes will not defeat a recovery.

(10) If you believe from the evidence that Mose Boswell, at the time he came to his death, was afflicted with an incurable disease, even though it would have eventually caused his death, but if you believe from the evidence that there was negligence in either of the respects named in the complaint, which proximately hastened his death, then defendant is liable for the death, notwithstanding the disease.

The following charges were refused to defendant:

(2) The law imposes no higher duty on the master to look after the safety of the servant than it imposes on the servant to look after his own safety.

(10) If you should find from the evidence that defendant had no reason to anticipate or foresee that plaintiff's intestate would be injuriously affected by gas, your verdict should be for defendant.

Cabaniss & Bowie, of Birmingham, for appellant.

McQueen & Ellis and Allen, Bell & Sadler, all of Birmingham, for appellee.

ANDERSON C.J.

This cause was submitted to the jury upon counts 8, A, and B. Count A is under the common law for a failure to exercise reasonable care to furnish the intestate a reasonably safe place in which to work, and the proof did not support that count. Hence the trial court erred in refusing the general charge requested by the defendant as to this count. It is the nondelegable duty of the master to exercise reasonable care to furnish a reasonably safe place to the servant, but when this is done the duty of keeping the place safe and in repair is delegable. Southern Sewer Co. v. Hawkins, 192 Ala. 380 Central Foundry Co. v. Bailey,

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