Wright-Nave Contracting Co. v. Alabama Fuel & Iron Co.

• Decision Date: 10 April 1924
• Docket Number: 6 Div. 953.
• Parties: WRIGHT-NAVE CONTRACTING CO. ET AL. v. ALABAMA FUEL & IRON CO.
• Court: Alabama Supreme Court

99 So. 728

211 Ala. 89

WRIGHT-NAVE CONTRACTING CO. ET AL. v. ALABAMA FUEL & IRON CO.

6 Div. 953.

Supreme Court of Alabama

April 10, 1924

Appeal from Circuit Court, Jefferson County; Romaine Boyd, Judge.

Action by the Alabama Fuel & Iron Company against the Wright-Nave Contracting Company and others. Judgment for plaintiff, and defendants appeal. Affirmed.

J Wiley Logan, of Birmingham, for appellants.

Percy Benners & Burr, of Birmingham, for appellee.

THOMAS J.

The suit was to recover damages occasioned by blasting that killed an employee of plaintiff, and caused property damage. Plaintiff paid compensation to the dependents of the deceased employee in accordance with the Workmen's Compensation Act. And one phase of the suit is based on subrogation of said dependents' right of action against defendant for said employee's death. Workmen's Compensation Act Gen. Acts 1919, p. 206, § 32, subd. 2; Georgia Casualty Co. v. Haygood (Ala. Sup.) 97 So. 87, 91.

The refusal of the trial court to give written charges requested by defendants, and the overruling of their motion for a new trial, are assigned as error.

The affirmative charge should not be given when the evidence is in conflict, or when inferences may be drawn against the party requesting such charge. McMillan v. Aiken, 205 Ala. 35, 40, 88 So. 135. Charges 1 to 6 were properly refused.

Plaintiff was a coal mining company. The Central of Georgia Railway Company proposed to construct a line of railroad to reach plaintiff's and other coal mines. Defendants contracted with the said railway company to construct its right of way for the new railroad, and sublet to various contractors portions of that construction work, which was carried on by these subcontractors. At all times defendants had the general supervision thereof, checking the work of the subcontractors, and maintaining that general supervision over the entire construction. The bill of exceptions declares that the contract between defendants and their subcontractor was introduced in evidence. This contract nowhere appears in this record.

It was undisputed that the construction of the right of way necessitated blasting; that when the contract between the defendants and their subcontractor was entered into defendants and that subcontractor knew that in the execution thereof blasting would have to be done; that plaintiff's coal mines and its operations were located and conducted along said right of way; and that the coal mines being opened would be developed during the course of construction of defendants' right of way. Pursuant to permission obtained from the Central of Georgia Railway Company, plaintiff erected a telephone line which crossed said right of way, on the pole of which were placed the telephone wires, and also a high-tension power line of plaintiff. That is to say, the evidence shows that the two lines of wire were on the same pole, but located on different cross-arms or supports; and there was a distance of about 4 feet between said wires, the wires not being directly over each other, but at an offset; and said wires were about 40 feet from the ground. In the course of the construction work the subcontractor was opening or clearing, by blasting, a ditch on the right of way and under plaintiff's said wires. This blasting, done under the telephone wires, had on other occasions blown matter into said wires, and rocks had been thrown so far as the top house, about 125 yards distant. As to this one of the witnesses, without objection, said:

"Shooting had been going on there for a long time, and we had to watch the shots, or we would get our blocks knocked off."

The men doing the blasting were notified by plaintiff on several occasions of the danger blasting under the wires, and no precautions were taken. On the day of the accident plaintiff's superintendent called the attention of the men so engaged to this danger, and shortly thereafter another shot was fired, throwing matter against the telephone wire and forcing the latter against the high-tension wire. The effect was to charge the telephone wire with the voltage carried on such high-tension wire; the bell on plaintiff's telephone line was caused to ring; and plaintiff's employee (Coley), in the discharge of his duties, in answering the telephone was electrocuted by the high voltage so transmitted to him by the telephone system from the high-tension wire.

There was a tendency of evidence that, when blasting was done in localities where it was necessary to prevent rocks from flying to the damage of adjacent property or persons not so engaged, it was the practice to "muff" the shot by placing other material over the same. Many witnesses were examined, pro and con, as to the effect of "muffing" a shot. The preponderance of the testimony showed it to be the better practice to muff the shots. However, as to this there was conflict. Some of the witnesses said that muffing the shots could be depended on to stop the missiles from flying; others declared that it only reduced the danger, which was impossible to be wholly eradicated; and still others testified that there was more danger from a muffed shot than otherwise, by reason of the fact that the material used to muff the shot was likely to be blown therefrom with a corresponding danger. The shot causing the death and property damage for which this suit is brought was not muffed.

Under this state of facts the trial proceeded on the theory that said blastings were intrinsically or inherently dangerous; that defendants were responsible for the conduct of such operations, even though they had subcontracted the actual conduct and execution of that work; and that a person cannot delegate the doing of an intrinsically or inherently dangerous thing. These facts were set forth in the complaint, to which demurrers were overruled, and no assignment of error challenges such overruling of demurrers. The defense was on the theory that the execution of this part of the subcontract was not intrinsically or inherently dangerous, and might be delegated to the subcontractor without subjecting defendants to damages claimed.

It is settled in this state that one who has work done which is intrinsically dangerous cannot avoid responsibility in its execution by letting or subletting the work to an independent contractor. The case of Carland & Co. v. Burke, 197 Ala. 435, 73 So. 10, is like the case at bar. There the South & North Railroad Company was having a right of way constructed through Cullman, which necessitated blasting operations, and in which plaintiff was injured by one of the blasts. The special plea sought to be interposed was that the railroad was not liable because the work was done by an independent contractor. The lower court and this court held that intrinsically dangerous work (such as blasting) could not be delegated so as to relieve from liability, and that the defendant railroad was responsible for the acts of its independent contractor in doing its work. This rule of law appellants apparently concede. However, they claim that the doctrine is inapplicable because (it is insisted) the work being done when said damage resulted was not intrinsically dangerous. In this trial the court left the question of whether or not the work was intrinsically dangerous to the jury, and its finding and verdict was that the work, as conducted, was intrinsically dangerous. In Mayor, etc. v. McCary, 84 Ala. 469, 472, 4 So. 630, 631, it was said:

"*** There are two established classes of exceptions to which this general rule has no application. It does not apply: (1) Where the work contracted to be performed will, in its progress, however skillfully done, be necessarily or intrinsically dangerous; and (2) where

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