The Montgomery advertiser., 1908-02-03
Head Notes of the Decisions of fke Alabama Supreme Court

CURL.a Action for Damages for Injury to Elm ploye. ~ Decided Nov 2l, 1907. A lf Master ana servant: injury to servant complaint: sufficiency.--An
 averment in complaint that the em- pioye was injured while in the employ of the master Is not the equivalent Of l an allegation that be was in the dis charge of .. duty imposed on him at
 the time of the injury. D. .Same---An averlnert in a com. plaint that the master was negligent In falling to provide servants with req soma hle skill aad. that. as a proximate
 consequence thereof. plaintiff, empioye, was injured, is not an allegation that l the services in which &be -employe was laengaged at the time of his injury were within the line or scope of his employ .ment; .f...ss'
 3. Sanle.--where the emplcye was | engaged as a black smith in a shop | in the mines, a. complain. for iS1urles | to him by being struc& by cars on | a tram railway whicn fails to STOW
 necessity for crossins the track at | that point is subject to demurrer. 4. Same--A count for recovery or l damages for injury; to an enip'oye m | consequence Of the incompatcncy or | fellow servants must allege that the l employer failed to use ordinary care l In the selectfon of them, as the master does not warrant the competency or
 his servants: in selecting employee re .ne | master must exercise reasonable care, having in view. the nature of the em- ployn,ent and if the employment in | wolves special fknowiedge, only men or
 such special knowledge should DC en- l gagged.
 5. san,e.--A count which ayers the
 nature of the work and the o1'y ol | A&l r.yxx1g far FGA@ l sonabie skill and . negligent failure l of the employer tos engage such ser 1 yants@ whereby ul&intim, an employe' was injured,s suhiciently alleges the ] negligence of the master for falIure | to employ proper servants; ana sucn l allegations sufticientiys show the cas- | ual connection between, the act cauS. ing the. iniury and the negligence. e. Same,--A complaint alleging in- | jurfes to a mine empioye by neIns | struck by cars on a tram raAiWay' which also alleges the negligent faiI- ure of the employer to provide SUI. | hcient number of servants 10 cohduc. | his work in a reasonably safe manner
 and as q proxInate result cars used | by the ef1pl oyer in his business ran | against the -enhploye and injured niin' | states good cause. of action.
 q. sSanie-4A count alleging injuries | to a mine employe by being struck by l cars on trarn railway. that the rail
 way was operated flor defendants prie | vate purpose in connection with It's mine and stirat plainttR had occasion | to cross the track. but which falls l to. aver any relationshfp between the parties. makes plaintiff mere tres
 passer to, whom the defendant owed
 no duty except not to wantonly or will
 fully injure him.
 8. Same A count alleging that the I &et@ | the negiigence of a co-eTnploye while | in,sthe exercise of the Euperintendence 1 Intrusted to him, that the negligence l consisted in the co- -employe allowing
 a car to run down the track with
 out means of controlling it's motion and
 without any. signal to employe; plan | tin, does not state a. cause Of action | under sub-division 2 or 5 of Section
 ls4s. Code 1896. as there is no aver ! ment that the employe was employed
 in or about the railroad or that he
 was discharging any duty In connec-
 tion herewith. .s
 | A. Same.-A count which shows that the employe was at the employers
 mining plant by invitation, instance or
 request of the employer sufficiently shows that ttheAennploye occupied such
 a relation to the employer as to en- 1 title him to the exercise of ordinary
 care ton the part of the employer.
 I
 ment.-A person was at. the time Of his injury occupying the relation or | empIoye and entitled to the same inn | munity from injury from negligence as when at work where 1t was shown that such person was at Work at
 shop on one side ofshfs employers tram l track; that on the opposite side or
 the track was a house where drink
 ing water was kept; that 1t was GUS
 tomary for employees to go to the house
 for water; that about i've minutes be"
 fore noon the person left the shop. to
 get water crossing the railway be- l tween the cars about two feet apart,
 and on his return, while crossing be- tween the cars they ran together fn- | turing him. s-<a5 %s
 II. Same pleading and proof; vari- ! ance---A complaint setting up that | plaintiff was a stranger crossing de-
 fendant's track and entitled to the ex-
 ereise of due care from defendants
 servants Is not supported by evidence
 that at the time of his injury his
 right to be where he was depended ! on his status as an employe.
 l IF. Same; persons engaged in su-
 perintendence.-Ap person charged with l the duty of retarding the speed of | coal cars by spragging or cioggIng | the wheels and who performs the
 manual labor necessary to do the work
 and has no person under him cannot | be said to exercise any superinten-
 dence intrusted to him 1y the master.
 IS. Same; relation of employe.-One
 employed as black smith at mine | and discharging no duty in connection l with the railway operated by the mas | ter at the mine cannot recover for | injuries on account of being struck by l a car on the railway through the neg | ligence of one in charge of the car, | as such person is not within the pur-
 view of sub division 5 of Section 174S,
 Code 1898.
 IA. same.-one who has nothing to do with the starting of cars on a 1 railway and whose only duty was | from his position on the ground, to | sprag the wheels of the car was not l a person in charge of the cars or rail- | way. etc, within the meaning of sub | division of 5, Section 1T49. Code lsS6. l IS. Appeal; harmless error; erron-
 eous ruling on pIeading.-The error { if any, in overruling the demurrer to a | count attributing the injury to the | negligence of a co-employe while in inc exercise of superintendence is
 cured by charge directing that l there could he no recovery on account | of the neg! ance of such co-employe l ryh He exercising such superintendence. | Anpeal from Bessefner City Court. 1 Heard before Hon. William Jackson. Reversed and renanded. Opinion by
 Denson. J. e,..
 JJ.. concur |
 SANDERS v.DAVIs.
 Malicious prosecution and false im-