Western Railway of Alabama v. Milligan , 135 Ala. 205 ( 1902 )

McCLELLAN, C. J

The theory upon which this case was tried and upon which there was 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 on the part of Cunningham toward Milligan, as one man would tickle another to make him jump or laugh spasmodically. It is testified that Cunningham knew that Milligan was “goosey” or ticklish — given to ridiculous gyrations when he was pushed or punched or touched; and the men there in the shops were in the habit, more or less, of touching or pushing him to see him jump. It was for this, and not in connection with the work he was directed to do, that Cunningham touched him on the occasion in question (if indeed he touched, or punched, or pushed, him at all, which is positively denied by Cunningham and several other apparently credible witnesses'). That if Cunningham was guilty of any negligence in the premises it lay in this extraneous act, the evidence shows beyond controversy. That this was not an act of superintendence, we are en-firrlv clear. That a negligent act, although cowmiiird by one intrusted with superintendence by the common employee, and while in the exercise of such superintendence, is not an act for which the employer is responsible when it is not an act of superintendence nnder the statute is clear upon reason and is settled by the authorities.—Reno Employer’s Liability Acts, § 59; Roberts & Wallace, Duty and Liability of Employers, pp. 2G5-7; Dresser’s Employer’s Liability, § 62.

This whole case turns upon the question we have been considering: Whether Cunningham’s alleged act of pushing, or punching, or touching Milligan, while the latter was about to brush off the table upon which the knives were fixed was an act of superintendence. Reaching the conclusion that this was not an act of superintendence and that of consequence the defendant was not responsible for it, our further inevitable conclusion is that the city court erred in refusing to give the affirmative charge requested by the defendant. It is unnecessary to discuss other rulings of the court bearing upon this subject — on demurrers, in the general charge given of the court’s own motion and upon requests for special instructions — further than to say that they, too, were erroneous in so far as they proceeded upon the theory that the defendant would be liable for this act of Cunningham if he had superintendence intrusted to him and the act was committed while he was in the exercise of such superintendence.

Reversed and remanded.-