Tennessee Coal, Iron & Railroad v. Cottrell , 172 Ala. 538 ( 1911 )

ANDERSON, J.

Count 5 of the complaint was under subdivision 4 of the employer’s liability act (section 3910 of the Code of 1907), and the gravamen of which was not the negligence of the person tipping the mixer, hut that it "was done in obedience to instructions negligently given by a person who was delegated by the master to give said instructions. We are not disposed to take issue with counsel for appellant in the contention that subdivision 4 is not the same as subdivision 2, and that, under subdivision 4, it must appear that the person who gave the instructions was specially delegated to do so', and the act would not'probably come under the head of mere negligence while in the exercise of a general superintendence, as provided for in subdivision 2. We think, however, there was’sufficient proof to warrant the submission of the cause of the jury upon every material allegation of the complaint, and that the trial court did not err in refusing any of the general charges requested by the. defendant. The proof shows, that there were but two Grosbys employed by the defendant at the place and time of plaintiff’s injury. Whether the elder one’s real name was John Crosby, Sr., or Josiah Crosby, there was evidence that he was known as John Crosby, and that the younger Crosby, whether his name was John or not, was known as J. W. Crosby, or Crosby, Jr., whether his real name as J. W. or John. Therefore, when the answer of the defendant spoke of “John Crosby,” and the witnesses spoke of “John Crosby” in their evidence, the jury could reasonably infer that they had reference to the elder Crosby. There was also proof that the elder Crosby was in the pulpit acting as “blower” when the signal to “tipple” was given Laycock, and the proof also shows that the authority to give the signals was delegated to the “blower.”

We also think that the giving of the signal was an instruction, as contemplated by subdivision 4, and was not a mere mechanical act. or omission, as covered by subdivision 2. The fact that the signal was but a mechanical act of the blower, by pressing the button, did not prevent its being an instruction,' as contemplatéd by subdivision 4. It was but a modern and convenient method of conveying the instruction to “tipple” from the “blower” to the “tippler,” and was just as much an instruction as if the blower had told him to tip the mixer.

It was also for the jury to determine whether or not ■ Crosby, Sr., gave the signal, as Laycock said he received the signal, and there was proof that said elder Crosby was in the pulpit at the time, which is the place where the blower is stationed, and from which the signal is given. It is true there was a conflict in the evidence. as to who was in the pulpit at the time; hut it was a question for the jury to determine whether or not the elder Crosby gave the signal, and which said question was squarely submitted to the jury by defendant’s given charge 7.

There was no error in refusing charge 4, requested by the defendant. If not otherwise bad, it in effect charges the jury that Superintendent Crosby was not a person delegated with the authority to give the signal. Whether he had the authority or not, by virtue of being superintendent, matters not, as' there was proof that he was in the pulpit acting as blower; and if such was the case, he had the authority independent of being superintendent, and the charge invaded the province of the jury, and was also misleading.

•' There was no error in refusing charge 5, requested by the defendant. It was abstract, as there was no evidence whatever tending to show 'that Crosby gave the signal in any capacity, except while in the pulpit and acting as blower.

' The defendant admitted that the signal was given from the pulpit by a Mr. Crosby, and who was acting tinder delegated authority to give the signal. Therefore, if the signal was given by Crosby, Sr., it was While he was filling the position of the man to whom the authority was delegated, and it matters not whether he had the authority to do so as turn foreman; for, if he gave the signal at all, it was while acting as blower, and as such he had the authority whether he had it as turn foreman or not. The authority does not seem to have been delegated to any special person, but went to the men in the pulpit, to the blower first, and to the regulator in his absence, and it would seem that the two men in the pulpit, regardless of who they were, if there under the authority of the defendant, would be the ones to whom the authority of giving the signal was delegated. So the question is, was the signal given by a blower in the pulpit or the regulator? and, if it was, it was by one who had authority. — See evidence of Marstello. If the order was given by the senior Crosby, who was also1 the turn foreman, it was given by him while he ivas blower, and not in the capacity as turn foreman; for under the evidence he gave the signal while acting as blower, or he did not give it at all.

The plaintiff testified that he did not know, when the suit was brought, who gave the signal to tip the mixer, and the defendant was not entitled to the general charge, upon the theory that the averment that the person was unknown was not proven. Nor was there error in overruling the demurrer to the fifth count.— Reiter v. Hamlin, 144 Ala. 212, 40 South. 280.

There was no error in giving charge 1 at the request of the plaintiff. — Williamson v. McQueen, 144 Ala. 279, 40 South. 306; A. G. S. R. R. v. Frazier, 93 Ala. 45, 9 South. 303, 30 Am. St. Rep. 28.

The judgment of the circuit court is affirmed.

Affirmed.

Dowdell, C. J., and Sayre and Somerville, JJ., concur.