Opinion
6 Div. 383.
November 15, 1917.
Appeal from Circuit Court, Jefferson County; C. B. Snith, Judge.
Cabaniss Bowie, of Birmingham, for appellant. Erle Pettus, of Birmingham, for appellees.
Each of the counts in question is for a breach of common-law duty.
Under the fourth count the burden was on plaintiffs to show that the entry in which intestate was at work was dangerous by reason of a defective and unsafe roof when intestate began to work in the entry. Whitmore v. Ala. Con. C. I. Co., 164 Ala. 125, 51 So. 397, 137 Am. St. Rep. 31. And it is to be noted that "where the prosecution of the work itself makes the place and creates its dangers" (4 Labatt, M. S. § 1518), it is not the duty of the master to stand by during the progress of the work to see where a danger may arise (Langhorne v. Simington, 188 Ala. 337, 66 So. 85). In such a case the only duty resting on the master is to maintain the place in a reasonably safe condition; but, that duty being delegable at common law, and being in fact delegated to another servant of the master, the negligence of the servant in that behalf imposes no liability on the master. Langhorne v. Simington, supra; Wadsworth, etc., Co. v. Scott, 72 So. 542, 197 Ala. 361.
The evidence here has no tendency to show that the roof of the entry was defective and dangerous when it was furnished to intestate to work in. If the count be construed as broad enough to charge defendant with negligence in the maintenance of a safe place, the evidence nevertheless shows that the negligence, if any, which caused intestate's injury was the negligence of the timber foreman or of the mine foreman, to whom the duty of such maintenance had been delegated by the master. Under the uniform decisions of this court, these men were fellow servants of intestate, for whose negligence, while acting as such, there can be no recovery. Langhorne v. Simington, 188 Ala. 337, 66 So. 85; Tutwiler, etc., Co. v. Farrington, 144 Ala. 157, 39 So. 898; Woodward I. Co. v. Cook, 124 Ala. 349, 27 So. 455; Wadsworth, etc., Co. v. Scott, supra.
It results that the affirmative charge should have been given for defendant, as requested, on the fourth count of the complaint, and its refusal was error. In some cases, dependent upon the issues and the proof, it has been held that such an error with respect to one count will not work the reversal of a judgment which is attributable to another good count. But in cases like this, in view of the impossibility of knowing with any reasonable certainty upon which of these widely different issues the jury found their verdict, it has been settled that the error must be accorded the effect of reversal. Wadsworth, etc., Co. v. Scott, supra.
We think the issues made by the sixth count rested upon evidence and inferences not legally conclusive, and were for the determination of the jury alone. A discussion is not now necessary.
For the error noted, the judgment will be reversed, and the cause remanded.
Reversed and remanded.
ANDERSON, C. J., and MAYFIELD and THOMAS, JJ., concur.