McCLELLAN, C. J.
Action under section 1749 of the Code — Employer’s Liability Act — by Moore against Southern Railway Co.j sounding in damages for personal injuries.
By demurrer to certain counts of the complaint, by exceptions to certain portions of the oral charge and to the refusal of the court to give certain instructions requested by it, the defendant reserved in the trial' court and now presents here the question whether an employer is liable in damages under the statute for the wanton, willful or intentional misconduct of an emplové inflicting personal injury upon another employe This question is not only not res integra in this State, but it has been adjudged by this court in the [446]*446-affirmative, and such legislative action upon the statute has been subsequently had as precludes, us now to .reopen it. This court seems from its first deliverance upon this statute to have entertained the view that a recovery under it could be had not only for negligence, strictly speaking, but also for any wrong of fellow servants committed in respect of the condition of the ways, works, etc. (being charged with their proper condition) of the employer, or in the exercise of superintendence intrusted to them by the master, or in the giving of orders about the business of the master to which the complaining servant was bound to conform, when injured as a consequence of such Conformity, or in any act or omission done or made in obedience to the rules, etc., etc., of the employer, or in the charge or control of signals, points, locomotives, etc., etc., upon a railway, etc. For in the case of Stewart v. Louisville & Nashville Railroad Co., 83 Ala. 493, which appears to be the first consideration of ithe enactment by this court, it is said: “The controlling purpose of the statute was to give to workmen, laborers, employes, a remedy against their employers for injuries suffered through the wrongful or negligent conduct of the. latter; in other words, to relieve them of the discriminating disabilities under which they had heretofore labored — to give for the benefit of their heirs at law — next of kin — in thei event death had ensued for the injury, the same compensation and remedy against the employer as if the decedent had not been a survitor, workman) or laborer for the person or corporation offending.” Now to give the injured employé the same compensation and remedy ■against the employer as an injured stranger would be entitled to under the same circumstances would be to give him compensation, and a remedy to recover it, for injuries resulting from the willful, wanton or intentional misconduct of the employer’s servants, since the stranger would have that right and remedy in such case; and it would seem that the expression, “wrongful or negligent conduct,” in the foregoing excerpt, was employed in line with the idea that the employé should [447]*447have all the rights in respect of the quality of causal act as being either negligent or otherwise wrongful that a stranger would have. Moreover, it was further ruled in Stewart’s Case, that the words of the statute, “in case the injury results in death, the heirs at law of the workman shall have the same rights and remedies,” as if he were a stranger, had reference to section 2641 of the Code (section 27 of the present Code), commonly known as the “Homicide Act,” since that was the only law then of force giving a right of action for injuries resulting in death; and the implication would be that these words, therefore, gave the. injured employé the same rights which that act gave to strangers; and as that act was held to be punitive of Avillfulness, Avantonness and intentional wrong as Avell as of negligence, the further implication Avould seem to be that, though the Employer’s Act was limited to compensation in express terms,, yet it was intended to provide compensation for injuries Avantonly, willfully or intentionally inflicted, as well as those resulting from negligence.
So Ave read and interpret Stewart’s Case. But whether we correctly so interpret it or not, and whether so interpreted it is a sound exposition of the statute or not, the fact is and remains that for years after the enactment of the Employer’s Liability Act the construction which that adjudication tends, at least, to put upon it was assumed to be its true construction by the bench and bar of the State without question, and very many cases brought into court under the act were tried below and reviewed here upon that assumption, and many verdicts were found below and the judgment upon them affirmed, or dealt with here upon the theory that employés had a right of action under the act for the wanton, willful or intentional misconduct of fellow servants as well as for their mere negligence. The following are some of these cases: Kansas City, Memphis & Birmingham Railroad Co. v. Crocker, 95 Ala. 412; Richmond & Danville Railroad Co. v. Farmer, 97 Ala. 141; Lee v. DeBardelaben Coal & Iron Co., 102 Ala. 628; Chambliss v. [448]*448Mary Lee Coal & Railroad Co., 104 Ala. 655; Ala. Gt. So. R. R. Co. v. Hall, 105 Ala. 599; Louisville & Nashville Railroad Co. v. Markee, 103 Ala. 160; Louisville & Nashville Railroad Co. v. Crawford, 89 Ala. 245; Louisville & Nashville Railroad Co. v. Watson, 90 Ala. 68; and there are many others. And in Louisville & Nashville Railroad Co. v. Trammell, 93 Ala. 350, there was mure than an assumption of the liability of the -master under the statute fur the wanton or willful misconduct and for the intentional wrong of the employé: there was a decision that he was so liable. That cause urns tried without jury below and the presiding judge found for the plaintiff, Trammell. On appeal it ivas our duty to review the conclusion of fact reached by the trial judge. The action was by the administrator of an employé against the employer for injuries suffered at the hands of a fellow servant. The complaint alleged that an employé of the defendant then and there in charge and control of a locomotive on defendant’s railway, etc., wantonly, willfully or intentionally ran upon and against the person of plaintiff’s intestate and killed him. This court found on the evidence that the intestate came ¡to his death by the engine striking him, and proceeded: “Finding that Trammell was stricken by the engine 'itself, in the manner deposed to by these witnesses, he must have been in dangerous proximity to the track, according to a preponderance of the evidence, for sometime before the collision; and nut only so, but he was oblivious of the approach of the train; and both his proximity to the track and ignorance of' the peril must have been knoAvn to the engineer. Under these circumstances, the latter’s failure, in the presence of knoAvn danger, to use all means in his power to avoid striking the intestate, it appearing that preventive effort would have been effectual, was such recklessness or Avantonness as supports the averments of the complaint as to willfulness and intentional wrong, nut- to speak of, or base our conclusion upon the evidence of an expressed willingness on the. part of the engineer to run down Tip on Trammell [the intestate]. We are, therefore, sat[449]*449isfied of the correctness of tlie trial court’s view of the facts • of .itlie disaster.” And upon this ground, that defendant’s engineer liad willfully or intentionally killed plaintiff’s intestate, tlie judgment for plaintiff was affirmed.
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McCLELLAN, C. J.
Action under section 1749 of the Code — Employer’s Liability Act — by Moore against Southern Railway Co.j sounding in damages for personal injuries.
By demurrer to certain counts of the complaint, by exceptions to certain portions of the oral charge and to the refusal of the court to give certain instructions requested by it, the defendant reserved in the trial' court and now presents here the question whether an employer is liable in damages under the statute for the wanton, willful or intentional misconduct of an emplové inflicting personal injury upon another employe This question is not only not res integra in this State, but it has been adjudged by this court in the [446]*446-affirmative, and such legislative action upon the statute has been subsequently had as precludes, us now to .reopen it. This court seems from its first deliverance upon this statute to have entertained the view that a recovery under it could be had not only for negligence, strictly speaking, but also for any wrong of fellow servants committed in respect of the condition of the ways, works, etc. (being charged with their proper condition) of the employer, or in the exercise of superintendence intrusted to them by the master, or in the giving of orders about the business of the master to which the complaining servant was bound to conform, when injured as a consequence of such Conformity, or in any act or omission done or made in obedience to the rules, etc., etc., of the employer, or in the charge or control of signals, points, locomotives, etc., etc., upon a railway, etc. For in the case of Stewart v. Louisville & Nashville Railroad Co., 83 Ala. 493, which appears to be the first consideration of ithe enactment by this court, it is said: “The controlling purpose of the statute was to give to workmen, laborers, employes, a remedy against their employers for injuries suffered through the wrongful or negligent conduct of the. latter; in other words, to relieve them of the discriminating disabilities under which they had heretofore labored — to give for the benefit of their heirs at law — next of kin — in thei event death had ensued for the injury, the same compensation and remedy against the employer as if the decedent had not been a survitor, workman) or laborer for the person or corporation offending.” Now to give the injured employé the same compensation and remedy ■against the employer as an injured stranger would be entitled to under the same circumstances would be to give him compensation, and a remedy to recover it, for injuries resulting from the willful, wanton or intentional misconduct of the employer’s servants, since the stranger would have that right and remedy in such case; and it would seem that the expression, “wrongful or negligent conduct,” in the foregoing excerpt, was employed in line with the idea that the employé should [447]*447have all the rights in respect of the quality of causal act as being either negligent or otherwise wrongful that a stranger would have. Moreover, it was further ruled in Stewart’s Case, that the words of the statute, “in case the injury results in death, the heirs at law of the workman shall have the same rights and remedies,” as if he were a stranger, had reference to section 2641 of the Code (section 27 of the present Code), commonly known as the “Homicide Act,” since that was the only law then of force giving a right of action for injuries resulting in death; and the implication would be that these words, therefore, gave the. injured employé the same rights which that act gave to strangers; and as that act was held to be punitive of Avillfulness, Avantonness and intentional wrong as Avell as of negligence, the further implication Avould seem to be that, though the Employer’s Act was limited to compensation in express terms,, yet it was intended to provide compensation for injuries Avantonly, willfully or intentionally inflicted, as well as those resulting from negligence.
So Ave read and interpret Stewart’s Case. But whether we correctly so interpret it or not, and whether so interpreted it is a sound exposition of the statute or not, the fact is and remains that for years after the enactment of the Employer’s Liability Act the construction which that adjudication tends, at least, to put upon it was assumed to be its true construction by the bench and bar of the State without question, and very many cases brought into court under the act were tried below and reviewed here upon that assumption, and many verdicts were found below and the judgment upon them affirmed, or dealt with here upon the theory that employés had a right of action under the act for the wanton, willful or intentional misconduct of fellow servants as well as for their mere negligence. The following are some of these cases: Kansas City, Memphis & Birmingham Railroad Co. v. Crocker, 95 Ala. 412; Richmond & Danville Railroad Co. v. Farmer, 97 Ala. 141; Lee v. DeBardelaben Coal & Iron Co., 102 Ala. 628; Chambliss v. [448]*448Mary Lee Coal & Railroad Co., 104 Ala. 655; Ala. Gt. So. R. R. Co. v. Hall, 105 Ala. 599; Louisville & Nashville Railroad Co. v. Markee, 103 Ala. 160; Louisville & Nashville Railroad Co. v. Crawford, 89 Ala. 245; Louisville & Nashville Railroad Co. v. Watson, 90 Ala. 68; and there are many others. And in Louisville & Nashville Railroad Co. v. Trammell, 93 Ala. 350, there was mure than an assumption of the liability of the -master under the statute fur the wanton or willful misconduct and for the intentional wrong of the employé: there was a decision that he was so liable. That cause urns tried without jury below and the presiding judge found for the plaintiff, Trammell. On appeal it ivas our duty to review the conclusion of fact reached by the trial judge. The action was by the administrator of an employé against the employer for injuries suffered at the hands of a fellow servant. The complaint alleged that an employé of the defendant then and there in charge and control of a locomotive on defendant’s railway, etc., wantonly, willfully or intentionally ran upon and against the person of plaintiff’s intestate and killed him. This court found on the evidence that the intestate came ¡to his death by the engine striking him, and proceeded: “Finding that Trammell was stricken by the engine 'itself, in the manner deposed to by these witnesses, he must have been in dangerous proximity to the track, according to a preponderance of the evidence, for sometime before the collision; and nut only so, but he was oblivious of the approach of the train; and both his proximity to the track and ignorance of' the peril must have been knoAvn to the engineer. Under these circumstances, the latter’s failure, in the presence of knoAvn danger, to use all means in his power to avoid striking the intestate, it appearing that preventive effort would have been effectual, was such recklessness or Avantonness as supports the averments of the complaint as to willfulness and intentional wrong, nut- to speak of, or base our conclusion upon the evidence of an expressed willingness on the. part of the engineer to run down Tip on Trammell [the intestate]. We are, therefore, sat[449]*449isfied of the correctness of tlie trial court’s view of the facts • of .itlie disaster.” And upon this ground, that defendant’s engineer liad willfully or intentionally killed plaintiff’s intestate, tlie judgment for plaintiff was affirmed. And not only so, but in discussing the measure of damages in sucli cases, this court declared in terms that a recovery could be had under the statute for willful and intentional wrong on defendant’s employé inflicting death or injury upon a fellow employé, the precise words being that. “ while the abstract right of recovery may depend [that is would depend where there was contributory negligence] upon such recklessness or wantonness on the part of defendant as will overcome the defense of contributory negligence, yet that consideration cannot be looked to to enhance damages beyond the point of compensation.” We. do not know whether counsel in that ease took or pressed the position that no recovery could be had under the statute for willfulness and the like, and it is immaterial to this discussion and to the conclusion we have in view whether they did or not. If we were proposing now to review the decision in TraimoelVs Oase on its inherent merits, the fact that the point decided there, was not referred to or elaborated in argument, would be proper for consideration. But the inquiry here, is not whether that case is sound, but solely whether the point we have here was decided in' it; and the amount and character of the discussion and consideration given to the point can have no bearing upon the question whether the point was in fact passed upon. That it was expressly and necessarily passed upon and directly decided there can be no doubt. And the decision of it, in line with the interpretation outlined above of Stewards Oase and with the assumption of liability indulged in the numerous other cases cited supra, to all intents and purposes put a construction on the Employer’s Liability Act, then constituting section 2590 of the Code of 1886, and now embodied in section 1749 of the present Code, to the effect that the employers were liable, under it for the wantonness, willfulness and intentional wrong of their employés whereby injury is [450]*450inflicted, upon other employes. The Tramwell Gase was -decided, at the November term, 1890, of this court. With the construction which it then put upon section 2590 of the Code of 1886, that section was re-enacted by the legislature five years later in the adoption of the ode of 1896; and thereby the construction became a part of the statute itself, foreclosing all inquiry as to the correctness of the decision which originally put the construction upon the act. — Richmond & Danville Railroad Co. v. Freeman, 97 Ala. 289, 296. And it is upon the foregoing considerations that -we rest our conclusion that recovery may be had for wantonness,willfulness, and the like, inflicting injury, under section 1749 of the Code.
The 'bill of exceptions purports to set out' all of the evidence adduced 'on the trial. We find no evidence in it tending to show that Riley’s order to plaintiff with reference to. holding the iron bar on the cap was a negligent order, or that plaintiff’s injury resulted proximately from his having conformed to it; nor do we find any evidence tending to show that plaintiff’s injuries resulted from the defective condition of the rope used for lowering the stringer into place; and (the general charges requested by defendant as to the counts which respectively set up a negligent order by Riley, etc., and -the defective condition of the rope, etc., should have been given. Moreover, the rope as used -on the occasion of plaintiff’s injury was not -a part of the ways, works, machinery or plant of the defendant; and the demurrer to the count of the complaint which averred a defect in the rope, etc., as the cause of the injury should have been sustained. — Ga. Pac. R’y. Co. v. Brooks, 84 Ala. 138; Clements v. Ala. Gt. So. R. R. Co., 127 Ala. 166.
Other questions presented by this record will not arise upon another trial.
Reversed and remanded.