The present case was in fact tried on the third, or amended count. It avers that plaintiff, Harris, an employé, was injured April 16, 1889, while digging gravel for defendant corporation; “that prior to said date the defendant (city of Sheffield), through its agents and employés entrusted with the superintendence of said work, buried a dynamite cartridge at the place where said gravel was being dug, and left it there unexploded, without giving notice or warning to any one that it was so buried, knowing it was dangerous to leave it in that hidden place unexploded, and that it was endangering the lives of persons who might be engaged in digging grave]. Yet the defendant, its agents or employés, as above stated, carelessly and recklessly, and without having any regard for the safety of persons digging gravel at that place, left said dynamite so buried, without giving any sign or warning of danger, and suffered it so to remain. And on the 16th day of April, 1889, plaintiff was employed by defendant to -work on said streets and avenues, and was required to dig gravel for that purpose, and instructed to dig where defendant had hid and buried said dynamite, and plaintiff, not knowing that dynamite was buried at said place, began *568digging gravel, and without seeing said dynamite cartridge, or knowing it was there, struck it while digging gravel, and caused it to explode,” &c. The plaintiff then sets out very serious personal injuries inflicted on him by the explosion.
This count clearly sets forth a good cause of action ■under sub-section 2 of section 2590 of the Code, and the -demurrer to it was rightly overruled. We will not consider the sufficiency of the other counts. Even if the court erred in overruling the demurrers to them — a concession we must not be understood as making, or intending to make — it would be at most error without injury.
Plaintiff received his injury while digging in a bank of gravel, which was being used in filling up or coating the streets of Sheffield. No question is raised as to the service he was employed in. He was working for the city, being hired for the purpose. Nor is there proof of any negligence on his part, which led to the explosion and to the injury. There was no attempt to show that plaintiff was notified that an imperfectly exploded cartridge of dynamite had been left buried in the bank where he was put to work. He had not been in the employ of the city when, three days before, as is claimed, the cartridge was placed there, and attempted to be exploded. There is conflict in the testimony as to when or how the cartridge was was placed there, and whether the city’s authorities or employés had anything to do with it. The testimony for defense denies all participation in the placing of the cartridge, or knowledge that it was there. If Howard’s testimony be true, it would seem the dynamite must have been there before the city commenced working at that place under his superintendency. There is no pretense, however, that plaintiff was notified of its being there, or that he received any warning, or caution in regard to it. So, no fault is chargeable to the plaintiff.
The testimony shows that Howard was in superintendence of the plaintiff and the other laborers, who were engaged in-digging the gravel. Tflis is not denied; but it is contended that he, Howard, was not elected or appointed to that superintendency in the mode prescribed by law, and that, consequently, an)r injury caused by his negligence while serving, or assuming to serve the *569city, can not fasten a charge upon the municipality. There is nothing in this objection. If he served the city in the capacity of superintendent of this work, and the city authorities acquiesced in such service and took the benefit of his skill and labor, the city will not be heard to deny the legality of his appointment, nor its responsibility for acts done by him within the scope of the service he was rendering. So far as the question affects its liability, he must be treated as if he were duly and legally appointed, until the city itself renounces and repudiates his acts. It can not appropriate the benefit and repudiate the burden. — Ala. & Tenn. Rivers R. R. Co. v. Kidd, 29 Ala. 221; Talladega Ins Co. v. Peacock, 67 Ala. 253; Ala. Gr. So. R. R. Co. v. Hill, 76 Ala. 303; Reynolds v. Collins, 78 Ala. 94; Ala. Or. So. R. R. Co. v. S. & N. R. R. Co., 84 Ala. 570, 3 So. Rep. 286.
As we have said, there was conflict in the testimony as to the placing of the dynamite cartridge which caused the injury. Plaintiff’s witnesses testified that, on the Saturday last preceding the explosion on Tuesday, caused by plaintiff’s pick, Howard himself, superintended and directed the blast at the place where the plaintiff received his injury. Howard testified that he had done no work at that spot until the morning of the explosion and disaster’, and that he had made no blast there. This left a conflict as to how, or at whose hands the dynamite cartridge had been placed. The court, at the instance of plaintiff, gave charge No 3, as follows : “If the dynamite causing the plaintiff’s injury, was carelessly and negligently left buried by the defendant, or its servants or agents in the discharge of their duty, before the plaintiff was employed by the defendant, and the plaintiff could not by the use of ordinary care and diligence, or precaution, have discovered the danger, then I charge you, that the defendant is liable in this action, and your verdict should be for the plaintiff for such amount as you believe from the evidence he was damaged, not exceeding $8,000.” (The complainant claims $8,000 damages.) To this charge the defendant excepted.
It will be observed that the hypothesis of this charge is, that the dynamite had been “carelessly and negligently left buried by the defendant, or its servants or agents in the discharge of their duty.” To be actionable under that part of the statute which controls this *570case — Code, § 2590, sub-section 2 — the injury must be caused by the negligence of some person in the service or employment of the master or employer, “who has superintendence entrusted to him, while in the exercise of such superintendence.” To hold the master or employer liable under this provision, the negligence must be that of some agent or employé, who is in the exercise of superintendence, and to whose negligence in such exercise the disaster is traced. To hold otherwise would be to fasten liability on the principal to the employé for that which is at most the negligence of a fellow servant, having no greater power or authority than the servant who complains of the injury. This the statute does not authorize. — Cook v. Parham, 24 Ala. 21; M. &M. Ry. Co. v. Smith, 59 Ala. 245; Smoot v. M. & M. Ry. Co., 67 Ala. 13; Holland v. Tenn. C. I & R. R. Co., 91 Ala. 444; 8 So. Rep. 524; Ga. Pac. R. R. Co. v. Davis, 92 Ala. 300, 9 So. Rep. 252.
The principles declared in Campbell v. City Council, 53 Ala. 530; City of Eufaula v. McNab, 67 Ala. 588; City of Montgomery v. Wright, 72 Ala. 411, and 2 Dil. Mun. Corp., (4th Ed.), §§ 968 etseq , relate to the duties and functions, properly so called, which municipal corporations owe to the public, and must perform for its well being.They are entirely unlike those presented by this record. This case presents only the relation of the employer and employé, and must be determined on the principles which pertain to that relation.
Recurring to the first and second counts of the complaint, it may not be improper to remark that the record contains no testimony that Howard was incompetent for duties assigned him, nor that the city authorities had notice or knowledge that the dynamite cartridge was buried or imbedded in the gravel bank, at which plaintiff was put to labor.
For the single error pointed out above, the judgment of the circuit court must be reversed.
Reversed and remanded,