Gardner v. United States Railroad Administration

ClakksoN, J. Tbe defendant, at tbe close of tbe evidence, moved for judgment as of nonsuit, wbicb tbe court granted, and tbe plaintiff excepted and appealed to tbis Court. Tbe evidence in a case of nonsuit is taken in a light most favorable to plaintiff. Tbe facts show that tbe plaintiff was working for tbe defendants as a section band, under tbe foreman Roberson. He and Roberson “knocked off” at tbe dinner bour. Roberson took bim to Plymouth, at bis request, on a purely personal errand to have bis “questionnaire” filled out. It was an act of accommodation and gratuity on tbe part qf Roberson to help one who was working under bim. They quit work at dinner time, and when tbe injury occurred tbe plaintiff was not doing work or labor of bis ordinary calling for tbe company. They took tbe company’s motor car and started back, after tbe 2 :20 o’clock p. m. train bad come to Plymouth, and be was hurt about 3 o’clock p. m. on bis return, not by tbe railroad but by an automobile running into the motor car where the public highway crossed the railroad track. It was usual and customary for section men to ride on tbe motor car, but in tbis instance it was a trip not on tbe company’s business. Tbe plaintiff was seriously hurt, and from tbe record it is to tbe credit of tbe defendant that it acted humanely and gave tbe plaintiff medical and hospital aid ¿nd paid tbe expenses. From tbe facts we can see no duty that defendant owed to the plaintiff that it failed to discharge. It was a kindly, gratuitous and friendly act that one man was showing to another by borrowing tbe defendant’s motor car, and tbe use of its track, to do a neighborly act. Now shall tbe defendant respond in damages? We cannot so bold. Tbe foreman was not acting at tbe time in tbe scope of bis employment. He was not about bis master’s business, but doing a kindly generous act on bis own responsibility. Tbe accident was unfortunate and deplorable, but we cannot charge negligence and duty to these defendants. In Wright v. R. R., 122 N. C., 852, Montgomery, J., says: “Tbe plaintiff was a section master in-the employment of tbe defendant, and slept sometimes at Gumberry, tbe northern terminus of tbe road, sometimes at Jackson, tbe southern terminus, and sometimes at Mowfield, an intermediate station. After bis day’s work was over be went to bis sleeping place on a band-car or on tbe defendant’s train, as suited bis convenience. On tbe night when tbe plaintiff was injured .be and tbe laborers working under bim, having left off work for tbe day, with a light for a signal on tbe side of tbe railroad, were waiting for the train on its way to Gumberry.' All were taken on, tbe plaintiff getting on *67 tbe engine, and tbe bands" on tbe flat cars loaded witb logs. No fares at any time were received or expected from tbe plaintiff. These facts do not, in our opinion, constitute tbe plaintiff a passenger on tbe train. He invariably used tbe band-car, or tbe train of tbe company, to aid bim in tbe prosecution of bis work. Tbe act of going to and from bis work in tbe manner pointed out, altbougb for tbe benefit of tbe plaintiff, connects bim witb tbe service of tbe company, altbougb be was not actually engaged in tbe work for wbicb be was employed at tbe time of bis injury. If there bad been a. contract between tbe plaintiff and tbe company that tbe plaintiff should be carried to and from bis work to bis sleeping place, then certainly tbe plaintiff would have been injured while engaged in tbe service for wbicb be was employed.” Roberson v. Greenleaf Lumber Co., 154 N. C., 328, is not in conflict witb our present position, for in that case there was such a custom as to afford inference of contractual relation between plaintiff and defendant and that plaintiff was in tbe course of bis employment. In tbe instant case it was a personal, single act of accommodation' — no contractual relation — no custom by wbicb a contractual relation could be inferred — but tbe section foreman on a single occasion, for a single purpose, accommodated one who was working witb bim, on an errand that perhaps plaintiff would never have to go on again. See, also, Willis v. R. R., 120 N. C., 508; Mitchell v. R. R., 176 N. C., 645. Where plaintiff, when injured by tbe explosion of an engine, was riding on a freight train by permission of tbe conductor, and there was no evidence of wanton or willful injury, plaintiff could not recover. Vassor v. R. R., 142 N. C., 68. “It is evident that tbe liability of tbe carrier for injuries to passengers is different from that of an employer witb reference to injuries to employees in its service. Therefore tbe rules of a carrier’s liability as to passengers do not apply to employees in tbe operation of tbe cars or other vehicles in wbicb passengers are being transported. Employees who are being carried back and forth to and from their work, whether on construction trains or passenger trains, and altbougb they have no connection witb tbe operation of tbe train and are carried outside of tbe hours of employment for wbicb they ar,e paid, without tbe payment of fare, are generally not to be considered as passengers; and this is also true of an employee who voluntarily rides on a train to bis work, without payment of fare, and without any arrangement in regard thereto witb tbe company, or of employees who borrow a car and engine without tbe company’s consent for their own purposes.” 10 C. J., sec. 1054, p. 632; 33 Cyc., p. 817. Tbe court below made no error in rendering judgment of nonsuit. Affirmed.