Colvin v. Atlantic Coast Line Railroad

Clabkson, J. At the close of plaintiff’s evidence defendant made motion as in case of nonsuit. C. S., 567. The court below sustained the motion, and in this we can see no error. The evidence excluded on the hearing, for which plaintiff- excepted and assigned error, we do not think material on this record. For the accommodation of some of the workmen, to get groceries, as testified to by plaintiff, at the close of the, day’s work the foreman and the section hands all got on the hand car and started towards the store. The hand car backing back to go to the store. To be sure, plaintiff testified “Mr. Askew asked us all who wanted to go to the store to get some groceries, but I didn’t want to go.” But plaintiff did go. He was sui juris, and he went voluntarily. If plaintiff, as a part of his employment, was to be carried back to the section house, where he was living, at the close of the day’s work, he could have waited until the hand car returned from the trip to the grocery store. We think the principle applicable to this case is set forth in Gardner v. R. R., 186 N. C., 64 (66). It is there said: “The foreman was not acting at the time in the scope of his employment. He was not about his master’s business, but doing a kindly generous act on his own responsibility. The accident was unfortunate and deplorable, but we cannot charge negligence and duty to these defendants.” The judgment is Affirmed.