180 N.C. 240 | N.C. | 1920
This action is brought to recover for the negligent killing of the plaintiff’s intestate, A. B. Rivenbark, on 29 October, 1918. The evidence, taken in its most favorable light for the plaintiff, tends to prove the following facts:
The defendant, Atlantic Coast Line Railroad Company, has a roundhouse and shops in Wilmington, and in the roundhouse there are tracks upon which engines may be overhauled. Near each of these tracks, upon pillars extending from the ground to the roof, there are iron pipes containing compressed air and operated by valves about four feet from the ground. There is an air hose to be used at each of these pillars so arranged that it may be attached 'by screw to the pipe on the pillar, with a nozzle at the end, to which may be connected hammers or riveters or ordinary nozzles for blowing air. These rubber hose are usually locked up during the night, but, in the morning, when the operatives are about to begin work, they are taken out and laid around near the pipes, hut disconnected. When they are to be used, they are taken up and attached to the pipe at the pillar by screwing, and the valve is turned and they are ready for use; and the usual rule is that when an operative finishes a piece of work he turns the valve, shutting off the air, disconnects the hose, and drops it at a place where it can be conveniently gotten when it is necessary to use again. This hose is used by mechanics and their helpers for various purposes, such as driving hammers, boring holes, riveting, blowing dust out of engines, cleaning cars, and so forth; and' it was g, regular habit of the employees, who had been working in and around engines, tenders, tanks, etc., and became dusty, to clean themselves by blowing themselves off just after quitting work.
Plaintiff’s intestate was a well grown and intelligent lad fifteen years of age, and had been at work at and around this roundhouse, where the workmen were constantly using this compressed air hose. John Walton, a full grown colored man, was a helper, assisting boiler makers in their
We are of opinion that the motion for nonsuit was properly allowed. It is well settled that where a servant commits a wrongful act against a third person, the master is liable for tbe act if it is committed in tbe scope and course of tbe servant’s employment, and in furtherance of tbe master’s interests, not otherwise. Tbis general principle has been fully discussed and applied in a number of cases by tbis Court. Jackson v. Tel. Co., 139 N. C., 347; Pearce v. R. R., 124 N. C., 83; Sawyer v. R. R. 142 N. C., 7; Roberts v. R. R., 143 N. C., 179, and many other cases cited in tbe notes to those cases. In tbe Jaclcson case, Mr. Justice Walker says: “A servant is acting in tbe course of bis employment when be is engaged in that which be was employed to do, and is at tbe time about bis master’s business. He is not acting in tbe course of bis employment if be is engaged in some pursuit of bis own.” In tbe Roberts case, Mr. Justice Soke says: “Tbe test is not whether tbe act was done while Bradley was on duty or engaged in bis duties; but was it done within tbe scope of bis employment, and in tbe prosecution and furtherance of tbe business which was given him to do?” In Mott v. Ice Co., 73 N. Y., 543, cited in tbe Roberts case, it is said: “For tbe acts of a servant in tbe general scope of bis employment, while engaged in bis master’s business, and done with a view to tbe furtherance of that business and tbe master’s interests, tbe latter is responsible, whether tbe act be done negligently, wantonly, or even willfully. Tbe quality of tbe act does not excuse. But if tbe employee, without regard to bis service, or to accomplish some purpose of bis own, act maliciously or wantonly, tbe employer is not responsible.”
Applying these principles to tbe admitted facts, it seems clear that tbe defendants are not liable for tbe acts of Walton. He was not acting
It appeared in the evidence that the air hose, highly charged with compressed air, was used at certain intervals, but when not in use the hose was allowed to lie upon the floor, and no effort was made to guard or confine it. It was attached to a pipe in the wall, from which it could be readily unscrewed and reattached with ease.
The decision in that case is based upon the well known doctrine of leaving dangerous appliances unguarded and. around loose where employees not acquainted with them may be injured. In that case the air hose was attached to the compressed air pipes and all that was necessary to release the air of great power was pressure at the nozzle. No precaution whatever had been taken to secure the proper use of the hose, and it was picked up and used disastrously by two boys. In that case Chief Justice Ciarla says: “In view of the terrible power of compressed air. and the natural tendency of boys at the age of these to use a dan
In the case at bar the air hose was disconnected when not in use, and it was disconnected at the time of this occurrence. "Walton picked up the air hose and attached it by screwing it to the pipe, and then proceeded to use it in cleaning off himself and the other workmen. Before he picked it up, the air hose was in a place of safety and incapable of injuring any one. Then again, it appears that both Walton and young Eivenbark were familiar with the use of the air hose, and that it was used habitually by the workmen in cleaning their clothes when they “knocked off.” This is not a case where a dangerous appliance is left in a dangerous condition and liable to injure some one. In the condition in which the hose was before Walton attached it to the air pipe, it was absolutely harmless. The cause of the boy’s death was the wanton and reckless conduct of Walton, who forcibly injected the air into the boy’s body. Walton was not acting in the scope of his employment or in the service of the defendant. A case very similar to this, and supporting these views, is Kirby v. R. R. (Ala.), 52 L. R. A. (N. S.), 386; Standard Oil Co. v. Anderson, 212 U. S., 215. The principle is very well expressed in the case of Evers v. Krouse, 66 L. R. S., 592, as follows:
“An act done by a servant while engaged in the work of his master, but entirely disconnected therefrom — done not as a means or for the purpose of performing that work, but solely for the accomplishment of the independent, malicious, or mischievous purpose of the servant — is ■not in any sense the act of the master, and for the injuries resulting to a third person from such an act the servant alone is responsible.”
In Tarppen v. Weston Co., L. R. A., 1918, E. 507, it is held: “Injury by the forcing of compressed air into the body of a workman engaged in the performance of his duties, by fellow-employees who use a hose upon him in a, spirit of fun, does not arise out of his employment within the meaning of the Workmen’s Compensation Act.”
In Franciska Tomkoska v. Pressed Steel Car Co., Workmen’s Compensation Board of Pennsylvania, iiage 1708, in a case of the sportive or malicious use of compressed air, and one very like the case at bar, it is held: “When an employee, engaged in the course of his employment, temporarily suspends his work and engages in play or sport, and while so engaged suffers an injury, he or his dependents are not entitled to compensation for disability or death resulting from such an injury. Such an accidental injury is not ‘in the course of employment.’ ”
In cases under the Workmen’s Compensation Act, the English courts have uniformly held in the same way.
Tbe judgment of tbe Superior Court is
Affirmed.