Mississippi Central Railroad v. McWilliams , 112 Miss. 238 ( 1916 )

Potter, J.,

delivered the opinion of the court.

The appellee in this case, plaintiff in the -court below, recovered a judgment for two hundred and fifty dollars against the appellant, defendant in the court below, on account of personal injuries sustained by him. The plaintiff in this case alleged and proved that he was walking on a path used a number of years by the general public as a footpath across the railroad right of way of the defendant company, and that when he reached a point on the railroad where the said path crosses same a worktrain of the appellant was returning to the city of Hattiesburg, and the fireman on said train, for his own private use, and without the knowledge or consent of appellant or any of its agents, threw some wood from the tender of the engine in question opposite his home, and, without seeing or knowing where the appellee was, struck him with the wood and injured him. It appears without contradiction in this record that the fireman was engaged in an enterprise of his own when he was hauling the wood on the tender of the engine. He had done this only two or three times previous to this occasion, and the conductor of the train did not know that the' fireman was hauling wood on the tender of the engine, and, 'further, that this act on the part of the fireman was in violation of the rules of the railroad company, and the -fireman was ordered to stop this practice, if such it had become, as soon as the conductor found out about it, at the time the accident occurred.

This case mast he reversed. The fireman on defendant’s engine was acting entirely outside of the scope of his employment. The enterprise he was engaged in was his own. He was hauling wood for his own use, without the knowledge or consent of defendant’s agents. Burke v. Shaw, 59 Miss. 443, 42 Am. Rep. 370; Railroad Co. v. Latham, 72 Miss. 32, 16 So. 757; Railroad Co. v. Douglass, 69 Miss. 723, 11 So. 933, 30 Am. St. Rep. 582; Cotton Warehouse Co. v. Pool, 78 Miss. 147, 28 So. 823, 84 Am. St. Rep. 620.

Reversed and judgment here for appellant.