Dudley v. Atlantic Coast Line Ry. Co.

June 20, 1918. The opinion of the Court was delivered by This is an action for damages, alleged to have been sustained by the plaintiff through the negligence and wilfulness of the defendant. The complaint thus alleges the manner in which the plaintiff was injured:

"That on the 7th day of August, 1915, plaintiff was asked by the depot agent of the Atlantic Coast Line Railroad Company, at Tatum, S.C. to get him, the said agent, a bucket of hot water from the engine attached to the train running from Bennettsville, S.C. to Fayetteville, N.C. When it stopped at the depot at Tatum, S.C. the plaintiff took a water bucket and went to the engine attached to the said train to get the said bucket of hot water. When he asked for the water, the fireman on the engine of the said train at once turned on a small stream of hot water from the boiler on said engine. After the water had run for a moment, the fireman opened wide the cock or faucet, and the hot scalding water was thrown upon the person of the said plaintiff, causing him great hurt and pain."

The jury rendered a verdict in favor of the defendant, and the plaintiff appealed.

His Honor, the presiding Judge, charged the jury as follows: "If the fireman, while in the performance of his duty, should have injured this plaintiff, then the defendant would be liable, but if he injured him wilfully and wantonly, when acting outside the scope of his authority, in doing something he was not employed to do, then the defendant would not be responsible."

This is assigned as error.

The ruling of the Circuit Judge is sustained by the case of Davenport v. Railway, 72 S.C. 205, 51 S.E. 677, 110 Am. St. Rep. 598.

The act of the servant must be done in furtherance of the master's business, and for the accomplishment of the object for which the servant is employed; or while operating the instrumentality in the conduct of the business within the scope of the employment; or the act must be done in the interest of the master, and for his benefit.

A servant in charge of a dangerous agency who acts without any reference to the object for which he is employed, and not for the purpose of performing the work of the employer, but to effect some independent purpose of his own, does not render the master responsible for the wrongful acts of the servant.

The plaintiff's attorney requested the presiding Judge to charge certain requests numbered 1, 2, 3 and 4, which were refused, and will be reported. The refusal to charge these requests is assigned as error. In the first place, they are not applicable, for the reason that the injury was not caused by the fact that the instrumentality in question was dangerous, but it arose from the manner in which it was operated by the servant. And, in the second place, the duty which the defendant owed to the public was not absolute, but only to exercise ordinary care to save it from harm. The owner of a dangerous appliance upon his premises is not an insurer against injury to trespassers or licensees. McLendon v. Hampton Mills, 95 S.E. 781; Sextonv. Noll Co., 95 S.E. 129. If the owner maintains a dangerous agency upon his premises, the law imposes upon him the duty of anticipating such injuries as proximately result from his failure to safeguard the public from injury; but in discharging this duty he is only required to exercise ordinary care. Sexton v. Noll Co., supra.

Judgment affirmed.