
    HAYWOOD GARDNER v. UNITED STATES RAILROAD ADMINISTRATION et al.
    (Filed 19 September, 1923.)
    Railroads — Pleadings — Allegations — Negligence—Demurrer—Employer and Employee — Master and Servant.
    In order to recover damages in an action against a railroad company, there must be a breach of some duty owed by the defendant to the plaintiff, contractual or otherwise; and a demurrer to the complaint is properly sustained that alleges, in effect, that the foreman took a motor car of defendant and carried the plaintiff a distance on its track at plaintiff’s request and sole personal convenience, and that plaintiff was injured by an automobile crossing the railroad track and colliding with the car on which he was thus riding.
    Appeal by plaintiff from Kerr, J,, at April Term, 1923, of WASHINGTON.
    This is a civil action for damages, brought by plaintiff against United States Railroad Administration; W. G. McAdoo, Director General of Railroads; Atlantic Coast Line Railroad; United States Railroad Administration, W. D. Hines, Director General of Railroads; Atlantic Coast Line Railroad, Jno. Barton Payne, agent of the President and Atlantic Coast Line Railroad Company, a corporation.
    For a proper understanding of the case, the allegations of paragraph two of the amended complaint are set forth in full:
    “That during the month of November, 1918, this plaintiff was in the employ of the defendant, and by virtue of such employment had the right and privilege of riding upon the defendant’s trains, motor cars and any and all of the same for the purpose of going to and from various points upon the said line of railroad, either while engaged in the discharge of the duties of his employment or while attending to his own personal affairs; that during the month of November, as aforesaid, to wit, on .... November, 1918, the plaintiff, having fully discharged the duties of his employment in laying certain cross-ties along the track at or near the defendant’s station at Darden, N. 0., and having thereafter, at his own request, been transported to Plymouth by the defendant company upon one of its motor cars, for purposes purely personal to himself, to wit, registering for the draft, and while being transported upon said motor car back from the town of Plymouth, and while said motor car was traveling at a very low rate of speed, and when said motor car had reached a point where said railroad track is crossed by the main public road leading from Plymouth, North Carolina, to Mackeys, North Carolina, a point in the suburbs of the town of Plymouth, or thereabouts, said motor ear was struck by an automobile moving along the said county road, and said motor car was wrecked, and this plaintiff severely and permanently injured, as hereinafter set out.”
    The allegations in the third paragraph of the amended complaint set forth in detail the alleged negligence of the defendant in reference to the Atlantic Coast Line Eailroad track and its approaches crossing a public highway where the injury complained of occurred. In the decision of this case it will not be necessary to consider the allegations in this paragraph.
    The evidence of plaintiff was that in 1918 he was working for the Atlantic Coast Line. He had been employed by them ten or eleven years. On the day he was hurt he had been working at Darden. E. H. Eoberson was foreman in charge. Plaintiff and others were putting out cross-ties along the track. Later he had to go to Plymouth to fill out his questionnaire. The foreman Eoberson took him to Plymouth to fill out the questionnaire. He had ridden on the motor car for some time; it was usual and customary for section men to ride on the motor car. He and Eoberson left at the dinner hour to go to Plymouth. He filled out the questionnaire and started back to Darden about 2:20 in the afternoon, and was injured about 3 'p. m. on his return. They were not going fast. When the motor car reached the public highway which crosses the railroad track it was struck by an automobile traveling along the public highway which crossed the track at the place where he was injured. Eoberson was running the motor car, and it was run by gasoline.' Plaintiff gave the extent of his injuries and stated that defendant sent him to a hospital at Eocky Mount and álso to see a specialist in Eichmond and paid his expenses.
    
      
      W. L. Whitley for 'plaintiff.
    
    
      F. S. Spruill, Zeb Vance Norman and F. S. Spruill, Jr., for defendant.
    
   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 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.  