SOUTHERN RY. CO. v. POWER FUEL CO., 152 F. 917

McDOWEEE, District Judge. This was an action at law brought by the defendant in error — to be hereafter referred to as the plaintiff— against the plaintiff in error, to recover damages for the injury to the stock, equipment, and buildings of the plaintiff at Union, ¡3. C., from fire which originated in a boarding car belonging to the defendant.

It appears that the defendant had a work train for the use of one of its bridge and trestle crews, consisting of a car used as a cooking and dining place, a sleeping car for the two white members of thé crew, a sleeping car for the negro members, and one or more cars for timber and tools. For a considerable time prior to the fixe, which occurred about 11 o’clock on the night of October 22, '1904, this construction train had been placed at night after coming in from work on a short spur track close to the premises of the plaintiff.

This spur track belonged to the Union-& Glenn Springs Railroad Company; but it is abundantly shown that the defendant was authorized to use it for the purpose above mentioned. The foreman of the crew was a white man by the name of Pope. The only other white member of the crew was one Ayres, who died some time after the fire and prior to the trial. During the forenoon of the day preceding the fire Pope quit work and left the crew under the charge of Ayres.

After the day’s work'was finished Ayres had his supper in the dining car, and then went into the town, tie returned about 8 o’clock, and went to bed in the white sleeping car in the bed regularly used by him. In this car there was a portable kerosene lamp, provided by the defendant for the use of the occupants of the car. When this car was in motion, the lamp was usually placed in a wall -bracket. On the night of the fire the lamp was on a table very near the foot of the bed used by Ayres.

About 11 o’clock of that night the negro cook was awakened by cries of fire, and, on making his way into the sleeping car where Ayres was, he found the car filled with kerosene smoke and the bed and bedding ablaze. There is much evidence tending to show that Ayres, who at this juncture was standing at the window of'the car, making no effort to subdue the fire, was very drunk. The alarm quickly brought numerous people to the scene, and the evidence .of nearly every one who saw Ayres indicates that he was drunk. In fact, the cook appears to have found it necessar)*- to bodily carry him from the burning car.

The result of the fire was the destruction of' several of the cars and of the property of the plain tiff. It appears that Pope, the foreman, and McClurkin, the cook, were employed by the month. The remaining members of the crew, including Ayres, were paid monthly at a fixed rate per day, according to the number of days of work. Ayres was in some sense a “subboss.” During working hours, in the absence of Pope, he had charge of the crew. There was some evidence tending to show that at night, Pope being absent, the negro members of the crew regarded Ayres as having charge of the work train.

But all of the evidence was to the effect that after -work hours Ayres wás a “free man.” He could sleep in the car or not as he saw fit, and it was clearly shown that he returned to the car merely in order to go to bed. Since 6 o'clock that afternoon’ he had done no work'whatever, and had none to do until the following morning at least. At the time the fire started he was in no sense engaged in performing any duty for the defendant. The complaint is drafted under 1 Civ. Code S.

C. 1902, § 2135, and also contains as a second cause of action a charge that the injury was the result of the negligence of the defendant.

The statute referred to reads as follows: “Every railroad corporation shall be responsible in damages to any person or corporation whose buildings or other property may be injured by lire communicated by its locomotive engines, or originating within the limits of the right of way of said road, in consequence of the act of any of its authorized agents or employees, except in any case where property shall have been placed on the right of way of sucli corporation unlawfully or without its consent, and shall have an insurable interest in property upon its route for which it could be so held responsible and may procure insurance thereon in iis own behalf.’’ The assignments of error, in so far as they are now material, are based on the refusal of the trial court to direct a verdict and on the refusal to give certain instructions based on the theory that Ayres was not in the employment of the defendant at night after working hours.

We regard the language of the statute, “its authorized agents” as being, so far as we are now concerned, synonymous with “em-ployés.” There was evidence tending to show that Ayres was drunk and also evidence tending to show that he in some way turned the lamp over. The one question for discussion is whether or not Ayres was at the time the fire was started an employé within the meaning of the statute.

So far as we are advised the Supreme Court of South Carolina has never ascribed to this statute any purpose other than to relieve one complaining of injury from fire originating on a railroad company’s right of way of the necessity of proving negligence. Thompson v. Railway Co., 24 S. C. 369. It seems to have been repeatedly held by that court that this statute is to be strictly construed. Rogers v. Railroad Co., 31 S. C. 378, 9 S. E. 1059; Hunter v. Railroad Co., 41 S. C. 86, 19 S. E. 197; Lipfield v. Railroad Co., 41 S. C. 285, 19 S. E. 497.

In 1 Sherman & Redfield Negligence, § 147, it is said: “In determining whether a particular ac-t is done in the. course of the servant's employment, it is proper first to inquire whether tile servant was at the time engaged in serving his master.

If the act is done while the servant is at liberty from service and pursuing his own ends exclusively, there can be no question of the master’s freedom from all responsibility, even though the injury complained of could not have been committed without the facilities afforded to the servant by his relation to his master.” See, also, 1 Thompson, Negligence (Cast Ed.) § 526; 20 Am. & Eng. Ency. (2d Ed.) 168; Morier v. Railway Co., 31 Minn. 351, 17 N. W. 952, 47 Am. Rep. 793, and authorities there cited.

We cannot in reason ascribe to the Legislature in enacting this statute an intent to make the railroad companies liable for the acts of their employés when not on duty and when not engaged in the performance of some business of the master’s. In the case at bar Ayres was not on duty. He was not performing any business of his employers. He was simply making use of. facilities allowed him by the defendant for his own purposes. We hold that his act was not, within the intent of the statute, the act of an employé.

Erom the fact that Ayres was not engaged in performing any duty as an employé, it also follows that the defendant is not liable under the common-law cause of action. We are therefore constrained to hold that the learned trial court was in error in refusing to direct a verdict for the defendant. Reversed.