Waller v. Southern Ice & Coal Co.

Beck, J.

Where the driver of an automobile truck which belonged to the defendant company, and which was used solely for the purpose of carrying ice, while driving the truck, apparently in the ordinary discharge of his duties, upon the reqtiest of a boy having in charge as nurse a child of tender years, permitted the nurse and the child in his charge to get upon the running-board of the truck, which was about twelve inches from the ground and about twelve inches broad, and ride thereon, such action upon the part of the driver in giving permission to the children to mount the running-board and in allowing them to ride was entirely without the scope of his duties as an employee of the owner of the truck. And where the child of tender years, in dismounting from the running-board, fell under the wheels of the truck while it was in motion, and was killed, the company was not liable in damages to the mother of the child, who brought suit against the company, alleging that the child contributed to her support and that she was dependent upon, him; and the court did not err in granting a nonsuit at the conclusion of the plaintiff’s testimony. Bowler v. O’Connell, 162 Mass. 319 ( 38 N. E. 498 , 27 L. R. A. 173, 44 Am. St. R. 359 ); Louisville & Nashville R. Co. v. Hudson, 10 Ga. App. 169 ( 73 S. E. 30 ); Central Georgia *696 Power Co. v. Walker, 144 Ga. 124 ( 86 S. E. 319 ); Dover v. Mays Mfg. Co., 157 N. C. 324 ( 72 S. E. 1067 , 46 L. R. A. (N. S.) 199, and eases cited in note); Driscoll v. Scanlon, 165 Mass. 348 ( 43 N. E. 100 , 52 Am. St. R. 523 ). Judgment, affirmed.

February 18, 1916. Action for damages. Before Judge Mathews. Bibb superior court. December 18, 1914. W. D. McNeil and E. G. Powers, for plaintiff. Hardeman, Jones, Parle & Johnston, for defendant.

All the Justices concur.