Barstow v. Old Colony R. Co.

• Decision Date: 23 February 1887
• Citation: 143 Mass. 535,10 N.E. 255
• Parties: BARSTOW v. OLD COLONY R. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

143 Mass. 535

10 N.E. 255

BARSTOW v. OLD COLONY R. CO.

Supreme Judicial Court of Massachusetts, Bristol.

February 23, 1887

COUNSEL

J.F. Jackson and D.F. Slade, for plaintiff.

One who, without employment, voluntarily undertakes to perform services for another, with his assent, stands in the relation of a servant for the time being.The relationship between the volunteer and a servant is, then, that of fellow-servant.Degg v. MidlandR.R. Co., 1 Hurl. & N. 777;Wright v. London & N.W. Ry. Co., 1 Q.B.Div. 256;Osborne v. Knox & L. Ry. Co.,68 Me. 51;Street Ry. Co. v. Bolton,43 Ohio St. 224, 1 N.E. 333.From the evidence it is a fair inference that the agent acquiesced in his going, which is equivalent to giving assent.Holmes v. Northeastern Ry. Co., L.R.4 Exch. 254.Acts which in an intruder would be negligence are not such when done by the servant in the usual and prudent discharge of his duty.Pierce, R.R. 378;Steele v. Central Ry. Co.,43 Iowa, 109;Snow v. Housatonic Ry. Co., 8 Allen, 441;Goodfellow v. Boston, H. & E.R. Co.,106 Mass. 461.When the circumstances are complicated, the question of due care is for the jury.Gaynor v. Old Colony Ry. Co.,100 Mass. 208;French v. Taunton Branch Ry. Co.,116 Mass. 539;Craig v. New York, N.H. & H. Ry. Co.,118 Mass. 432;Com. v. Fitchburg Ry. Co.,10 Allen, 191;Williams v. Grealy,112 Mass. 81;Com. v Metropolitan Ry. Co.,107 Mass. 236.One in the position of a servant has a right to expect that the master uses and maintains suitable instrumentalities in the conduct of the business; that he shall be exposed to no "unnecessary risk."Holden v. Fitchburg Ry. Co.,129 Mass 276.If the company has been negligent, the servant may recover, though the negligence of a fellow-servant may have contributed to the injury.Cayzer v. Taylor,10 Gray, 274;Stringham v. Stewart,100 N.Y. 525, 3 N.E. 575.Upon all the propositions necessary for the plaintiff to make out, there was evidence for the jury to consider, giving due allowance to the surrounding circumstances, the natural bias of witnesses in the employ of the defendant, and the character of their testimony.

Morton & Jennings, for defendant.

To entitle plaintiff to recover, it must appear (1) that the plaintiff's intestate was rightfully walking on the defendant's track; (2) that the injury was caused by the defendant's negligence, or the unfitness or gross negligence of its servants; (3) that the plaintiff's intestate was in the exercise of due care.Pub.St. c. 112, § 212.The plaintiff's intestate was not rightfully on the track.He was not there by its invitation or inducement.Neither defendant, nor any one in its behalf, requested him to go with the message, and he had never been with a message before.The agent had no authority to employ deceased, or accept his services.As a mere volunteer, attempting to perform service for the company of which it knew nothing, and to which it had not consented either expressly or impliedly he was unlawfully on the track, and cannot recover, in the absence of willful negligence on the part of the defendant of which there is no evidence.Baltimore, etc., Ry. Co. v. State,33 Md. 542;Lake Shore R. Co. v. Miller,25 Mich. 279;Johnson v. Boston & M. Ry. Co.,125 Mass. 75;Nicholson v. Erie Ry. Co.,41 N.Y. 525;Burns v. Boston & L. Ry. Co.,101 Mass. 50;Morrissey v. Eastern Ry. Co.,126 Mass. 377;Mulherrin v. Delaware, etc., Ry. Co.,81 Pa.St. 366.If the plaintiff's intestate was not a trespasser, he was at most a mere licensee, and the defendant owed no duty to him except not to injure him wantonly or willfully.If the plaintiff's intestate was not a trespasser or licensee, but was rightfully on the track as a servant of the defendant, and in the exercise of due care, and was injured by the negligence of any one, such negligence is to be imputed to those in charge of the train, and would be the negligence of a fellow-servant.Maynard v. Boston & M. Ry. Co.,115 Mass. 458;Degg v. MidlandRy. Co., 1 Hurl. & N. 773;Flower v. Pennsylvania Ry. Co.,69 Pa.St. 210;O'Brien v. Boston & A. Ry. Co.,138 Mass. 387.The evidence shows that the deceased was not in the exercise of due care; and whether he was on the track lawfully or unlawfully, or whether the defendant was or was not negligent, the negligence of the deceased contributed to the injury.Wilcox v. Rome, etc., Ry. Co.,39 N.Y. 358;Van Schaick v. Hudson River Ry. Co.,43 N.Y. 527;Moore v. Pennsylvania Ry. Co.,99 Pa.St. 301;Reynolds v. New York Cent., etc., Ry. Co.,58 N.Y. 248;Ormsbee v. Boston & Providence Ry. Corp.,14 R.I. 102;Butterfield v. Western Ry. Co.,10 Allen, 532;Ince v. East Boston Ferry,106 Mass. 149;Hinckley v. Cape Cod Ry. Co.,120 Mass. 257;Bellefontaine Ry. Co. v. Snyder,24 Ohio St. 670.

OPINION

GARDNER J.

Six months before the injury was sustained by the plaintiff's intestate, he applied to the station agent of defendant, at the Dean-street station in Taunton, for the purpose of "learning telegraphy."The agent gave him permission to go to the station for that purpose, and from that time to the date of the injury deceased remained at the station more or less.On the day of the fatal injury, the station master received a message from Boston, asking "how long before Tilton, the conductor of the coal train, would be ready to leave."While the agent was reading the message, and giving his attention to it, the deceased ran out of his office, and, just as he was going out of the door, he said: "I'm going up there to see."The agent did not try to stop him.He testified that he did not have time, and that he did not have time to get to the door to stop him.If, upon this evidence, the plaintiff's intestate was a trespasser upon the tracks of the defendant's railroad, he cannot recover, unless there is proof of willful negligence on the part of the defendant.Johnson v. Boston & M.R. Co.,125 Mass. 75;Burns v. Boston & L.R. Co.,101 Mass. 50;Morrissey v. Eastern R. Co.,126 Mass. 377.If he was a "mere licensee," the duty owed him by the defendant was not to injure him wantonly or willfully.He has no cause of action on account of dangers existing in the place he is only permitted to enter.Holmes v. Northeastern Ry. Co., L.R.4 Exch. 254.But if the deceased voluntarily undertook to perform service for the corporation, and the agent assented to his performing such service, then he stood in the relation of a servant while engaged in such service.The rule of law that a master is not, in general, responsible to his servant for injury sustained by the negligence of a fellow-servant in the course of their common employment, applies to such volunteer.Degg v. MidlandRy. Co., 1 Hurl. & N. 777;Osborne v. Knox & L.R.R.,68 Me. 51.

The deceased was not a passenger, and it is not contended by the plaintiff that the deceased was injured by the wanton or willful acts of the defendant's servants.There was evidence from which a jury would be warranted in finding that the deceased was a volunteer; that the agent...