Bay State Street Railway Co. v. North Shore News Co.

• Decision Date: 23 May 1916
• Citation: 224 Mass. 323
• Parties: BAY STATE STREET RAILWAY COMPANY v. NORTH SHORE NEWS COMPANY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

224 Mass. 323

BAY STATE STREET RAILWAY COMPANY v. NORTH SHORE NEWS COMPANY.

Supreme Judicial Court of Massachusetts, Norfolk.

May 23, 1916

October 21, 1916.

Present: RUGG, C.

J., LORING, CROSBY PIERCE, & CARROLL, JJ.

Contract, Of indemnity, Construction, Validity.

A contract made by a news company that, in consideration of the exclusive privilege of selling papers on all cars operated by a certain street railway company, it will, besides making certain payments in money, indemnify the street railway company for all loss or damage suffered on account of injuries received by newsboys in the employ of the news company "while boarding, riding upon or leaving the cars of the street railway company, or while on or about its tracks" includes indemnity for the satisfaction of an execution issued against the street railway company, in an action brought against it by a newsboy employed by the news company who was kicked in the stomach by a conductor on a car of the street railway company when he was on the top step going into the car holding the two handles and was thrown to the ground and injured, and indemnity for expenses incurred by the street railway company in defending such action.

The liability of the news company under the unambiguous terms of the contract described above was held not to be affected by a provision in the contract that the news company should take out insurance to protect both companies from loss on account of "injuries to the employees of the news company on or about the cars and tracks of the street railway company," even if the liability described by the clause last quoted was not so broad. An agreement by a news company to save harmless a street railway company

"from all loss, cost or damage on account of injuries received by newsboys in its [the news company's] employ or wearing its badge while boarding, riding upon or leaving the cars of the street railway company, or while on or about its tracks," is valid.

CONTRACT on a contract in writing to indemnify the plaintiff for all loss suffered by it on account of injuries to newsboys in the employ of the defendant, which is described more particularly below. Writ dated April 27, 1914.

In the Superior Court the case was submitted to Chase, J., upon an agreed statement of facts as follows:

On July 1, 1911 the Boston and Northern Street Railway Company, now the Bay State Street Railway Company, the name having been changed by act of the Legislature, entered into an agreement with the North Shore News Company. Under this agreement the street railway company granted to the news company the exclusive privilege of selling papers on all cars operated by the street railway company during the term of five years from the first day of July, 1911, upon certain terms and conditions.

Paragraph four of the agreement was as follows: "4. That the said payments are made solely in consideration of the privilege herein granted and not as fares for newsboys in the employ of the News Company, who shall not be considered passengers for hire. And it is understood and agreed that the Street Railway Company shall not be liable to such employees of the News Company for injuries whether resulting or not from the negligence of the Street Railway Company, its officers agents or servants. And the News Company hereby assumes and agrees to save the Street Railway Company harmless from all loss, cost or damage on account of injuries received by newsboys in its employ or wearing its badge while boarding riding upon or leaving the cars of the Street Railway Company or while on or about its tracks. And the News Company agrees to pay all cost and expense incurred by the Street Railway Company in defending any suits brought against it for damages for such injuries, as...