Dickinson v. West End St. R. Co.

• Decision Date: 02 January 1901
• Citation: 177 Mass. 365,59 N.E. 60
• Parties: DICKINSON v. WEST END ST. RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

177 Mass. 365

59 N.E. 60

DICKINSON v. WEST END ST. RY. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

January 2, 1901

COUNSEL

Joseph H. Beale, Jr., and Henry M. Hutchings, for plaintiff.

P. H Cooney and A. I. Peckham, for defendant.

OPINION

KNOWLTON J.

The question in this case is whether the plaintiff was on the defendant's car as a passenger at the time of the accident, or whether he was at that moment in the service of the defendant, in such a sense that the negligent motorman was his fellow servant. The defendant had made a rule 'permitting policemen, firemen, advertising agents, news agents, and employés of the defendant company in uniform, to ride free at any time; such persons being required to ride upon the front platform, so far as practicable.' At the time of the accident the plaintiff was riding on the front platform, under this rule, wearing his uniform. Persons riding gratuitously under this rule are passengers, as well as those who pay their fare. Todd v. Railroad Co., 3 Allen, 18; Doyle v. Railroad Co., 162 Mass. 66 37 N.E. 770, 25 L. R. A. 157; The New World v. King, 16 How. 469, 14 L.Ed. 1019; State v. Western Maryland R Co., 63 Md. 433. All members of the classes included in the rule stand alike in reference to the duty of care which the defendant owes them, whether they come within one part of the description or another. The rule in reference to employés permits them to ride at any time and place, and for any purpose, if they are in uniform. The reasons in each case for extending this privilege to members of these different classes are not material. Probably they are different in reference to different classes, but they are such as the defendant deems sufficient. So far as employés are concerned it is enough that, except possibly in regard to wearing uniform, they are given the same rights as others who have no direct connection with the defendant by employment or otherwise. The question, then, is whether at the time of the accident the plaintiff was riding in the full exercise of the rights given by this rule, or whether he was on the car in the performance of his duties as a servant of the defendant, so as to make him at that moment a fellow servant of the motorman. The bill of exceptions answers this question in its statement, as follows: His work for the defendant 'consisted of a certain number of trips at fixed and regular times each day. At the time of the accident he was not on actual duty, but at about noon had finished his work of that morning, got on the first car that came along, and was going home to dinner. That he took no part in the management of this car. That he usually had about three hours, between twelve and three o'clock, during which he was not on actual duty, and his time was his own, and he usually returned home about noon to dinner.' The car on which he was riding was not on the line on which he was employed. At the time of the accident he did not stand in the relation of a servant to the defendant. His time was his own, and he owed the defendant no duties until the time arrived for resuming his work. It was no part of his duty to the defendant, as a servant, to take the car on which he was riding and go to a particular place for his dinner. He might go where he pleased and when he pleased during the interval before coming back to his work. This case is different in this particular from cases in which the plaintiff was...