Doyle v. Fitchburg R. Co.

• Decision Date: 29 June 1894
• Parties: DOYLE v. FITCHBURG R. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

162 Mass. 66

37 N.E. 770

DOYLE v. FITCHBURG R. CO.

Supreme Judicial Court of Massachusetts, Middlesex.

June 29, 1894

COUNSEL

Allin &amp Mayberry, for plaintiff.

Geo. A Torrey, for defendant.

OPINION

MORTON J.

It is conceded that the death of the plaintiff's intestate was due to the gross negligence of an engineer in the employ of the defendant. The defense rests on two propositions: First that the plaintiff's intestate was not a passenger, but an employé; secondly, if that is not so, that the defendant is not liable, by reason of the conditions on the back of the ticket. The statute is as follows: "If by reason of the negligence *** of a corporation operating a railroad *** or of the unfitness, or gross negligence or carelessness of its servants *** while engaged in its business, the life of a passenger, or of a person being in the exercise of due diligence and not a passenger, or in the employment of such corporation is lost, the corporation shall be punished." Pub.St. c. 112, § 212. We do not think that, at the time of the injury, the plaintiff's intestate was in the employment of the defendant, within the meaning of the statute. The defendant was not transporting him to or from the place of his daily labor pursuant to the arrangement which existed between them. It had no control or authority over him. He was not traveling on any service for it. His time was his own, and the defendant was not paying him for it. He could use it as he saw fit, and was passing over the defendant's road entirely for his own business or pleasure. So long as he was working from day to day for the defendant, it might be said, in a popular sense, that he was in its employment; but we do not think that is the sense in which the words are used in the statute. Otherwise, if, at any time, under any circumstances, passing over the railroad on a highway crossing, on Sunday, for instance, on an errand to get a doctor for his father or a friend, he was injured by the gross negligence of the defendant's servants while engaged in its business, he would have no right of recovery. Nothing but the plainest language would warrant such a result.

Was he a passenger? The question is a more difficult one, and there is force in the argument which is urged that to hold that he was a passenger would subject the defendant to a higher degree of care towards him when traveling on its road on his own pleasure than when traveling pursuant to some purpose connected with his service as an employé. Nevertheless, we think that he must be regarded as having been a passenger. It is clear that a person may at one time be an employé when passing over a railroad, and at another time, in passing over the same road, be a passenger, though continuing all the while, in a popular sense, in the employment of the railroad company. The ticket on which the plaintiff's intestate was riding was not a mere gratuity. It furnished part of the consideration by which he was induced to enter the employment of the defendant. A ticket was given to him each month, and it contained more rides than were necessary in traveling to and from his work. It is expressly conceded that persons holding these tickets could use them for their own private interest or pleasure; and we think the result must be that the plaintiff's intestate held towards the defendant the relation of a passenger at the time when he was injured. The cases to which the defendant has referred us are distinguishable from this. Those in this state were where the plaintiff was being transported in immediate connection with his employment. Gillshannon v. Railroad Co., 10 Cush. 228; Seaver v. Railroad Co., 14 Gray, 466; Gilman v. Railroad Co., 10 Allen, 233; O'Brien v. Railroad Co., 138 Mass. 387. In the cases in other states the circumstances under which the injuries occurred were such that the plaintiff could at the time fairly be said to be in the employ of the defendant. Russell v. Railroad Co., 17 N.Y. 134; Vick v. Railroad Co., 95 N.Y. 267; Abend v. Railroad Co., 17 Am. & Eng.Ry.Cas. 614; Railroad Co. v. Ryan, 82 Tex. 565, 18 S.W. 219; Railroad Co. v. Phillips (Ala.) 13 So. 65; Sugar Co. v. Riley, 50 Kan. 401, 31 P. 1090; Railroad Co. v. Maddux (Ind.Sup.) 33 N.E. 345; Manville v. Railroad Co., 11 Ohio St. 417; O'Connell v. Railroad Co., 20 Md. 212; Hutchinson v. Railroad Co., 5 Exch. 343; ...