Dugan v. Blue Hill St. Ry. Co.

• Decision Date: 02 January 1907
• Citation: 193 Mass. 431,79 N.E. 748
• Parties: DUGAN v. BLUE HILL ST. RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

193 Mass. 431

79 N.E. 748

DUGAN v. BLUE HILL ST. RY. CO.

Supreme Judicial Court of Massachusetts, Norfolk.

January 2, 1907

COUNSEL

Geo F. Williams, for plaintiff.

Gaston Snow & Saltonstall, for defendant.

OPINION

LORING J.

In the first count of the declaration on which alone the plaintiff went to the jury he declared on the ground that he was a passenger for hire. At the trial it appeared that he was a motorman in the employ of the defendant, riding on an errand of his own after his day's work was done, under a pass by the terms of which he assumed all risk of accidents.

The defendant operates an electric car line between Stoughton and Mattapan. The plaintiff entered the defendant's employ in the autumn of 1898 six years before the accident which was on October 10, 1904. When the plaintiff was first employed by the defendant all employés were allowed at all times to ride for pleasure or on their own personal business without paying a fare. This continued until January, 1902, as we understand the bill of exceptions. At some time in January, 1902 when the plaintiff went for his week's pay, the paymaster threw out with the envelope containing his pay a pass like the one on which the plaintiff was riding at the time here in question. Each year after that a similar pass was issued in renewal of it.

It appeared that the plaintiff lived at Canton, within three minutes' walk of the defendant's car barn at that place. As we understand it, in going from Mattapan to Stoughton you come to Canton before you reach Stoughton. The plaintiff testified on direct examination that a majority and on cross-examination that all but one, of the defendant's employés lived in Canton; that the one who did not live in Canton lived in Stoughton; and that it did not make any difference in the rate of wages paid whether they lived in Canton or in Stoughton.

The plaintiff also testified that immediately after his employment: 'I rode back and forward to my house and would ride down to my dinner and supper.' By this we understand him to mean that he rode from the terminus in Stoughton to the car barn in Canton, and vice versa, to go to his work and to get his dinner and supper and to return to his house on the termination of the day's work.

At the conclusion of the testimony the defendant asked the court to rule that the plaintiff was not a passenger for hire. The presiding judge said, 'This seems to be a question of law,' to which the defendant's counsel assented; and thereupon the judge said that he should rule against him.

When the presiding judge came to the part of his charge, in which he had to deal with the question of the plaintiff's being or not being a passenger for hire, he said: 'I was asked to rule that he was bound by that pass and could not recover. I have to rule one way or the other, it being agreed to be a question of law, and our court have lately passed upon a similar case, and decided that the agreement on the pass does not excuse the defendant, and that they are liable just the same, and I need not go into the reason for that or the explanation. I have seen fit to rule that that does not excuse them, and so he is to be treated as though he were a passenger.'

The plaintiff had a verdict, and the case is here on an exception to the refusal to rule that the plaintiff was not a passenger for hire; and secondly, on an exception to the ruling given by the presiding judge on that matter in his charge to the jury.

The rule on which the rights of the parties depend in such cases as that now before us is settled in this commonwealth by the cases of Quimby v. Boston & Maine Railroad, 150 Mass. 365, 23 N.E. 205, 5 L. R. A. 846, and Doyle v Fitchburg Railroad, 166 Mass. 492, 44 N.E. 611, 33 L. R. A. 844, 55 Am. St. Rep. 417, and it is this: Where a pass is issued as a gratuity the clause providing...