Files v. Boston & A.R. Co.

• Citation: 149 Mass. 204,21 N.E. 311
• Parties: FILES v. BOSTON & A.R. CO.
• Decision Date: 10 May 1889
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

149 Mass. 204

21 N.E. 311

FILES v. BOSTON & A.R. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

May 10, 1889

COUNSEL

B. Hall and J.F. Cronan, for plaintiff.

S Hoar, for defendant.

OPINION

DEVENS J.

The plaintiff, by invitation of the defendant's conductor of a freight train, upon a road used entirely for the transportation of freight, was getting upon the engine in order to ride in the cab thereof, when the engine started causing him to fall off, and occasioning him injury, to recover damages for which he brings this suit. He had been to the office of defendant's freight agent to order cars for the use of the firm of which he was shipping clerk. He had at some previous times ridden back on the engine to his employers' yard, and it was sometimes necessary for him to direct where the freight cars ordered should be placed in the yard on their arrival; but there was no evidence that there was any such necessity at the time of the accident. The plaintiff also testified that he had seen others, including the local freight agent and a conductor, ride on the engine at various times. Upon this evidence the plaintiff claims that a usage was shown to carry back in the cab of the locomotive from the local freight office to his place of business the messenger ordering freight cars, when such cars were sent at once, and that the defendant is thus responsible for the carelessness of its engineer or conductor in starting the locomotive before he had fairly got upon it, even if the plaintiff was not to pay any fare. It may be conceded that if the defendant had permitted the plaintiff to acquire the rights of a passenger it would not be important that he was not to pay any fare. Todd v. Railroad Co., 3 Allen, 18. There was no evidence of any malicious act or gross negligence on the part of defendant's servants, and the question presented by the case is whether one who attempts to get on board a freight locomotive on a freight railroad by invitation of the conductor acquires the rights of a passenger, even if he has previously ridden on the locomotive by a similar invitation, and has seen others, servants of the corporation, do so. The defendant's railroad might properly be held responsible for acts done by the freight conductor in the line of his duty, perhaps also for acts done by him in the apparent line of the duty intrusted to him, if such as one dealing with him would be authorized to treat as...