Harrington v. Boston & M.R.r.

• Decision Date: 28 January 1913
• Citation: 213 Mass. 338,100 N.E. 606
• Parties: HARRINGTON v. BOSTON & M. R. R.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

213 Mass. 338

100 N.E. 606

HARRINGTON v. BOSTON & M. R. R.

Supreme Judicial Court of Massachusetts, Suffolk.

January 28, 1913

COUNSEL

Coakley & Sherman and R. H. Sherman, all of Boston, for plaintiff.

Archibald R. Tisdale, of Boston, for defendant.

OPINION

HAMMOND J.

At the close of the evidence the trial judge refused to rule, as requested by the defendant, that the evidence was 'not sufficient to warrant the jury in finding that it was within the scope of the freight brakeman's authority to eject the plaintiff from the train'; and the sole question here presented is whether this refusal was error.

The train was a regular freight train. There were upon it the engineer and fireman, whose stations were upon the engine the conductor, who was in charge of the train, and two brakemen, called respectively the head brakeman and the rear brakeman. There was also upon the train a conductor of another railroad 'traveling in charge of perishable freight,' but he does not seem to have had any duty or authority as to the management of the train, or, indeed, to have been in any way a servant of the defendant. The plaintiff was 'stealing a ride,' and hence a trespasser.

In support of his contention that in ejecting him from the train Bodah, the offending brakeman, was acting within the scope of his authority, the plaintiff relies in the first place upon the general proposition that a brakeman upon a freight train is, by virtue of his position as such, vested with authority to remove trespassers.

It never has been decided that such is the law in this commonwealth, although some allusion has been made to this question. In Planz v. Boston & Albany R. R., 157 Mass. 377, 380, 32 N.E. 356, 357 (17 L. R. A. 835), which was a freight train case, Knowlton, J., said: 'It does not expressly appear to have been within the scope of the brakeman's employment to order persons found riding on the train without leave to get off, and it has sometimes been held that an ordinary brakeman of a freight train has no authority to give such an order. * * * But in considering this case we prefer to assume in favor of the plaintiff without deciding' it. In Mugford v Boston & Maine R. R., 173 Mass. 10, 52 N.E. 1078, which was also a freight train case, Holmes, J., says: 'If we assume, without deciding, that the brakeman was acting within the scope of his authority.' Each of these cases was decided for the defendant on other grounds, and in each as above cited the train was a freight train. In Bjornquist v. Boston & Albany R. R., 185 Mass. 130, 70 N.E. 53, 102 Am. St. Rep. 332, cars were being moved about in the freight yard, and the brakeman was acting in the management of them just before the accident, and it '[did] not appear that any other person was employed at that time in the control of them.' Under these circumstances the court said: 'If we assume that he was in charge of the cars, it was his duty to do all that he reasonable could to keep trespassers away from them.' This case also was decided for the defendant on other grounds. In McKeon v. N. Y., N.H. & H. R. R., 183 Mass. 271, at page 275, 67 N.E. 329, at page 330 (97 Am. St. Rep. 437), which was an action for injuries received by being ejected from a passenger train, it was said that while the duties of a brakeman primarily relate, as his name implies, to the management of the brakes, common observation shows that on passenger trains they embrace much more, in that they are required to look after the safety and comfort of passengers, to protect the property of the company, and to see that fares are not evaded; and such were the rules of the company. It was therefore held that it was within the scope of his authority to remove the plaintiff in a lawful manner from the platform if he was there for the purpose of evading his fare. But the case was distinguishable from the case of a brakeman upon a freight train, the court saying: 'It is manifest that the duties of a brakeman on a freight train would or might be different from those of a brakeman on a passenger train.'

When we look to the decisions in other jurisdictions we find a conflict of authority. We do not deem it necessary to go over them in detail. Those which favor the general proposition seem to rest upon the doctrine adopted by them that 'whenever a railway servant is put in charge of any property of the railway, as a station master in charge of a station, or a conductor in charge of a train, or an engine driver or fireman in charge of an engine, or a...