Herrick v. Sullivan

• Decision Date: 08 September 1876
• Citation: 120 Mass. 576
• Parties: George Herrick v. William Sullivan
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

120 Mass. 576

George Herrick v. William Sullivan

Supreme Court of Massachusetts

September 8, 1876

Middlesex. Tort for personal injuries. Trial in the Superior Court, before Rockwell, J., who allowed a bill of exceptions in substance as follows:

The facts in the case which were undisputed showed that the defendant had a contract with the city of Newton to convey scholars from Newton Upper Falls to the high school-house near Newtonville in the morning, and to go for them at the close of the session in the afternoon; that he employed a person for this purpose to drive a horse and covered omnibus wagon to and from the school-house; that the driver the day of the accident drove to the school-house, and, without getting the scholars, finding that he was two or three minutes early, drove past the school-house about one fourth of a mile down across the railroad track into the village stopped his horse in front of a watchmaker's shop about fifty feet from the track, and went into the shop to have some repairs made to his own watch; that he left the door ajar standing near the door some three feet from the horse where he could look at him; that after he had been in the shop about five or ten minutes, learning of the approach of a train, he ran out and took hold of the reins by the horse's head to hold him until the train passed by; the horse at first sprung forward some three feet, but the driver succeeded in checking him and got him quiet, when the train which was a long freight train, made an unusual loud jarring noise, as of the sudden breaking up or stoppage of the train causing the horse to start again; that the driver who had hold of the horse tried to stop him, and in the effort to check him was forced along the road some two hundred feet when the horse freed himself of the driver, ran down the road and came in contact with the plaintiff, a drover, who was on foot in the road driving cattle, and injured him.

It was further in evidence undisputed that the driver had no authority or permission from the defendant to go beyond the school-house or to use the horse and wagon for any purpose of his own; that he went to the watchmaker's on his own account and for his own business, and not for the purpose of executing the defendant's orders or doing his work; that the road to the watchmaker's was no part of his route between Newton Upper Falls and the school-house, but one fourth of a mile beyond it, which...