Heyward v. Boston & A.R. Co.

• Decision Date: 24 November 1897
• Citation: 169 Mass. 466,48 N.E. 773
• Parties: HEYWARD v. BOSTON & A.R. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

169 Mass. 466

48 N.E. 773

HEYWARD v. BOSTON & A.R. CO.

Supreme Judicial Court of Massachusetts, Hampden.

November 24, 1897

COUNSEL

J.B. Carroll and W.H. McClintock, for plaintiff.

Brooks & Hamilton, for defendant.

OPINION

KNOWLTON, J.

The contract between the plaintiff and the defendant was made upon the assumption that the plaintiff or some one employed by him was to go upon the train to take care of the horse and the price paid for the transportation was paid for the carriage of the attendant, as well as for that of the horse. Railroad Co. v. Lockwood, 17 Wall. 357. The case differs materially from Quimby v. Railroad Co., 150 Mass. 365, 23 N.E. 205, where the plaintiff was being carried gratuitously, and from Hosmer v. Railroad Co., 156 Mass. 506, 31 N.E. 652, where the plaintiff was not in the relation of a passenger, but rather of one who had contracted for the privilege of carrying on a business for his own profit on the defendant's train. If we assume, in favor of the plaintiff, that his contract was void as against public policy in that part which purported to exempt the defendant from liability for the negligence of its servants (see Doyle v. Railroad Co., 166 Mass. 492, 44 N.E 611; Railroad Co. v. Lockwood, 17 Wall. 357), we come to the question whether there was any evidence of negligence on the part of the defendant. The plaintiff, by his contract, was not to ride upon a train adapted to the carrying of passengers. The writing signed by him contained this provision: "That whenever the person or persons accompanying said stock under this contract to take care of the same shall leave the caboose, and pass over or along the cars or track of said carrier or of connecting carriers, they shall do so at their own sole risk of personal injury from whatever cause; and neither the said carrier nor its connecting carriers shall be required to stop or start their trains or caboose at or from the depots or platforms or to furnish lights for the accommodation or safety of the persons accompanying said stock to take care of the same under said contract." From the nature of the transaction, as well as from the express terms of the writing, the plaintiff well knew that the defendant was to run its train as freight trains usually are run, and that there would be many risks in going upon it to which persons on passenger trains are not exposed. He had often accompanied horses on freight trains, and he knew the usual movements of freight trains at stations, in stopping and starting and switching, and taking on and leaving off cars. He knew that there is often quite a jolt in connection with stopping or starting to one upon the rear car of a long freight train. He testified that he had experience of frequent stopping and starting on this trip before he reached Worcester. So far as this was...