Hirst v. Fitchburg & L. St. Ry. Co.
| Decision Date | 15 October 1907 |
| Citation | 82 N.E. 10,196 Mass. 353 |
| Parties | HIRST v. FITCHBURG & L. ST. RY. CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
John
F. McGrath, for plaintiff.
Chas F. Baker, W. P. Hall, and Emerson W. Baker, for defendant.
The sole question in this case is whether there was evidence warranting the jury in finding that Driesnack was acting as the servant of the defendant when he assaulted the plaintiff. Driesnack was a police officer of the town of Lunenburg and was on duty at Whalom Park in said town. The defendant operated a skating rink at said park. The alleged assault took place in the skating rink. Driesnack, who was called as a witness by the plaintiff, testified amongst other things, that he was taking tickets at the main entrance and saw something that looked like a disturbance in the skating rink, 'and he immediately left his post at the gate and went into the skating rink and pushed his way through the crowd and saw quite a disturbance there; that his purpose in leaving the ticket job was to restore order; that there was a large crowd' and 'he pushed right into the center of it where the disturbance was and he saw it was necessary for him to pull his stick and he used it; that the one who was hit seemed to him to be causing * * * a disturbance; that after he hit the man he began to clean out the crowd; did not use the stick any more; that he got the crowd cleaned out and peace and order restored.' This and other testimony in the case would, if believed, have warranted a finding that in doing what he did Driesnack was acting as a police officer to restore and preserve peace and order as his duty as a police officer required him to do, in which case the defendant would not have been liable for any assault committed by him even though it was committed upon its premises. But there was also evidence tending to show that notwithstanding he was a police officer of the town of Lunenburg he was in the employment of the defendant and that the assault was committed by him as such servant or employé. He was not so far as appears appointed a railway policeman under Rev. Laws, c. 108, § 21 et seq., or under St. 1906, p. 501, c. 463, § 49 et seq.; and neither those provisions nor the case of Healey v Lothrop, 171 Mass. 263, 50 N.E. 540, relied on by the defendant, have any thing to do with the case before us. Neither was there anything in the fact that he was a police officer of the town of Lunenburg to prevent his being...
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