Mcguirk v. Shattuck

• Decision Date: 24 October 1893
• Citation: 160 Mass. 45,35 N.E. 110
• Parties: MCGUIRK v. SHATTUCK et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

160 Mass. 45

35 N.E. 110

MCGUIRK v. SHATTUCK et al.

Supreme Judicial Court of Massachusetts, Berkshire.

October 24, 1893

This was an action of tort. At the trial in the superior court before Dewey, J., it appeared that plaintiff was employed by defendants as a laundress. She lived at a distance from defendants' house, and defendants sent a wagon for her, driven by their coachman. There was but one seat in the wagon, and, as there was to be a dressmaker and another going in the wagon, the plaintiff brought out a camp stool, and, placing it in the back of the wagon, took her seat there. In going around a corner on the way to the defendants' house she was thrown out, and sustained personal injuries. There was some evidence that the coachman was not using care in his driving, but was driving faster in going around the corner than good judgment would dictate. The court directed a verdict for the defendants, and plaintiff excepted.

COUNSEL

F.H Cande, for plaintiff.

Pingree Dawes, Jr., & Burke, for defendants.

OPINION

ALLEN J.

1. The plaintiff must be regarded as having been in the service of the defendants at the time of the accident. Whether the transportation of the plaintiff was entirely gratuitous, (as it seems to have been,) or whether it was in pursuance of such an understanding between the parties that it may be deemed to have been a part of the contract, in either case it was incident to the service which the plaintiff was to perform, and closely connected with it. In this respect the case falls directly within the principle of Gillshannon v. Railroad Co., 10 Cush. 228. See, also, Seaver v Railroad Co., 14 Gray, 466; Gilman v. Railroad Co., 10 Allen, 233, 238; Holden v. Railroad Co., 129 Mass. 268, 272; O'Brien v. Railroad Co., 138 Mass. 389; Ryan v. Railroad Co., 23 Pa.St. 384; Manville v. Railroad Co., 11 Ohio St. 417; Higgins v. Railroad Co., 36 Mo. 418, 433; Ewald v. Railroad Co., 70 Wis. 420, 36 N.W. 12, 591. The accident happened, it would seem, in consequence of the negligence of the driver, who was a fellow servant of the plaintiff. There was no evidence that the defendants were negligent in the employment of this driver, and there is no contention or suggestion by the plaintiff to that effect. The case, therefore, is the ordinary one, where an accident has occurred through the negligence of a fellow servant, and no recovery can be had.

2. The plaintiff further contends...