Murray v. Boston Ice Co.

• Decision Date: 06 December 1901
• Parties: MURRAY v. BOSTON ICE CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

180 Mass. 165

61 N.E. 1001

MURRAY v. BOSTON ICE CO.

Supreme Judicial Court of Massachusetts, Suffolk.

December 6, 1901

COUNSEL

John J. Scott and Wm. B. Sprout, for plaintiff.

C. C Mellen and H. E. Fales, for defendant.

OPINION

HOLMES C.J.

This is an action for personal injuries caused by being thrown from an express wagon in consequence of a collision with an ice wagon belonging to the defendant. The plaintiff worked by the hour for the Salvation Army, and had been sent with one Marshallen to deliver a ton of coal, Marshallen having charge of the driving and the plaintiff having no other duty than to help in delivering the coal. The coal had been delivered and the wagon was returning, when the accident happened. The plaintiff, it would seem, then was sitting by Marshallen's side. At the trial the evidence was conflicting as to how the collision occurred and who was to blame. The defendant asked instructions to the effect that if the accident was not due to the negligence of the defendant's driver alone, but was due partly also to the negligence of the plaintiff's driver, Marshallen, he could not recover. This the judge refused to rule, but did rule that if the plaintiff 'trusted to Marshallen the sole care and management of the team in which they were riding, and relied solely on the care and vigilance of Marshallen,' then he must show due care on Marshallen's part. The defendant excepted.

It will be seen that the judge did not go with the plaintiff to the point of declaring that Marshallen's negligence was immaterial in any event. On the other hand he declined to follow Thorogood v. Bryan, 8 C. B. 115, so far as to assert the absolute identification of the plaintiff with the driver for the purposes of recovery in this case. On the latter point the judge was justified by Randolph v O'Riordon, 155 Mass. 331, 29 N.E. 583, and the cases which it cites at page 337, 155 Mass., and page 584, 29 N.E. But it is suggested that the case at bar is like Allyn v Railroad Co., 105 Mass. 77, 79, which is recognized, or at least is not overruled in terms, by Randolph v. O'Riordon, and therefore that the instruction requested should have been given. The answer is that it was given subject to the jury's finding that facts like those in the Allyn Case were true.

On the authorities the instruction was at least sufficiently favorable for the defendant. For, although the counsel for the defendant tried to put into the plaintiff's mouth that Marshallen was driving by his permission, it is quite plain that the driving was intrusted to Marshallen by his empoyers and that the plaintiff was on the wagon for a different purpose, which we have stated. It does not appear that there was any distinction between his legal position when returning and his position when going with the load. It may be inferred that he was expected to return and still was employed and under orders although paid by the hour. If so he had not the independence of a man driving with a friend who holds the reins, as in the Allyn Case, and moreover the nature of the accident was different. We do not mean to give that case any further sanction than it now has, but Allyn's injury was due to a failure to take sufficient precautions in crossing a railroad, the plaintiff's, on the defendant's theory, to Marshallen's not turning out as he should have done. In the former case Allyn had a chance to insist on stopping or getting out, in the latter the whole trouble began and was finished in a moment. Except upon a strained interpretation of the plaintiff's testimony, which probably was pressed at the trial as it was pressed before us, the instruction would seem to sanction an identification of passenger and driver when sitting together, although repudiating it as a general rule. It may be that in this State the doctrine of identification is not confined strictly to the law of master and servant. It would be hard to say that it had played no part in the origin at least of the rules...