Planz v. Boston & A.R. Co.

• Decision Date: 23 November 1892
• Citation: 157 Mass. 377,32 N.E. 356
• Parties: PLANZ v. BOSTON & A.R. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

157 Mass. 377

32 N.E. 356

PLANZ v. BOSTON & A.R. CO.

Supreme Judicial Court of Massachusetts, Hampden.

November 23, 1892

Plaintiff left Syracuse intending to go to Boston in search of employment at his trade, and arrived in Huntington the next day, which was Sunday. On the afternoon of the same day,--Sunday,--while at the defendant's station in Huntington, a freight train of the defendant's passed slowly by, without stopping, going in the direction of Boston. This train was composed of an engine and ordinary box or house cars, and open coal cars, to the number of 20 or more in all. As the train passed, two tramps, whom he first met at the station, got upon the train, each taking a different car, and he then followed suit by climbing upon one of the coal cars which had coal on it, and was back of the ones occupied by the tramps, and sat down on the car on the coal, intending to be carried on his way to Boston. In a few moments afterwards, both of the tramps walked back on the train, and occupied the same car with him. After riding some distance, he heard some one towards the rear part of the train hollow, "Get off, fellows, or I will throw you off." He looked around, but saw no one; upon hearing the same order repeated, he looked around again, and found that it came from a brakeman on the train, whom he then saw standing above him on the top of the adjoining box car, which was back of the coal car occupied by the plaintiff and the two tramps. The brakeman again repeated the order to get off or he would throw them off, at the same time raising a club which he held in his hand, whereupon the two tramps immediately jumped off. Plaintiff remonstrated with the brakeman, and said to him, "I can't get off; the train go too fast for me; I am afraid,"--and asked him to stop the train so he might get off. The brakeman replied "Never mind; G--d d--n you, get off, or I will throw you off." Plaintiff again said he was afraid to get off because the train was going too fast, and entreated him to stop the train, and he would get right off. The brakeman thereupon replied, "G--d d--n you, I will throw you right off," at the same time raising a club he held in his hand, and making a move as if to come down upon the plaintiff, by putting one foot down on the steps leading from the box car where he was standing, whereupon the plaintiff attempted to alight from the car, and in so doing was thrown down and drawn under the wheels of the car, which crushed his right leg so that it became necessary to amputate it.

COUNSEL

Kress & Clark, for plaintiff.

G.M. Stearns, for defendant.

OPINION

KNOWLTON J.

The plaintiff was not a passenger, and the defendant, as a common carrier, owed him no duty. The cases which hold that a carrier of passengers is alway liable for willful and wanton injuries inflicted by its servants upon those who are being carried by it are not applicable. Simmons v. New Bedford, etc., Steamboat Co., 97 Mass. 361; Bryant v. Rich, 106 Mass. 180.

The plaintiff rightly contends that, although he was a trespasser, the defendant had no right recklessly and wantonly to inflict an injury upon him, and rests his case on the doctrine that a master is liable for the willful acts of his servants committed within the general scope of their employment, as well their acts of negligence, even if these acts are not previously authorized or subsequently ratified by him. It does not expressly appear to have been within the scope of the brakeman's employment to order persons found riding on the train, without leave, to get off, and it has sometimes been held that an ordinary brakeman of a freight train has no authority to give such an order. Marion v. Railway Co., 59 Iowa, 428, 13 N.W. 415; Coal Co. v. Heeman, 86 Pa.St. 418. But in considering this case we prefer to assume in favor of the plaintiff, without deciding, that it was a question of fact for the jury whether Walton, from his general employment as a brakeman, had authority to represent the defendant in ordering a trespasser to leave the train. If he had, the defendant is liable for his negligence or misconduct in regard to the time or manner of doing it.

If we also assume that when the plaintiff jumped from the car the train was going so fast as to make it negligent and wrongful for the brakeman to attempt then to force him from the train we reach the question whether there was any evidence that the plaintiff was in the exercise of due care. The plaintiff admitted that he rode from Albany to Chester concealed in a freight car of another train of the defendant, without paying his fare, through the connivance of another brakeman of the defendant; that on the day of the accident he and two tramps got upon the...