Powers v. Boston & M.R. Co.

• Decision Date: 17 January 1891
• Citation: 26 N.E. 446,153 Mass. 188
• Parties: POWERS v. BOSTON & M.R. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

153 Mass. 188

26 N.E. 446

POWERS v. BOSTON & M.R. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

January 17, 1891

COUNSEL

C.G Fall and G.D. Burrage, for plaintiff.

S Lincoln and W.I. Badger, for defendant.

OPINION

DEVENS J.

It is contended by the plaintiff that he was a passenger on the defendant's railroad, and entitled to all the rights of one. That he did not expect or intend to pay any fare as such, and that the conductor of the freight train into which he went did not demand or intend to demand fare, appears reasonably clear. This, however, would not be decisive if he was riding where he was when the injury happened by the authority of the defendant, or by any inducement held out to him by defendant's servants, either by its authority or while acting in the general scope of their authority, so that the plaintiff was entitled to treat their action as that of the defendant corporation. It was held in Wilton v Railroad Co., 107 Mass. 108, that the invitation there given by defendant's servant to the plaintiff ot ride on the horse-car which he was driving was within the general scope of his employment, and, even if it was contrary to the instructions of the driver, she was not a trespasser. In the case at bar the plaintiff was not on a passenger train, and he was riding in the "caboose," in a place which he could not have failed to know was not intended or adapted for the use of passengers, but wholly for the accommodation of the defendant's employes engaged in managing the train. Even if, therefore, the plaintiff had an invitation from the conductor of the freight train, he could not have supposed that the conductor was acting within the general scope of his employment, or that, independently of any rules of the corporation, he had any authority to extend such an invitation. The ordinary business of conducting and managing a freight train does not involve any right to invite persons to ride upon such trains, or to accept them as passengers. In Files v. Railroad Co., 149 Mass. 204, 21 N.E. 311 it was held that a person who attempts to get into a cab of a locomotive engine attached to a freight train on a railroad used exclusively for the transportation of freight, to ride for his own convenience by invitation of the conductor of the train, does not acquire the rights of a passenger, and cannot recover for personal injuries occasioned to him by the starting of the engine, even if he has previously ridden thereon by a similar invitation, and has seen others, including railroad employes, do so. In that case, as in the case at bar, it was not within the apparent scope of the conductor's authority to invite persons to ride on his freight train; nor is it important that the injury to the plaintiff there was occasioned by the attempt to get upon the locomotive, while in the case at bar it occurred while...