Robertson v. Old Colony R. Co.

• Citation: 156 Mass. 525,31 N.E. 650
• Parties: ROBERTSON v. OLD COLONY R. CO.
• Decision Date: 22 June 1892
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

156 Mass. 525

31 N.E. 650

ROBERTSON v. OLD COLONY R. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

June 22, 1892

COUNSEL

Elisha Greenhood, for plaintiff.

J.H. Benton, Jr., for defendant.

OPINION

LATHROP, J.

Unless the defendant was under a common-law or statutory obligation to carry the plaintiff in the manner he was carried at the time of the accident, it did not stand towards him in the relation of a common carrier, and the plaintiff cannot recover. The only right which the plaintiff had to be on the train was by virtue of a contract which the defendant had made with the proprietors of a circus whose servant the plaintiff was. By the terms of this contract, the defendant agreed to haul certain cars belonging to the circus proprietors, according to a schedule of time fixed by the agreement, by which the work was to be done at 18 different times, and nearly all of it at night. The price to be paid was a gross sum, stated in the agreement to be less than the regular rates of the defendant for such service. The proprietors agreed, at their own expense, and under their own supervision, and without responsibility on the part of the defendant, to load and unload the cars; "to exonerate and save harmless" the defendant "from any and all claims for damages to persons and property during the transportation aforesaid, however occurring;" and to "assume all risk of accident from any cause." The plaintiff's evidence tended to show that the injury occurred by one of the cars running off the track by reason of its trucks not being in proper condition, and contended that that fact was evidence that proper inspection of the trucks by the defendant would have revealed their condition, and that the defendant was bound to make such inspection. We need not consider whether the offer of proof was sufficient if it was the duty of the defendant to inspect the cars, for we are of opinion that it was not its duty to inspect the cars. The defendant had no control over the condition of the cars, and no power to interfere with them. The contract was simply to haul the cars as they were. This contract the defendant had the right to make, as it was under no obligation to draw the cars as a common carrier. Coup v. Railway Co., 56 Mich. 111, 22 N.W. 215. The ruling of the judge below was right, and, according to the terms of the report, there must be judgment on the verdict for the defendant. So ordered.