Slowik v. Union St. Ry. Co.

• Decision Date: 27 February 1933
• Citation: 184 N.E. 469,282 Mass. 249
• Parties: SLOWIK v. UNION STREET RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

282 Mass. 249

184 N.E. 469

SLOWIK

v.UNION STREET RY. CO.

Supreme Judicial Court of Massachusetts, Bristol.

Feb. 27, 1933.

Report from Superior Court, Bristol County; J. P. Doran, Judge.

Action by Joseph Slowik, p. p. a., against Union Street Railway Company. Report of trial judge after a finding for plaintiff, was ordered dismissed by the Appellate Division, and defendant appeals.

Order dismissing report affirmed.

T. F. O'Brien, of New Bedford, for appellant.

M. A. Goldberg, of New Bedford, for appellee.

DONAHUE, Justice.

A large, covered automobile van and a street railway car collided on a public highway through the concurrent negligence of the motorman and the driver of the van. The plaintiff, who was a fellow servant of the driver, was at the time of the collision inside the van, engaged in the course of his employment in holding up the freight with which the van was loaded so that it would not fall. The van was so constructed that the plaintiff from his position could see nothing of the driver or of the movements of the vehicle or of other traffic in the street. The duties of the driver and the plaintiff were wholly distinct and separate. The trial judge in the district court found that it was impossible for the plaintiff to have seen or guarded against the accident. The defendant made the following request for a ruling: ‘The plaintiff, standing inside a closed van in a position where he is unable to see anything outside the van, is, as a matter of law, bound by the care of the person driving the van along a public highway and if the driver is negligent, the plaintiff cannot recover.’ This request was denied as inapplicable to all the circumstances of the case and the judge made a finding for the plaintiff. In the appellate division an order was entered that the report of the trial judge be dismissed, and the defendant has appealed to this court.

Negligence of the defendant's motorman acting concurrently with that of the driver of the van caused injury to the plaintiff. Ordinarily and in sound reason, such a defendant should be required to compensate a plaintiff who was himself exercising adequate care. Shultz v. Old Colony Street R. Co., 193 Mass. 309, 321, 79 N. E. 873,8 L. R. A. (N. S.) 597, 118 Am. St. Rep. 502,9 Ann. Cas. 402. It is the defendant's contention that the plaintiff's injury, to the causation of which its employee contributed, should go uncompensated by it because of the fact that the driver of the van was also a negligent contributor. This contention, that the ordinary rule does not govern, to be sound must rest on some relationship existing between the plaintiff and the driver whereby, in the view of the law, wrongful conduct of the driver so affects the plaintiff's rights that the defendant is relieved from responsibility for the consequences of the negligence of its motorman.

No relationship in any way resembling that of master and servant existed between the driver of the van and the plaintiff at the time of the accident. Their duties were wholly distinct and separate. The operation of the motor van was delegated by their common employer entirely to the driver. Not only did the plaintiff have no right, but the performance of the duties in which he was engaged at the time of the accident afforded no opportunity, to direct or control the driver in the operation of the van. Nor can the doctrine of common or joint enterprise here have application as affecting the right of the plaintiff to recover for the negligence chargeable to the defendant, because the plaintiff and the driver did not have equality of right in the direction or control of their respective acts or omissions. Caron v. Lynn Sand & Stone Co., 270 Mass. 340, 346, 170 N. E. 77;Barry v. Harding, 244 Mass. 588, 592, 139 N. E. 298. The plaintiff was not the guest of the driver, a relationship which as between guest and host has effect on their mutual rights and obligations. Massaletti v. Fitzroy, 228 Mass. 487, 118 N. E. 168, L. R. A. 1918C, 264, Ann. Cas. 1918B, 1088;Oppenheim v. Barkin, 262 Mass. 281, 159 N. E. 628, 61 A. L. R. 1228;Laffey v. Mullen, 275 Mass. 277, 175 N. E. 736. Its effect on the rights of a guest against a negligent third person is referred to later. The only relationship existing between the plaintiff and the driver of the van is that, although their duties were sharply differentiated, they were fellow employees. The mere existence of that relation does not bar recovery by one employee, who exercised proper care, against a negligent third person even though his fellow employee was also negligent. Donoghue v. Holyoke Street R. Co., 246 Mass. 485, 141 N. E. 278;Salisbury v. Boston Elevated R. Co., 239 Mass. 430, 132 N. E. 239.

There was here no such relationship between plaintiff and driver, either permanent or temporarily existent at the time of the accident, as to bar the plaintiff from recovery against the defendant if the plaintiff was personally in the exercise of due care. Since the plaintiff was not in a position to observe the driver's conduct in the operation of the van or the constantly changing conditions and problems of traffic which confronted the driver, we need not here discuss the obligations of the plaintiff as to the use of care if he had been so placed. There was no evidence that prior to the instant of the accident the van had been driven in such an erratic, improper or dangerous manner perceptible to one in the plaintiff's position that the obligation was thereby put upon him to take active measures for his own safety. Only a second or two intervened between the driver's act of negligence and the collision and there is no basis for a finding that the plaintiff's actual conduct while riding within the van was lacking in due care.

The defendant in its request in effect contends that the mere fact that the plaintiff was riding in a position where he was necessarily...