Walker v. Fuller

• Decision Date: 18 April 1916
• Citation: 223 Mass. 566,112 N.E. 230
• Parties: WALKER v. FULLER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

223 Mass. 566

112 N.E. 230

WALKER

v.FULLER.

Supreme Judicial Court of Massachusetts, Suffolk.

April 18, 1916.

Report from Superior Court, Suffolk County; Franklin G. Fessenden, Judge.

Action by Almer H. Walker against Alvan T. Fuller. On report from the superior court. Judgment for defendant.

John D. Graham, of Boston, for plaintiff.

Sprout & Kendall, of Boston, for defendant.

CROSBY, J.

This is an action of tort to recover for personal injuries received by the plaintiff while riding in an automobile operated by one Woods, an employé of the defendant. The automobile was owned by one Percival, a customer of the defendant.

The plaintiff, who was also in the defendant's employ at the latter's automobile station, finished his work at about five o'clock on the afternoon of the day of the accident, and while waiting to take a street car, saw Woods as he drove out of the defendant's yard. The plaintiff asked Woods if he was going in town and the latter replied that he was, whereupon the plaintiff got into the automobile and sat in the rear seat. As the machine was proceeding along Commonwealth avenue on the right side, it came into collision with another automobile and the plaintiff received the injuries for which he seeks to recover in this action.

It is conceded that the plaintiff had finished his work for the day before he entered the automobile, and the first question is,-whether as to the defendant, he was an invitee or a trespasser.

[1][2] Woods, the chauffeur, who was called as a witness by the plaintiff, testified that there was a rule established by the defendant prohibiting chauffeurs ‘giving rides to other employés in cars that they were driving; that they were not to give any of the employés rides in any of the customers' cars or the owners; that they were not supposed to give any of the employés rides in those cars; that the order was given to them by Mr. Grant, their foreman, and he received it from Mr. Sheldon; that this instruction was given to him at the time he entered their employ; that he did not ordinarily obey the order; that when Mr. Walker was riding in the car down Commonwealth avenue, he (the witness) knew that it was in direct violation of the rules of the company; that he picked him up outside of the factory at about half past five; that he was taking chances in violating the rules of the company in that way; that he took chances of losing his job if he gave anybody a ride; that he knew that was the penalty; that he knew men had been discharged for violating that rule.’

The testimony of Woods was uncontradicted, although there was evidence that on different occasions the rule had been violated; but there was no evidence to show that the defendant knew of such violations.

At the time of the accident the plaintiff was on his way home, and for his own convenience was in the automobile, without the knowledge or consent of the defendant. The invitation of the defendant's employé Woods, was not an invitation of the defendant....