162 Mass. 66 | Mass. | 1894
It is conceded that the death of the plaintiff’s intestate was due to the gross negligence of an engineer in the employ of the defendant. The defence rests on two propositions, first, that the- plaintiff’s intestate was not a passenger, but an employee; secondly, if that is not so, that the defendant is not liable by reason of the conditions on the back of the ticket.
The statute is as follows: “ If by reason of the negligence ... of a corporation operating a railroad, ... or of the unfitness or gross negligence or carelessness of its servants, . . . while engaged in its business, the life of a passenger, or of a person being in the exercise of due diligence and not a passenger or in the employment of such corporation, is lost, the corporation shall be punished,” etc. Pub. Sts. c. 112, § 212. We do not think that at the time of the injury the plaintiff’s intestate was “in the employment” of the defendant within the meaning of the statute. The defendant was not transporting him to or from the place of his daily labor pursuant to the arrangement which existed between them. It had no control or authority over him. He was not travelling on any service for it. His time was his own, and the defendant was not paying him for it, and he could use it as he saw fit, and he was passing over the defendant’s road entirely for his own business or pleasure.
Was he a passenger? This question is a more difficult one, and there is force in the argument that to hold that he was a passenger would subject the defendant to a higher degree of care towards him when travelling on its road on his own pleasure than when travelling pursuant to some purpose connected with his service as an employee. Nevertheless, we think that he must be regarded as having been a passenger. It is clear that a person may at one time be an employee when passing over a railroad, and at another time in passing over the same road be a passenger, though continuing all the while, in a popular sense, in the employment of the railroad company. The ticket on which the plaintiff’s intestate was riding was not a mere gratuity. It furnished part of the consideration by which he was induced to enter the employment of the defendant. A ticket was given to him each month, and it contained more rides than were necessary in travelling to and from his work. It is expressly conceded that persons holding these tickets could usa them for their own private interest or pleasure; and we think the result must be that the plaintiff’s intestate held towards the defendant the relation of a passenger at the time when he was injured. The cases to which the defendant has referred us are distinguishable from this. Those in this State were where the plaintiff was being transported in immediate connection with his employment. Gillshannon v. Stony Brook Railroad, 10 Cush. 228. Seaver v. Boston & Maine Railroad, 14 Gray, 466. Gilman v. Eastern Railroad, 10 Allen, 233. O'Brien v. Boston & Albany Railroad, 138 Mass. 387. In the cases in other States the circumstances under which the injuries occurred were such that the plaintiff could at the time fairly be said to be in the
In considering the contract on the back of the ticket, the fact that the statute is a penal one must also be borne in mind. The word “ damages ” is not used in a strictly legal sense. Sackett v. Ruder, 152 Mass. 397, 403. Damages are to be assessed not less and not more than a certain amount, and with reference to the degree of culpability of the corporation, its servants or agents. Originally the remedy was by indictment. Afterwards it was extended to an action of tort. St. 1871, c. 381, § 49. St. 1874, e. 372, § 163. St. 1881, c. 199, §§ 1, 6. But only one of the remedies' can be pursued by the executor or administrator. And whether the amount is recovered by indictment or in an action of tort, it goes in either case to the widow and children and next of kin, and the executor or administrator has no interest in it. It is in substance a penalty given to the widow and children and next of kin, instead of to the Commonwealth, and as such the intestate could not release the defendant from liability for it. Commonwealth v. Vermont & Massachusetts Railroad, 108 Mass. 7, 12. Commonwealth v. Boston & Lowell Railroad, 134 Mass. 211. Littlejohn v. Fitchburg Railroad, 148 Mass. 478, 482. Save as a matter of convenience, the proceedings properly enough might be instituted by the widow and children or next of kin, if the statute permitted it, as is done in certain instances under the employers’ liability act. St. 1887, c. 270, § 2. We have not found it necessary to consider whether a release of damages for causing the death of a human being is or is not justified by public policy, though a statute has been enacted recently which seems to authorize such a release by express
So ordered.