181 Mass. 325 | Mass. | 1902
The plaintiff, on Sunday, August 5, 1900, bought four round-trip tickets which entitled him and three friends to be carried from Boston to Salem Willows and return. The steamboat was advertised to return at a quarter to five in the afternoon ; but she left ten minutes before that time. The boat did not have a license to run on Sunday, and the government inspector, before the time of sailing, had refused to allow any more passengers on board. There was evidence that the return tickets were good for any day; and the evidence was contradictory on the point whether the defendant offered to pay for the return tickets, and to pay the fare to Boston on. the electric cars. The judge ruled that on all the evidence the plaintiff could not recover damages; and the case is before us on the plaintiff’s exceptions.
The plaintiff does not sue in contract, but in tort. The only wrong alleged in the declaration is that the defendant agreed to return from Salem Willows at 4.45 P. M., and that it wilfully
In Sears v. Eastern Railroad, 14 Allen, 433, 436, where the plaintiff sued for the neglect of the defendant to run a train of cars at the advertised time, and the declaration contained a count in contract and one in tort, it was said by Mr. Justice Chapman, in delivering the opinion of the court: “ If this action can be maintained, it must be for the breach of the contract which the defendants made with the plaintiff.” However this may be, in the present case we are of opinion that tile ruling w7as right. By § 4465 of the U. S. Rev. Sts. it is declared : “ It shall not be lawful to take on board of any steamer a greater number of passengers than is stated in the certificate of inspection.” The refusal of the government inspector to allow any more passengers to go on the boat, justified the master of the boat in leaving before the advertised time. The plaintiff would have gained nothing if the boat had waited ten minutes longer, for he and his friends would not have been allowed to go on board.
Exceptions overruled.