Planz v. Boston & Albany Railroad, 157 Mass. 377

Planz v. Boston & Albany Railroad

157 Mass. 377 | Mass. | 1892

Knowlton, J.

The plaintiff was not a passenger, and the defendant as a common carrier owed him no duty. The cases which hold that a carrier of passengers is always liable for wilful and wanton injuries inflicted by its servants upon those who are being carried by it are not applicable. Simmons v. *380New Bedford, Vineyard, & Nantucket Steamboat Co. 97 Mass. 361. Bryant v. Rich, 106 Mass. 180.

The plaintiff rightly contends that, although he was a trespasser, the defendant had no right recklessly and wantonly to inflict an injury upon him, and rests his case on the doctrino that a master is liable for the wilful acts of his servants, committed within the general scope of their employment, as well as for their acts of negligence, even if these acts are not previously authorized or subsequently ratified by him.

It does not expressly appear to have been within the scope of the brakeman’s employment to order persons found riding on the train without leave to get off, and it has sometimes been held that an ordinary brakeman of a freight train has no authority to give such an order. Marion v. Chicago, Rock Island, & Pacific Railway, 59 Iowa, 428. Towanda Coal Co. v. Heeman, 86 Penn. St. 418. But in considering this case we prefer to assume in favor of the plaintiff, without deciding, that it was a question of fact for the jury whether Walton, from his general employment as a brakeman, had authority to represent the defendant in ordering a trespasser to leave the train. If he had, the defendant is liable for his negligence or misconduct in regard to the time or manner of doing it.

If we also assume that when the plaintiff jumped from the car the train was going so fast as to make it negligent and wrongful for the brakeman to attempt then to force him from the train, we reach the question whether there was any evidence that the plaintiff was in the exercise of due care. The plaintiff admitted that he rode from Albany to Chester concealed in a freight car of another train of the defendant, without paying his fare, through the connivance of another brakeman of the defendant; that on the day of the accident he and two tramps got upon the train, each taking a different car; that he intended to ride to Boston, and that he knew he had no right to ride on this train, and believed that he was liable to be put in the lockup for doing it. On his own confession, he was not only a trespasser, but was attempting to obtain a ride on a railroad train without paying for it. When he got upon the car he knew that the train was not adapted to the conveyance of passengers, and that there were peculiar risks in attempting to ride *381there. He perfectly understood that those in charge of the train, if they discovered him, would be likely to try to prevent his riding on it. He knew he was acting in defiance of the defendant’s rules, and he thought he was subjecting himself to the risk of punishment by the courts if discovered and arrested. He was grossly neglectful of his duty in trying to ride as he did. His act was one which was almost certain to lead either to a hasty escape from the train when he was discovered, or to an altercation with the conductor or brakeman. He knew that the cars were not provided with conveniences for alighting easily and safely; he also knew that it was not easy to accommodate the motions of the train to one who had occasion to get on or off, and he knew that he would probably be required to get off under circumstances of greater or less inconvenience. He voluntarily and without justifiable cause put himself in a position to encounter dangers of the kind that caused his injury. He testified that, when the brakeman first told him to leave the train, it had stopped, and was just starting. At that time he doubtless could have got off without danger. But he wilfully disobeyed the order, and persisted in staying. If, afterwards, the speed of the train was such as to make it wrong for the brakeman to try to have him jump off, the danger which he incurred was no different in kind, if greater in degree, than that which he might reasonably have anticipated, and it cannot be said that his conduct in getting on the train under such circumstances, and in remaining after he was first told to get off, was not a contributing cause of the accident.

The order to get off was addressed to him as a wrongdoer, and the fact that he was a wrongdoer would be likely to give force to the order, and help to cause the injury. If he had been on the car rightfully, he would not have feared the brakeman’s threat, and would have known that he was in no danger of bodily injury before he could assert his rights and explain his situation. It is fairly to be inferred that his consciousness of his fault, and his fear of punishment under the law, operated with the order, and induced him to take the risk of jumping. It is not as if he had been put off the train by the use of physical force when it was going rapidly. Expulsion of that kind would be so unexpected that his attempt to ride, against *382the rules of the defendant, would not have been the cause, but merely a condition, of a fall which caused an injury; and for such a reckless and dangerous act of its servant the corporation would be liable. But in the present case, although the constraint of fear was put upon him, he could choose either to jump or to remain where he was, or to pass to the empty platform cars, which were next forward of the coal car on which he was riding. The brakeman was on a box car behind him, where he could not immediately inflict injury upon him if he tried. If it was a negligent and wrongful act for the brakeman to order him off the train at that time in the manner described, it was negligent for him to jump off when there was nothing to prevent his going forward, and, for a considerable time at least, keeping away from the brakeman. Moreover, in proving his case he was obliged to show his own wrong to make the brakeman’s language intelligible, and to explain his fea.r of the language and his conduct in jumping. See Newcomb v. Boston Protective Department, 146 Mass. 596.

He showed that he was where he knew he had no right to be, and, presumably, his consciousness of wrongdoing was one of the causes which made him fear to remain when he was commanded to go. In this part of the case the burden of proof is on the plaintiff, and there is no evidence tending to show that his unlawful conduct in riding on the car was not a contributing cause of the accident. It was inseparably connected with the conduct of the brakeman in furnishing one of the motives which determined his choice to jump, rather than to remain or go forward.

It is argued that the plaintiff’s act of jumping must be held, as matter of law, to have been so far voluntary, that, if he had been .free from previous fault, he must take the consequences of it. See Lovett v. Salem & South Danvers Railroad, 9 Allen, 557. We do not decide this. But if in the conduct of the brakeman there was such constraint upon him as to furnish an excuse for the assumption of some risk, had no other element entered in, we still have these unlawful acts of the plaintiff, which naturally would reinforce and give effect to the words of the brakeman, and in that way contribute to the injury.

We are of opinion that the jury were rightly directed to return a verdict for the defendant.

Judgment on the verdict.