| Mass. | Jul 29, 1878
We do not understand that the presiding justice ruled, as matter of law, that the evidence conclusively proved the exercise of reasonable care on the part of the plaintiff’s daughter ; but that there was evidence proper for him to consider upon this subject. That ruling we think was right, and with his finding upon the question this court cannot interfere. Whether the relation of carrier of passengers for hire existed between the defendant and the plaintiff’s daughter was also a question of fact, properly to be decided by the tribunal to which the facts were submitted. The payment of fare is not a necessary condition precedent to such relation ; nor does the fact that no fare was to be paid preclude the supposition that such relation existed. The same point was before this court upon the trial of the action of the daughter against this defendant; and it was there held that, under the facts proved in the case, such relation might exist. Wilton v. Middlesex Railroad, 107 Mass. 108" date_filed="1871-03-15" court="Mass." case_name="Wilton v. Middlesex Railroad">107 Mass. 108. The question, however, does not necessarily arise in this case.
If the defendant’s servant, in the course of his employment, carelessly ran over the child, and did an injury to her which resulted in a loss of service to the parent, the defendant is liable, wholly - irrespective of the question whether such child was a passenger.
The previous suit is not a bar to the present. The money which the plaintiff received in the former action is not his money; nor can he appropriate it to the payment of labor which the child was bound to perform. The measure of damages in the former action was the injury to the child, and not the injury to the father. It is analogous to the cases, formerly quite frequent, in which, for injuries to a wife, the husband and wife must join for personal injuries to the wife; but, for the expenses incident thereto, the' husband must bring his sole action in his own name.
The rulings requested were properly refused, while the principles acted upon -by the presiding judge were quite sufficiently favorable to the defendant. Exceptions overruled,.