Commonwealth v. Brockton Street Railway Co.

10 N.E. 506, 143 Mass. 501, 1887 Mass. LEXIS 342

• Court: Massachusetts Supreme Judicial Court
• Decided: February 23, 1887
• Status: Published

Opinion

Gardner, J.

The second and third counts of the indictment are sufficient. The only specific objection made at the argument, that there is no averment that the life of Allen was lost by reason of the unfitness, gross negligence, and carelessness of any servant or agent of the corporation, is not sustained. Each count alleges that by reason of the unfitness, gross negligence, and carelessness of one Fenner, who is alleged to be the servant of the defendant corporation, and engaged in its business, the life of Allen was lost. The motion to quash was rightly overruled.

The facts show that the driver Fenner was relieved by one Ashley, to enable Fenner to go to his breakfast. Fenner was in the employ of the defendant corporation, as a driver of one of its horse cars. To perform this duty it was necessary for him to go upon the car, and it was also necessary that he should leave the car when he went to his meals, and when his service was completed for the day. We do not think that he was exclusively within the scope of his' employment when he was handling the reins and driving the horses. When going upon the car for that purpose, and when leaving it after he had stopped driving, he was within the scope of his employment. His employment was continuous, and his service began when he stepped upon the car for the purpose of driving the horses, and continued until he left the car, at least if he left immediately after giving the reins and horses in charge of another driver. If in going upon the car to act as driver, or in leaving the car at once after'ceasing to be driver, he negligently and carelessly came in contact with a passenger, by reason of which the passenger suffered injury, we think that the driver in so doing was a servant of the corporation, was acting within the scope of his employment, and that the corporation is responsible to the passenger injured for the negligent acts of its driver. The company is liable for whatever injury occurs to a ’passenger through the negligence and carelessness of its servant in doing what is necessarily incident to his employment. If it should be held otherwise, passengers upon horse cars might be subject to the brutality of one in the service of the corporation, whom the corporation placed upon its cars, and yet for whose acts while upon the car the corporation would not be liable unless he held the reins in his hands and was actually driving the horses at the time of his careless and negligent act.

The instructions prayed for were properly refused, and those given were sufficiently favorable to the defendant.

Exceptions overruled.