Connors v. International Railway Co.

176 A.D. 941

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 15, 1917
• Status: Published

Opinion

Kruse, P. J. (dissenting):

I think the relation of master and servant did not exist bet ween the defendant and plaintiff at the time the latter was injured. He had quit his work and was then on his way home. It can be found from the ev.denee that the privilege of riding without paying fare was taken into account in fixing his compensation for services, and if so, he was neither a gratuitous passenger nor a bare licensee. While under the circumstances the strict rule applicable to the ordinary passenger may not be applicable, plaintiff was at least entitled to the exercise of reasonable care in transporting him. That was the rule applied by the learned trial judge in his charge to the jury, without objection from either party. If I am right as to the status of the plaintiff at the time he was injured, neither the fellow-servant rule nor the Barnes Act has any application, and the defendant is not absolved because of the negligence of the motorman or any other employee. I think the judgment should be affirmed.