McGuirk v. Shattuck

35 N.E. 110, 160 Mass. 45, 1893 Mass. LEXIS 16

Opinion

Allen, J.

1. The plaintiff must be regarded as having been in the service of the defendants at the time of the accident. Whether the transportation of the plaintiff was entirely gratuitous, as it seems to have been, or whether it was in pursuance of such an understanding between the parties that it may be deemed to have been a part of the contract, in either case it was incident to the service which the plaintiff was to perform, and closely connected with it. In this respect the case falls directly within the principle of Gillshannon v. Stony Brook Railroad, 10 Cush. 228. See also Seaver v. Boston & Maine Railroad, 14 Gray, 466; Gilman v. Eastern Railroad, 10 Allen, 233, 238; Holden v. Fitchburg Railroad, 129 Mass. 268, 272; O'Brien v. Boston & Albany Railroad, 138 Mass. 387 ; Ryan v. Cumberland Valley Railroad, 23 Penn. St. 384; Manville v. Cleveland Toledo Railroad, 11 Ohio St. 417; Higgins v. Hannibal & St. Joseph Railroad, 36 Mo. 418, 433 ; Ewald v. Chicago & Northwestern Railway, 70 Wis. 420. The accident happened, it would seem, in consequence of the negligence of the driver, who was a fellow servant of the plaintiff. There was no evidence that the defendants were negligent in the employment of this driver, and there is no contention or suggestion by the plaintiff to that effect. The case, therefore, is the ordinary one where an accident has occurred through the negligence of a fellow servant, and no recovery can be had.

2. The plaintiff further contends that the defendants were negligent in failing to furnish, a safe and suitable wagon. If the wagon was unsuitable by reason of the want of the second seat, this was obvious; and if the plaintiff, being aware of it, saw fit to put in a camp chair, and to sit in it, and if this mode of riding was unsafe, it was her own act rather than the negligence of the defendants that led to the injury.

Exceptions overruled.