Ryan v. Keane

98 N.E. 590, 211 Mass. 543, 1912 Mass. LEXIS 837

• Court: Massachusetts Supreme Judicial Court
• Decided: May 21, 1912
• Status: Published

Opinion

DeCourcy, J.

It was not in dispute that the plaintiff’s injury was suffered through a collision with one Boylan, an employee of the defendants. As to the manner in which the two men came in contact the jury presumably believed the plaintiff’s story, which was that he was crossing the yard toward the wagon which he had hired, when Boylan came along in a hurry, called out “Get out of my way,” and immediately afterwards jostled the plaintiff or pushed him aside, when he had ample unobstructed space in which to pass. On these facts the plaintiff could recover under his count for an assault, or under that alleging negligence.

That Boylan was in the employ of the defendants at the time of the accident was admitted by the defendant Keane and by Boylan, and is apparent from the uncontradicted testimony. He had been sent by his employer to get the wagon, had helped the driver to hitch in the horse, and was hurrying back in a direct course from the wagon yard to the stable in order to resume his other routine duties as stableman. Although he had completed one of his daily tasks he remained in the service of the defendants and subject to their directions; and the relation of employer and employee, with its accompanying legal rights and obligations, continued while the employee was going from one to another portion of his day’s work. O’Brien v. Boston & Albany Railroad, 138 Mass. 387.

The jury were warranted in finding that Boylan was acting within the scope of his employment at the time when he ran into the plaintiff. Probably this would not be questioned if he were driving the horse at the time and drove the wagon against the plaintiff. In the act of returning to the stable he was doing what he was ordered to do, and his purpose was to perform the work of his employer for which he was engaged. He was none the less acting in the course of his employment because his method of performing his duty was careless; and if in hurrying to do his work at a busy hour in the morning he carelessly or wilfully jostled against and injured the plaintiff, the defendants are liable for his act. The evidence does not show that Boylan assaulted the plaintiff wilfully, or that he was actuated by ill will or by a desire to carry out any purpose of his own, and the judge’s charge fully protected the rights of the defendants in this regard. Howe v. Newmarch, 12 Allen, 49. Aiken v. Holyoke Street Railway, 184 Mass. 269. Brough v. Towle, 187 Mass. 590. Collins v. Wise, 190 Mass. 206. Smith v. Jordan, 211 Mass. 269.

The plaintiff’s due care is not questioned. The rulings requested so far as they were not embodied in the charge were rightly refused.

Exceptions overruled.