Shea v. Gurney , 163 Mass. 184 ( 1895 )

Morton, J.

The plaintiff was not in the employ of the defendants. He was not induced nor invited by them to enter their premises. He did not go there upon any matter of mutual interest to him or them, or upon any matter of business. He went there solely for his own amusement. At different times before the accident he had assisted workmen, including the one whom 'he was. helping when the injury occurred, under such circumstances that the jury would have been warranted in finding that he was doing it with the knowledge of one or both of the defendants. Once or twice, as the testimony tended to show, when about the premises, he had been directed by Slack to load some boxes. And in the same afternoon, shortly before the accident happened, the testimony tended to show that Slack saw the plaintiff helping to load slabs into a wagon to be taken to the saw-house.

But as between the plaintiff and the defendants, notwithstanding these circumstances, he was at the most only a licensee and volunteer, visiting the premises to amuse himself by riding in the teams and by assisting the men. And as such the defendants owed him no duty except to abstain from injuring him by active misconduct on their part. Zoebisch v. Tarbell, 10 Allen, 385, 386. Severy v. Nickerson, 120 Mass. 306. Johnson v. Boston & Maine Railroad, 125 Mass. 75. Galligan v. Metacomet Manuf. Co. 143 Mass. 527. Metcalfe v. Cunard Steamship Co. 147 Mass. 66. Reardon v. Thompson, 149 Mass. 267. Daniels v. New York & New England Railroad, 154 Mass. 349. Billows v. Moors, 162 Mass. 42.

We do not mean to intimate that the plaintiff was in the exercise of due care, even if he were to be regarded as the servant of the defendants.

The direction by the workman, Arsenal, does not help the plaintiff. Flower v. Pennsylvania Railroad, 69 Penn. St. 210. New Orleans, Jackson, & Great Northern Railroad v. Harrison, 48 Miss. 112. Howard v. Hood, 155 Mass. 391.

Exceptions overruled.