Hebert v. Portland Railroad , 103 Me. 315 ( 1907 )

Emery, C. J.

On exceptions to the overruling a demurrer to the declaration. The case stated in the declaration is substantially this: — -The defendant company was a common carrier"of passengers and as such was owning and operating a street railroad in West-brook and Portland and between the two cities. The plaintiff was in the employ of the company as a "greaser.” He lived in West-brook but bis assigned place of work was at a point in Portland. In addition to his cash wages the company gave him tickets good for passage upon its railroad between his residence in Westbrook and his place of labor in Portland. One day the plaintiff boarded a regular street car of the defendant company at Westbrook for passage to his place of work in Portland, and for such passage gave up to the conductor one of the tickets given him by the company as above stated. While thus upon the car and himself in the exercise of due care and before reaching his destination he was injured by the sudden derailment of the car through the fault of the company in not maintaining its track, way, works and machinery in safe condition.

The defendant company claims that the declaration is insufficient in that it does not contain enough to show what was the relation between the parties and, the consequent duty of the one to the other at the time of the injury. We think it clear, however, that upon the statements in the declaration, the plaintiff at the time of his injury was a passenger with the rights of a passenger against a common carrier.

In a sense of course, in the popular sense of the term, the plaintiff was in the defendant’s employ. There was between them a then existing contract, implied at least, by which he was.to render certain services to the company from day to day; but his work, his then assigned post of duty, was in Portland and not in Westbrook where he boarded the car, nor upon the line of the road between his residence and his place of work. It is to be assumed that he was to report each working day at a given hour at his assigned post of duty in Portland and that during the working hours of each such day he was under the company’s orders within the line of his employment. It is also to be assumed that outside those hours and while going to and from his work he was under his own direction. It is not a case where the railroad company directs a servant to proceed on its cays from one place to another in the prosecution of his work, nor is it a case where a servant of a railroad company is riding on its cars in the prosecution of his work during hours of work. In the case stated the plaintiff selected his own means of transportation. It was no concern of the company how he got to his work, if he got there. In availing himself of the company’s railroad to get to his work he was acting in his own interest and of his own volition. He was not working for the company in thus riding on its railroads. The company did not pay him for so riding; he paid the company for his ride.

True, the plaintiff paid his fare by a ticket given him by the company for that ride, but he paid for the ticket by his services. It was a part of his wages and delivered to him as such. It could make no difference in his status as a passenger whether he paid his fare in cash or in tickets thus earned. *

We find that several courts in other jurisdictions have held the contrary of our decision of this question. Some of these contrary decisions seem to be based upon the circumstance that the plaintiff was riding on his way to his work, and not riding home, or to his luncheon or elsewhere. We cannot see any difference in principle. He was as much his own man while riding to his work, as in riding from it. So far as we can learn, however, the precise question here has never been decided by this court, and hence we are free to follow what we think the better reason. Moreover, our contention is supported by respectable authority. Doyle v. Fitchburg R. R. Co., 162 Mass. 66 ; Same v. Same, 166 Mass. 492; Dickinson v. West End St. Ry. Co., 177 Mass. 365; L. & N. M. M. Co. v. Weaver, 22 Ky. L. Rep. 30, 50 L. R. A. 381; Gillenwater v. M. & T. R. R. Co., 5 Ind. 339, 61 Am. Dec. 101; N. Y., L. E. & W. R. R. Co. v. Burns, 51 N. J. L. 340; O’Donnel v. Valley R. R. Co., 59 Pa. St. 239; McNulty v. Penn. R. R. Co., 38 At. Rep. 524, 182 Pa. 479.

But the defendant further claims that, even if the declaration does state a case of injury to a passenger, it does not set out with sufficient particularity wherein the defendant company was negligent, though it does charge that the injury resulted from a derailment of the car through the defendant company’s negligence. In actions of this kind where the relation between the parties is that of passenger and carrier a general allegation of negligence on the part of the company is sufficient without particular specification. Ware v. Gay, 11 Pick. 106; Clark v. C. B. & Q. R. R. Co., 15 Fed. 588; Lavis v. Wisconsin Cent. R. R. Co., 54 Ill. App. 636 ; Breese v. Trenton R. R. Co., 52 N. J. L. 250; Gulf C. & S. F. R. R. Co. v. Smith, 74 Tex. 276. It is not ordinarily within the power of the passenger to specify in what particular the carrier was negligent. Again, while the plaintiff passenger must allege and prove negligence of the carrier as the cause of his injury he does allege and prove it in'this case by alleging and proving (if he does prove it) the derailment of the car and his consequent hurt. The negligence of the company is to be presumed from that circumstance alone and it will be for the company to rebut that presumption by showing that the derailment of the car did not result from any negligence on its part. "Cars can ordinarily be run with safety, and when they are not, that fact itself is evidence of. fault or defect somewhere, requiring an explanation. The maxim res ipsa loquitur applies in such a case.” Stevens v. E. & N. A. R., 66 Maine, 74. The general allegation of negligence in this declaration is sufficient.

It follows that the exceptions should be overruled. We have, of course examined every case cited by the defendant, but those cited from our own reports will be found not applicable to a case like this, an action for an injury caused by the derailment of a street car to one riding on the car.

Exceptions overruled•