Commonwealth v. Vermont & Massachusetts Railroad

Ames, J.

In order to maintain this indictment, it should be

made to appear that the person for whose death it was brought was a passenger upon the defendants’ road at the time of the accident, and that his death was occasioned by the negligence or carelessness of the company, or the unfitness or gross negligence or carelessness of its servants or agents. Gen. Sts. c. 63, § 97. The defendants object that, upon the facts reported, neither of the two conditions, upon which their liability depends, was fulfilled ; that the man who lost his life was not a passenger, but a servant or workman of the company; and that there was no legal and competent evidence of negligence on the part of themselves or their servants or agents. We think that neither of these objections can be maintained.

It appears that he made to the defendants on October 17,1868, an offer to pay them a certain sum of money “ for the privilege of riding and selling pop-corn on all passenger trains ” on their road, giving them the alternative however of his having the same privilege at a price ten dollars less per quarter, if he furnished ice and water for the passengers during the summer months. In reply to this offer, he was notified in writing that “ he would be charged two hundred dollars per annum for right to sell com in cars whole length of road,” “ and he to do no watering passengers in cars.” Under this agreement he travelled in the cars until the following summer, when he made a further proposition, to furnish ice and see that water was supplied to the passengers of the morning train up as far as the tunnel, if he could have permission to sell his corn in the extra trains, which privilege he did not have under the original agreement. This proposition was accepted and acted upon. No particular time was mentioned in this agreement, and no other agreement was made; but in the summer of 1870 he had begun supplying water to the passengers, as in the preceding season.

It appears that the selling of corn to the passengers in the i 'aius had been his regular business for a long time, and that in order to follow that business he held a season ticket, renewed every quarter, and was a traveller over the road substantially every day. It appears to us that in this state of facts he must be considered as a passenger, within the meaning of the statute. It certainly can make no difference, that his object in travelling was to sell his merchandise while in the act of travelling; and that he had no other purpose in going over the road. Like other season ticket holders, he paid the defendants for the privilege of passing and repassing regularly over the road, and was at liberty to go or not as he pleased. It appears to us that the services which he rendered, in furnishing water to passengers, were intended as a compensation for some increase in his privileges. The fact remains, that he was travelling on his own business, and not on that of the defendants. Even if the report states what amounts to an implied renewal of the contract of the previous year, the travelling and the accommodation to passengers during the summer months were merely incidental to his regular business, and were for his own convenience and not for the defendants’.

Upon the other point, we think it was entirely a question of fact whether negligence on the part of the defendants, within the meaning of the statute, was shown to have existed. We cannot say, upon the report, that there was no evidence to submit to the jury upon that question. On the contrary, there was evidence tending to show carelessness on the part of the track-master in the management of a hand-car, and that such negligence was the cause of the accident. The question was therefore properly submitted to the jury. Gaynor v. Old Colony & Newport Railway Co. 100 Mass. 208.

We think, furthermore, that none of the conditions printed upon the back of the ticket could have the effect to relieve the defendants from their legal liability, under a penal statute, for gross negligence and carelessness. jExceptions overruled.