Hoar v. Maine Central Railroad

Common Carrier. Passengers. Hand-ear. Foreman of section. To entitle an administratrix to recover for an injury to her intestate, caused ■ by being negligently run over by defendants’ train, while ho was riding between stations on a hand-car at the invitation of the foreman of a section, it must appear that the company was a common carrier of passengers by hand-cars. No person becomes a passenger except by the consent, express or implied, of the carrier. A foreman of a section acts without the scope of his authority by accepting a person for transportation on his hand-car.

On report. Case. The declaration is as follows : “ In a plea of the case, for that on the eleventh day of December, A. D. 1875, the defendants were the owners and operated a railroad known as the Maine Central Railroad, passing through the towns of Waterville and West Waterville, in the county of Kennebec, and were common carriers of passengers and persons between said Waterville and West Waterville, and were then and there bound and required by law to carry and transport all passengers and other persons lawfully in and upon its said railroad carefully and safely, and with due regard for the preservation of their lives and limbs; and were required to employ careful, faithful and suitable persons for servants and employees, to run and manage their trains, locomotive engines and cars, and were bound to run and manage the same carefully and with due regard to the limbs of those legally in their cars. “ Yet the defendants, well knowing their duty and obligations, did, on said day last named, at said Waterville, through and by their foreman of a section, their agent and servant, Silas H. Potter, then and there employed in their business, and then and there entrusted by defendants with the care and control of one of its hand-cars, which was run on said day from said Waterville to West Waterville, upon and over said railroad, by said Potter and others, invite, request and authorize said deceased, John Hoar, then and there alive and in good health (and until a short time previous thereto having been for many years employed by defendants as section man), to ride with him, the said Potter, upon said hand-car from said Waterville to West Waterville, over-and upon said railroad of defendants, which invitation and request said deceased then and there accepted, and in pursuance thereof got upon said hand-car with said Potter and one Jere Murphy, and then and there proceeded to ride from said Waterville to West Waterville over said railroad, all which was then and there well known to said defendants and to their servants, officers and agents. “And the plaintiff avers that the defendants did then and there negligently, carelessly, wantonly, and in total disregard of law and of the safety of said Hoar and of their passengers and others lawfully traveling in and upon its cars, over and upon its road, at said Waterville, and of their lives and limbs, by other of defendants’ servants and agents then and there entrusted by defendants with the control and management of a locomotive engine of the defendants, then and there propelled by steam, and attached to and drawing a paymaster’s car, and those having control of said locomotive engine and paymaster’s car, then and there being employed by defendants in their business upon said railway, without any notice to said Hoar or to any person on said hand-oar, and without the actual knowledge of said Hoar, dispatch and send with great violence and velocity on said railway, and over the same track upon which said hand-car was then and there lawfully passing, with the said Hoar and others then and there lawfully thereon, said locomotive engine being then and there attached to said paymaster’s car, against and upon said hand-ear upon which said Hoar was lawfully riding, and without warning or notice to said Hoar, then and there instantly (to wit: at about the hour of seven o’clock and twenty minutes A. M., on the 11th day of December, A. D. 1875,) fracturing the skull of said Hoar, and then and there inflicting upon him mortal and fatal wounds and injuries, whereof said Hoar thereafterwards, to wit: on the same day at about tbe hour of one o’clock P. M., after suffering great pain and torture and agony during said period of time, died. “And the plaintiff avers that the said defendants did not employ careful, faithful and suitable persons for servants and employees to run and manage their locomotive engibo, car and train, but put the same in charge of negligent, careless and heedless persons and employees, and said deceased was then and there in the exercise of due care and diligence, said injury, suffering and loss of life being tbe direct result of tbe negligence, carelessness and recklessness of defendants, and without the fault of said Hoar or of any otlier persons on said hand-car. “Also for that the defendant corporation, before and at the time of committing the grievances hereinafter named, to wit: on the eleventh day of December, A. D. 1875, were the owners and operated a railroad running' from Bangor to Portland, Maine, through the towns of Waterville and West Waterville, in the county of Kennebec; that the said John Hoar, then in full life, at the special instance, request and invitation of said defendants, got upon a hand-oar of said defendants to ride from said Water-ville to West Waterville, over and upon the defendants’said road, and the defendants then and there so received the said Hoar, to carry him from said Waterville to West Waterville, and then and there it became the duty of the defendants to provide safe and sufficient transportation to said Hoar, between said Waterville and West Waterville, and to employ safe, careful and suitable employees to manage their locomotive engine, car and train with care, and with due regard for the life and limb of said Hoar and others lawfully on dfefendants’ cars and railway, and to run their locomotive engines, cars and trains in a careful and safe manner. Yet the said defendant corporation, not regarding their duty in that behalf, did not provide safe and sufficient transportation from said Waterville to West Waterville for said Hoar, and did not employ safe, careful and suitable employees to manage their locomotive engines, cars and trains with care, and with due regard for the life and limb of said Hoar and others lawfully on defendants’ cars and railway, and did not then Eind there run their locomotive engine, car and train in a careful manner, but on the contrary, the said defendant corporation employed such careless and heedless employees and servants to manage their said locomotive engine, car and train, and did manage and control them with such recklessness and negligence, that said locomotive engine, car and train were drawn with great speed and violence upon and against the' car upon which the said Hoar was lawfully riding, as aforesaid, on said eleventh day of December, A. D. 1875, at a few minutes past seven o’clock -in the forenoon, and without any notice to said Hoar, then and there wounding, bruising and crushing the said Hoar, by reason of which injuries the said Hoar thereafterwards, at about one o’clock of the same day, died, during which time the said Hoar underwent great pain of body and mind ; and the plaintiff avers that the injuries so received by said Hoar Were in consequence of the great negligence and carelessness of the defendant corporation as aforesaid, and without the fault of the said Hoar. “Also for that the said defendants, on the eleventh day of December, A. D. 1875, were the owners and operators of a railroad extending from Bangor to Portland, in the state of Maine, and running through the towns of Waterville and West Water-ville ; and were bound by law to have due regard for the life and limb of such persons as were lawfully on their railroad and in their ears, and were required to employ careful and suitable persons to run and manage tlieir engines, cars and trains, and the said John Hoar, deceased, was then and there at said Waterville, lawfully and properly riding in a railway vehicle provided for that purpose by the defendants, their servants and agents, over and upon said defendants’ railroad between said Waterville and West Waterville, and at the request of the defendants, their servants and agents. “ Tot the said defendants, well knowing their duty and legal obligations toward said Hoar, and all persons lawfully being or riding upon its cars or other vehicles, did not provide careful and suitable persons to run and manage tlieir cars, engines and trains, but did on said eleventh day of December, A. D. 1875, at said Waterville, wantonly, willfully, unlawfully and with gross negligence, kill and slay said John Hoar (then in full life but since deceased), by inflicting then and there upon the body of said Hoar a mortal and fatal wound with a locomotive engine of the defendants, then and there propelled by steam, upon said railroad, which locomotive engine of the defendants the defendants propelled, hurled, projected and discharged over said railroad with great velocity and violence, directly against and upon the vehicle above named, upon which the said John Hoar was lawfully riding, then and there fractured the skull of the said Hoar, and then and there inflicting frightful, excruciating and intolerable agony, anguish, distress, pain and misery upon him, so that, after enduring the same for the space of about five hours, he died on said eleventh day of December, A. D. 1875, at said Water-ville, and the plaintiff avers that said Hoar carne to bis death then and there as aforesaid, solely by the gross negligence and culpable carelessness of the defendants, as aforesaid, and while in the exercise of due care and diligence, and without any negligence or want of care an his part.” At the first term the defendants filed a separate demurrer to each count in the declaration, which was joined, both parties reserving the right of amendment. Thereupon the parties agreed to submit the case to the law court for their determination of the sufficiency of each count. in addition to the cases cited in Blake v. M. G. B. B. Go., cited Steamboat Few World v. King, 6 How. 469. Wilton v. Middlesex B. B. Go., 107 Mass. 108. Doss v. Wis. c& Fans. c& Tex. B. B. Go., 59 Mo. 27. Bamsden v. Boston <& Albany B. B. Go., 104 Mass. 117i