Gillshannon v. Stony Brook Railroad

Dewey, J. If the relation existing between these parties was that of master and servant, no action will lie against the. defendants for an injury received by the plaintiff in the course of that service, occasioned by the negligence of a fellow servant. Farwell v. Boston and Worcester Railroad, 4 Met. 49; Hayes v. Western Railroad, 3 Cush. 270. It was attempted on the argument for the plaintiff to take ■Míe case out of the rule stated in those cases, upon the ground that the nature of the employment of these servants was different, the plaintiff being employed as a laborer in constructing the railroad bed, and not engaged in any duty connected with running the trains, and so not engaged in any common enterprise. The case of Albro v. Agawam Canal Co. 6 Cush. 75, seems to be adverse to these views, and goes strongly to sustain the defence. It was also urged that the plaintiff was not in the employ ment of the defendants at the time the injury was received, or that he might property be considered as a passenger, and the defendants, as respects him, were carriers for hire.'’ But as it seems to us, in no view of the case can this action be maintained. If the plaintiff was by the contract of service to be carried by the defendants to the place for his labor, then the injury was received while engaged in the service for which he was employed, and so falls within the ordinary cases of servants sustaining an injury from the negligence of other servants. If it be not property inferable from the evidence that the contract between the parties actually embraced this transportation to the place of labor, it leaves the case to stand as a permissive privilege granted to the plaintiff, of which he availed himself, to facilitate his labors and service, and is equally connected with it, and the relation of master and ser [232] vant, and therefore furnishes no ground for maintaining tlm action. How does the case differ from that suggested at the argument by the counsel for the defendants, who supposed a case where the business for which the party is employed, is that of cutting timber, or standing wood, and the servant receives an injury in his person on the way to the timber-lot, by the overturning of the vehicle in which he is carried, by the negligence or careless driving of another servant ? There is no liability on the part of the master in such a case. It seems to the court, that upon the evidence offered in the present case, the plaintiff was not entitled to a verdict, and the nonsuit should stand. Plaintiff nonsuit.