Massachusetts Supreme Judicial Court, 1896

Driscoll v. Scanlon

Massachusetts Supreme Judicial Court · Decided February 28, 1896 · Holmes

165 Mass. 348; 43 N.E. 100; 1896 Mass. LEXIS 261

Cases that cite this one

42 later published cases cite this decision. The 25 that cite it most often are listed here.

Rice v. City of Portland (Or. 1932)
Higbee Co. v. Jackson (Ohio 1920)
Kuharski v. Somers Motor Lines, Inc. (Conn. 1945)
Stevens v. Frost (Me. 1943)
Dempsey v. Test (Ind. Ct. App. 1933)
Hartman v. Badger Tobacco Co. (Wis. 1933)
Hensel v. Hensel Yellow Cab Co. (Wis. 1932)
Monnet v. Ullman (Or. 1929)
Adams v. Southern Bell Telephone & Telegraph Co. (4th Cir. 1924)
O'Leary v. Fash (Mass. 1923)
Christie v. Mitchell (W. Va. 1923)
Barker v. Dairymen's Milk Products Co. (Ala. 1921)
Waller v. Southern Ice & Coal Co. (Ga. 1916)
Jacob v. Chicago & Northwestern Railway Co. (Wis. 1915)
Savannah Electric Co. v. Hodges (Ga. Ct. App. 1909)
Dougherty ex rel. Dougherty v. Chicago, Milwaukee & St. Paul Railway Co. (Iowa 1908)
Foster-Herbert Cut Stone Co. v. Pugh (Tenn. 1905)
Formall v. Standard Oil Co. (Mich. 1901)
Little v. Levison (Mass. 1944)
Theriault v. Pierce (Mass. 1940)
Fanciullo v. B. G. & S. Theatre Corp. (Mass. 1937)
Clark v. Harnischfeger Sales Corp. (Appellate Division of the Supreme Court of New York 1933)
Mayhew ex rel. Mayhew v. DeCoursey (Kan. 1932)
Murphy v. Barry (Mass. 1928)
Newlin v. Standard Oil Co. (Kan. 1926)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

Holmes, J.

This is an action for personal injuries. The plaintiff was a boy of nine. He was invited to drive upon a dump cart drawn by two horses belonging to the defendant, and driven by the defendant’s son, who was employed by him as a teamster. The plaintiff got upon the cart, and soon was asked by the driver to take the reins, which he did. The driver went to sleep, one of the reins was dropped by the plaintiff, and in trying to catch it he fell off and was hurt. The case is here on exceptions to a ruling that the plaintiff could not recover.

We are of opinion that the ruling was right. It was not within the scope of the employment of the driver of the dump cart to invite persons to drive upon it for their pleasure. Bowler v. O' Connell, 162 Mass. 319. Powers v. Boston Maine Railroad, 153 Mass. 188, 190. He had equally little authority to invite them to take his place in performing what was a personal trust. See Gwilliam v. Twist, [1895] 2 Q. B. 84, 86.

It was argued that we might look only to the later moment when the plaintiff was under the wheels, that it did not matter how he got there, and that the defendant was liable for running over the plaintiff, if he would have been in case his cart had *349run over a third person when his driver was asleep. But it does make all the difference in the world how the plaintiff got under the wheels. The defendant was not .bound to expect or look out for people falling from his cart, where they had no business to be, and persons who got into it took the risk of what might happen as against him. The driver’s slumber was so intimately connected with the unauthorized act that it is impossible to separate the two. The driver would not have been asleep and the plaintiff would not have fallen but for the driver’s unauthorized act, and if the plaintiff had not been driving. The plaintiff does not stand in the same position as if he had been run over when crossing the road. The case is not affected by the fact that the plaintiff is a child. Bowler v. O'Connell, ubi supra. See Daniels v. New York New England Railroad, 154 Mass. 349. Exceptions overruled.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.