Kilduff v. Boston Elevated Railway Co.

Although at the time of the accident the plaintiff’s intestate had finished his work for the day, and was under no obligation to do any more work for the defendant on that day, it seems to us plain that he was being transported by the defendant as an incident of his employment and that the relation between him and the defendant was therefore that of master and servant and not that of carrier and passenger. The car was a special car in which only the laborers who were working on that particular job were allowed to ride, and was furnished *309for the mutual accommodation of the company and the laborers, and the plaintiff’s intestate paid no fare. The portion of the track where the accident occurred was not open to the public, and transportation over that and the rest of the route was plainly furnished by the defendant to the deceased as a laborer in its employment and not as a passenger. It cannot reasonably be referred to any other relation. Gillshannon v. Stony Brook Railroad, 10 Cush. 228. Seaver v. Boston Maine Railroad, 14 Gray, 466. Gilman v. Eastern Railroad, 10 Allen, 233. O'Brien v. Boston Albany Railroad, 138 Mass. 387. McGuirk v. Shattuck, 160 Mass. 45. Olsen v. Andrews, 168 Mass. 261. Boyle v. Columbian Fire Proofing Co. 182 Mass. 93, 102. It follows that the negligence complained of was that of a fellow servant and that the plaintiff is not entitled to recover. The case of Dickinson v. West End Street Railway, 177 Mass. 365, relied on by the defendant, is clearly distinguishable from the case at bar and more like Doyle v. Fitchburg Railroad, 162 Mass. 66.

The conclusion to which we have come on this branch of the case renders it unnecessary to consider the question of the intestate’s due care, or the motorman’s negligence.

Exceptions overruled.