MELOON v. DAVIS, 292 F. 82

JOHNSON, Circuit Judge. This is a writ of error from a judgment of the District Court of the United States for the District of New Hampshire, in which the appellee was the plaintiff and the appellant the defendant, and for convenience they will be so designated in this opinion. On December 14, 1917, the plaintiff, a boy 11 years of age, was on his way to a country school in the town of Eliot, in the state of Maine, along a road over which the street railroad, of which the defendant was receiver, was being operated.

There had been a heavy fall of snow the night before, and a snowplow, closely followed by an electric car, had just gone along. As the highway had not been broken out for travel and there was no sidewalk upon it, the plaintiff, in company with his school-teacher, a young lady, and two young girls of about his age, was proceeding along the track behind the car drawing his sled, across the front of which he had placed a board to serve as a plow.

The electric car came to a stop in order to allow the snowplow to go on ahead of it, and when the little group came- up to the car and went around it into the snow which, from the evidence, appears to have been knee deep in the highway and still deeper where it had been piled up by the snowplow, and had come opposite the vestibule of the car, the door of which was open on its left-hand side, the motorman invited them to get on and ride to the schoolhouse which was about, 1,000 feet further on.

The teacher and the two little girls got upon the vestibule of the car, the teacher taking a position at the right of the motorman and nearer the right-hand door, and the two little girls stood behind the motorman. Another small boy, who was not in this group, got upon the rear vestibule of the car. There were no passengers aboard the car and the conductor was sweeping out the car near its front end, and it can be fairly inferred that he consented that the teacher and children should get-aboard the car upon the invitation of the motorman.

The door of the vestibule upon the left-hand side was left open, and t'he plaintiff stood upon the single step which led to it, facing the vestibule. He took hold of the grabiron at one side of the door with his left hand, and with the other held the rope of his sled, which was on top of the bank of snow that had been thrown up by the snowplow. In this position he and his sled were in plain view of the motorman.

While the plaintiff was in this position, the motorman started the car, which had gone 200 or 300 feet, when the plaintiff fell from the step, evidently because the sled, with the board across the front of it, stuck in the snow, and pulling upon the rope caused him to slip upon the icy step and fall under the wheels of the car, which- crushed one of his legs, making an amputation necessary.

The boy upon the rear vestibule testified that he was leaning out of the door of the vestibule upon the same side of the car, .watching the sled as it was drawn along upon the bank of snow, and that he saw the sled stick in the snow and the plaintiff fall from the step of the car. At the close of all the evidence the defendant requested the court to direct a verdict in his favor.

The denial of this request, the refusal to give requested instructions, and the giving of others which were excepted to, are assigned as error, and raise the question whether, under the statutes of Maine, in which state the accident occurred, the motorman had apparent or implied authority to invite the plaintiff to become a passenger without the payment of fare. If he did not have, then the plaintiff was a trespasser, to whom the defendant only owed the negative duty of not injuring him by willful or wanton conduct.

Revised Statutes of Maine, c. 55, § 34, in part, is as follows: “It shall he unlawful for any person, firm or corporation knowingly-to solicit, accept or receive any rebate, discount or discrimination in respect to any service rendered or to he rendered by any public utility, or for any service in connection therewith whereby any such service shall in any manner, of by any device whatsoever, be■' rendered free or at a rate less than naméd in- the schedules in force as provided herein.” .

The statute also provides that it may be lawful to extend free or reduced rates to certain classes and that it shall not be construed— “to prohibit any public utility from granting service at free or reduced rates for charitable or benevolent purposes, provided the same be approved by the commission; nor shall it be unlawful for any public utility to make special rates to its employees or in cases of emergency service.” Conceding, but not deciding, that the motorman had implied authority to give free rides in cases which in his judgment were emergency cases, we think that it cannot be determined as a matter of law that an emergency had or had not arisen which justified him in extending an invitation to the plaintiff to be a passenger without the payment of fare.

The snow was not so deep as to prevent one of the scholars at this school, a little girl 13 years old, from walking in the highway beside the track. The car, with the plaintiff upon its step, passed her, and she saw the sled stick in the snow and the plaintiff fall from the car, and after the accident drew the sled along the highway, outside of the track, to the schoolhouse. The teacher, and the little girls who had boarded the car with her, also went along the highway outside of the street railway track to the schoolhouie after the accident.

It is evident, too, that when the car stopped to let the snowplow get ahead the teacher and her scholars might have waited until the car started along again, and then followed behind it on the track. Whether an emergency had arisen, and whether the act of the motorman was a reasonable exercise of discretion, if any discretion was lodged in him, were questions for the jury. But the case was not tried or submitted on that theory.

The court instructed the jury in substance that the act of the motorman in inviting the plaintiff to ride free upon the car was within the scope of his employment and the act of the defendant; that the motorman was bound to act with “reasonable care” in the protection of .the plaintiff, whom he had invited aboard the car; and that, if the jury should find that he did not exercise this care, and the plaintiff, while in the exercise of the care that would be expected of a boy of his age and discretion, was thereby injured, he could recover.

The act of the motorman in inviting the plaintiff to ride upon the car without the payment of fare could only become the act of the defendant if done under express of implied authority. The motorman could have no implied or apparent authority to extend to any one a free ride in violation of law, for the Maine statute makes it unlawful for the railroad to give free transportation and for any member of the public to accept the same. In the cases of Wilton v. Middlesex R. Co., 107 Mass. 108, 9 Am. Rep. 11, Brennan v. Fairhaven & W. R. Co., 45 Conn. 284, 29 Am. Rep. 679, Solomon et al. v. Public Service Ry.

Co., 87 N. J. Law, 284, 92 Atl. 942, Ann. Cas. 1917C, 356, cited upon the plaintiff’s brief, it does not appear that any statute prohibited the giving of free transportation, and they cannot be followed. We are compelled to hold that there was error in the-instruction .given.

It is unnecessary to consider the other questions which were raised upon the briefs and in argument, for, if the act of the motorman not only was unauthorized, but also in violation of the statute, the plaintiff was, in legal contemplation, a trespasser upon the car, and, under the rule which prevails in Maine, where the accident occurred, the plaintiff could only recover upon proof that he was injured by the willful and wanton negligence of the defendant’s employees.

The case was tried upon the theory that the plaintiff was a gratuitous passenger and not a trespasser, and the question of whether the negligence of the defendant in starting the car while the boy was standing upon a slippery step in the condition described was such gross negligence as to render it willful and wanton, was not submitted to the jury. Counsel for the plaintiff concedes upon his brief that, if the instruction of the court that the act of the motorman was that of the defendant, was error, the judgment cannot be affirmed.

The judgment of the District Court is vacated, the verdict set aside, and the case is remanded to that court for further proceedings not inconsistent with this opinion, with costs to the plaintiff in error in this court.