COMMONWEALTH vs. August Beck.

SAME vs. JOHN F. MURPHY.

Worcester. October 4, 1904. November 22, 1904.

Present: KNOWLTON, C. J., BARKER, Hammond, Loring, & Braley, JJ.

Intoxicating Liquors.

R. L. c. 100, § 49, regulating the transportation of intoxicating liquor to a city or town, in which licenses of the first five classes are not granted, by a railroad corporation or a person or corporation conducting a general express business, does not apply to or make illegal the transportation of intoxicating liquor to such a city or town by a natural person who is not conducting a general express business.

TWO COMPLAINTS, received and sworn to in the Police Court of Fitchburg on June 6, 1904, charging that each defendant "unlawfully did transport for hire and reward, for delivery in said Fitchburg intoxicating liquor, said Fitchburg then being a city where licenses of the first five classes to sell intoxicating liquors, are not granted, and said [Beck and Murphy respectively] not then and there regularly and lawfully conducting a general express business."

On appeal to the Superior Court the cases were tried before Bell, J. Before the jury was impanelled each defendant moved that the complaint against him be dismissed, for the reason that it set forth no offence known to the laws of this Commonwealth. The judge denied the motions and the cases proceeded to trial. The jury in each case returned a verdict of guilty; and the defendants alleged exceptions.

D. I. Walsh, T. L. Walsh & J. E. Sullivan, for the defendants. R. Hoar, District Attorney, & G. S. Taft, Assistant District Attorney, for the Commonwealth.

BRALEY, J. No offence known to the common law is described in these complaints, and if they can be sustained it must be on the ground that they charge a misdemeanor under R. L. c. 100, § 49. This section in substance was originally St. 1897, c. 271, § 1, which was before this court for construction in Commonwealth v. Intoxicating Liquors, 172 Mass. 311, when it was

said by Hammond, J., "The act was manifestly intended to meet some difficulties which had been encountered by the government in the prosecution of common carriers for illegal keeping of intoxicating liquors, and to make it more difficult for the guilty to escape detection when setting up the fraudulent defence that the liquors found in the possession of the carrier were for delivery by him as such to some person."

The general rule of criminal pleading, that it is sufficient to charge a statutory offence in the language of the statute, cannot be applied, for there is no allegation that each defendant as a common carrier, or as a person lawfully conducting a general express business, had violated the provisions of this section. Commonwealth v. Ashton, 125 Mass. 384, 385. The offence described is that each defendant "not then and there regularly and lawfully conducting a general express business" brought and delivered intoxicating liquor for hire or reward in a city where licenses of the first five classes to sell such liquors had not been granted, and by its very terms excludes therefrom those whom the statute was designed to reach and punish.

Nor are the cases covered by the exception to the rule, that where the language of the statute is so general as to include cases which come within its terms, though not within its spirit, the offence is to be gathered from the whole act according to the intention of the Legislature, for the attempt is made in these complaints to enlarge, not to restrict the use of language, and to make the alleged offence penal by implication. Commonwealth v. Barrett, 108 Mass. 302, 303.

When the duly licensed seller delivers to the railroad corporation, or to others regularly and lawfully conducting a general express business, intoxicating liquor for transportation into a city or town where licenses of the first five classes have not been granted, he is required to plainly and legibly mark the vessels. or packages containing the liquor with his name and address, and of the purchaser, or consignee, but there is no express language declaring that delivery by him of such liquor for transportation to persons other than those described shall be unlawful, or subject him to prosecution and punishment.

If the seller is free to deliver such liquors for carriage to persons other than to those named in the statute, no good reason is

shown why such persons are not equally free to transport them without the act of transportation being considered a crime.

To bring the defendants within the allegations of the complaints resort must be had to the argument that the crime described is to be gathered from the general purpose of the law as shown by R. L. c. 100, §§ 49, 50, even if there is no direct language used creating such an offence.

Laws in derogation of the liberty, or general rights, of the citizen, however, are to be strictly construed, and what before their passage was a legal and legitimate employment or calling, does not become generally illegal and criminal when, in the exercise of the police power, a statute is passed prohibiting the prosecution of such employment or calling unless conducted in a certain manner by those whom it designates, but contains no language which in the ordinary meaning of words makes it applicable to other persons. Commonwealth v. Martin, 17 Mass. 359, 362. Commonwealth v. Sylvester, 13 Allen, 247. Commonwealth v. Worcester & Nashua Railroad, 124 Mass. 561, 563.

It is to be presumed that if it had been intended to impose restrictions upon the transportation of intoxicating liquors in addition to those which now appear in our laws, such intention would have been shown in clear and explicit language. This has not been done, and the inference follows that it was not intended to make the act with which the defendants are charged a crime.

The motion to dismiss should have been granted in each case. Exceptions sustained.

JOHN MURPHY vs. NEW YORK, NEW HAVEN, AND HARTFORD RAILROAD COMPANY.

Worcester. October 5, 1904. — November 22, 1904.

Present: KNOWLTON, C. J., BARKER, HAMMOND, & BRALEY, JJ.

Negligence, Employer's liability. Railroad.

A section foreman of a railroad company, having charge of a gang of five men whose duty it is to transfer freight from one car to another, while the foreman selects the cars that are to be unloaded and checks the freight as it is transferred, can be found to be a person intrusted with superintendence over the five men within the meaning of the employers' liability act.

In an action, by a freight handler against the railroad company employing him, for injuries from falling between two freight cars standing side by side on parallel tracks, while working as one of a gang of five in transferring freight from one car to the other, it appeared, that the freight was to be wheeled in trucks over a wooden brow connecting a loaded car with the empty one to which the freight was to be transferred, that one end of the brow had iron hooks, with a cleat on the under edge, while the other end of the brow was bevelled so that the loaded trucks could be wheeled upon it without concussion, that by mistake the brow was placed wrong end to, so that, instead of the bevelled end, the end with the hooks rested on the car to be unloaded and the surface of the brow at that end was two inches or more above the floor of the car, that one of the men discovering this was about to reverse the brow when the superintendent in charge of the work said "the brow is all right, let it alone," that the plaintiff, who was not present when the brow was adjusted, was ordered by the superintendent with the other men of the gang to unload the car, that after two or three loads had been taken out by the other men, the plaintiff went upon the brow pulling a heavily loaded truck after him, when the brow fell, throwing the plaintiff with his load between the cars and causing the injuries. Held, that there was evidence of negligence on the part of the superintendent, and of due care on the part of the plaintiff, and that the plaintiff by using the brow under the orders of the superintendent did not assume the risk of injury from its being placed improperly.

A workman by his contract of service does not assume the risk of an accident caused by the negligence of a superintendent.

TORT, by a freight handler against the railroad company employing him, for injuries received in falling with a heavy load between two freight cars standing side by side on parallel tracks, when working as one of a gang of five in transferring freight from one car to the other, by reason of a wooden brow forming a bridge between the two cars slipping off at one end, while the plaintiff was upon it pulling after him a truck loaded with a

barrel of wire weighing about eight hundred pounds, with a first count at common law alleging that the defendant put the plaintiff to work in an unsafe and dangerous place, a second count under the employers' liability act alleging a defect in the ways, works or machinery of the defendant, and a third count under the same act alleging negligence of the defendant's superintendent. Writ dated July 7, 1903.

In the Superior Court the case was tried before Gaskill, J. At the close of the evidence, the judge, by agreement of the parties, ordered a verdict for the defendant upon the first and second counts, and submitted the case to the jury on the third count. The jury were unable to agree, and thereupon the judge ordered a verdict for the defendant on the third count. The plaintiff alleged exceptions.

J. H. S. Hunt, E. H. O'Brien & J. A. Thayer, for the plaintiff. A. P. Rugg, for the defendant.

BRALEY, J. The plaintiff finally relies on the third count of the declaration to sustain his cause of action, and the questions presented are whether there was any evidence of the defendant's negligence, or of the plaintiff's due care, which should have been submitted to the jury.

It appeared that Mulvaney was the section foreman of the defendant, having charge of a gang of five men including the plaintiff, whose duty it was under his instructions to unload, or transfer, freight from one car to another, while he selected the cars that were to be unloaded and checked the freight as it was transferred.

This was sufficient evidence for the consideration of the jury that he was intrusted by the defendant with superintendence over the plaintiff within the meaning of the statute, and for whose negligence it would be responsible. Mahoney v. New York & New England Railroad, 160 Mass. 573.

In the performance of this work by the men a movable platform called a brow was placed between, and formed a bridge from one car to the other over which the freight was wheeled in trucks. The brow in use at the time of the accident was provided with iron hooks at one end, with a cleat on the under edge. These hooks were intended to stick into the floor of the car thus preventing the brow from slipping, while the opposite