« ForrigeFortsett »
tending to crush ordinary competitors, and affected by the monoply of the market for thus create a monopoly, from which the com plug tobacco, and a rise in the price which munity as consumers would ultimately suf might be expected to follow it. fer. If, at the time of the enactment of This statute was not enacted for protecthis statute, there were dangers of this kind tion in the purchase of any one kind of propconfronting the people of the commonwealth, erty. Its object doubtless was to prevent and if this prohibition is a reasonable way the use of this particular method of crushing of everting such dangers, we find justifica- | competitors in any kind of trade in which the tion for the legislation, unless it involves a public might be interested. Especially was serious injury to those who are restrained it important to prevent monoply in the sale by it. It permits every kind of contract of of the necessaries of life. In view of this, sale but one. It does not prohibit the ap we deem it not unreasonable that the statpointment of agents, or sole agents, for the ute was made to apply to sales of all kinds of sale of property. It allows contracts for the goods. exclusive sale of goods, wares or merchan Legislation should be adapted to existing dise. The contracts that it forbids are only conditions. A few years ago there was no those which, in ordinary competition among occasion for such an enactment. But lately equals, no one would have any interest or we see great aggregations of capital formed desire to make. As a rule, it is only a per to obtain command, if possible, of the field son or corporation that is intrenched in a of production or distribution into which they position of power that can afford to say to enter. Even now, in the transaction of busia retailer or jobber, "I will not let you have ness among equals where there is free commy goods unless you will agree to sell none petition, the statute is unnecessary, for there furnished by others." One who controls the is no inducement to do that which it forsources of supply of goods, which are in such bids. Its practical effect is to prevent great demand that a dealer cannot afford to be corporations from making a certain kind without them, can safely say to a purchaser of contracts intended to drive ordinary com“You must give me all your trade if you petitors out of business. want to sell any of my goods." In that way The question is whether, at the time of the he may be able to obtain a complete monoply passage of this statute, there were condi. of the trade in goods such as he supplies. tions actually existing or reasonably anticiThe evidence in this case illustrates some
pated which called for such legislative interof the tendencies of the times. The defend vention in the interest of the general public. ant's employer, the Continental Tobacco We are of the opinion that there were, and Company, is incorporated with a capital that, in a broad and liberal sense of the stock of $75,000,000. At the time of the sales words, this statute was enacted in the interest for which the defendant is indicted it had of the public health and the public safety, if absorbed more than twelve establishments
not of the public morals. Certainly the purused for the manufacture and sale of plug
pose of the Legislature was to promote the tobaccos, and owned by as many proprietors.
general welfare of the public. We cannot Prior to its incorporation there was free
say that this legislative action was not a and open competition in the plug tobacco
legitimate exercise of the police power. Its market in Massachusetts. It so consolidated
invasion of the general right to make conand restricted the trade that, in January,
tracts is so slight, and in a field so remote 1904, it produced about 95 per cent. of the
from ordinary mercantile transactions, that plug tobacco, and about 80 per cent. of the
there is little ground of objection on that cut plug tobacco in Massachusetts. Conditions score. The abuse at which the statute is were about the same in all parts of the State.
aimed, while not practiced by many persons. There were about two hundred and ten job
is real and widely pervasive. bers in Massachusetts, and practically all As was said by the court in Lochner v. stopped buying of independent manufactur New York, 198 U. S. 45, 53, 25 Sup. Ct. 539, ers when this corporation made this new 513, 49 L. Ed. 937, on this record, “the question proposition, presented by the defendant in arises, is this a fair and reasonable and propmaking the sales complained of. It had ac er exercise of the police power of the state, or quired such strength in its own field that, by is it an unreasonable, unnecessary and arbithe use of such means as the statute forbade, trary interference with the right of the indiit could expect easily to obtain a practical vidual to his personal liberty, or to enter into monopoly of the plug tobacco trade in Massa those contracts * * * which may seem to chusetts. This evidence furnishes an illustra him appropriate or necessary for the support tion of what we fairly may assume was being of himself or his family.” Many cases have done, or might be expected to be done, in the been decided by the Supreme Court of the manufacture and sale of other products, even
United States which, in principle, go far to of some of the necessaries of life. Tobacco is sustain the contention of the commonwealth not one of the necessaries of life, but its use in the present action, Otis v. Parker, 187 U. is so common that to many persons it seems S. 606, 23 Sup. Ct. 168, 47 L. Ed. 323; Atkins almost as necessary as food. The poor much v. Kansas, 191 U. S. 207, 24 Sup. Ct. 124, 48 L. more than the rich would be likely to be Ed. 148; Knoxville Iron Co. v. Harbison, 183
U. S. 13, 22 Sup. Ct. 1, 46 L. Ed. 55; Mugler v. Kansas, 123 U. S. 623, 8 Sup. Ct. 273, 31 L. Ed. 205; Patterson v. Kentucky, 97 U. S. 501, 24 L. Ed. 1115; Holden v. Hardy, 169 U. S. 366, 18 Sup. Ct. 383, 42 L. Ed. 780; Jacobson v. Massachusetts, 197 U. S. 11, 25 Sup. Ct. 358, 49 L. Ed. 643. Similar doctrines have often been stated in our own decisions. Opinion of
signed for the protection of the public within our own boundaries. We understand the question on this part of the case to be, is this a legitimate exercise of the police power, or is it an unauthorized interference with légitimate interstate commerce? Under the decisions in Plumley v. Mass., 155 U. S. 461, 15 Sup. Ct. 154, 39 L. Ed. 223; Commonwealth v.
the Justices, 163 Mass. 589, 592, 593, 40 N. E. Huntley, 156 Mass. 236, 30 N. E. 1127, 15 L.
713, 28 L. R. A. 344; Watertown v. Mayo, 109 Mass. 315, 318, 12 Am. Rep. 694; Commonwealth v. Danziger, 176 Mass. 290, 57 N. E. 461; Commonwealth v. Pear, 183 Mass. 242, 66 N. E. 719; Squire v. Tellier, 185 Mass. 18, 69 N. E. 312, 102 Am. St. Rep. 322. In other states a few of the cases are the following: Thorpe v. Rutland & Burlington Ry. Co., 27 Vt. 140, 149, 62 Am. Dec. 625; Burdick v. People, 149 Ill. 611, 36 N. E. 925; State v. Peel Splint Coal Co., 36 W. Va. 802, 15 S. E. 1000, 17 L. R. A. 385; Commonwealth V. Reinecke Coal Co. (Ky.) 79 S. W. 287; Avent Beattyville Coal Co. v. Commonwealth, 96 Ky. 218, 28 S. W. 502, 28 L. R. A. 273; State ex rel. v. Kreutzberg, 114 Wis. 530, 549, 90 N. W. 1098, 58 L. R. A. 748, 91 Am. St. Rep. 934. Some of them are in support of so called anti-trust laws. Fuqua v. Pabst Brewing Co., 90 Tex. 298, 38 S. W. 29, 750, 35 L. R. A. 241; State v. Schlitz Brewing Co., 104 Tenn. 715, 745, 59 S. W. 1033, 18 Am. St. Rep. 941; State v. Buckeye Pipe Line Co., 61 Ohio St. 520, 56 N. E. 464; State v. Firemen's Fund Ins. Co., 152 Mo. 1, 52 S. W. 595, 45 L. R. A. 363.
The defendant contends that the statute is invalid as an interference with interstate commerce, in contravention of article 1, § 8, of the Constitution of the United States. The decisions of the Supreme Court of the United States which deal with the police power in its relation to the constitutional provision for the regulation of interstate commerce are numerous. As we understand them, the questions of difficulty in the present case are substantially the same, under this clause of the Constitution, as under that which we have already considered. This statute does not attempt directly to regulate interstate commerce, or to deal with it in any way. Indirectly it affects it in those cases where contracts are made for the sale and transportation of property in another state to a purchaser in this state. The statute does not purport to tax interstate commerce, or directly to impose any burden upon it. If it did, it would be unconsitutional. Robbins v. Shelby County Taxing District, 120 U. S. 489, 493, 7 Sup. Ct. 592, 30 L. Ed. 694; Brennan v. Titusville, 153 U. S. 289, 14 Sup. Ct. 829, 38 L. Ed. 719.
It purports to be an act passed in the exercise of the police power, affecting only contracts made in this commonwealth, and de
R. A. 839; and Hennington v. Georgia, 163 U. S. 299, 16 Sup. Ct. 1086, 41 L. Ed. 166, if this statute can fairly be called an exercise of the police power upon a subject in regard to which the states have a right to legislate, the fact that it puts a limitation on what would otherwise be interstate commerce does not render it invalid. That it is a legitimate exercise of the police power we have endeavored to show upon the other branch of the case. If we have been successful in our endeavor, this objection of the defendant is not well founded. See, also, as bearing on this question, Sherlock v. Alling, 43 U. S. 99, 103, 104, 23 L. Ed. 819; Chicago, Milwaukee, etc., Railroad Co. v. Solan, 169 U. S. 133, 137, 18 Sup. Ct. 289, 42 L. Ed. 688; Missouri, etc., Railway Co. v. Haber, 169 U. S. 613, 625, 637, 18 Sup. Ct. 488, 42 L. Ed. 878; Morgan's Louisiana & T. R. & S. S. Co. v. State Board of Health, 118 U. S. 455, 463, 465, 6 Sup. Ct. 1114, 30 L. Ed. 237; Richmond, etc., Railroad Co. v. Paterson Tobacco Co., 169 U. S. 311, 18 Sup. Ct. 335, 42 L. Ed. 759; Western Union Telegraph Co. v. James, 162 U. S. 650, 16 Sup. Ct. 934, 40 L. Ed. 1105.
The enactment of the federal anti-trust law, so called (Act July 2, 1890, c. 647, 26 Stat. 209 [U. S. Comp. St. 1901, p. 3200]) does not affect the validity of this statute. That law deals only with contracts which directly affect interstate or foreign commerce by way of restraint of trade or the creation of a monopoly, and it does not touch contracts which affect interstate commerce only indirectly. Anderson v. United States, 171 U. S. 604, 615, 19 Sup. Ct. 50, 43 L. Ed. 300; United States v. Joint Traffic Association, 171 U. S. 505, 568, 19 Sup. Ct. 25, 43 L. Ed. 259; Addyston Pipe & Steel Co. v. United States, 175 U. S. 211, 228, 20 Sup. Ct. 96, 44 L. Ed. 136. It has been decided that a contract similar to those which appear in the present case is not within the federal statute. Whitwell v. Continental Tobacco Co., 125 Fed. 454, 60 C. C. A. 200, 64 L. R. A. 689. By this enactment the Congress has not attempted to cover the field in which the statute in question belongs. The right of the state to protect its citizens in the way here attempted is not taken away by the federal law.
We are of opinion that the objections to the constitutionality of the statute are not well founded.
(192 Mass. 66)
heard at length, and many questions of law INHABITANTS OF WALPOLE V. MASSA and of fact arose before the master. NumerCHUSETTS CHEMICAL CO.
ous exceptions to the master's report were (Supreme Judicial Court of Massachusetts. taken by both parties. The master found Norfolk. May 17, 1906.)
that the defendant has a right of flowage 1. EMINENT DOMAIN-TAKING LAND FOR MU over the land in the winter season, and, at NICIPAL WATER SUPPLY-RIGIITS ACQUIRED. St. 1893, p. 911, c. 277, authorizes a
the hearing before the judge, the case was town to take lands and easements necessary
reserved for the full court upon the pleadfor supplying water to its inhabitants. The ings, the master's report and the exceptions town purported to take two lots for a pumping thereto. station by an instrument reciting that the taking of the lots was for the construction of pipes
The master ruled that the plaintiff's taking for conveying water for distribution, and for did not include the easement claimed by the the use of a site for buildings and for the defendant and the plaintiff's first exception sinking of filter wells and driven wells and for
is to this ruling. It is conceded by the dethe holding and preserving of water. Held, that the taking included an easement of a right
fendant that the statute is broad enough to to flow water over the land, which if permitted enable the town to take such a right, and the to exist, would interfere with the use of the
ruling seems to have been made on the system by which the town would obtain the necessary water supply.
ground that the defendant's easement was a 2. SAME.
water right, and that the language of the inA taking, for a public purpose, of an entire strument of taking does not include such a tract of land, described as if unincumbered, in-right. The instrument does not purport to cludes an easement in the land.
take any right to the water of the stream. 3. SAME — NOTICE TO OWNER OF PROPERTY SOUGHT TO BE TAKEN.
After appropriate recitals, it purports to take In proceedings by a town to take land for two lots of land, which are particularly dethe purpose of supplying water to its inhabit
scribed by metes and bounds, and it declares ants as authorized by St. 1893, p. 911, c. 277,
that “the taking of the land embraced in this it is immaterial that no personal notice of the taking was given to the owner of an easement
description is for the use of constructing, layin the land taken; notice by the public acts ing down, maintaining and repairing conof the town and its officers and the registra- duits, pipes and drains, for the taking, holdtion required by the statute being enough to vest a good title in the town.
ing and conveying of water in, under and
over the same, towards and into different Case Reserved from Superior Court, Nor
parts of said town of Walpole, for distrifolk County; Wm. Schofield, Judge.
bution and use therein, and for the use and Bill in equity by the inhabitants of Wal
purposes of a site for buildings and strucpole against the Massachusetts Chemical
tures which may be erected thereon, and for Company. Case reserved for full court.
the sinking of filter wells and driven wells, Decree for plaintiff.
and for the holding and preserving of such Chas. K. Cobb and Wm. D. Whitmore, Jr., water, and for the use and purpose of passfor plaintiff. Jas. E. Cotter and Chas. F. ing to and from said buildings or structures, Jenney, for defendant.
and the laying down, maintaining and re
pairing conduits, pipes and drains to and KNOWLTON, C. J. This is a bill in from the same, as all the same may be necesequity brought by the plaintiff to restrain sary or convenient in constructing, mainthe defendant from flowing the land occupied | taining and operating a system of water by the plaintiff as a part of its system for works for said town of Walpole under the supplying water to its inhabitants. This provisions of said act." land was taken by the town under the Stat This is a taking of the entire title to the ute 1893, p. 911, c. 277, and the defense re land, so far as necessary for the purposes lied upon is that the defendant has an ease set forth, and is within the authority of the ment in the land, namely, a right to flow the statute. If the ownership of the land had land in connection with a dam on the stream been divided, so that certain interests were below, which right has been owned by it and owned by one party and other interests by its predecessors in title since 1659, when it another party, it would have included them was granted by the town of Dedham. The all, at least so far as they were needed for plaintiff denies that the defendant or its the uses to which the land was to be put, predecessors in title have owned such a right just as it would if they had all been owned in recent years, and contends that, if they by one person. The easement now claimed owned it, it was included in the plaintiff's by the defendant was one that could not be taking under the statute, and was thereby ex left outstanding, consistently with the proper tinguished.
exercise of the plaintiff's rights in the land. The master in his report says that the de This easement, if it continued valid, would fendant rests its right upon three grounds: enable the defendant to flow the land on First, an ancient grant from the town of Ded which the plaintiff's pumping station is ham in 1659; second, a so-called covenant erected, and thereby to interfere with the or agreement made in 1724 between the then use of the building and the system of pumps owners of the mill privilege and the owners and driven wells by wbich the plaintiff obof the meadows above it; and, third, a right tains water. It is as if the easement were by prescription or adverse use. The case was a right of way over the land where the pump
ing station is erected. Such a right, annexed the front platform and evidence that the passento a neighboring estate, would be taken by a
ger knew of such rules. taking of the whole of the servient tenement
3. SAME-RULES REGULATING THE TRANSPOR
TATION OF PASSENGERS—EFFECT. for such a public use. An easement is an in
Where a carrier establishes a rule either terest in the land, carved out of it for the bene prohibiting passengers from riding on the front fit of the owner of the dominant tenement, and platform of its cars, or stating that if passenit leaves the owner of the servient tenement
gers ride on the front platform they do so at
their own risk, a passenger, who with knowlwith a title limited by the ownership of this
edge of the first rule, intentionally violates it, separate interest in another person. So a or with knowledge of the second rule chooses to taking of the entire land, which describes it take the risk, cannot recover for an injury
thereby received. as if it were unincumbered, includes the
[Ed. Note.-For cases in point, see vol. 9, easement, just as it would include a lease
Cent. Dig. Carriers, $ 1378.] hold estate as well as the fee or rever
4. SAME-PROOF OF RULES. sion. Commonwealth v. Fisher, 6 Metc. 433; That a street railway company had esSprague v. Dorr, 185 Mass. 10, 13, 69 N. E. tablished a rule providing that if passengers 344. It is immaterial that no personal notice
chose to ride on the front platform of a car,
they did so at their own risk, may be proved of the taking was given to the owner of the
hy the testimony of a passenger riding on the easement. The notice by the public acts of front platforın of the car and suing for injuries the town and its officers and the registration received while alighting from the car. required by the statute are enough to. vest a
Where a passenger knew that on certain good title in the town. Appleton v. Newton,
cars of a street railway company there was a 178 Mass. 276, 59 N. E. 648; Sweet v. Boston, notice stating that passengers choosing to ride 186 Mass. 79, 71 N. E. 113.
on the front platform did so at their own risk, The case is entirely different from one in
it was not necessary for the company, in order
to defeat an action by the passenger for inwhich the right claimed to be taken is out
juries received while alighting from the front side of the land, in the waters of the stream platform of a car, to prove that he also had seen as it flows to riparian proprietors below.
such notice on the particular car on which he The ruling that the defendant's right of flow
6. SAME-WAIVER OF RULES. age, existing as an easement in the land be.
That a street railway company regularly fore the taking, remained unaffected by the permitted passengers to ride on the front plattaking was erroneous.
form of its cars, did not show a waiver on its This view of the case makes it unnecessary
part of a rule providing that if passengers
chose to ride on the front platform, they did to consider the many questions raised by the
so at their own risk. other exceptions, which relate to the defend 7. EVIDENCE-DECLARATION OF SERVANT. ant's title to the easement.
Admissions of liability made by a servant It is also unnecessary to consider whether who is not a general agent or while not engaged
in the performance of a duty are inadmissible a taking of land under this statute would
to bind the master. deprive a riparian proprietor on the stream
8. SAME. below of his right to build a mill under the Proof that a motorman stated immediately mill act, and set back the water upon the
after an accident to a passenger sustained while land above, by paying damages to the owner.
attempting to alight from a car that he was
under the impression that the passenger had No such question was raised at the hearing. previously left the car was admissible in supDecree for the plaintiff.
port of the passenger's claim that he was thrown off by the sudden jerk of the car occasioned by the negligence of the motorman.
9. APPEAL HARMLESS ERROR ERRONEOUS (191 Mass. 509)
EXCI.USION OF EVIDENCÉ.
Where, in an action against a street rail-
way company for injuries received by a passen
ger while attempting to alight from a car, there (Supreme Judicial Court of Massachusetts. was a failure to show a violation of any duty Suffolk. May 17, 1906.)
owed by the company to the passenger the er
roneous exclusion of evidence proving a state1. CARRIERS-PASSENGERS-INJURIES-NEGLI ment made by the motorman immediately after GENCE-QUESTION FOR JURY.
the accident, was immaterial. Evidence in an action against a street railway company for injuries to a passenger rid Exception from Superior Court Suffolk ing on the front platform of a car, received while attempting to alight in consequence of the sud
County; Elisha B. Maynard, Judge. den starting of the car, examined, and held, that
Action by Thomas McDonough against the the question of the company's negligence was Boston Elevated Railway Company. There for the jury, in the absence of proof of rules
was a verdict for defendant, and plaintiff relating to passengers riding on the platform and evidence that the passenger knew of such
excepts. Exceptions overruled. rules. 2. SAME-QONTRIBUTORY NEGLIGENCE-QUES
Jas. E. Cotter, B. R. Doody, and Conrad TION FOR JURY.
Reno, for plaintiff. Choate, Hall & StewEvidence in an action against a street art, for defendant. railway company for injuries to a passenger riding on the front platform of a car, received while attempting to alight in consequence of the BRALEY, J. If the version of the accident sudden starting of the car, examined, and held, given by the defendant's witnesses was acthat the question of his contributory negligence was for the jury, in the absence of evi
cepted, the plaintiff observing that he was dence of rules relating to passengers riding on being carried beyond his destination, after
being warned of the danger, jumped from the car while it was moving. Although it was uncontroverted that at the time he was riding on the front platform, his evidence in substance showed that after informing the motorman where he wished to get off, and who indicated his assent, later noticing that the car had passed beyond this point, he again spoke, and the brake was applied, when, as the plaintiff was preparing to alight, the brake being released, the car suddenly moved forward and by its momentum caused his grasp on the hand rail to be loosened, and ejected him into the street. Upon this conflicting evidence the jury could have found that, with knowledge of the motorman, a passenger was preparing to terminate the contract of carriage in the ordinary way, and for this purpose as
car was being brought to a stop, without again observing the plaintiff's position, he negligently released the brake. It also could have been found that the plaintiff rode on the front platform because the car was somewhat crowded, and discovering that he would have to stand preferred "to stand outside." By reason of these divergent narratives if nothing further appeared, it is plain that the usual issues of the defendant's negligence, and of the due care of the plaintiff were matters of fact for the determination of the jury under appropriate instructions. Corlin v. West End St. Ry. Co., 154 Mass. 197, 27 N. E. 1000; Sweetland v. Lynn & Boston St. Ry. Co., 177 Mass. 574, 59 N. E. 443, 51 L. R. A. 783; Lapointe v. Middlesex St. Ry. Co., 144 Mass. 18, 10 N. E. 497; Cummings v. Worcester, Leicester & Spencer St. Ry. Co., 166 Mass. 220, 44 N. E. 126; Block v. Worcester, 186 Mass. 526, 527, 72 N. E. 77.
It, however, has been settled, that where a common carrier of passengers operating a railway by whatever motive power, establishes a rule either prohibiting such use, or stating that if passengers while in transit chose to ride on the front platform, they do so at their own risk, a passenger who with knowledge of the first rule intentionally violates it, or of the second rule and chooses to take the risk, and is thereby injured cannot recover. Sweetland v. Lynn & Boston St. Ry. Co., ubi supra; Wills v. Lynn & Boston R. R. Co., 129 Mass. 351; Burns v. Boston Elevated Ry, Co., 183 Mass. 96, 66 N. E. 418.
There was no direct proof offered by the defendant that it made and promulgated a general rule of the second class, but such a regulation may be proved from the testimony of the passenger himself. Burns v. Boston Elevated Ry. Co., ubi supra. In cross-examination, after stating that he had frequently ridden on the cars, the plaintiff further said that he had given little, if any, attention to a sign displayed on the window, and when asked if he knew "there was one there about riding on the front platform," answered that he did not know if there was such a notice. This answer was followed by a general ques
tion in these words, “But you had noticed on the front platform, that people who rode on the front platform, or got on and off on the front platform, did so at their own risk ?” “You had noticed that on the cars?” to which the plaintiff replied, "Yes, sir, I had.” If the plaintiff denied having observed a simi lar notice on the window of this car he also admitted knowledge of the existence of this rule. The object of the notice which embodied the rule, was to warn passengers of the danger, and also to charge them alone with the consequences which might follow, if they chose to disregard it. But if from previous observation such warning and consequent assumption of liability were known to the plaintiff, it was unnecessary for the defendant to go further, and prove that he also had seen the notice on the particular car where he was riding, for such knowledge, followed by his choice of position, would operate to bar his recovery. Cheney v. Boston & Maine R. R., 11 Metc. 121, 123, 45 Am. Dec. 190; O'Neill v. Lynn & Boston R. R. Co., 155 Mass. 371, 29 N. E. 630.
From the undisputed evidence of the motorman it could be found not only that the gates were open, but that it was a common occurrence for passengers regularly to ride on the front platform without objection, unless there were too many on that end, a condition not appearing in the present case, and the plaintiff claims that the question whether the rule had not been waived should have been submitted to the jury. It is undoubtedly true that a general usage, or course of business, may be proved by one witness. Jones v. Hoey, 128 Mass. 585. But in permitting its cars to be regularly operated by inviting passengers to ride on the front platforin, even if open for their accommodation, the defendant was not acting inconsistently with its right to insist on the rule, as the choice of riding there or inside the car was still left optional even upon the plaintiff's evidence. The distinction between prohibiting such use of the platform, and then waiving the prohibition by regularly opening it for the accommodation of passengers, or permitting them to ride there at their own risk is obvious. In the first instance the restriction is absolute until abandoned, and the abandonment may be implied from the conduct of the carrier; while in the last the platform is left unreservedly open, yet the opportunity of carriage thus afforded is furnished only upon condition that the passenger occupying this part of the car takes the chance of injury that may be caused by reason of the exposed position. Sweetland v. Lynn & Boston R. R. Co., ubi supra; Burns v. Boston Elevated Ry. Co., ubi supra.
A question of evidence remains. Admissions of liability made by a servant who is not a general agent, or while not engaged in the performance of his duty are inadmissible to bind the master, but the testimony, that the motorman immediately after the accident