Prideaux v. City of Mineral Point.

In this case, THOMPSON, J., cites a Michigan case which we have not been able to find, apparently favoring the New York rule; and intimates that the doctrine of Smith v. Smith, 2 Pick. 621; C. C. & C. Railroad v. Terry, 8 Ohio St. 570, and Puterbaugh v. Reasor, 9 id. 484, are in accord with the rule of the English Common Pleas, which we confess we are not quite able to perceive.

Aside from questions of public policy affecting the duty and liability of common carriers, which enter into some of these cases, the question appears to be how far common carriers can be considered as agents of passengers carried by them. We think that there is no case in this court bearing on this question, and it is unnecessary here to indicate an opinion upon it. It is proper to say however, that, in the present state of society, it is a substantial necessity for all or most travellers to avail themselves of public conveyances; and that there might be great difficulty in applying to them the rule of personal trust and agency applicable to private conveyances.

In the latter case, when the agency of a person in control of a private conveyance is express, there is no difficulty in the rule. The contributory negligence of the servant will defeat the master's action for negligence against a third person. And it seems that there ought to be as little difficulty in the rule when the agency is implied only. One voluntarily in a private conveyance, voluntarily trusts his personal safety in the conveyance to the person in control of it. Voluntary entrance into a private conveyance adopts the conveyance for the time being as one's own, and assumes the risk of the skill and care of the person guiding it. Pro hac vice, the master of a private yacht or the driver of a private carriage is accepted as agent by every person voluntarily committing himself to it. When pater familias drives his wife and child in his own vehicle, he is surely their agent in driving them, to charge them with his negligence. It is difficult to perceive on what principle he is less the agent of one who accepts his or their invitation to ride with them. There is a personal trust in such cases, which implies an agency. So several persons, voluntarily associating themselves to travel together in one conveyance, not only put a personal trust in the skill and care of that one of them whom they trust with the direction and control of the conveyance,

*Since this opinion was written, this case was found to be incorrectly quoted. It is D. L. & N. Turnpike Co. v. Stewart, 2 Metc. (Ky.) 119.

Prideaux v. City of Mineral Point.

but appear to put a personal trust each in the discretion of each against negligence affecting the common safety. One enters a publie conveyance, in some sort, of moral necessity. One generally enters a private conveyance of free choice; voluntarily trusting to its suffi ciency and safety. It appears absurd to hold that one, voluntarily choosing to ride in a private conveyance, trusts to the sufficiency of the highway, to the care and skill exercised in all other vehicles upon it, to the care and skill governing trains at railroad crossings, to the care and skill of every thing except that which is most immediately important to himself; and trusts nothing to the sufficiency of the very vehicle in which he voluntarily travels, nothing to the care or skill of the person in charge of it. His voluntary entrance is an act of faith in the driver; by implication of law, accepts the driver as his agent to drive him. In the absence of express adjudication, the general rules of implied agency appear to sanction this view.

Beck v. E. R. Ferry Co., 6 Robt. 82, turned upon the liability of a steam vessel for the death of one of a party in a small boat, apparently a pleasure boat. Contributory negligence of the party in the boat was a question in the case. And it is said: "The deceased was undoubtedly chargeable with any neglect of his comrades, as well as his own, to do every act to avoid danger and insure safety, at least unless he did all he could to repair the deficiency. None of them stood in the light of either employer or employed to the other; it was a joint expedition, in which each was liable for the acts and omissions of the other, unless he took some separate steps to repair or prevent the result of the negligence of the others."

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This case is not expressly overruled, but seems rather to be approved in Robinson v. N. Y. C. Railroad Co., 66 N. Y. 11; 8. c., 23 Am. Rep. 1. But the two cases appear none the less to conflict in principle. Robinson v. Railroad Co., turned upon liability for injury by a railroad train to a female, voluntarily riding with a male friend on his invitation. The court holds that the action was not defeated by the man's contributory negligence. The court remarks that the man and woman were not engaged in a joint enterprise, in the sense of mutual responsibility for each other's acts, as in Beck v. Ferry Co. It is difficult to comprehend the dis tinction. The court says that it was the case of a gratuitous ride; by a female upon the invitation of the owner of a horse and carriage. Doubtless; but there was the same mutual agreement of VOL. XXVIII -- 71

Prideaux v. City of Mineral Point.

the two to travel together, as of the several to sail together, in Peck v. Ferry Co. These were, in contemplation of law, as much in the same boat as those. A woman may and should refuse to ride with a man, if she dislike or distrust the man, or his horse, or his carriage. But if she voluntarily accept his invitation to ride, the man may, indeed, become liable to her for gross negligence, but as to third persons, the man is her agent to drive her—she takes man and horse and carriage for the jaunt, for better, for worse.

Speaking of the position of counsel, that the woman voluntarily intrusted her safety to the man's care and prudence and exposed herself to risk from his negligence or want of skill, the court says: "If this argument is sound, why should it not apply in all cases to public conveyances as well as private? The acceptance of an invitation to ride creates no more responsibility for the acts of the driver, than the riding in a stage coach, or even a train of cars." The same court in another case truly declare, that travelling by public lines of carriage has become a practical necessity. And this question appears to be briefly but sufficiently answered by itself in Chapman v. N. H. Railroad Co., supra. Speaking of the plaintiff in that case, it is said: "He was a passenger on the Harlem cars bound to submit to the regulations of the company and the directions of their officers. He had no control, no management, even no advisory power, over the train on which he was riding. Even as to selection, he had only the choice of going by that railroad or by none." Indeed, it seems little less than idle to compare the relation of a woman voluntarily riding for her pleasure with her lover, friend or relative in his carriage, with the relation of a passenger to the carrier on whose cars or vessel he is practically obliged to travel.

To the same effect are Knapp v. Dagg, 18 How. Pr. 165, and Metcalf v. Baker, 11 Abb. (N. S.) 431, also cited by the respondent's counsel, on which particular comment is unnecessary.

. These are all the cases cited by counsel. The question was suggested rather than argued on one side, and not mentioned on the other. We have had brief opportunity to search for adjudications on the subject: another instance of the dependence of the court on the bar. We have found but one other case, a very elaborate one, though this point is decided rather than discussed, as in Houfe v. Fulton, 29 Wis. 296; s. c., 9 Am. Rep. 568; s. c., 34 Wis. 608; s. c., 17 Am. Rep. 463. The facts of the case make it a very strong

one.

Prideaux v. City of Mineral Point.

A female servant was riding with her master in his wagon, which was wrecked by a railroad train. The master was guilty of contributory negligence, against which the servant appears to have warned him. Yet his contributory negligence was held to defeat her action against the railroad company. L. S. & M. S. Railroad Co. v. Miller, 25 Mich. 274.

This view appears to be sounder in principle and safer in practice than the rule in Robinson v. Railroad Co. And this court adheres to the rule of decision in Houfe v. Fulton.

By the Court. The judgment is reversed, and the cause remanded to the court below for a new trial.

NOTE BY THE REPORTER. Burden of proof as to contributory negligence. The decisions on this point are very conflicting in this country, but we think the principal case lays down the better rule. The same is held in Vermont, Pennsylvania, New Jersey, Rhode Island and Alabama. The contrary is held in Maine, Massachusetts, Connecticut, Illinois, Indiana, and in England. In New York the doctrine of principal case prevails in a modified form.

In Lane v. Crombie, 12 Pick. 177, it was held that the plaintiff "must not only show some negligence and misconduct on the part of the defendant, but ordinary care and diligence on his own part." Citing Butterfield v. Forrester, infra; Harlow v. Hummiston, 6 Cow. 191; Smith v. Smith, 2 Pick. 621. So, a charge that "the burden of proof was upon the defendant to show that the plaintiff had not used ordinary care," was held erroneous. This was cited and followed in Adams v. Carlisle, 21 Pick. 146, where It was said, "the burden of proof is of course on the plaintiff to show not only defects in the highway, but that he was free from negligence." To the same effect is Carsley v. White, 21 Pick. 254-"It is well settled that the onus probandi is upon the plaintiff to show that he was using ordinary care and diligence; otherwise, it cannot be known that the injury was not attributable to his own negligence." The court cite Butterfield v. Forrester, infra, and Flower v. Adam, 2 Taunt. 314, but the question of the burden of proof no more arose in the latter than in the former. Nor did this question arise in Parker v. Adams, 12 Metc. 415, sometimes cited to that point; although the court said there that the plaintiff must show that the injury was "under such circumstances as to exonerate himself from all neglect of duty on his part.” Nor did the question arise in Lucas v. New B. & Taunton, etc., R. Co., 6 Gray, 64, although the court there volunteered to state the same doctrine, adding, "its correctness has not been questioned by the plaintiff's counsel." The same is substantially true of Wilson v. Charlestown, 8 Allen, 137, where the same doctrine was again pronounced well settled. In Gaynor v. Old Colony, etc., R. Co,100 Mass. 208, it is said: "It is for the plaintiff by affirmative evidence to establish" his own freedom from contributory negligence; and "when the plaintiff's case fails to disclose the exercise of ordinary care," he shows no right to recover. In Murphy v. Dean, 101 Mass. 466, it was held that “the burden is always upon the plaintiff to establish either that he himself was in the exercise of due care, or that the injury is in no degree attributable to any want of proper care on his part."

In Merrill v. Hampden, 26 Me. 234, it was held that the plaintiff was bound to prove that he was in the use of ordinary care at the time of the accident, or he was not entitled to a verdict: and the defendants were not bound to prove that his carelessness was the cause of the injury, to be relieved from liability." This was founded on Butterfeld v. Forrester, 11 East, 60, and Adams v. Carlisle, 21 Pick. 146. The point was not decided in the former case, but it was only held that contributory negligence would prevent a recovery. The court also said of Foster v. Dixfield, 18 Me. 380, that it was not inconsistent, the court only expressing a doubt whether direct and positive proof is

Prideaux v. City of Mineral Point.

essential. In Dickey v. Maine Tel. Co., 48 Me. 492, it was held that “the plaintiffs were bound to show that there was no neglect, or want of ordinary care, on the part of the female plaintiff contributing to the injury." "The burden of proof was on the plaintiffs to show, affirmatively, the exercise of such due and proper care and vigilance on her part."

In Cassidy v. Angell, Rhode Island Supreme Court, March, 1879, it was held that "If the plaintiff's own case shows that he brought the injury on himself, by his own carelessness, he may be nonsuited; but if it does not, he should not be nonsuited, but the question is for the jury.

In Park v. O'Brien, 23 Conn. 339, it was said: "It was necessary for the plaintiff to prove, first, negligence on the part of the defendant, in respect to the collision alleged, and secondly, that the injury to the plaintiff occurred in consequence of that negligence. But in order to prove this latter part, the plaintiff must show that such injury was not caused, in whole or in part, by his own negligence; for although the defendant was guilty of negligence, if the plaintiff's negligence contributed essentially to the injury, it is obvious that it did not occur by reason of the defendant's negligence. Therefore the plaintiff would not prove enough to entitle him to recover, by merely showing negligence on the part of the defendant; but he must go further and also prove the injury to have been caused by such negligence, by showing a want of concurring negligence on his own part, contributing materially to the injury."

In Rusch v. City of Davenport, 6 Iowa, 443, it was held that the burden of proof was on the plaintiff, but might be inferred from the circumstances. Citing Butterfield ▼ Forrester, and the cases in Pickering.

The question of burden of proof did not arise in Trow v. Vt. Cent. R. R. Co., 24 Vt. 487; but in Hill v. New Haven, 37 id. 501, it was held that the plaintiff need not estab lish in the outset, as a distinct affirmative proposition, his freedom from negligence, but it was a question for the jury on the whole case. The court say: "The plaintif is bound to give sufficient evidence to establish prima facie that he sustained an injury by reason of such defect. If the plaintiff's own evidence shows that his conduct on the occasion was careless or negligent, and that such carelessness or negligence aided or contributed to the injury he received, he establishes a defense to his own action by his own evidence, as much as if the same fact were proved by the defendant. But if the plaintiff's proof discloses nothing but that his conduct at the time was proper and prudent, he is not bound to go farther, until this has been impugned by some evidence on the other side. The plaintiff in such case is bound to make out, affirmatively, that his damage was caused by the defect in the highway in order to recover. Evidence which proves affirmatively that the injury was caused by the defect in the highway must necessarily to a certain extent show negatively that it was not caused by any thing else." "The true rule on this subject was laid down by PHELPS, J., in the early case of Lester v. Pittsford, 7 Vt. 158, where he says: "It was not incumbent upon the plaintiff to negative the charge of negligence or imprudence on his part, such proof being properly matter of defense.''

In Mallory v. Griffey, 85 Penn. St. 275, it was held that contributory negligence is matter of defense, and ordinarily the burden of proving it is on the defendant, and it was error to instruct the jury "that if the plaintiffs have not shown affirmatively that their negligence did not contribute in any degree to the injury, they could not recover. This undoubtedly is the rule in Pennsylvania. Beatty v. Gumore, 16 Penn. St. 463; Penn. R. Co. v. McTighe, 46 id. 316; Penn. Canal Co. v. Bentley, 66 id. 30. And in New Jersey, Durant v. Palmer, 5 Dutch. 544.

"

In Button v. Hudson R. R. R. Co., 18 N. Y. 248, it was held that while the burden was on the plaintiff to show his freedom from contributory negligence, it is not presuined, and he is not bound, in the first instance, to show it by direct evidence; but where there is conflicting evidence, the preponderance must be with him to enable him to recover. The court said: "It must not be understood that it was incumbent on the plaintiff, in the first instance, to give evidence for the direct and special object of establishing the observance of due care by the intestate; it would be enough if the proof introduced of the negligence of the defendants and the circumstances of the injury, prima facie, established that the injury was occasioned by the negligence of the