Company in the Exchequer Chamber, under similar circumstances, he made substantially the same observation.19 Dr. Lushington, Judge of the High Court of Admiralty, in the course of an opinion,20 thus remarked upon this case: "The case of Thorogood v. Bryan, it is said, has laid down a rule to the contrary. With due respect to the judges who decided that case, I do not consider that it is necessary for me to dissect the judgment, but I decline to be bound by it, because it is a single case; because I know, upon inquiry, that it has been doubted by high authority; because it appears to me not reconcilable with other principles laid down at common law; and lastly, because it is directly against Hay v. Le Neve,21 and the ordinary practice of the Court of Admiralty."

§ 3070. Decline of Thorogood v. Bryan.-The doctrine of Thorogood v. Bryan never acquired a firm hold in England. Almost from the date of the decision of that case, other cases were not wanting in which the doctrine of it was not followed and applied.22 Notwithstanding this disparagement of Thorogood v. Bryan, the doctrine of that case was subsequently reasserted in England,23 and held sway in that country for a time. It was followed to some extent in America ; but, as we shall presently see, it gradually went by the board in this country.25

.24

§ 3071. American Cases Denying the Rule of Thorogood v. Bryan. 26-The rule in Thorogood v. Bryan was forcibly denied, and the injustice and fallacy of it were ably exposed, by Beasley, C. J., in a case in the Supreme Court of New Jersey.27 A passenger on a street car had been injured by the carelessness of the engineer of a railroad company in the management of a locomotive. He brought an action against the railroad company, and the court held that it was no defense that there was contributory negligence in the driver of the street car. The driver of the street car not being the agent or servant of the passenger, the passenger was not chargeable with responsibility for his conduct, and his negligence was not imputable

23 Armstrong v. Lancashire &c. R. Co., L. R. 10 Exch. 47; s. c. 44 L. J. (Exch.) 89; Child v. Hearn, L. R. 9 Exch. 176.

24 Lockhart v. Lichtenthaler, 46 Pa. St. 151; ante, § 499, et seq.

25 Post, §§ 3071, 3072.

26 This section is cited in § 3067. 27 Bennett v. New Jersey R. &c. Co., 36 N. J. L. 225; s. c. Thomp. Carr. Pass. 281.

to the passenger. In giving the opinion of the court, Beasley, C. J., said: "It is obvious, in a suit against the proprietor of the ear in which he was a passenger, there could be no recovery if the driver or conductor of such car is to be regarded as the servant of the passenger. And so, on the same ground, each passenger would be liable to every person injured by the carelessness of such driver or conductor; because, if the negligence of such agent is to be attributed to the passenger for one purpose, it would be entirely arbitrary to say that he is not to be affected by it for other purposes." The language of Johnson, J., of the Court of Appeals of New York, is equally explicit against this rule: "It is entirely plain that the plaintiff 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. To attribute to him, therefore, the negligence of the agents of the company, and thus bar him of a right of recovery, is not applying any existing exception to the general rule of law, but is framing a new exception which does not in fact rest upon the reason of the original exception. and is based on fiction, and inconsistent with justice."2 Decisions have been subsequently rendered in this State in accordance with this exposition of the law.30 Such is the rule in Kentucky. A recovery of damages was allowed against a turnpike company for neg ligence in keeping their gate, resulting in an injury to a passenger on a stagecoach, although the driver of the coach was also negligent in not having his lamps lighted. Stites, J., expressed the rule concisely: "Where an injury is occasioned by the negligence of two persons, the fault of one is no excuse for that of the other. Both, in that case, are liable to the party injured." This rule has been reaffirmed in a later case in the same court, where the injury resulted from a collision between a street car and a railroad train, caused

Bennett v. New Jersey R. &c. Co., 36 N. J. L. 227.

Hudson &c. R. Co., supra. It was a case of a collision at a highway

29 Chapman v. New Haven R. Co., crossing, between a railroad train 19 N. Y. 341, 344.

30 Colegrove v. New York &c. R. Co., 20 N. Y. 492; s. c. 6 Duer (N. Y.) 382; Webster v. Hudson &c. R. Co., 38 N. Y. 260. In the case of Brown v. New York &c. R. Co., 32 N. Y. 597; S. c. 31 Barb. (N. Y.) 385, the question as to whether the passenger is to be regarded as identified with the carrier was somewhat discussed, but the language in that case must be regarded as entirely obiter, and was so regarded in a later case in this court: Webster v.

of the defendants, and a stagecoach upon which the plaintiff was riding. whereby the plaintiff was injured. The justice at the circuit had charged that the plaintiff was responsible for the negligence of the driver of the stage in which she was riding, and the jury had found that there was no negligence on the part of the driver. The question of imputed negligence, therefore, was not before the court.

31 Danville &c. Turnpike Co. v. Stewart, 2 Metc. (Ky.) 119, 122.

by the reckless driving of the former and the negligent management of the latter, in consequence of which the plaintiff's intestate, a passenger upon the street car, met his death.32

§ 3072. Thorogood v. Bryan Overruled Both in England and America.-Without multiplying instances, or extending dicta, it may be said that the doctrine of Thorogood v. Bryan is now thoroughly repudiated by the British House of Lords,33 by the Supreme Court of the United States, and by the highest courts of nearly all the American states and territories.3

37

34

35

38

§ 3073. Carrier Responsible for Injury to Passenger through Concurring Negligence of Carrier and a Stranger.36-There can be no question as to the carrier's responsibility to a passenger for an accident which is the result of his negligence concurring with that of a stranger. To illustrate: A stagecoach, by the negligence of the driver, is precipitated into a dry canal; the lock-keeper thereafter negligently opens the gates of the canal, and drowns a passenger. Under Lord Campbell's Act,as the Irish Court of Queen's Bench held that the death of the passenger under such circumstances, in the language of the act was "caused" by the negligence of the carrier.39 In this case, O'Brien, J., said: "The precipitation of the omnibus into the lock was certainly one cause, and (as it may be said) the primary cause, of her death, inasmuch as she would not have been drowned but for such precipitation. It is true that the subsequent letting of the water into the lock was the other and more proximate cause of her death, and that she would not have lost her life but for such subsequent act, which was not the necessary consequence of the previous precipitation by the negligence of defendant's servants. But, in my opinion, defendant is not relieved from liability for his primary neglect by showing that but for such subsequent act the death would not have ensued." Under the present doctrine, if a passenger is injured without negligence of his own, through a collision brought about by the concurrent negligence of the railway company on whose vehicle he is, and another railway company, both are responsible to him, and he has an action against either or

both.40 So, a passenger in a horse car who is injured by its being struck by a locomotive, is not, in his action against the steam railroad company, chargeable with the negligence of the driver and conductor of the horse car.41 So, if a passenger on a steam tug is injured through the concurrent negligence of those in charge of it, and a third person, he can maintain an action against either, and support his action by proof that both were negligent.*2

$3074. Illustrations of the Foregoing.-In another case, it ap peared that the driver of a street car negligently permitted the plaintiff, a child five years old, and another child eleven years old, to ride upon the front platform of the street car, and that the elder child, who was not in charge of the plaintiff, but her companion merely, attempted to put her off while the car was in motion, and the plainti was injured. The court held that the negligence of the elder child was no defense to an action against the street car company for the negligence of the driver in permitting the children to ride in such an exposed position.43 In a New York case, under the statute giving a right of action for injuries resulting in death, it appeared that the deceased, a boy nine years of age, was compelled by the conductor of a street car to stand upon a crowded platform. From this position he was thrown off the car by the hasty and careless departure of another passenger, and received injuries which caused his death. The court held that, the servant of the defendants having put the deceased in a dangerous place, they were not relieved from the consequences of their default by the fact that the negligence of one of their pas sengers directly contributed to the injury. Another case presenting a combination of the negligence of several parties further illustrates the principle under discussion. The driver of a load of hay recklessly endeavored to drive it from the highway crossing, upor and along a railway track, to certain private premises. This track was used by two other companies in the operation of their trains,

40 Wabash &c. R. Co. v. Shacklet, 105 Ill. 364; s. c. 44 Am. Rep. 791; Flaherty v. Minneapolis &c. R. Co., 39 Minn. 328; s. c. 1 L. R. A. 680; 40 N. W. Rep. 160; Parshall v. Minneapolis &c. R. Co., 35 Fed. Rep. 649. 41 McCallum v. Long Island &c. R. Co., 38 Hun (N. Y.) 569.

42 Markham v. Houston &c. Nav. Co., 73 Tex. 247; s. c. 11 S. W. Rep. 131. In this case the suit was against only one of the joint wrongdoers. Circumstances under which an elevated railroad company was exonerated from liability for an in

44

jury to one of its passengers re ceived from an overhanging derrick in custody of a municipal board. which was prosecuting, under an act of the legislature, the work of ele vating the track of the railroad: New York &c. R. Co. v. Baker, 98 Fed. Rep. 694.

43 Pittsburgh &c. R. Co. v. Caldwell, 74 Pa. St. 421. See, also, East Saginaw City R. Co. v. Bohn, 27 Mich. 503.

"Sheridan v. Brooklyn &c. R. Co., 36 N. Y. 39.

besides the company owning it. During the progress of the wagon, the wheels became wedged in between the rails and the planking, and were held fast. The defendants' train, upon which the plaintiff was a passenger, having been detained by this circumstance, a flagman was sent up the track to stop other trains. There was evidence that this precaution was not adopted as soon as the situation of things became evident. The train of another company came rapidly around a curve at this point, and ran into the defendant's train, thereby causing the injury to the plaintiff. There was evidence also that the conductor and engineer of this colliding train were negligent in its operation. Under these circumstances, the defendants were held liable to the plaintiff for the injuries suffered, Colt, J., saying: “It is no answer to an action by a passenger against a carrier, that the negligence or trespass of a third party contributed to the injury."

7945

§ 3075. Application of the Doctrine where the Passenger Injured is a Child or a Person of Unsound Mind.-According to the view of some of the courts, when a child is so young that, by reason of its immaturity, and incapacity to guard itself against danger, it is to be denominated non sui juris, or even older than this, if the parent

46

5 Eaton v. Boston &c. R. Co., 11 Allen (Mass.) 500, 505. See, also, Spooner v. Brooklyn City R. Co., 54 N. Y. 230; Ryland v. Peters, 1 Phila. (Pa.) 264.

46 As to when a child is non sui juris, see Vol. I, § 306, et seq.

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Holly v. Boston Gas Co., 8 Gray (Mass.) 123; Stillson v. Hannibal &c. R. Co., 67 Mo. 671; s. c. 7 Cent. L. J. 107. The leading case upon this subject is that of Waite v. North-Eastern Railroad Co., below cited, the facts of which case were, that the plaintiff, a child five years old, was in charge of its grandmother, who procured tickets for both at the defendants' station with the intention of taking the train at that place. The pair, in crossing the track for the purpose of reaching a platform on the side of the station opposite the ticket office, were run down by a train, under circumstances (as a jury found) of concurrent negligence on the part of the grandmother and the servants of the defendant. The grandmother was killed, and the plaintiff suffered personal injuries for which the suit was brought. In the Court of Queen's Bench, Lord Campbell, C. J.,

47

held that the infant was so identified with the grandmother that the action could not be maintained. This view was sustained in the Court of Exchequer Chamber. Crowder, J., there said: "The case is the same as if the child had been in une mother's arms. There is an identification, such, that the negligence of the grandmother deprives the child of the right of action. Now, the finding of the jury would clearly have prevented the grandmother from recovering; it therefore has the same effect in respect of an action by the child. It would be monstrous and absurd if there could be a distinction." Cockburn, C. J., said: "I put the case on this ground: that when a child of such tender and imbecile age is brought to a railway station, or to any conveyance, for the purpose of being conveyed, and is wholly unable to take care of itself, the contract of conveyance is on the implied condition that the child is to be conveyed subject to due and proper care on the part of the person having it in charge:" Waite V. North-Eastern R. Co., El. Bl. & El. 719, 728, 735.