10 A. 690 (N.H. 1887), Noyes v. Town of Boscawen

Citation:10 A. 690, 64 N.H. 361
Opinion Judge:CLARK
Party Name:Noyes v. Boscawen
Attorney:D. F. Dudley, for the plaintiff. W. G. Buxton, for the defendants.
Judge Panel:Carpenter, J., did not sit: the others concurred.
Case Date:July 15, 1887
Court:Supreme Court of New Hampshire

Page 690

10 A. 690 (N.H. 1887)

64 N.H. 361




Supreme Court of New Hampshire

July 15, 1887

New trial.

Since the announcement of the foregoing opinion, and pending a motion for a rehearing, which, after re-argument, was denied, the cases of Thorogood v. Bryan and Armstrong v. Railway Co. have been overruled in the English court of appeal in the case of The Bernina, 12 Prob. Div. 58. In delivering his judgment, after an extended review of the English and American cases, Lord Esher, M. R., said,--"After having thus laboriously inquired into the matter, and having considered the case of Thorogood v. Bryan, 8 C. B. 115, we cannot see any principle on which it can be supported, and we think that with the exception of the weighty observation of Lord Bramwell, though that does not seem to be a final view, the preponderance of judicial and professional opinion in England is against it, and that the weight of judicial opinion in America is also against it. We are of opinion that the proposition maintained in it is essentially unjust, and inconsistent with other recognized propositions of law. As to the propriety of dealing with it at this time in a court of appeals, it is a case which from the time of its publication has been constantly criticized. No one can have gone into, or have abstained from going into, an omnibus, railroad, or ship, on the faith of the decision. We therefore think that now that the question is for the first time before an English court of appeal, the case of Thorogood v. Bryan, 8 C. B. 115, must be overruled." Lindley, J., said,--"The doctrine of identification laid down in Thorogood v. Bryan, 8 C. B. 115, is to me quite unintelligible. It is in truth a fictitious extension of the principles of agency; but to say that the driver of a public conveyance is the agent of the passengers is to say that which is not true in fact. Such a doctrine, if made the basis of further reasoning, leads to results which are wholly untenable, e.g., to the result that the passengers would be liable for the negligence of the person driving them, which is obviously absurd, but which of course the court never meant. All the court meant to say was that for purposes of suing for negligence the passenger was in no better position than the man driving him. But why not? The driver of a public vehicle is not selected by the passenger otherwise than by being hailed by him, as one of the public, to take him up; and such selection, if selection it can be called, does not create the relation of principal and agent or master and servant between the passenger and the driver; the passenger knows nothing of the driver and has no control over him, nor is the driver in any proper sense employed by the passenger." Lopes, J., said,--"What is meant by the passenger being identified with the carriage' or with the person having its management' I am at a loss to understand. In Armstrong v. Lancashire & Yorkshire Ry. Co., Law Rep. 10 Exch. 47, Pollock, B., said he understood it to mean that the plaintiff, for the purposes of the action, must be taken to be in the same position as the owner of the omnibus or his driver.' If that is the true explanation, then the passenger, who is blameless, is to be in the same position as the driver, who committed a wrongful act, or his master, who is responsible for the negligence of his servant. This is in accordance neither with good sense nor justice.... The more the decision in Thorogood v. Bryan, 8 C. B. 115, is examined, the more anomalous and indefensible that decision appears. The theory of the identification of the passengers with the negligent driver or owner is, in my opinion, a fallacy and a fiction, contrary to sound law, and opposed to every principle of justice. A passenger in an omnibus, whose injury is caused by the joint negligence of that omnibus and another, may in my opinion maintain an action, either against the owner of the omnibus in which he was carried, or the other omnibus, or both. I am clearly of opinion that Thorogood v. Bryan, 8 C. B. 115, should be overruled." 57 Am. Rep. 483, 494, 507, 508, 510, 511.


Case, for damages for injuries from a defective highway. Verdict for the defendants. At the time of the injury the plaintiff was riding with Dearborn, her brother-in-law, in his carriage, which he was driving. The plaintiff requested the court to instruct the jury that the negligence of Dearborn, the driver, could not affect the plaintiff's right to recover, unless he was her agent, and either under her control, or controlled her personal conduct. The court instructed the jury that if either Dearborn or the plaintiff did not exercise ordinary care, and by such care the plaintiff would have escaped injury, their verdict should be for the defendants; and the plaintiff excepted.

D. F. Dudley, for the plaintiff.

W. G. Buxton, for the defendants.

To satisfy the jury that a person driving upon a stone of the dimensions of this one would be "shaken up," would hardly need evidence of the experience of other people. So in case this evidence could have been admissible, the plaintiff has suffered nothing by its rejection.

It is well settled, by the preponderance of authority and upon reason, that the negligence of the driver is to be imputed to the plaintiff,--so that in this case, if either Dearborn or the plaintiff did not exercise ordinary care, and by such care the plaintiff would have escaped injury, the plaintiff cannot recover. Thorogood v. Bryan, 8 C. B. 115; Cattlin v. Hills, 8 C. B. 123; Armstrong v. Railroad Co., 10 L. R. Exch. 47; Lockhart v. Lichtenthaler, 46 Penn. St. 151; Puterbaugh v. Reasor, 9 Ohio St. 484; Allyn v. B. & A. Railroad, 105 Mass. 77; Smith v. Smith, 2 Pick. 621; Shear. & Red. Neg. 475.

In this state we find no authority directly in point. Whenever the driver has been other than the plaintiff, it has been assumed that the plaintiff was responsible for the acts of the driver. Norris v. Litchfield, 35 N.H. 276; Cummings v. Centre Harbor, 57 N.H. 17; Stark v. Lancaster, 57 N.H. 88.

Chase & Streeter, on the same side. The traveller and the town are both in duty bound to exercise due care and constant care. The town is bound for the whole distance of the way, and at all times, to provide a legally sufficient highway, and the traveller is bound to exercise constant care the whole of the journey. Their duties are correlative. Has the traveller, then, the right to intrust the exercise of this care to another (the driver), and still not suffer detriment from the other's carelessness? Can she deprive the town of the right to exact of the traveller a degree of care correlative with the degree of care the law exacts of it? Has she the right to deprive herself of the power to exercise care, and still exact care of the town? Should not the plaintiff, having delegated the duty of care, which the law requires of her, to another (the driver), be affected with all the legal consequences which a neglect of duty would attach to her if she performed the negligent act herself?

If it is said that she performed the act of care required of her when she used care and prudence in selecting a driver, the reply is, that a single act of care is not enough: the town is entitled to the benefit of the traveller's constant care.

Carpenter, J., did not sit: the others concurred.



Page 691

[64 N.H. 362] The case raises the question whether a person who is guilty of no personal negligence, receiving an injury while riding [64 N.H. 363] in the carriage of another...

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