Town of Knightstown v. Musgrove

• Decision Date: 09 November 1888
• Docket Number: 13,763
• Parties: The Town of Knightstown v. Musgrove
• Court: Indiana Supreme Court

18 N.E. 452

116 Ind. 121

The Town of Knightstown v. Musgrove

No. 13,763

Supreme Court of Indiana

November 9, 1888

From the Henry Circuit Court.

The judgment is affirmed, with costs.

L. P Newby, J. H. Mellett and E. H. Bundy, for appellant.

J. L Shelton, W. Woods, B. F. Davis, W. H. Martz, C. S. Hernly and S. H. Brown, for appellee.

OPINION

Mitchell, J.

Lucinda Musgrove sued the town of Knightstown to recover damages for injuries alleged to have been sustained by her on the 1st day of July, 1886, without any fault on her part, while riding along a public street in the above mentioned town, in which there was a dangerous unguarded obstruction.

There was a trial by jury and a verdict and judgment in favor of the plaintiff for seven hundred dollars.

The evidence tended to show that two or more loads of gravel had been hauled upon the street, by the direction of the authorities, late in the evening of the day on which the accident happened, and that they had been left in such manner as to make a gravel heap eighteen or twenty inches in height, and that there were no lights or other arrangements to prevent persons lawfully using the street from running upon the obstruction caused by the gravel. The plaintiff and her niece, a girl some sixteen years old, while riding in the evening after dark, for recreation, upon the invitation of a Mr. Hunter, were driven upon the obstruction thus left, and thrown out of the carriage, which was overturned. Hunter was the owner of the horse and vehicle, and had them in his charge at the time of the accident.

At the trial the defendant offered to prove that Hunter had been at the place where the gravel was unloaded, on the evening of the accident, and that he talked with the men who hauled it about leaving it there in the condition in which it was left. The object of the testimony was to show contributory negligence on the part of Hunter, with a view of insisting that the plaintiff was so identified with him as that his negligence should be imputed to her. The testimony having relation to that subject was all excluded and it is now urged that the judgment ought to be reversed on account of this ruling. It is not claimed that the plaintiff was herself guilty of any default, nor was it proposed to show that she knew or had any reason to suspect that Hunter was not a prudent, safe and competent driver, but, assuming that the excluded evidence would have shown that Hunter was negligent the claim is, that his neglect ought to be imputed to the plaintiff, and that her right of recovery should have been thereby defeated, notwithstanding the neglect of the defendant. Thorogood v. Bryan, 8 C. B. 115, is perhaps the leading case in support of the doctrine upon which a reversal is claimed. It appeared in that case that a passenger who had alighted from an omnibus was run down and fatally injured by an omnibus belonging to another line, which came up at the moment. The jury were instructed to the effect that if they should find that the negligence of the driver of the vehicle in which the deceased was a passenger, in not drawing up to the curb in such manner as to afford him a safe place to alight, had contributed to the injury, their verdict must be for the defendant, although the driver of the omnibus owned by the latter was also guilty of negligence. The doctrine of this case, and of those which follow it, ascribe to the passenger the negligence of a driver over whom the passenger has no control. The authority of the case has been greatly impaired in England by criticisms upon it in later cases, and the courts of this country, with but one or two exceptions, now hold the principles upon which it rests wholly indefensible. Little v. Hackett, 116 U.S. 366, 29 L.Ed. 652, 6 S.Ct. 391; Wabash, etc., R. W. Co. v. Shacklet, 105 Ill. 364 (44 Am. R. 791); Carlisle v. Brisbane, 113 Pa. 544 (57 Am. R. 483, 6 A. 372, and note); Street R. W. Co. v. Eadie, 43 Ohio St. 91, 1 N.E. 519; Philadelphia, etc., R. R. Co. v. Hogeland, 66 Md. 149 (7 A. 105); Cuddy v. Horn, 46 Mich. 596, 10 N.W. 32; Battishill v. Humphreys (Mich.), 64 Mich. 494, 31 N.W. 894; Nisbet v. Town of Garner (Iowa), 75 Iowa 314, 39 N.W. 516; Follman v. City of Mankato, 35 Minn. 522, 29 N.W. 317; New York, etc., R. R. Co. v. Steinbrenner, 47 N. J. L. 161; Robinson v. New York, etc., R. R. Co., 66 N.Y. 11; Dyer v. Erie R. W. Co., 71 N.Y. 228; Masterson v. New York, etc., R. R. Co., 84 N.Y. 247.

Without entering upon a review of the cases, it is sufficient to say the general principle deducible from the decisions is, that one who sustains an injury without any fault or negligence of his own, or of some one subject to his control or direction or with whom he is so identified in a common enterprise as to...