29 N.W. 317 (Minn. 1886), Follman v. City of Mankato

Citation:29 N.W. 317, 35 Minn. 522
Opinion Judge:Dickinson, J.
Party Name:Catherine Follman v. City of Mankato
Attorney:Daniel Buck and Freeman & Pfau, for appellant. James Brown, for respondent,
Case Date:October 01, 1886
Court:Supreme Court of Minnesota
 
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Page 317

29 N.W. 317 (Minn. 1886)

35 Minn. 522

Catherine Follman

v.

City of Mankato

Supreme Court of Minnesota

October 1, 1886

Appeal by plaintiff from an order of the district court for Blue Earth county, Start, J., presiding, (acting for the judge of the Sixth district,) refusing a new trial.

The order refusing a new trial must therefore be reversed.

Daniel Buck and Freeman & Pfau, for appellant.

James Brown, for respondent, cited Prideaux v. City of Mineral Point, 43 Wis. 513; Houfe v. Town of Fulton, 29 Wis. 296; Otis v. Town of Janesville, 47 Wis. 422, (2 N.W. 783;) Lake Shore, etc., R. Co. v. Miller, 25 Mich. 274; Stillson v. Hannibal, etc., R. Co., 67 Mo. 671; Holly v. Boston Gas Light Co., 8 Gray, 123, 132, (69 Am. Dec. 233;) Carlisle v. Sheldon, 38 Vt. 440; Brown v. N. Y. C. R. Co., 31 Barb. 385; Munroe v. Leach, 7 Met. 274; Puterbaugh v. Reasor, 9 Ohio St. 484; Cauley v. Pittsburgh, etc., Ry. Co., 95 Pa. St. 398; City of Joliet v. Seward, 86 Ill. 402; Toledo, etc., Ry. Co. v. Miller, 76 Ill. 278; Jeffersonville, etc., R. Co. v. Bowen, 40 Ind. 545; Hathaway v. Toledo, etc., Ry. Co., 46 Ind. 25; Brown v. N. Y. C. R. Co., 32 N.Y. 597; Cooley on Torts, 684.

OPINION

Dickinson, J.

While the plaintiff was riding upon a public street in the city of Mankato with one Kiefer and his wife, in Kiefer's private carriage, and at his invitation, the carriage was precipitated into a ditch or gully in the street, causing the injury complained of. The plaintiff was a sister of Mrs. Kiefer. The ground of action is the alleged negligence of the city in respect to the condition of the street. The case presented an issue as to whether Kiefer was chargeable with negligence in the driving of his team which contributed to produce the injury.

[35 Minn. 523] The court instructed the jury that if Kiefer was chargeable with such negligence, the plaintiff could not recover. The correctness of this instruction is the only subject which we shall have to consider. The question is whether one who, by invitation or permission of another, rides in the private conveyance of the latter, and which is wholly under the management and control of the owner, is affected by the negligence of such owner, so as to prevent a recovery against a third party for negligence.

The authorities are somewhat in conflict. Since the decision of Thorogood v. Bryan, 8 C. B. 115, it may be said that the principle or reason upon which the decisions have generally been based in England, in the case of injuries in public conveyances, is opposed to a right of recovery in such cases as this. In that case the injury resulted to the plaintiff's intestate while he was a passenger

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in a public conveyance, -- an omnibus, -- and the question was whether the contributory negligence of the driver barred a recovery in an action for negligence against the proprietor of another public conveyance. Distinctions might be suggested between such a case and that now before us; but it is enough for our present purpose to say that the reasons assigned for the determination in Thorogood v. Bryan, and generally in the decisions which have held to the same doctrine of imputed contributory negligence, if such reasons are valid, might also be accepted as reasons for a like conclusion in this case. We therefore deem such decisions to be authority in favor of the respondent.

The reason assigned for the conclusion that there could be no recovery in Thorogood v. Bryan is that "the deceased must be considered as identified with the driver of the omnibus in which he voluntarily became a passenger, and that the negligence of the driver was the negligence of the deceased." (p. 131.)

In a late...

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