Follman v. City of Mankato

• Decision Date: 01 October 1886
• Parties: FOLLMAN v CITY OF MANKATO.
• Court: Minnesota Supreme Court

35 Minn. 522

29 N.W. 317

FOLLMANvCITY OF MANKATO.

Supreme Court of Minnesota.

October 1, 1886.

Appeal from an order of the district court, Blue Earth county, overruling motion for new trial.

Daniel Buck, E. P. Freeman, and Pfau & Schessler, for appellant, Catherine Follman.

James Brown, for respondent, City of Mankato.

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.

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 maybe 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 passengerin 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.”

In a late case, (Armstrong v. Lancashire & Y. Ry. Co., L.R. 10 Exch. 47,) involving the same question, POLLOCK, B., referring to the decision in Thorogood v. Bryan, said: “If it is to be taken that by the word ‘identified’ is meant that the plaintiff, by some conduct of his own, as by selecting the omnibus in which he was traveling, has acted so as to make the driver his agent, that would sound like a strange proposition, which could not be entirely sustained. But what I understand it to mean is that the plaintiff, for the purpose of the action, must be taken to be in the same position as the owner of the omnibus, or his driver.”

In Prideaux v. City of Mineral Point, 43 Wis. 513, was presented the case of one (the plaintiff) riding in a conveyance hired and driven by another person, and injury to the plaintiff from the concurrent negligence of the driver and of the defendant. The court denied a right to recover under such circumstances. The reason upon which the decision is based will be seen from the following extract from the opinion, in which reference is made to what may be distinctively called the English rule, as above stated: “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. *** There is a personal trust in such cases, which implies an agency.”

The same rule of imputed negligence was asserted without any discussion of the subject in Houfe v. Town of Fulton, 29 Wis. 296, and again in Otis v. Town of Janesville, 47 Wis. 422;S.C. 2 N. W. Rep. 783. The facts in the latter case are not so stated as to disclose how the plaintiff was related to the driver.

In Lake Shore & M. S. R. Co. v. Miller, 25 Mich. 274, the supreme court of that state seems to sustain the same rule, but cites no authority, and discloses no reason for its conclusion. This was the case of one riding in a private conveyance. It may be questioned whether the weight to be given to this decision as authority upon the question under consideration may not be somewhat impaired by a later decision in the same court, to which we shall hereafter refer. It is to be observed, however, and this may go to reconcile the two decisions, that in the case above cited the circumstances went strongly to show actual negligence on the part of the plaintiff as well as on the part of the driver. But while the doctrine of imputed contributory negligence,under circumstances similar to those presented in this case, is not without support, the weight of authority in this country is opposed to it; and the reasons which have been assigned for the rule, and upon which it must be deemed to rest, cannot, we think, be sustained.

From the decisions to which we have referred it may be seen that the doctrine has been based either upon an unexplained “identity” of position between the plaintiff and the person by whose contributory negligence his right of action is affected, or else upon the ground that such person had been accepted as his agent, so that the negligence of the latter is, in legal contemplation, the negligence of the plaintiff. It seems to us that neither of these...