Mullen v. City of Owosso

Citation100 Mich. 103,58 N.W. 663
CourtSupreme Court of Michigan
Decision Date17 April 1894
PartiesMULLEN v. CITY OF OWOSSO.

Error to circuit court, Shiawassee county; William Newton, Judge.

Action by Mary E. Mullen against the city of Owosso for personal injuries.

From a judgment for defendant, plaintiff brings error. Affirmed.

George L. Keeler (John T. McCurdy, of counsel) for appellant.

Odell Chapman, for appellee.

LONG J.

The plaintiff, a woman about 34 years of age, was riding with Mr Pond in a private carriage drawn by one horse along a public street in the city of Owosso. Overtaking Mr. Sanders, who was driving in the same direction, Mr. Pond attempted to pass him. Sanders was driving at a rapid rate, and Mr. Pond, in attempting to pass, started his horse rapidly forward. The parties raced for a distance, when Mr. Pond ran over a pile of sand in the highway. His carriage was overturned, and plaintiff thrown out and injured. The proofs are clear that Mr. Pond knew that a building was being erected by the side of this street, and that a mortar box and other materials were out in the street, in front of it. He stated that on a former trial he testified that he knew the street was incumbered by such materials, and thought that somebody was liable to get hurt there. Yet, in view of this knowledge, he carelessly drove his horse at the rate of more than six miles an hour in the street, contrary to the ordinances of the city. The court directed the jury: "If you find from the evidence in this case that the plaintiff would not have been injured but for the neglect of the city to give proper warning, then the plaintiff would be entitled to recover unless you find that Mr. Pond knew of the obstruction to a portion of this street, and heedlessly drove over the obstruction; then he would be guilty of gross negligence, and plaintiff could not recover." Again the court said: "If the plaintiff in this case voluntarily entered the private conveyance of Mr. Pond, and voluntarily trusted her person and safety, in that conveyance, to him, by voluntarily entering into the private conveyance of Mr. Pond, she adopted the conveyance, for the time being, as her own, and assumed the risk of the skill and care of the person guiding it. So, if you find that Mr. Pond was negligent, in driving fast, the plaintiff could not recover." The jury returned a verdict in favor of the defendant.

The only question presented by the brief of plaintiff's counsel is whether the negligence of Mr. Pond is imputable to the plaintiff. This question was settled in the affirmative in Railroad Co. v. Miller, 25 Mich. 274 (decided by this court in 1872), and has not since been departed from. Counsel claims that some doubt has been cast upon this doctrine by some of the later decisions, and cites Battishill v. Humphreys, 64 Mich. 503, 31 N.W. 894. In that case a child three years of age was run over by an engine upon a railroad operated by defendant, as receiver. The question was raised whether the negligence of the parents in permitting the child to go upon the track was imputable to the child. Mr. Justice Morse held that such negligence was not imputable to the child. The other justices expressed no opinion upon that point. In Shippy v. Village of Au Sable, 85 Mich. 280, 48 N.W. 584, the question whether the negligence of the parents was imputable to a child three years of age was again presented; and, upon a full hearing, it was the unanimous opinion of the court that such negligence was not imputable to the child. Other cases of like character have been presented to this court, involving that question; and the rule is now established that, when the child brings the action for negligent injuries, the negligence of the parents cannot be imputed to it. But the present case presents quite a different question. Here a person of the age of discretion voluntarily enters a private conveyance of another, to ride, and by the carelessness of that person is injured. The rule laid down in the Miller Case, cited above, excludes a recovery. It has been too long settled to be now disturbed. In Schindler v. Railway Co., 87 Mich. 410, 49 N.W. 670, the rule was recognized. It was there said of the Miller Case: "This is the general rule, and has since been followed in this state." The rule was also recognized by this court in Cowan v. Railway Co., 84 Mich. 583, 48 N.W. 166. Judgment is affirmed.

GRANT and MONTGOMERY, JJ., concurred with LONG, J.

HOOKER J. (dissenting).

The plaintiff was riding in a carriage, with, and upon the invitation of, a Mr. Pond, in the city of Owosso. In attempting to pass another vehicle, the carriage was overturned, by reason of its being driven upon a pile of sand or rubbish in the street, and plaintiff was injured. The defense is made that the driver, Mr. Pond, was negligent, and that such negligence should be imputed to the plaintiff. The cases are not harmonious upon this question, but the great weight of authority is against the defendant's contention; the case of Thorogood v. Bryan (decided in 1849) 8 C. B. 115, which is considered the leading case sustaining the defendant's proposition, having been overruled in England, and repudiated in this country, generally, though followed in some states. That was a case of the collision of two omnibuses. The action against the owner of one by a passenger of the other was defeated upon the ground of contributory negligence, upon the theory that the passenger was so identified with the driver of his vehicle as to be chargeable with his negligence. This decision seems to rest upon an inference that the driver is the agent of the passenger, or at least that he is under the direction and control of the passenger. The case was disregarded in Rigby v. Hewitt, 5 Exch. 239, and distinctly overruled in The Bernina, 12 Prob. Div. 58; Mills v. Armstrong, 13 App. Cas. 1. In the last case, Lord Herschell commented as follows upon the case of Thorogood v. Bryan: "In short, as far as I can see, the identification appears to be effective only to the extent of enabling another person, whose servants have been guilty of negligence, to defend himself by the allegation of contributory negligence on the part of the person injured. But the very question that had to be determined was whether the contributory negligence of the driver of the vehicle was a defense, as against the passenger, when suing another wrongdoer. To say that it is a defense, because the passenger is identified with the driver appears to me to beg the question, when it is not suggested that this identification results from any recognized principles of law, or has any other effect than to furnish that defense, the validity of which was the very point in issue." In Little v. Hackett, 116 U.S. 366, 6 S.Ct. 391, Mr. Justice Field uses the following language: "The truth is, the decision of Thorogood v. Bryan, rests upon indefensible grounds. The identification of the passenger with the negligent driver or the owner, without his co-operation or encouragement, is a gratuitous assumption. There is no such identity. The parties are not in the same position. The owner of a public conveyance is a carrier, and the driver, or the person managing it, is his servant. Neither of them is the servant of the passenger, and his asserted identity with them is contradicted by the daily experience of the world." The doctrine of Thorogood v. Bryan has met with similar treatment in most of the state courts of last resort, and, as to public conveyances, may be said not to state the law correctly. The reasons upon which these cases rest are equally conclusive in cases where the injured party was riding in a hired carriage with a driver from a livery stable; in cases where the passenger does not, as a matter of fact, exercise such control over the driver as to make him his servant. See Little v. Hackett, supra. Missouri Pac. Ry. Co. v. Texas Pac. Ry. Co., 41 F. 316; Larkin v. Railway Co. (Iowa) 52 N.W. 480; Railroad Co. v. Steibrenner, 47 N. J. Law, 161; Randolph v. O'Riorden (Mass.) 29 N.E. 583. In cases like the present the question becomes one of fact; the test of the passenger's responsibility for the...

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3 cases
  • Mullen v. City of Owosso
    • United States
    • Michigan Supreme Court
    • April 17, 1894
    ...100 Mich. 10358 N.W. 663MULLENv.CITY OF OWOSSO.Supreme Court of Michigan.April 17, Error to circuit court, Shiawassee county; William Newton, Judge. Action by Mary E. Mullen against the city of Owosso for personal injuries. From a judgment for defendant, plaintiff brings error. Affirmed. [5......
  • Hance v. Durfee
    • United States
    • Michigan Supreme Court
    • April 17, 1894
  • Hance v. Durfee
    • United States
    • Michigan Supreme Court
    • April 17, 1894

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