Coccora v. Vicksburg Light & Traction Co

• Decision Date: 11 July 1921
• Docket Number: 21953
• Parties: COCCORA v. VICKSBURG LIGHT & TRACTION CO
• Court: Mississippi Supreme Court

89 So. 257

126 Miss. 713

COCCORA v. VICKSBURG LIGHT & TRACTION CO

No. 21953

Supreme Court of Mississippi

July 11, 1921

March 1921

1. APPEAL AND ERROR. Motion for new trial necessary when assignment of error based solely on objection to amount of verdict.

Section 3, rule 6, of the Revised Rules of the supreme court (72 So. vii) dispenses with the necessity for a motion for a new trial when the error assigned is, based upon any ruling made in the trial court, but, in the absence of error in any ruling of the trial court, this rule does not dispense with the necessity for a motion for a new trial when the assignment of error is based solely upon objection to the amount of the verdict.

2. APPEAL AND ERROR. Errors affecting damages may be assigned without moving for new trial.

Under section 3, rule 6, of the Revised Rules of the supreme court if there are errors in the instructions, or other rulings of the trial court, which may have reasonably resulted in an award of improper damages, such erroneous rulings and the improper award of damages resulting therefrom may, on appeal be assigned as error without making a motion for a new trial in the trial court.

3. STREET RAILROADS. Automobile pasenger entitled to recover for concurring negligence of motorman and driver.

In a suit against a traction company for personal injuries resulting from a collision between an automobile in which plaintiff was riding as a guest and a street car operated by the defendant company, where the plaintiff was free of negligence, and the evidence supports the conclusion that plaintiff's injury was the proximate result of the concurring negligence of the driver of the automobile and the motorman operating the street car, the plaintiff is entitled to recover full compensation for the injuries resulting from the concurring negligence of such driver and motorman.

4 STREET RAILROADS. Instruction excluding automobile driver's negligence from damages to guest injured by street car held erroneous. In such case an instruction which excluded from the consideration of the jury all damages which resulted from the negligence of the driver of the automobile and limited the recovery to only such damages as were occasioned by the negligence of defendant was erroneous.

5 DAMAGES. One hundred and seventy-five dollars, held inadequate for injuries from street car.

Evidence examined, and held that, as compensation for the injuries suffered by plaintiff, a verdict for one hundred and seventy-five dollars, was grossly inadequate.

HON. E L. BRIEN, Judge.

APPEAL from circuit court of Warren county, HON. E. L. BRIEN, Judge.

Action by Rosario Coccora against the Vicksburg Light & Traction Company. From a judgment in his favor for less than amount demanded, plaintiff appeals. Affirmed in part, and reversed in part.

Judgment affirmed in part, and reversed in part and cause remanded.

J. D. Thames and Brunini & Hirsch, for appellant.

There is a splendid exposition of the doctrine of identification or imputed negligence in Blakemore's Babbitt on Motor Vehicles, and we shall quote liberally therefrom.

As is shown in the opening section 773, the word "passenger" was selected as a general expression covering all persons occupying a vehicle, who are without authority to direct or control the occupants thereof, such as guests and friends invited to ride gratuitously, and also persons who pay a toll or fare for the privilege of riding, such a person was the appellant.

This rule, whereby the negligence of the driver is imputed to the passenger, was first promulgated in England and for a long time held sway in that country, from whence it obtained a foothold in a few of the American states, but never secured recognition through giving rise to much discussion.

Thorogood v. Bryan (C. B.), M. G. & S. 115, 122, is the leading case. In that case the English Common Pleas by MAULE, J., held that the passenger: "Having trusted the party by selecting the particular conveyance has so far identified himself with the owner and her servants that, of an injury results from their negligence, he must be considered a party to it. In other words, the passenger is so far identified with the carriage in which he is traveling, that want of car on the part of the driver will be a defense of the driver of the carriage which directly caused the injury."

The doctrine is no longer followed in England, having been rejected in the Bernina. In the supreme court of the United States, its reasoning was considered in Little v. Hackett, 116 U.S. 366, 6 S.Ct. 391, and declared by Mr. Justice FIELD, to rest on indefensible ground. The principle was repudiated in Massachusetts in Randolph v. O'Riordon, 155 Mass. 331, 25 N.E. 583. See, also, Allyn v. B. & A. R., 105 Mass. 77; Shultz v. Old Colony St. Ry., 193 Mass. 309, infra, 79 N.E. 873.

Mears, in his work on The Law of the Motor Car (Eng.), page 61 considering Thorogood v. Bryan, supra, and the law of England as it is at present, remarks that the doctrine of that case was decried and discredited and formally overruled in England in 1887. He adds that the case of Little v. Hackett, embodies what is, no doubt, now the recognized rule of English law.

Shearman & Redfield on Negligence (5 Ed.), sec. 74, speaks of Thorogood v. Bryan, as a famous and now exploded decision. And Dr. Thompson remarks that it has been overruled in England and in most of the American states. (Thompson Com. on Negligence (2 Ed.), secs. 500, 501; see, also, Wilson v. Puget Sound Electric Ry. Co., 52 Wash. 522, 101 P. 50; Blakemore's Babbitt on Motor Vehicles, sec. 1195, page 773. That doctrine has been repudiated in England and also generally throughout the United States.

Driver's negligence no longer imputable to passenger: The case of Thorogood v. Bryan, having been overruled and repudiated, the idea of imputed negligence no longer applies between the driver and the passenger, supplanted by a rule more consistent with common sense and the principles of justice. The late rule is not, however, without exception. In Lauson v. Fond Du Lac, 141 Wis. 57, 123 N.W. 629, it was held that a person in a private automobile on a dark, rainy night, cannot, in Wisconsin, recover for injury from a defect in the road, the driver's negligence contributing to the accident. Blakemore's Babbitt on Motor Vehicles, sec. 1196, page 774.

The modern doctrine, generally; nearly all the American courts are agreed that where a person while riding on a private vehicle by the invitation of the driver, or the owner or the custodian of the vehicle and having no authority or control over the driver, and being under no duty to control his conduct, and having no reason to suspect any want of care, skill, or sobriety on his part, is injured by the concurring negligence of the driver and a third person or corporation the negligence of the driver is not imputed to him so as to prevent him from recovering damages from the other tortfeasor. Where one uninvited, or without the knowledge of the driver of a private vehicle, gets upon the same for the purpose of riding, and does ride thereon, the relation of the master and servant, or principal and agent is on no proper sense created thereby, and the negligence of the driver will not be imputed to such passenger. Blakemore's Babbitt on Motor Vehicles, sec. 1197, page 775. To the same effect are the following: Thompson Com. on Negligence (2 Ed.), sec. 502; Rush v. Metropolitan St. Ry. Co., 157 Mo.App. 504, 137 S.W. 1029; Sight seeing automobile: Wilson v. Puget Sound Elec. Ry. Co., 52 Wash. 522, 101 P. 50; Miller v. Boston & N. St. Ry., 197 Mass. 535, 83 Neb. 890, and Chadbourne v. Springfield St. Ry., 199 Mass. 574, 85 N.E. 737; Blakemore's Babbitt on Motor Vehicles, sec. 1197, page 775.

To the foregoing there is a note, giving a list of the cases from each state, cited in Shultz v. Old Colony Railroad. These citations cover two pages, and we note two Mississippi cases therein given, that of A. & V. R. R. v. Davis, 69 Miss. 444, and I. C. R. R. v. McLeod, 78 Miss. 334.

The foregoing rule does not apply in cases of master and servant. In that event the negligence of the servant is imputed to the master.

Due Care to be Exercised by Passenger: As remarked in Shultz v Old Colony St. Ry. the rule does not, under all circumstances, absolve the passenger in the private carriage from taking such precautions for his own safety, as under the circumstances, are reasonable. If he is riding by the side of the driver in an open carriage, and the driver, on approaching a railway track, fails to make use of his faculties to ascertain whether or not a train is approaching, then it is reasonable that the passenger ought to call his attention to the situation and remonstrate with him, or, if necessary to his own safety, leave the vehicle. It has been ruled that a person so riding is bound to exercise ordinary care for his owe safety. . . . In another court it is reasoned that the rule that the negligence of the driver of a wagon is not imputable to one riding with him when the accident occurs at a railroad crossing, in applicable . . . where the passenger is seated away from the driver, or is separated from him by an enclosure, and is without opportunity to discover the danger and to inform the driver of it; . . . The sound conclusion seems to be that where a person who is sui juris--capable of caring for himself or herself, voluntarily rides in the private carriage of another, at his invitation or with his license or sanction, and is injured through the negligent driving of the latter, his negligence will or will not be imputed to the guest or licensee according to the circumstances, and it will, therefore, be to a large extent, a question of fact. In one such case,...