Crampton v. Ivie

• Decision Date: 14 June 1900
• Citation: 36 S.E. 351,126 N.C. 894
• Court: North Carolina Supreme Court
• Parties: CRAMPTON. v. IVIE et al.

126 N.C. 894

36 S.E. 351

CRAMPTON.

v.IVIE et al.

Supreme Court of North Carolina.

June 14, 1900.

APPEAL AND ERROR—REHEARING—NEW TRIAL.

1. On petition for rehearing in an action for personal injuries, the supreme court will grant a new trial, where the court has grave doubt whether the essential principle of proximate cause was properly explained to the jury, especially where the previous decision was by a bare majority of the court.

2. Where plaintiff is injured through the neg ligence of defendant concurring with that of plaintiff's driver, he cannot recover.

3. Where defendant's negligence was remote, and did not concur in producing plaintiffs injury, but was caused by the negligence of plaintiff's driver, plaintiff cannot recover.

Montgomery and Purches, JJ., dissenting.

On rehearing. Reversed.

For former opinion, see 32 S. E. 968, 124 N. C. 591.

DOUGLAS, J. This is a petition to rehear the case reported in 124 N. C. 591, 32 S. E. 968. It was then decided by a bare majority of the court, and now we find it impossible to come to a unanimous decision, and difficult to come to any decision at all, under the circumstances; and, in view of the fact that there is grave doubt in our minds whether the essential principle of proximate cause was properly explained to the jury, we think that substantial justice will be best subserved by granting a new trial.

We may regard it as settled law that the negligence of the driver of a public conveyance is not imputable to a passenger therein, unless the passenger has assumed such control and direction of said vehicle as to be considered practically in exclusive possession thereof. In other words, the possession of the passenger must be such as to supersede for the time being the possession of the owner, to the extent of making the driver the temporary servant of the passenger. The contrary doctrine, that the negligence of the driver was imputable to the passenger, seems to have had its origin in the English case of Thorogood v. Bryan, decided in 1849, and reported in 8 C. B. 115. For a time this celebrated case bade fair to receive general acquiescence, but was subsequently doubted, and finally directly overruled in the recent English ease of The Bernina, 12 Prob. Div. 58. In the meantime the doctrine had met but scant favor in this country, and was distinctly repudiated by the supreme court of the United States in Little v. Hackett, 116 U. S. 366, 6 Sup. Ct. 391, 29 L. Ed. 052, decided in 1886, in which it was held that the passenger could not be held accountable for such negligence. The same conclusion had been announced by the supreme court of New Jersey in Railroad Co. v....