Duval v. Atlantic Coast Line R. Co.

• Decision Date: 08 March 1904
• Citation: 46 S.E. 750,134 N.C. 331
• Parties: DUVAL v. ATLANTIC COAST LINE R. CO.
• Court: North Carolina Supreme Court

46 S.E. 750

134 N.C. 331

DUVAL v. ATLANTIC COAST LINE R. CO.

Supreme Court of North Carolina

March 8, 1904

Appeal from Superior Court, Jones County; Moore, Judge.

Action by Della Duval against the Atlantic Coast Line Railroad Company. Judgment for plaintiff. Defendant appeals. Reversed.

On the question of negligent speed of a train which collided with a team at a crossing in a city, evidence that the speed was in excess of that provided by a contract of the railroad company with the city, under which it obtained the grant of its right of way, is admissible, equally with the violation of an ordinance.

D. L Ward and M. De W. Stevenson, for appellant.

Simmons & Ward and N. J. Rouse, for appellee.

DOUGLAS J.

This is an action for damages for personal injuries. The jury found that the plaintiff was injured by the negligence of the defendant, and that she contributed to her injury by her own negligence. There are but two exceptions that we think it necessary to pass upon in this appeal, both to the charge of the court.

Among other things, the court charged as follows: "The plaintiff introduced a contract wherein it is provided that East Carolina Land & Railway Company shall not run its locomotive through the streets of New Bern at a speed greater than three miles an hour; that the whistle shall be sounded before entering upon said street, and the bell upon the engine tolled while passing through the streets, etc. And it is admitted that the defendant has succeeded to the rights and liabilities of the East Carolina Land & Lumber Company. The court charges you that this is a contract between the city and the defendant company, and that there is no evidence that its provisions have been enacted into an ordinance by the city, and the jury cannot consider the provisions of the same as bearing upon the question of the negligence of the defendant." In this we think there was error. The only object the city could have had in limiting the rate of speed at which a train was permitted to run through its streets was the protection of the traveling public. It was similar to an ordinance in purpose and legal effect, at least in civil actions. We do not feel compelled in this case to go to the extent of saying that the violation of such a provision in a contract gives rise to a cause of action; but we hold that equally with the violation of an ordinance, it is evidence of negligence on the part of the defendant. If the defendant obtained the grant of its right of way by virtue of such a contract, it has no right to complain at the reasonable enforcement of its conditions and limitations. Gorrell v. Water Supply Co., 124 N.C. 328, 32 S.E. 720, 46 L. R. A. 513, 70 Am St. Rep. 598.

The court further charged the jury as follows: "If you find from the evidence, by the greater weight or preponderance thereof, that the plaintiff was riding in a buggy driven and controlled by her father, that the plaintiff's father was negligent in approaching the crossing, and that such negligence contributed to the injury of which the plaintiff complains as a proximate cause thereof, then such negligence of the plaintiff's father is imputable to the plaintiff as her own negligence." This also was error. Imputable negligence, or "identification," as it is sometimes called from analogy to the Roman law, has never been recognized in this state, and has received but scant recognition in any part of this country. The question was directly presented and expressly decided in Crampton v. Ivie, 126 N.C. 894, 36 S.E. 351, in which this court says: "We may regard it as settled law that the negligence of a 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 as 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."

In the case at bar it appears that the plaintiff was not traveling in a public conveyance, but in a buggy driven by her father. We will assume that she was not a passenger for hire, but was riding in her father's buggy as his guest. We do not think this makes any difference, either in principal or in legal liability. She was certainly not in exclusive control of the vehicle, nor could her father be considered in any sense as her servant. We are aware that in a few instances it has been held that, while contributory negligence cannot be imputed to one riding in a hired vehicle, it may be imputed to him if he is a mere guest. The overwhelming weight of authority is against any such distinction, and, in common with nearly all the courts of final jurisdiction, we are utterly unable to see any reasonable basis for such a conclusion.

The only ground for the doctrine of imputable negligence in any of its phases is the assumed identity of the passenger and driver, arising out of an implied agency. It is contended, as he selected his own driver, he made him his agent, not only for the general purposes of his employment, but for all possible contingencies that might happen. Under this doctrine it would seem that if the driver broke the passenger's neck he would be acting within the scope of his agency. This may be so, but it does not seem so to us. Of course, if the passenger were injured through the negligence of the driver alone, he must look alone to him or to his master for his recovery; but if he is injured through the concurring negligence of the driver and some one else, he may sue either. This is equally true whether the plaintiff is a passenger for hire or a mere guest. We see no reason why the latter should be placed at any legal disadvantage. In fact, it would seem that, if there were any difference, the passenger for hire, having the legal right to the services of his driver, would be in a position to exercise a greater degree of control than one whose presence was merely permissive. An examination of the origin, growth, and decadence of the doctrine seems to us to show the correctness of our conclusions, aside even from the weight of authority.

The doctrine that the negligence of driver was imputable to the passenger is considered to have originated in the English case of Thorogood v. Bryan, decided in 1849, and reported in 8 C. B. 115. The action was brought against the owner of an omnibus by which the deceased was run over and killed. The omnibus in which he had been carried had set him down in the middle of the road instead of drawing up to the curb, and before he could get out of the way he was run over by the defendant's omnibus, which was coming along at too rapid a pace to be stopped in time to prevent the injury. The court directed the jury that, "If they were of opinion that want of care on the part of the driver of Barber's omnibus in not drawing up to the curb to put the deceased down, or any want of care on the part of the deceased himself, had been conducive to the injury, in either of those cases, notwithstanding the defendant, by her servant, had been guilty of negligence, their verdict must be for the defendant." This case, after being much criticised, was expressly overruled in 1888 by the House of Lords in the case of The Bernine, 13 App. Cas. 1, in which opinions were delivered by Lords Herschell, Bramwell, and Watson.

Among other things in his opinion, Lord Herschell says: "In support of the proposition that this establishes a defense they rely upon the case of Thorogood v. Bryan (1), which undoubtedly does support their contention. This case was decided as long ago as 1849, and has been followed in some other cases; but though it was early subjected to adverse criticism, it has never come for revision before a court of appeals until the present occasion. *** It is necessary to examine carefully the reasoning by which this conclusion was arrived at. Coltman, J., said: 'It appears to me that, having trusted the party by selecting the particular conveyance, the plaintiff has so far identified himself with the owner and her servants that if any 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 care of the driver will be a defense of the driver of the carriage which directly caused the injury.' Maule and Vaughan Williams, JJ., also dwelt upon this view of the identification of the passenger with the driver of the vehicle in which he is being carried. The former thus expresses himself: 'I incline to think that, for this purpose, 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.' Vaughan Williams, J., said: 'I think the passenger must, for this purpose, be considered as identified with the person having the management of the omnibus he was conveyed by.' With the utmost respect for these eminent judges, I must say that I am unable to comprehend this doctrine of identification upon which they lay so much stress. In what sense is the passenger by a public stagecoach, because he avails himself of the accommodation afforded by it, identified with the driver? The learned judges manifestly do not mean to suggest (though some of the language used would seem to bear that construction) that the passenger is so far identified with the driver that the negligence of the latter would render the former liable to third persons injured by it. I presume that they did not even mean that the identification is so complete as to prevent the passenger from recovering against the...