Loso v. Lancaster County

• Decision Date: 10 November 1906
• Docket Number: 14,450
• Citation: 109 N.W. 752,77 Neb. 466
• Parties: PHILANDER G. LOSO, APPELLANT, v. LANCASTER COUNTY, APPELLEE
• Court: Nebraska Supreme Court

109 N.W. 752

77 Neb. 466

PHILANDER G. LOSO, APPELLANT, v. LANCASTER COUNTY, APPELLEE

No. 14,450

Supreme Court of Nebraska

November 10, 1906

APPEAL from the district court for Lancaster county: LINCOLN FROST JUDGE. Reversed.

REVERSED.

Field Ricketts & Ricketts, for appellant.

J. L Caldwell, F. M. Tyrrell and Charles E. Matson, contra.

EPPERSON, C. AMES and OLDHAM, CC., concur.

OPINION

EPPERSON, C.

Plaintiff Loso and an assistant went by rail to the village of Agnew, in Lancaster county, and from there walked a mile and a half to the farm of one Rhoman to repair a well. After the work was completed Rhoman's son volunteered to convey them back to the village. A horse was hitched to a single buggy, and the three men started north along the highway in the direction of Agnew. A ravine, over which the defendant, the county of Lancaster, maintained a bridge, crosses the highway at right angles. The bridge was 16 feet long, was not protected by guard rails, and one corner had settled about a foot, causing the structure to slope toward the southeast. When the buggy approached the bridge, plaintiff was sitting on the east side, his assistant on the west, and Rhoman in the middle, driving the horse. A mist was falling and it was getting dark. As they approached to cross the bridge, the horse slipped on the wet boards and fell. In his efforts to arise he fell from the bridge, carrying the buggy and the three men with him to the bottom of the ravine, 16 feet below. Plaintiff was injured, and, under the provisions of the statute, brought this action against the county, alleging that the county was negligent in not providing side-rails and in permitting the bridge to slope toward one corner. The county contended that the driver, Rhoman, was guilty of contributory negligence, and a verdict was returned for defendant. The court instructed the jury "that, if the driver was negligent in driving upon the bridge in the manner he did under the circumstances, his negligence would be imputed to the plaintiff, and in that event the plaintiff could not recover." The giving of this instruction presents the principal question in the case.

As a general rule, "there can be no such thing as imputable negligence, except in cases where that privity which exists in law between master and servant and principal and agent is found." 16 Am. & Eng. Ency. Law (1st ed.), 447. The doctrine of imputed negligence or identification as to vehicles was first stated in the English case of Thorogood v. Bryan, 8 C. B. 115. It was there held that a passenger in a public vehicle, though having no control over the driver, must be held to be so identified with the vehicle as to be chargeable with any negligence on the part of its managers which contributed to an injury inflicted upon such passenger by the negligence of a stranger. This decision has been followed by a few of the courts of this country, notably Wisconsin. Prideaux v. City of Mineral Point, 43 Wis. 513. Thorogood v. Bryan, however, has been recently overruled by the courts of England, because the reasons upon which the decision rests are "inconclusive and unsatisfactory," and the "identification upon which the decision * * * is based has no foundation in fact." Mills v. Armstrong, 58 L. T. n. s. 423.

The supreme court of the United States has also declined to follow Thorogood v. Bryan. In Little v. Hackett, 116 U.S. 366, 29 L.Ed. 652, 6 S.Ct. 391, Mr. Justice Field, speaking for the court, said:

"The truth is, the decision in Thorogood v. Bryan rests upon indefensible ground. The identification of the passenger with the negligent driver or the owner, without his personal cooperation 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."

Not only are the authorities to the effect that the doctrine of identification or imputed negligence has no application to public conveyances, but the overwhelming weight of authority is that the doctrine cannot be extended to private vehicles.

Sanborn, J., speaking for the court, in Union P. R. Co. v. Lapsley, 51 F. 174, uses this language: "But, where the owner and driver of a team and carriage invites another to ride in his carriage, no relation of principal and agent is created; no relation of principal and agent is created; no relation of master and servant is established; the owner and driver of the team is not controlled by and is not in any sense the agent of the invited guest; and to hold him responsible for the negligence of the former, by whose permission alone he rides, is unauthorized by law and repugnant to reason. That he who suffers injury from another's negligence may recover compensation of the wrongdoer is a principle founded in natural justice, and sustained by every precedent. That where the negligence of the person injured has contributed to the injury he cannot so recover, because it is impracticable in the administration of justice to divide and apportion the compensation in proportion to the varying degrees of concurring negligence, is equally well settled. But that he whose wrongful act or omission has caused the injury and damage, and who upon every consideration of justice and reason ought to make compensation for it, shall be permitted to escape because a third person, over whom the injured person had no control, and whose only relation to him was that of a guest to his host, has been guilty of negligence that contributed to the injury, is neither just nor reasonable. According to the verdict of this jury, a loss of $ 1,000 was entailed upon the decedent by the negligence of this defendant. The defendant's wrongful omission was the proximate cause of this damage. The decedent in no way caused or contributed, by any act or omission of hers, to this injury. She had no control over her brother, the driver, who may have contributed by his carelessness to the damage. Upon what principle, now, can it be justly said that the decedent must bear all this loss when she neither caused, was responsible for, nor could have prevented it, because this third person assisted to cause the injury, the proximate cause of which was the wrongful act of the defendant company? If there exists in the realm of jurisprudence any sound principle upon which so unrighteous a punishment of the innocent and the discharge of the guilty may be based, we have been unable to discover it."

In Dean v. Pennsylvania R. Co., 129 Pa. St. 514, 6, 18 A. 718. L.R.A. 143, it is said: "Quotations might be given from many cases in the different states, illustrating the very firm and emphatic manner in which the doctrine of this celebrated case (Thorogood v. Bryan) has been denied. The authorities in England, and the great current of authorities of this country, are against it. Nor can I see why, upon any rule of public policy, a party injured by the concurrent and contributory negligence of two persons, one of them his common carrier, should be held, and the other released from liability. As to this, I speak only for myself. In my opinion there is no principle consonant with common sense, common honesty, or public policy, which should hold one not guilty of any negligence, either of omission or commission, for the negligence of another, imputed to him under such circumstances. * * * Dean was riding in the wagon merely by invitation of Fields, who happened to be going in the direction of Dean's home with a load of provisions. He was carried without compensation, merely as an act of kindness on the part of Fields, who had sole control of the team and of the wagon. The case is similar in this respect to Carlisle v. Brisbane, 113 Pa. 544, 6 A. 372, and the case of Follman v. Mankato, 35 Minn. 522, 29 N.W. 317. We are clearly of opinion that if Dean himself was guilty of no negligence, the negligence of Fields cannot be imputed to him." See also Bunting v. Hogsett, 139 Pa. St. 363.

In Dyer v. Erie R. Co., 71 N.Y. 228, the plaintiff was injured while crossing the defendant's railroad track on a public thoroughfare. He was riding in a wagon by the permission and invitation of the owner of the horse and wagon. At that time a train standing south of certain buildings, which prevented its being seen, had started to back over the crossing without giving the driver of the wagon any warning of its approach. The horses, becoming frightened by the blowing off of steam from engines in the vicinity, became unmanageable, and the plaintiff was thrown, or jumped, from the wagon, and was injured by the train, which was backing. It was held that no relation of principal and agent arose between the driver of the wagon and the plaintiff, and although he traveled voluntarily, he was not responsible for the negligence of the driver, where he himself was not chargeable with negligence, and there was no claim that the driver was not competent to control and manage the horses.

In Robinson v. New York C. & H. R. R. Co., 66 N.Y. 11 23 Am. Rep. 1, it is said by Church, C. J.: "It is, therefore, the case of a gratuitous ride by a female upon the invitation of the owner of a horse and carriage. The plaintiff had no control of the vehicle, nor of the driver in its management. It is not claimed but that Conlon was an able-bodied, competent person to manage the establishment, nor that he was intoxicated, or in any way unfit to have charge of it. Upon what principle is it that his negligence is imputable to the plaintiff? It is conceded that if by his negligence he had injured a third person, she would not...