Shultz v. Old Colony St. Ry.

Decision Date03 January 1907
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court


Exceptions from Superior Court, Bristol County; Loranus E. Hitchcock, Judge.

Action by one Shultz against the Old Colony Street Railway. From a judgment for defendant, plaintiff brings exceptions. Exceptions sustained.

John T. Coughlin and David R. Radovsky, for plaintiff.

Jas. M. Swift, for defendant.


This case fairly raises the question as to whether the negligence of the driver of a vehicle is to be imputed to a guest riding with him gratuitously and personally in the exercise of all the care which ordinary caution requires. The first case in our own court which occasioned any discussion as to the identification of a passenger with a driver was Allyn v. Boston & Albany Railroad Company, 105 Mass. 77. The injuries out of which this action grew were received at a crossing at grade of a highway and steam railroad. The plaintiff personally failed to exercise any care for his own safety at a place so well-recognized as one of danger, and sought to recover by screening himself behind the due care of the driver. The court says respecting this contention: ‘If the plaintiff failed to use the care which prudence required, relying upon the vigilance of his companion, he must prove that Haskell was in the exercise of due care, not only in the management of his horse, but in using the necessary precaution to guard against danger from passing trains.’

The subject was next before the court in Randolph v. O'Riordan, 155 Mass. 331,29 N. E. 582. Here the plaintiff hired a hack of one of the defendants for the purpose of attending a funeral, and exercised no control over the actions of the driver of the carriage other than the purpose of hiring indicated. The injury occurred by reason of the negligence of the driver of the hack in which the plaintiffs were riding and the concurring negligence of the driver of another carriage. After repudiating the doctrine of Thorogood v. Bryan, 8 C. B. 115, and referring with approval to Little v. Hackett, 116 U. S. 366, 375, 6 Sup. Ct. 391, 29 L. Ed. 652, and quoting from Allyn v. Boston & Albany R. R. the sentence above quoted, the court proceeds: ‘This was very different from saying that Haskell's negligence was to be imputed to the plaintiff if he had been a passenger in a hack of which Haskell was the driver. It was merely saying that if in a dangerous place one person trusted another person to look out for him, he must show that such person used due care.’

In Murray v. Boston Ice Co., 180 Mass. 165, 61 N. E. 1001, the lower court was asked to rule ‘that if the accident was not due to the negligence of the defendant's driver alone, but was due partly also to the negligence of the plaintiff's driver, Marshalen, he could not recover.’ This was refused, but it was ruled that if the plaintiff ‘trusted to Marshalen the sole care and management of the team in which they were riding, and relied solely on the care and vigilance of Marshalen, then he must show due care on Marshalen's part.’ This instruction was held correct. And it was further said that the court did not mean to give the Allyn Case ‘any further sanction than it now has.’

Yarnold v. Bowers, 186 Mass. 396, 71 N. E. 799, was a case of collision at night upon a small lake between an unlighted rowboat not pursuing any regular course and a lighted steamer pursuing a regular course. It appeared that the plaintiff's intestate was standing in the rowboat at the time of the accident, when the danger was impending, obviously a careless thing to do, and failed to make any outcry or display any light or do anything for his own protection, and, so far as the rowing was concerned, trusted the entire charge of the boat to one Thorne, who was negligent. The court held that the case fell within the rule of Allyn v. Boston & Albany Railroad.

In Knox v. Boston Elevated Railway, 185 Mass. 602, 606, 71 N. E. 90, in Evensen v. Lexington & Boston St. Ry. Co., 187 Mass. 77, 72 N. E. 355, and on one branch of his claim in Halloran v. Worcester Consolidated St. Ry. Co., 192 Mass. 104, 78 N. E. 381, the plaintiff based his own case upon the due care of the driver of the vehicle in which he was riding, thereby adopting the driver's acts as his own. In Creavin v. Newton St. Ry., 176 Mass. 529, 57 N. E. 994, and La Blanc v. Lowell, etc. St. Ry., 170 Mass. 564, 49 N. E. 927, the question of identification did not arise, as there was evidence in each case tending to show that the plaintiff actively exercised due care.

Imputed negligence has been the cause of somewhat conflicting decisions at various times in different jurisdictions. The doctrine had its rise in Thorogood v. Bryan, 8 C. B. 115, which held that a passenger of one common carrier could not recover against a third person, whose negligence contributed to his injury, in the event that the negligence of the transporting carrier was a concurring cause of the injury. This case decided in 1849 has been overruled in England in the Bernina, 12 P. D. 58; Mills v. Armstrong, L. R. 13 App. Cas. 1. Although cited as a supporting authority in Allyn v. Boston & Albany R. R., it was distinctly repudiated by this court in Randolph v. O'Riordan, 155 Mass., at page 337,29 N. E., at page 584. The rule of Thorogood v. Bryan was early adopted in Wisconsin and has continuously prevailed there. Houfe v. Fulton, 29 Wis. 296, 9 Am. Rep. 568;Prideaux v. Mineral Point, 43 Wis. 513, 28 Am. Rep. 558;Otis v. Jamesville, 47 Wis. 422, 2 N. W. 783;Olsen v. Luck, 103 Wis. 33, 79 N. W. 29;Lightfoot v. Winnipeg, 123 Wis. 479, 102 N. W. 30. The Wisconsin court has made no distinction between a passenger of a common carrier and one riding gratuitiously as the guest of the driver. It is the law of Michigan also that where a person of years of discretion voluntarily enters the private conveyance of another and is injured by the carelessness of the person in charge of the conveyance concurrently with the negligence of a third person, the plaintiff is precluded from recovery against such third person. Lake Shore & Michigan Southern Ry. Co. v. Miller, 25 Mich. 274;Schindler v. Ry. Co., 87 Mich. 410, 49 N. W. 670;Cowan v. Ry. Co., 84 Mich. 583, 48 N. W. 166. In Mullen v. Owosso, 100 Mich. 103, 58 N. W. 663,23 L. R. A. 693, 43 Am. St. Rep. 436, however, there was a vigorous dissenting opinion. This rule has been limited by the Supreme Court of Michigan so as to apply only to adults, the distinction being based upon the fiction that in such cases the relation of principal and agent exists, and it has been held that if the infant was so young as to lack the capacity to make the driver, at whose invitation she was riding as a guest, her agent, and where there is no evidence that either party supposed that such relation existed as a matter of fact, then the guest is not prevented from recovery by the neglect of the stranger at whose invitation she rides. Hampel v. Detroit, G. R. & W. Ry. Co., 138 Mich. 1, 100 N. W. 1002. The rule has been further limited so as not to apply to injuries received by one himself in the exercise of due care riding upon a fire engine injured by the concurring negligence of a motorman of the defendant and the driver of the engine in which the plaintiff was riding, following the same rule adopted by this court in Murray v. Boston Ice Co., 180 Mass. 165, 61 N. E. 1001,McKernan v. Detroit Citizens' St. Ry. Co., 138 Mich. 519, 101 N. W. 812 (1904)68 L. R. A. 347and it does not apply to a passenger of one common carrier injured by the concurring negligence of it and another common carrier. Cuddy v. Horn, 46 Mich. 596, 602, 10 N. W. 32,41 Am. Rep. 178. The authority of the Wisconsin and Michigan cases prevailed upon the court of Montana to adopt the same rule. Whittaker v. Helena, 14 Mont. 124. Although Thorogood v. Bryan does not appear to have been called to the attention of the court in Carlisle v. Sheldon, 38 Vt. 440, the Supreme Court of that state has held any want of ordinary care on the part of a driver of a vehicle on the highway attributable to the one riding with him as guest.

In Pennsylvania the rule of Thorogood v. Bryan was at first adopted. Lockhart v. Litchenthaler, 46 Pa. 151;Phila., etc., Ry. Co. v. Boyer, 97 Pa. 91. But these earlier cases have been overruled recently in Dean v. Pa. Ry. Co., 129 Pa. 514 544,18 Atl. 718, 6 L. R. A. 143, 15 Am. St. Rep. 733; Bunting v. Hogsett, 139 Pa. 363, 376, 21 Atl. 31, 33, 34, 12 L. R. A. 268, 23 Am. St. Rep. 192; Little v. Cent. District & Printing Telegraph Co., 213 Pa. 229, 62 Atl. 848. It has never been applied in that state to cases like the one at bar, where the plaintiff has always been permitted to go to the jury. Carlisle v. Brisbane, 113 Pa. 544, 6 Atl. 372,57 Am. Rep. 483;Carr v. Easton, 142 Pa. 139, 21 Atl. 822.

The unbroken line of authority in all the other states in the Union is opposed to this reasoning. With some modifications in its application to particular cases, the general rule is that where the injured and the driver do not occupy the position of master and servant, passenger and carrier, parent and child, and where the plaintiff is himself in the exercise of due care, having no reason to suspect carelessness or incompetency on the part of the driver, and is injured by the concurring negligence of the driver of the vehicle and some third person, the guest is not precluded from recovery against the third person by reason of the negligence of the driver. In Elyton Land Co. v. Mingea, 89 Ala. 521, at page 528, 7 South. 666, at page 667, the court says: ‘The rule must be regarded as now fully settled, both in England and America, and certainly in this state, that the negligence of the driver of a vehicle cannot be imputed to a passenger therein, when the passenger is free from personal negligence, and has no control over the driver, and has not been guilty of any want of care in his selection.’ The facts...

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