Duval v. Railroad Co., 134 N.C. 331 (1904)

March 8, 1904 · Supreme Court of North Carolina
134 N.C. 331


(Filed March 8, 1904).

1. NEGLIGENCE — Contracts—Carriers—Ordinances.

Where a railroad company contracts with a .'town not to run its trains through the street above a certain speed, a breach of the contract is some evidence of' negligence in an action for personal injury.

2. NEGLIGENCE' — Imputable negligence — Contributory negligence.

The negligence of a driver of a conveyance is not imputable to a passenger therein.

ActioN by Della Duval against tbe Atlantic Coast Line Railroad Company, beard by Judge Frederick Moore and a jury, at November Term, 1903, of tbe Superior Court of Jones County.

Erom a judgment for tbe defendant, tbe plaintiff appealed.

D. L. Ward and M. DeW. Stevenson, for tbe plaintiff.

Simmons & Ward and N. J. Bouse, for tbe defendant.

Douglas, J.

Tbis is an action for damages for personal injuries. Tbe jury found that tbe plaintiff was injured by tbe negligence of tbe defendant, and'that sbe contributed to ber injury by ber own negligence. There are but two exceptions that we think it necessary to pass upon in tbis appeal, both to tbe charge of tbe Court. Among other things tbe Court charged as follows: “Tbe plaintiff introduced a contract wherein it is provided that tbe East Carolina Land and Railroad Company shall not run its locomotive through tbe streets of New Bern at a speed greater than three miles an hour. ’ That tbe whistle shall be sounded before entering upon said streets, and tbe bell upon tbe engine tolled while *332passing through the streets, etc. And it is admitted that the defendant has succeeded to the rights and liabilities of the East Carolina Land and Lumber Co. 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 Co., 124 N. C., 328, 70 Am. St. Rep., 598, 46 L. R. A., 513.

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 *333scant recognition in any part of tbis country. Tbe question was directly presented and expressly decided in Crampton v. Ivie, 126 N. C., 894, in wbicb tbis Court says: “We may regard it as settled law that tbe negligence of a driver of a public conveyance is not imputable to a passenger therein, unless tbe passenger bas assumed such control and direction of said vehicle as to be considered as practically in exclusive possession thereof. In other words, tbe possession of tbe passenger must be such as to supersede for tbe time being tbe possession of tbe owner to tbe extent of making tbe driver tbe temporary servant of tbe passenger.”

In tbe case at bar it appears that tbe 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 bis guest. We do not think this makes any difference either in principle or in legal liability. She was certainly not in exclusive control of tbe vehicle, nor could her father be considered in any sense as her servant. We are aware that in a few instances it bas been held that while contributory negligence cannot be imputed to one riding in a hired vehicle, it may.be imputed to him if be is a mere guest. Tbe overwhelming-weight of authority is against any such distinction, and in common with nearly all tbe courts of final jurisdiction we are utterly unable to see any reasonable basis for such a conclusion.

The only ground for tbe doctrine of imputable negligence in any of its phases is tbe assumed identity of tbe passenger and driver arising out of an implied agency. It is contended, as be selected bis own driver be made him bis agent, not only for tbe general purposes of bis employment but for all possible contingencies that might happen. Under tbis doctrine it would seem that if tbe driver broke tbe passenger’s neck be would be acting within tbe scope of bis agency. Tbis *334may 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 a 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 *335opinions were delivered by Lords Herchel, Bramauell and Watson,

Among other tiling's in his opinion Lord Iierchel 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. Goltman, 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 travelling that want of care of the driver will be a defense of the driver of the carriage which directly caused the injury.” Maulé 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 stage-coach, because he avails *336bimself of tbe 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 driver’s master: though if “negligence of the owner’s servants is to be considered negligence of the passenger,” or if he “must be considered a party” to their negligence, it is not easy to see why it should not be a bar to such an action. In short, so far as I can see, the identification appears to be effective only to the extent of enabling another person whose servants have been guilty of negligence to defend himself by the allegation of contributory negligence on the part of the person injured. But the very question that had to be determined was whether the contributory negligence of the driver of the vehicle was a defense as against the passenger when suing another wrongdoer. To say that it is a defense because the passenger is identified with the driver appears to be the question, when it is not suggested that this identification results from any recognized principle of law, or has any other effect than to furnish that defense, the validity of which was the very point in issue. Two persons may no doubt be SO' bound together by the legal relation in which they stand to each other that the acts of one may be regarded by the law as the acts of the other. But the relation between the passenger in a public vehicle and the driver of it certainly is not such as to fall within any of the recognized categories in which the act of one man is treated in law as the act of another. I pass now to the other reasons given for the judgment in Thorogood v. Bryan. Maule, J., says: “On the part of the plaintiff it is suggested that a passenger *337in a public conveyance has no control over tbe driver. But I think that cannot with propriety be said. He selects the conveyance. He enters into a contract with the owner, whom by his servant, the driver, he employs to drive him. If he is dissatisfied with the mode of conveyance he is not obliged to avail himself of it. * * * But as regards the present plaintiff, he is not altogether without fault; fie chose his own conveyance, and must take the consequences of any default on the part of the driver whom he thought fit to trust.” I confess I cannot concur in this reasoning. I do not think it well founded either in law or in fact. What kind of control has the passenger over the driver which would make it reasonable to hold the former affected by the negligence of the latter? And is it any more reasonable to-hold him so affected because he chose the mode of conveyance, that is to say, drove in an omnibus rather than walked, or took the first omnibus that passed him instead of waiting for another ? And when it is attempted to apply this reasoning to passengers travelling in steamships or on railways the unreasonableness of such doctrine ‘is even more glaring.

The only other reason given is contained in the judgment of Oresmell, in these words: “If the driver of the omnibus the deceased was in had, by his negligence or want of due care and skill, contributed to an injury from a collision his master clearly could maintain no action. And I must confess I see no reason why a passenger who employs the driver to convey him stands in any better position.” Surely, with deference, the reason for the difference lies on the very surface. If the master in such a case could maintain no action it is because there existed between him and the driver the relation of master and servant. It is clear that if his driver’s negligence alone had caused the collision he would have been liable to an action for the injury resulting from it to third parties. The learned Judge would, I imagine, in *338that ease have seen- a reason why a passenger in the omnibus stood in' a better position than the master of the driver. I have now dealt with all the reasons on whioh the judgment in Thorogood v. Bryan was founded, and I entirely agree with the learned Judges in the Court below in thinking them inconclusive and unsatisfactory.”

In his opinion Lord Watson says: “It humbly appears to me that the identification upon which the decision in Thorogood v. Bryan is based has no foundation in fact. I am of opinion that there is no relation constituted between the driver of an, omnibus and its ordinary passengers which can justify the inference that they are identified to any extent whatever with his negligence. He is the servant of the owner, not their servant; he does not look to them for orders and they have no right to interfere with his conduct of the vehicle except, perhaps, the right of remonstrance when he is doing, or threatens to do, something that is wrong and inconsistent with their safety. Practically they have no greater measure of control over his actions than the passenger in a railway train has over the conduct-of the engine-driver.”

We have quoted at length from this case because it is the distinct and final repudiation of the doctrine by the highest judicial tribunal in England, where it originated, as well as from the further fact that the reasoning upon which the learned and able opinions are founded apply equally to cases where the plaintiff is a mere guest. The same may be said of Little v. Hackett, 116 U. S., 336, which is cited with approval by Lord Ilerchel in “The Berni^/i Hackett the plaintiff was injured by the collision of a railroad train with the carriage in which he was riding. The evidence tended to show that the accident was the result of the concurring negligence of the managers of the train and of the driver of the carriage — of the managers of the train in not giving the usual signals of its approach by ringing a bell and blowing *339a whistle, and in not having a flagman on duty; and of the driver of the carriage in turning the horses upon the track without proper precautions to ascertain whether the train was coming. The defense was contributory negligence in driving on the track, the defendant contending that the driver was thereby negligent, and that his negligence was to be imputed to the plaintiff. The Court left the question of the negligence of the parties in charge of the train and of the driver of the carriage to the jury, and no- exception was taken to its instructions on this head. But with reference to the alleged imputed negligence of the plaintiff, assuming that the driver was negligent, the Court instructed them that unless the plaintiff interfered with the driver and controlled the manner of his driving his negligence could not be imputed to the plaintiff. Upon appeal the judgment was affirmed. Justice Field speaking for a unanimous ■ Court, says, on page 374: “Cases cited from the English courts, as we have seen, and numerous others decided in the courts of this country, show that the relation of master and servant does not exist between the passenger and the driver or bei-tween the passenger and the owner. In the absence of this relation the imputation of their negligence to the passenger, where no fault of omission or commission is chargeable to him, is against all legal rules. If their negligence could be imputed to him it would render him equally with them responsible to third parties thereby injured, and would also preclude him from maintaining an action against the owner for injuries received by reason of it. Blut neither of these conclusions can be maintained; neither has the support of any adjudged cases entitled them to consideration. 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 co-operation or encouragement, is a gratuitous assumption. There is no *340such identity. Tbe parties are not in tbe same position. Tbe owner of a public conveyance is a carrier and tbe driver or tbe person managing it is his servant. Neither of them is the servant of tbe passenger and bis asserted identity with them is contradicted by tbe daily experience of tbe world.” Again, tbe Court says on page 379: “There is no distinction in principle whether tbe passengers be on a public conveyance like a railroad train or an omnibus, or be on a hack hired from a public stand in tbe street, for a drive. Those on a back do not become responsible for tbe negligence of tbe driver if they exercise no control over him further than to indicate tbe route they wish to travel or tbe places to which they wish to go. If be is their agent so that bis negligence can be imputed to them, to prevent their recovery against a third party be must be their agent in all respects, so far as tbe management of tbe carriage is concerned, and responsibility to third parties would attach to them for injuries caused by his negligence in tbe course of bis employment. But, as we have already said, responsibility cannot within any recognized rules of law be fastened upon one who has in no way interfered with and controlled in the matter causing tbe injury. From tbe simple fact of hiring the carriage or riding in it no such liability can arise. Tbe party hiring or riding must in some way have co-operated in producing tbe injury complained of before be incurs any liability for it. 'If the law were otherwise,’ as said by Mr. Justice Depue in bis elaborate opinion in tbe latest case in New Jersey, ‘not only the hirer of tbe coach but also all tbe passengers in it would be under a constraint to mount tbe box and superintend tbe conduct of tire driver in tbe management and control of bis team, or be put for remedy exclusively to an action against tbe irresponsible driver or equally irresponsible owner of a coach taken, it may be from a coach stand, for tbe consequences of an injury which was tbe product of tbe *341co-operating wrongful acts of the driver and of a third person, and that, too, though the passengers were ignorant, of the character of the driver, and of the responsibility of the owner of the team, and strangers to the route over which they were to be carried.’ ”

The Court further cites with approval the case of Dyer v. Railroad, 71 N. Y., 228, in which the facts are very similar to those in the case at bar, in the following words: “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 horses 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 chargeable with negligence, and there was no claim that the driver was not competent to control and manage the horses.”

In Transfer Co. v. Kelly, 36 Ohio St., 86, 38 Am. Rep., 558, the plaintiff below (Kelly) was injured while riding-on a street car in collision with a car of the Transfer Co. and was permitted to recover although it appeared that the sex,L vants of both companies were negligent. The Chief Justice in delivering the opinion of the Court, said: “It seems to us therefore that the negligence of the company, or of its servants, should not be imputed to the passenger, where such negligence contributes to his injury jointly with the negligence of a third party, any more than it should be so imputed where the negligence of the company, or its servants, was the *342sole cause of tbe injury.” “Indeed,” tbe Chief Justice added, “It seems as incredible to my mind that tbe right of a passenger to redress against a stranger for an injury caused directly and proximately by the latter’s negligence, should be denied on the ground that the negligence'of his carrier contributed to his injury, he being without fault himself, as it would be to hold such passenger responsible for the negligence of his carrier whereby an injury was inflicted upon a stranger. And of the last proposition it is enough to say that it is simply absurd.”

In Robinson v. Railroad, 66 N. Y., 11, 23 Am. Rep., 1, Church, C. J., a distinguished jurist, speaking for an able Court, says: “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 driver1 in its management. It is hot claimed but that Gonlon 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 be liable. She was not responsible for his acts and had no right and no poAver to control them. True she had consented to ride with him, but as he was in every respect competent and suitable she was not negligent in doing so. Can she be held by consenting to ride with him to guarantee his perfect care and diligence? There was no necessity for riding with him. It was a voluntary act on the part of the plaintiff, but it Avas not an unlawful or negligent act. She was injured by the negligence of a third person and was free from negligence herself, and I am unable to perceive any reason for imputing Conlon’s negligence to her.” Again, the Court says, on page 13: “1 am unable to find any legal principle upon which to impute to the plaintiff the negligence *343of tbe driver. Tbe whole argument on bebalf of tbe appellants on tbis point is contained in the following paragraph from tbe brief of its counsel: ‘So if tbe plaintiff bad proceeded on tbis journey upon tbe invitation of Conlon for tbe like purpose, she having voluntarily entrusted her safety to bis care and prudence, and thus exposed herself to tbe risk of injury arising from bis negligence or want of skill, she would be precluded from recovering if be thereby contributed to her injury.’ If tbis argument is sound, why should it not apply in all cases to public conveyances as well as private? Tbe acceptance of an invitation to ride creates no more responsibility for tbe acts of tbe driver than tbe riding in a stage-coach or' even a train of cars, providing there was no negligence on account of the character or condition of the driver or tbe safety of tbe vehicle, or otherwise. It is no excuse for the negligence of tbe defendant that another person’s negligence contributed to tbe injury for whose acts'tbe plaintiff was not responsible. Tbe rule of contributory negligence is very strict in tbis State and should not be extended, nor should tbe rule of imputable negligence be extended to new cases where tbe reason for its adoption is not apparent.”

In Railroad Co. v. Lapsley, 51 Fed. Rep., 174, 16 L. R. A., 800, Sanborn, C. J., speaking for tbe Co-urt, says: “But where tbe owner and driver of a team and carriage invites another to ride in bis carriage no relation of principal and agent is created, no «relation of master and servant is established, tbe owner and driver of the team are not controlled by and are not in any sense tbe agents of the invited. guest, and to bold him responsible for tbe negligence of tbe former by whose permission alone be rides is unauthorized by tbe law and repugnant to reason. That be who suffers injury from another’s negligence may recover. compensation of tbe wrongdoer is a principle founded in natural justice and sustained by every precedent. That where tbe negligence of tbe *344person injured lias contributed to tbe injury be cannot so recover, because it is impracticable in tbe administration of justice to divide and apportion tbe compensation in proportion to tbe varying degrees of concurring negligence is equally well settled. But that be whose wrongful act or omission bas caused tbe injury and damage, and wbo upon every consideration of justice and reason ought to make compensation for it, shall be permitted to escape because a third person over whom tbe injured person bad no control and whose only relation to him was that of a guest to bis host has been guilty of negligence that contributed to tbe injury, is neither just nor reasonable. According to the verdict of this jury a loss of $1,000 was entailed upon tbe decedent by tbe negligence of this defendant. Tbe defendant’s wrongful omission was the proximate cause of this damage. Tbe der cedent in no way caused or contributed by any act or omission of hers to this injury. She bad no control over her brother, tbe driver, wbo may have contributed by bis carelessness to tbe damage. Upon what principle, now, can it be justly said that tbe 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 tbe injury, tbe proximate cause of which was tbe wrongful act of tbe defendant company? If there exists in tbe realms of jurisprudence any sound principle upon which so unrighteous a punishment of tbe innocent and tbe discharge of the guilty may be based we have been unable to discover it.”

In Dean v. Railroad 129 Pa. St., 514, 6 L. R, A., 143, 15 Am. St. Rep., 733, Ciarle, J., delivering tbe opinion of the Court, says, on page 524: “Quotations might be given from many cases in tbe different States illustrating tbe very firm and emphatic manner in which tbe doctrine of this celebrated case bas been denied. Tbe authorities in England and tbe great current of authorities of this country arei *345against it. Nor can I see why, upon any rule of public policy, a party injured by tbe concurrent and contributory negligence of two persons, one of them bis common carrier, should be beld, and tbe 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. Although in Carlisle v. Brisbane, 113 Pa., 544, I may appear to have accepted that doctrine, I mean merely to state that the ground upon which this Cburt had rested that rule was better than that taken by the English courts. But if this were not so, Fields was not a common carrier; Dean was riding in the wagon merely by invitation of Fields, who happened to be going in the direction of Fields’ 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, supra, and to the case of Follman v. Mankato, 29 N. West, 317, 59 Am. Rep., 340. We are clearly of opinion that if Dean himself was guilty of no negligence, the negligence of Fields cannot be imputed to him.”

This case was expressly approved in Bunting v. Hogsett, 139 Pa., 363, 12 L. R. A., 268, 23 Am. St. Rep., 192, where the Court uses the following language, on page 376: “But Thorogood v. Bryan, supra, which is the leading case, has been recently overruled in the English Court of Appeals. The Bernina (Mills v. Armstrong), 2 Prob. & D., 58, and the doctrine, although formerly accepted in many of the States, is now generally disapproved. The authorities in England and tire great current of authority in this country are against it. The cases are collected in Dean v. Railroad, *346 supra-. They are numerous, and it is unnecessary to refer to them here. What was there said was given as an individual opinion merely, and was, to some extent, perhaps, obiter dictum., but we are now unanimously of opinion that the views there expressed, somewhat in advance, contain the proper exposition of the law. The identification of the passenger with the negligent driver, or the owner, or with the carrier, as the case may be, without his co-operation or encouragement, is a gratuitous assumption. As Mr. Justice Field said in Little v. Hackett, 116 U. S., 366: ‘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.’ The rationale of the rule of Thorogood v. Bryan is expressly disavowed in our own case of Lockhart v. Litchtenthaler, and it is now rejected as untenable and wholly indefensible. Nor is there any rule or principle of public policy which will support such a doctrine. If a person is injured by the concurrent and contributory negligence of two- persons, one of them being at the time the common carrier of his person, there is no reason, founded in public policy or otherwise, which should release one of them and hold the other. It is tx*ue the carrier may be subjected to a higher degree of care than his co-tort feasor, but this affords no reason why either or both of them should not be held to that degree of care, respectively, which the law imposes upon them, and to be answerable in damages accordingly. The general rule undoubtedly is if>a person suffers injury from the joint negligence of two parties, and both are negligent in a manner which contributes to the injury, they are liable jointly and severally, and it would seem in principle to be a matter of no consequence that one of them is a common carrier. Neither *347the comparative degrees of care required nor the comparative degrees of culpability established can affect the liability of either.”

It is unnecessary, as well as impracticable, to cite all the other cases we have examined on this subject, and so we will confine ourselves to a few in which the precise question under consideration is directly presented. That one who is injured by the joint or concurring negligence of a private person with whom he is riding by invitation, as a guest or companion, and a third person, is not chargeable with the negligence of the driver, is held in the following cases: Masterson v. Railroad Co., 84 N. Y, 247, 38 Am. Rep., 510; Strouse v. Railroad, 39 N. Y. Supp., 998; Kessler v. Railroad Co., 38 N. Y. Supp., 799; Street By. Co. v. Powell, 89 Ga., 601; Leavenworth v. Hatch, 57 Kan., 57, 57 Am. Rep., 309; Cahill v. Railroad, 92 Ky., 345; Noies v. Boscawen, 64 N. H., 631, 10 Am. St. Rep., 410; Ouverson v. Grafton, 5 N. D., 281; St. Clair Railroad Co. v. Eadie, 43 Ohio, 91; Carlisle v. Brisbane, 113 Pa., 544, 57 Am. Rep., 483; Railroad Co. v. Hogeland, 66 Md., 149, 59 Am. Rep., 159; Railroad Co. v. State, 79 Md., 335, 47 Am. St. Rep., 415; Railroad Co. v. Davis, 69 Miss., 444; Follman v. Mankato, 35 Minn., 522; Commissioners v. Mutchler, 137 Ind., 140; 2 laggard Torts, sec. 276, p. 982; Bishop Non-Cont. Law, see. 1070.

The rule is thus stated in 7 A. & E. Enc., 447: “Occupants of private conveyances: In the' second class of eases there has been and still is much conflict among the authorities, but the true principle seems to be that when a person is injured by the negligence of the defendant and the contributory negligence of one with whom the injured person is riding as a guest or companion, such negligence is not imputable to the injured person; while on the other hand it may be imputable when the injured person is in a position to exercise authority or control over the driver.” Judge Thompson in *348bis Commentary on tbe Law of Negligence, Yol. I, sec. 502, thus lays down tbe rule: “Negligence of tbe driver is not imputed to tbe passenger on a private conveyance riding, by invitation. While there are a few untenable decisions to tbe contrary, nearly all American courts are agreed that tbe rule under consideration extends so far as to bold that where a person, while riding on a private vehicle by the invitation of tbe driver or tbe owner or tbe custodian of tbe vehicle, and having no authority or control over tbe driver and being under no duty to control bis conduct and having no reason to suspect any want of care, skill or sobriety on bis part, is injured by the concurring negligence of tbe driver and a third person or corporation, tbe negligence of the driver is not imputed to him'so as to prevent him from recovering-damages from tbe other tort feasor.”

We cannot better close this discussion than by tbe following quotation from 1 Shearman & Redfield on Negligence, section 66, and in doing so we deem it proper to say that, while we fully approve of tbe legal conclusions arrived at by the distinguished authors, we do not wish to be held entirely responsible for tbe vigor of their language: “Doctrine of identification: As already stated, tbe fact that tbe injury was caused by tbe joint negligence of tbe defendant and a mere stranger is universally admitted to be no defense. But in tbe famous case of Thorogood v. Bryan, an English court invented a new application of tbe old Roman doctrine of identification, and 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. In former editions we devoted much space to the refutation of this doctrine of ‘identification.’ But it is needless to do so any longer, since the entire doctrine has, since our first *349edition, been exploded in every court, beginning with New York and ending with Pennsylvania. It was finally overruled in England a few years ago. The only remnant of this doctrine which remains in sight anywhere is the theory that one who rides in a private conveyance thereby makes the driver his agent, and is thus responsible for the driver’s negligence, even though he has absolutely no power or right to control the driver. This extraordinary theory, which did not even occur to the hair-splitting Judges in Thorogood v. Bryan, was invented in Wisconsin and sustained by a pro--cess of elaborate reasoning; and this Wisconsin decision, in evident ignorance of all decisions to the contrary, was recently followed, with some similar reasoning, in Montana; and in Nebraska, without any reasoning whatever; which last is certainly the best method of reaching a conclusion, directly opposed to common sense and to- the decisions of twenty other courts. The notion that one is the ‘agent’ of another, who has not the smallest right to control or even advise him, is difficult to support by any sensible argument. This theory is universally rejected, except in the three States mentioned, and it must soon be abandoned even there.”

The doctrine of imputable negligence, as far as it relates to a child, has been fully discussed and expressly repudiated by this Court in Bottoms v. Railroad, 114 N. C., 699, 41 Am. St. Rep., 799, 25 L. R. A., 784. Even if this phase of the question were now before us, we could add but little to what was there so fully and ably said.

There must be a

New Trial.