Dean v. Pennsylvania R.

Opinion, Me. Justice Clark :

The plaintiff, Isaac N. Dean, whilst crossing the tracks of the defendant company’s road at Frost station, Fayette county, in a wagon, on the morning of the 25th of November, 1882, was struck by the locomotive of a passing train, and this suit was brought to recover damages for the injury sustained through the alleged negligence of the defendant on that occasion. The negligent act complained of is, that although the train was running at the rate of thirty or forty miles an hour, no sufficient warning of its approach to the crossing was given, either by blowing the whistle or ringing the bell.

On the part of the defendant it is contended that, assuming this to be so, the plaintiff, not only through the negligence of *520 the driver of the wagon, but by his own negligence, contributed to the injury, and therefore cannot recover. William Fields was the owner of the horses and wagon, and was the driver. That he was guilty of negligence cannot be denied: it was his duty to anticipate the probable passage of trains on the railroad, and, before attempting to cross the tracks, to stop, look, and listen for their approach, and this the plaintiff frankly admits Fields failed to do. When he left the corner of the Blackburn House, some three hundred feet distant from the crossing, he trotted his horses to the brow of the hill, a little more than half way, and checking them there a little, he started down the hill at a fast trot to the railroad, where the collision occurred. Mr. Gilmore, an engineer called by the plaintiff, testifies that the locomotive and cars on the track were plainly visible to a person riding in a wagon on the public road, at almost any point, for a distance of 1300 feet, subject to such temporary obstructions as might exist from intervening buildings and trees; and it is conceded on all hands that at a point ten feet from the railroad, the track itself was visible for a quarter of a mile or more.

Having failed to stop, look, and listen, before he undertook to cross the railroad tracks, Fields failed to perform a duty which the law plainly imposed upon him, and he was therefore guilty of negligence, which contributed to the injury.

But can the negligence of Fields be imputed to Dean ? In Lockhart v. Lichtenthaler, 46 Pa. 151 , it was held that where a passenger in a carrier vehicle is injured by a collision resulting from the negligence of those in charge of it, and those in charge of another vehicle, the carrier only is answerable for the injury; and this case was followed by Phila. etc. R. Co. v. Boyer, 97 Pa. 91 , where the same rule was applied. The decision in Lockhart v. Lichtenthaler was made by adopting the conclusion of the English courts in Bridge v. Grand Junction Ry. Co., 3 M. & W. 247 (1838), in the Exchequer; Thorogood v. Bryan, 8 C. B. 115 (65 Eng. C. L. 114), and Cattlin v. Hills, 8 C. B. 123 (1849), in the Common Bench. These cases were followed in the Exchequer in Armstrong v. Lancashire & York Ry. Co., L. R. 44 Exch. 89 (1875); L. R. 10 Exch. 47.

The principle upon which all these English cases appear to have been determined is, that the passenger is so far identified *521 with the carriage in which he is traveling, that want of care, on the part of the driver, will be a defence to the owner of the other carriage that directly causes the injury. In Thorogood v. Bryan, which is the leading case, a passenger alighting from an omnibus was thrown down and injured by the negligent management of another omnibus, and it was held that an action would not be maintained against the owner of the latter, if the driver of the omnibus in which the passenger was riding, by the exercise of proper care and skill, might have avoided the accident which caused the injury. The rule asserted is one of general application, no matter whether the conveyances are public or private, or whether the party injured is conveyed at his own request or at the request of the driver.

In Lockhart v. Lichtenthaler, however, the rationale of the rule in Thorogood v. Bryan was not considered tenable; indeed, the reasons assigned for it in the English cases were expressly rejected, and the liability of the carrier was put upon different grounds, the grounds of public policy. “ I would say,” says the learned judge delivering the opinion of the court, “the reason for it is, that it better accords with the policy of the law, to hold the carrier alone responsible in such instances, as an incentive to care and diligence. The law fixes the responsibility upon a different principle in the case of a carrier, as already noticed, from that of a party that does not stand in that relation to the'party injured; the very philosophy of the requirement of greater care is that he shall be answerable for omitting any duty which the law has defined as his rule and guide, and will not permit him to escape by imputing negligence of a less culpable character to others, but sufficient to render them liable for the consequences of his own.” It will be observed that, as the reasons assigned for the rule in Lockhart v. Lichtenthaler extend only to cases in which the party is injured by the joint negligence of his common carrier and another, the rule has no application to eases where the injured party’s conveyance is private, and this was the ground upon which Carlisle v. Brisbane, 113 Pa. 544 , was decided. In that case the conveyance was private, the party injured being carried without compensation, and both of the negligent parties held to the same degree of care and negligence. The doctrine of Lockhart v. Lichtenthaler was therefore not applicable.

*522 The principle of Thorogood v. Bryan has been approved in some of the states, and in others it has been rejected as altogether indefensible. It has been recognized and sustained in Vermont: Carlisle v. Sheldon, 88 Vt. 440 ; in Wisconsin: House v. Fulton, 29 Wis. 296 ; Prideaux v. Mineral Pt., 48 Wis. 518 ; Otis v. Janesville, 47 Wis. 422; and in Iowa: Payne v. Railroad Co., 39 Ia. 523 . On the other hand, the doctrine has been declared unsound and untenable by the Supreme Court of the United States in the very recent case of Little v. Hackett, 116 U. S. 366 . The doctrine has also been disapproved and rejected in New York: Robinson v. Railroad Co., 66 N. Y. 11 ; Dyer v. Railway Co., 71 N. Y. 228 ; Masterson v. Railroad Co., 84 N. Y. 247 ; in New Jersey: Bennett v. Transportation Co., 36 N. J. Law (7 Vroom) 225; N. Y. etc. Ry. Co. v. Steinbrenner, 47 N. J. Law (18 Vroom) 161-171; in Maine: State v. Boston & M. R. Co., 38 Alb. L. J. 269 ; in Ohio: Transfer Co. v. Kelly, 36 Ohio 86 -91; in Illinois: Wabash etc. Ry. Co. v. Shacklet, 105 Ill. 364 ; in Kentucky: Danville Turnpike Co. v. Stewart, 2 Metc. 119 ; Railroad Co. v. Case, 9 Bush 728 ; in California: Tomkins v. Railroad Co., 66 Cal. 163 ; in New Hampshire: Noyes v. Town of Boscawen, 64 N. H. 361; in Minnesota: Follman v. City of Mankato, 35 Minn. 522 ; in Michigan: Cuddy v. Horn, 46 Mich. 596 ; and in Maryland: Railroad Co. v. Hogeland, 66 Md. 149 ; whilst in Pennsylvania, as we have already stated, the rule has been but partially adopted, and the reasons given by the English courts have been expressly rejected. In some of the states, as in Wisconsin, Michigan, and Iowa, a distinction would appear to have been taken between a public and a private conveyance; and, as an examination of the cases cited will show, it has been there held that when the injured person is riding in a private conveyance by invitation of the driver and without compensation, the driver will be regarded as his agent, and upon that ground the negligence of the latter is imputed to the former. In Pennsylvania, New York, Ohio, Minnesota, and other states, this doctrine of agency is expressly repudiated, and it is held that in such cases the driver’s negligence cannot be so imputed. Thus it will be seen that the cases are conflicting: the rulings in England and in this country have been in the greatest con-' fusion, which we think is attributable to the fact that the gen *523 eral rule of Thorogood v. Bryan, which for thirty-eight years was followed in England, and in parts of this country, was rested upon wholly indefensible ground. The vain effort to sustain a rule of law, which was at variance with reason and common sense, has given rise to these various conflicting views and decisions.

The English Court of Appeals however, in a very recent case, the Bernina, Armstrong v. Mills, 12 Prob. & D. 58, decided in January, 1887, expressly overrules the ease of Thorogood v. Bryan, and holds that one who is a passenger in a public conveyance does not identify himself with the conveyance, or the persons in charge of it, and that their negligence, direct or contributory, can in no respect be imputed to him. In the judgment of the court, Lord Esher, M. R., after an extended review of the English and American cases, said: “ After having thus laboriously inquired into the matter, and having considered the case of Thorogood v. Bryan, 8 C. B. 115, we cannot see any principle on which it can be supported; and we think that, with the exception of the weighty observation of Lord Bramwell, though that does not seem to be a final view, the preponderance of judicial and professional opinion in England is against it, and that the weight of judicial opinion in America is also against it. We are of opinion that the proposition maintained in it is erroneously unjust, and inconsistent with other recognized propositions of law. As to the propriety of dealing with it, at this time, in a court of appeals, it is a case which, from the time of its publication, has been constantly criticised, and no one can have gone into or have abstained from going into an omnibus, railroad, or ship, on the faith of the decision. We therefore think that, now that the question is for the first time before an English court of appeal, the case of Thorogood v. Bryan, 8 C. B. 115, must be overruled: ” See 57 Am. Rep., 488 -570. In the case of Little v. Hackett, supra, in the Supreme Court of the United States, Mr. Justice Field, delivering the opinion, says: “ 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 co-operation 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 *524 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.”

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 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. Although in Carlisle v. Brisbane, I may appear to have accepted that doctrine, I meant merely to state that the ground upon which this court had rested this 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 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 ease is similar in this respect to Carlisle v. Brisbane, supra, and to the case of Follman v. City of Mankato, 29 Minn. 817 . We are clearly of opinion that if Dean himself was guilty of no negligence, the negligence of Fields cannot be imputed to him; but it is in this respect this case differs from Carlisle v. Brisbane. In the case just cited, Brisbane was a stranger: the accident occurred after night and after a fresh fall of snow: it was caused from a defect in the street. There was no evidence whatever that Brisbane knew that Cornman was a reckless or unskilful driver, or that he (Brisbane) saw, or by the exercise of reasonable care at the time could see, or ought to have seen, the dangerous condition of the street; indeed, the jury found that he was not personally aware of either, and no question was raised involving that view of the case. Here, however, the facts are of a different character. Dean knew the locality well; he had crossed *525 the tracks frequently at this point; he knew that a train was due about that time, and that he was approaching the railroad track at a fast trot; yet he took no precautions. He was certainly responsible for his own negligence; he sat with his back to the driver, and although he might -have seen his danger, he confesses that he did not look. He said nothing by way of warning to Fields, nor did he ask him to stop, to look and listen, or to permit him (Dean) to get out; and the danger was as obvious to Dean as it was to Fields. The testimony is wholly to the effect that the plaintiff committed himself voluntarily to the action of Fields; that he joined him in testing the danger, and he is responsible for his own act. The case is ruled by Crescent Township v. Anderson, 114 Pa. 643 .

The judgment is affirmed.