Borough of Carlisle v. Brisbane

Mr. Justice Clark delivered the opinion of the court, The general rule of the law undoubtedly is, where one suffers an injury through the concurrent negligence of two or more persons, they are jointly liable, and may be proceeded against for the damages sustained, either jointly or severally at the option of the party injured; unless the latter by his own negligence has contributed to the injury, in which case, the law will not afford him any remedy whatever, against any or all of the persons whose wrong, in concurrence with his own, caused the injury ; the rule is, however, not without its exceptions. Where goods, in the hands of a common carrier, are injured by the negligent act of a third party, to which the negligence of the carrier contributes, and an action is brought by the owner against the third party, the carrier’s contributory negligence is a good defence: Vanderplank v. Miller, 1 Mood. & Malk., 169; Simpson v. Hand, 6 Wh., 311. So also, where a passenger is personally injured by the joint negligence of his carrier and another party, his remedy is against the common carrier alone. The latter question was first, raised in this court, and was very fully discussed, in the case of Lockhart v. Lichtenthaler, 10 Wright, 151. The decision in that case, was grounded upon the doctrine of the English cases, Budge v. Grand June. Railway Co., 3 M. & W., 247, (1838) in the Court of Exchequer; Thorogood v. Bryan, 65 Eng. Com. Law, 114; and Catlin v. Hills, Id., 123, in the Common Bench, (1849). These cases have since been followed and approved in the Exchequer by Armstrong v. Lancaster & York Railway Co., 44 L. J. Exch., 89. The principle upon which all these English cases appear to have been determined, is that the passenger is so far identified with the carriage in which he is travelling, that want of care on part of the driver, will be a defence of the owner of the other carriage that directly caused the injury. Our own case of Lockhart v. Lichtenthaler, supra, was followed by Phila. & Read. R. R. Co., v. Boyer, 1 Out., 91; an action against the railroad company, to recover damages for the death of a person, caused by a collision of the defendant’s train, with a street car, in which the deceased was a passenger, it was held, that in order to recover, the plaintiffs must show, not only that the death resulted directly from the defendant’s negligence, but that the negligence of the carrier company did not contribute to the result. Therefore, although there is certainly a wide difference of opinion between the courts of this and other states on the subject, it seems to be well settled as the law of Pennsylvania that the remedy of a passenger, injured by the joint negligence of his carrier and [551] another, is against the common carrier only. Cornman, however, was not a common carrier ; he was the owner of the horse and sleigh and was the driver; Brisbane was a friend of Corn-man’s, visiting Carlisle and occupied a seat in the sleigh by his invitation ; the accident occurred whilst returning from a visit to the poor house. Nor was Cornman the servant of Brisbane; as the driver, lie was neither under Brisbane’s direction or control, nor was Brisbane under his control. Brisbane had simply accepted the friendly offer of a seat in Corn-man's sleigh ; he had a right to expect from Cornman ordinary skill and care, in the management of the conveyance, and precisely the same degree of care from the municipality of the Borough of Carlisle, in the condition and repair of the streets over which they might pass. There is no evidence whatever that Brisbane knew that Cornman was a reckless or unskillful driver, or that he 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 has found that he was not personally aware of either, and no question can arise, involving this view of the case. It is said, however, that although there is no evidence of any actual negligence on the part of Brisbane, upon the principle of Lockhart v. Lichtenthaler, the negligence of Corn-man is to be imputed to him. The rationale of the rule in Thorogood v. Bryan is said by Colton, J., to he the identity of the passenger with his own vehicle; but in Lockhart v. Lichtenthaler this reason is rejected, and we think the foundation of the principle is expressed by Mr. Justice Thompson, with much more care and accuracy, as follows : “ I would say the reason for it is that it better accords with the policy of the law to hold the carrier alone responsible in such circumstances, as an incentive to care and diligence. As the law fixes responsibility upon a different principle in the ease of the carrier, as already noticed, from that of a party who 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 wliicli 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 would be altogether more just to hold liable him who has engaged to observe the highest degree of diligence and care, and lias been compensated for so doing, rather than him upon whom no such obligation rests, and who, not being compensated for the observance of such a degree of care, acts only on the duty to observe ordinary care, and may not be aware, even, of the presence of a party who [552] might be injured.” When the reason of a rule of law ceases, the rule itself ceases. The law fixes the responsibility of the persons or parties involved in this transaction, upon precisely the same basis. There is certainly' no policy of law which requires that the driver of a private carriage or sleigh, who, actuated by the motive of kindness alone, and without compensation, may undertake to convey a friend through the streets of a cit_v or town, shall be held to a higher standard of care towards that friend than the city' or town through whose streets they pass. Both Cornman and the municipality' of Carlisle borough were bound to Brisbane for the exercise of ordinary' care and diligence, only'. If Cornman had been a common carrier he would have been a carrier for compensation, and would have been obliged to observe the highest degree of diligence and care ; the policy of the law' in such a case, it is said, would not permit him to escape, by interposing the negligence of others of a less culpable character. The doctrine declared in Lockhart v. Lichtenthaler, and Phila. & Read. R. R. Co. v. Boyer is not applicable to this case, and there is no sound principle of law which will preclude the plaintiff from seeking redress, from both or either of the persons, through whose negligence he w'as injured. Brisbane was answerable for his own negligence alone ; the negligence of Cornman, under the circumstances, cannot be imputed to him, so as to bar his recovery in this case. The case at bar is in every respect similar to the case of Robinson v. N. Y. C. & H. R. R. Co., 66 N. Y., 11, where a female accepted an invitation to ride in a buggy with a person who was entirely' competent to manage a horse, and it was held that if the defendant company' was negligent and the plaintiff free from negligence herself, she might recover from the company, although the driver of the buggy might have been guilty of negligence which contributed to the injury'. This case was followed by Dyer v. Erie R. R., 71 N. Y., 228. Mr. Justice Miller, delivering the opinion of the Court, say's: “It is insisted that the Court erred in charging the jury that the negligence of Stimpson was no bar to the action, and that the negligence of the driver would not prevent a recovery. The solution of the question raised must depend on the position which Stimpson occupied 'toward the plaintiff. The plaintiff rode with Stimpson at his invitation, gratuitously, in Stimpson’s wagon. The latter, driving the team, exercised entire control over it, and was travelling entirely on business of his own. Stimpson was not hired by the plaintiff, or in his employ', or in any sense his agent, nor had the plaintiff any control or direction of the team, or its management, or over Stimpson himself. There is no pretence but that Stimpson was entirely [553] competent to take charge of the team himself, nor that he did not possess the requisite skill to manage and control the same. It is difficult to see upon what principle the negligence of Stimpson can affect the plaintiff or be imputed to him. These causes in New York were afterwards followed by Masterson v. N. Y. C. & H. R. R. Co., 84 N. Y., 247, which is to the same effect. It is true that the authority of these cases may bo supposed to be somewhat impaired in Pennsylvania by the 'fact that in New York the rule of Thorogood v. Bryan has been repudiated (Chapman v. New Haven R. R. Co., 19 N. Y., 34), but, as we hold the rule of policy only to apply to the ease of a common carrier, there is no reason to discredit the authority of that Court in cases where this rule of policy does not apply. In this view it is not important what Cornman may have previously known as to the condition of the road, and as it is shown that Brisbane never had any knowledge of it, the case was to be considered by the jury, so far as Brisbane is concerned, just as if botli were passing over the road for the first time. A stranger in the twilight, or when snow was on the ground, as matter of fact might certainly assume, that the centre of a public road or street within the corporate limits of a populous town, over which hundreds of wagons passed every day, especially if no other route is plainly designated, was in a passable condition. In the consideration of a question of negligence, on part of a stranger, certainly under such circumstances, it was proper to show that he took the centre and not the side of the opened street. There may be cases where the conformation of the ground itself would clearly indicate that the centre of a public road is not the travelled route, and in such case this circumstance may be sufficient to give notice; but in all ordinary eases, the centre of a public street passing between the open lots of a populous town, in the usual course of travel, and. in the night time, or when the route is obscured by snow, may be taken as the travelled route ; if the municipal officers caused an obstruction to be placed on that part of the highway, it was their dut, to give some appropriate warning of the fact. Nor can we see any valid objection to the evidence, showing where the actual travelled route was before the street was macadamized. If there was nothing to indicate to a stranger that the route for travel was at the side of the road, we have said he might assume the route to be in the centre, how then could it harm the defendant to show that the route had previously been in the centre, although the plaintiff did not know the fact. The evidence was clearly competent, however; its tendency was to show that the only obstruction of the street [554] was that wbicb the officers of the municipality had themselves negligently placed there, and that there was nothing in the natural conformation of the ground to prevent the use of the central part of the road at this point, or to warn the plaintiff that the travelled route was not in the centre, but along the side of the street. It is an undoubted and indeed an undisputed fact that the centre of the street had been the usual course of travel, and we think it was certainly competent to show it. The learned Court very plainly instructed the jury that if the way provided was safe, convenient, and so well marked that no man of ordinary prudence could mistake it, it was not necessary that it should have been along the middle of the street, and that in providing such a way at the side of the street, they did their whole duty to the public, unless on the central part, where it had previously been used as the highway, they placed a dangerous obstruction, without giving any warning of the fact. The principle upon which this evidence was admitted is perhaps inaccurately stated, but as the proof was properly received, we cannot reverse upon the ground that proper reasons were not assigned for its admission. The judgment is affirmed.