Burke v. Anacostia & Potomac Railway Co.

Nr. Chief Justice Smyth delivered the opinion of the Court: The court instructed the jury that if they found the plaintiff guilty of contributory negligence she could not recover. Appellant asserts, among other things, that there was no evidence of contributory negligence on the part of the plaintiff to go to the jury. It is well settled in the Federal jurisdiction that the negligence of the driver of a passenger vehicle is not imputable to his passenger, where the latter has no right to control his actions and makes no effort to do so. Baltimore & O. R. Co. v. Adams, 10 App. D. C. 97, 105; Little v. Hackett, 116 U. S. 366, 371, 29 L. ed. 652, 654, 6 Sup. Ct. Rep. 391; Union P. R. Co. v. Lapsley, 16 L.R.A. 800, 2 C. C. A. 149, 4 U. S. App. 542, 51 Fed. 174; Pyle v. Clark, 25 C. C. A. 190, 49 U. S. App. 260, 79 Fed. 744, 2 Am. Neg. Rep. 100; Southern P. Co. v. Wright, 160 C. C. A. 339, 248 Fed. 263. In the Adams Case this court (¡noted the following language from the decision of the Supreme Court of the United States in Little v. Hackett: “A person who hires a public conveyance and gives the driver directions as to the place to which he wishes to be conveyed, but exercises no other control over the conduct of the driver, is not responsible for his acts or negligence.” The circuit court of appeals for the eighth circuit, speaking through Judge Sanborn in the Pyle Case, ruled that “the negligence of the owner and driver of a vehicle cannot be imputed to one who is riding with him gratuitously, so as to defeat a recovery for an injury caused by the concurring negligence of the driver and the third person.” This is directly in point. So is the Southern P. Co. Case. One Wright, while riding upon an auto truck, was instantly killed at a railroad crossing, in a collision between the truck and an engine of a passenger train operated by the defendant company. The truck was being run by a person put in charge of it by the owner. Wright [302] had no control over him. It was contended that the driver’s negligence should be imputed to Wright. In rejecting the contention, the court said that, until Wright had some reason to suspect that the driver A?as incompetent or careless, “he not only had the right, but it Avas his duty, to assume that he would not rashly or carelessly go into peril. Generally it is the duty of the passenger to sit still and say nothing. It is his duty, because any other course is fraught Avith danger. Interference, by laying hold of an operating lever, or by exclamation, or even by direction or inquiry, is generally to be deprecated; in the long run, the greater safety lies in letting the driver alone.” In the case at bar, according to the undisputed testimony, the plaintiff had no right to direct her son, and did not attempt to do so. The automobile Avas his, and he was experienced in the handling of it. She Avas his guest. So, if there Avas testimony from which the jury could find .negligence on his part contributing to the accident it did not affect her case. Plaintiff’s OAAm conduct discloses no want of proper care for her safety. What could she have done under the circumstances to protect herself? The law did not require her to jump from the automobile. If she did, her injuries would in all probability have been more serious than they were. If she sought to direct her son, her efforts, no doubt, would have been more confusing than otherwise. He was compelled to act on the spur .of the moment, and it would have been impossible for her to have influenced his action for her safety under the circumstances. Besides, it is a matter of common knowledge among those familiar with the handling of automobiles in motion that “driving from the back seat” is extremely dangerous. We can perceive nothing in the evidence on which the jury could have predicated negligence on plaintiff’s part, and therefore Ave think the court erred in submitting the question to the jury. For the reasons stated the judgment is reversed, Avith costs, and the case remanded to the loAA'er court, with directions to grant a neAV trial. Reversed. A motion for rehearing was overruled January 25, 1919.