1 that the recent repudiation of the doctrine of Thorogood v. Bryan by the Supreme Court of the United States, and the distinct her husband. Carlisle v. Sheldon, 38 Vt. 440; Huntoon v. Trumbull, 2 McCrary (U. S.), 314; Gulf, etc., R. Co. v. Greenlee (Tex.), 23 Am. & Eng. R. R. Cas. 322. But see Platz v. Cohoes, 24 Hun (N. Y.), IOI. And it has been held, that the contributory negligence of a master bars a servant. Lake Shore, etc., R. Co. v. Miller, 25 Mich. 274. 1. Thorogood v. Bryan. - Thorogood v. Bryan, 8 C. B. 115; s. c., Thompson on Carriers, 273. In this case it was held, that a passenger in an omnibus injured by the negligence of the driver of another omnibus had no action against the latter, because the driver of the omnibus carrying the passenger, by his negligence, contributed to the injury. It was said that the plaintiff, being a passenger voluntarily, was so far identified with the carriage in which he was travelling, that want of care on the part of the driver of such carriage would bar the plaintiff's action. The passenger was said to stand in the position of a master responsible for the acts of the driver as though those of a servant. See opinions of Coltman, Maule, Cresswell, and Williams, judges. 2. Little v. Hackett.-Little 7. Hackett, 116 U. S. 366, where it is said, "The doctrine resting upon the principle that no one is to be denied a remedy for injuries sus tained, without fault by him or by a party under his control and direction, is qualified by cases in the English courts, wherein it is held that a party who trusts himself to a public conveyance is in some way identified with those who have it in charge, and that he can only recover against a wrong-doer when they who are in charge can recover; in other words, that their contributory negligence is imputable to him so as to preclude his recovery for an injury when they, by reason of such negligence, could not recover. The leading case to this effect is Thorogood v. Bryan, decided by the court of common pleas in 1849, 8 C. B. 114. It there appeared that the husband of the plaintiff, whose administratrix she was, was a passenger in an omnibus. The defendant, Mrs. Bryan, was the proprietress of another omnibus running on the same line of road. Both vehicles had started together, and frequently passed each other, as either stopped to take up or set down a passenger. The deceased, wishing to alight, did not wait for the omnibus to draw up to the curb, but got out whilst it was in motion, and far enough from the path to allow another carriage to pass on the near side. The defendant's omnibus coming up at the moment, he was run over, and in a few 2 days afterwards died of the injuries sustained. The court, among other things, instructed the jury that if they were of the opinion that want of care on the part of the driver of the omnibus in which the deceased was a passenger, in not drawing up to the curb to put him down, had been conducive to the injury, the jury must be for the defendant, although her driver was also guilty of negligence. The jury found for the defendant, and the court discharged a rule for a new trial for misdirection, thus sustaining the instruction. The grounds of its decision were, as stated by Mr. Justice Coltman, that the deceased, having trusted the party by selecting the particular conveyance in which he was carried, had so far identified himself with the owner and her servants, that if any injury resulted from their negligence, he must be considered a party to it. In other words,' to quote his language, the passenger is so far identified with the carriage in which he is travelling, that want of care on the part of the driver will be a defence of the driver of the carriage which directly caused the injury.' Mr. Justice Maule, in the same case, said that the passenger 'chose his own conveyance, and must take the consequences of any default of the driver he thought fit to trust.' Mr. Justice Cresswell said, 'If the driver of the omnibus deceased was in had, by his negligence or want of due care or skill, contributed to any 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 carry him stands in any different position. Mr. Justice Williams added that he was of the same opinion. He 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.' "What is meant by the passenger being identified with the carriage' or with the person having its management,' is not very clear. In a recent case, in which the court of exchequer applied the same test to a passenger in a railway train which collided with a number of loaded wagons that were being shunted from a siding by the defendant, another railway company, Baron Pollock said that he understood it to mean 'that the plaintiff, for the purpose of the action, must be taken to be in the same position as the owner of the omnibus or his driver.' Armstrong . Lancashire, etc., R. Co., L. R. 10 Exch. 47, 52. Assuming this to be the correct explanation, it is diffi cult to see upon what principle the passenger can be considered to be in the same: position, with reference to the negligent act, as the driver who committed it, or as his master, the owner. 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 between 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. But neither of these conclusions can be maintained; neither has the support of any adjudged cases entitled to consideration. "The truth is, the decision in Thorogood 7. Bryan rests upon indefensible ground. The identification of the passenger with the negligent driver or the owner, without his personal co-operation or encourage-, ment, 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 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. "Thorogood v. Bryan has not escaped criticism in the English courts. In the court of the admiralty it has been openly disregarded. In The Milan, Dr. Lushing ton, the judge of the high court of admiralty, in speaking of that case, said, With due respect to the judges who decided that case, I do not consider that it is necessary for me to dissect the judgment: but I decline to be bound by it, because it is a single case; because I know, upon inquiry, that it has been doubted by high authority; because it appears to me not reconcilable with other piinciples laid down at common law; and lastly, because it is directly against Hay v. La Neve and the ordinary practice of the court of admiralty.' Lush. 388, 403. "In this country the doctrine of Thorogood v. Bryan has not been generally followed. In Bennett v. New Jersey R. Co., 36 N. J. L. (7 Vroom) 225, and New York, etc., R. Co. v. Steinbrenner, 47 N. J. L. (18 Vroom) 161; s. c., 23 Am. and Eng. R. R. Cas. 330, it was elaborately examined by the supreme court and the court of errors of New Jersey in opinions of marked ability and learning, and was disapproved and rejected. In the first it was held that the driver of a horse-car was not the agent of the passenger so as to render the passenger chargeable for the driver's negligence. The car, in crossing the track of the railroad company, was struck by its train, and the passenger was injured; and he brought an action against the company. On the trial the defendant contended that there was evidence tending to show negligence by the driver of the horse-car, which was in part productive of the accident; and the presiding judge was requested to charge the jury, that, if this was so, the plaintiff was not entitled to recover; but the court instructed them that the carelessness of the driver would not affect the action, nor debar the plaintiff's right to recover for the negligence of the defendant. And this instruction was sustained by the court. In speaking of the 'identification' of the passenger in the omnibus with the driver, mentioned in Thorogood v. Bryan, the court, by the chief justice, said, 'Such identification could result only in one way; that is, by considering such driver the servant of the passenger. I can see no ground upon which such a relationship is to be founded. In a practical point of view, it certainly does not exist. The passenger has no control over the driver or agent in charge of the vehicle. And it is this right to control the conduct of the agent which is the foundation of the doctrine that the master is to be affected by the acts of his servant. To hold that the conductor of a street-car or a railroad train is the agent of the numerous passengers who may chance to be in it, would be a pure fiction. In reality there is no such agency; and if we impute it, and correctly apply legal principles, the passenger, on the occurrence of an accident from the carelessness of the person in charge of the vehicle in which he is being conveyed, would be without remedy. It is obvious, in a suit against the proprietor of the car in which he was a passenger, there would be no recovery if the driver or conductor of such car is to be regarded as the servant of the passenger. And so, on the same ground, each passenger would be liable to every person injured by the carelessness of such driver or conductor; because, if the negligence of such agent is to be attributed to the passenger for one purpose, it would be entirely arbitrary to say that he is not to be affected by it for other purposes' (7 Vroom, 227, 228). "In the latter case, it appeared that the plaintiff had hired a coach and horses, with a driver, to take his family on a particular journey. In the course of the journey, while crossing the track of the railroad, the coach was struck by a passing train, and the plaintiff was injured. In an action brought by him against the railroad company, it was held that the relation of master and servant did not exist between him and "A similar doctrine is maintained by the courts of Ohio. In Transfer Co. v. Kelly, 36 Ohio State, 86, 91; s. c., 3 Am. &. Eng. R. R. Cas. 335, the plaintiff, a passenger on a car owned by a street railroad company, was injured by its collision with a car of the Transfer Co. There was evidence tending to show that both companies were negligent, but the court held that the plaintiff, he not being in fault, could recover against the Transfer Co., and that the concurrent negligence of the company, on whose cars he was a passenger, could not be imputed to him, so as to charge him with contributory negligence. 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 sole cause of the injury.' 'Indeed,' the Chief Justice added, it seems as incredible to my mind that the 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.' the driver, and that the negligence of the latter, co-operating with that of persons in charge of the train, which caused the accident, was not imputable to the plaintiff, as contributory negligence, to bar his action. "In New York a similar conclusion has been reached. In Chapman v. New Haven R. Co., 19 N. Y. 341, it appeared that there was a collision between the trains of two railroad companies, by which the plaintiff, a passenger of one of them, was injured. The court of appeals of that State held that a passenger by railroad was not so identified with the proprietors of the train conveying him, or with their servants, as to be responsible for their negligence; and that he might recover against the proprietors of another train for injuries sustained from a collision through their negligence, although there was such negligence in the management of the train conveying him as would have defeated an action by its owners. In giving the decision, the court referred to Thorogood . Bryan, and said that it could see no justice in the doctrine in connection with that case; and that, to attribute to the passenger the negligence of the agents of the company, and thus bar his right to recover, was not applying any existing exception to the general rule of law, but was framing a new exception based on fiction, and inconsistent with justice. The case differed from Thorogood v. Bryan in that the vehicle carrying the plaintiff was a railway-train instead of an omnibus; but the doctrine of the English case, if sound, is as applicable to passengers on railway trains as to passengers in an omnibus; and it was so applied, as already stated, by the court of exchequer, in the recent case of Armstrong. Lancashire & Yorkshire R. Co. In Dyer v. Erie Railway Co., 71 N. Y. 228, 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 "Similar decisions have been made in the held that no relation of principal and agent courts of Kentucky, Michigan, and Caliarose between the driver of the wagon and fornia. Danville, etc., Turnpike Co. v. the plaintiff; and, although he travelled Stewart, 2 Met. (Ky.) 119; Louisville, etc., voluntarily, he was not responsible for the R. Co. v. Case, 9 Bush (Ky.), 728; Cuddy negligence of the driver, where he himself. Horn, 46 Mich. 596; Tompkins v. Clay was not chargeable with negligence, and there was no claim that the driver was not competent to control and manage the horses. "In the Supreme Court of Illinois the same doctrine is maintained. In the recent cases of the Wabash, etc., R. Co. v. Schacklett, 105 Ill. 364; S. C., 12 Am. & Eng. R. R. Cas. 166, the doctrine of Thorogood's case was examined and rejected, the court holding that, where a passenger on a railway train is injured by the concurring negligence of servants of the company on whose train he is travelling, and of the servants of another company with whom he has not contracted, there being no fault or negligence on his part, he or his personal representatives may maintain an action against either company in default, and will not be restricted to an action against the company on whose train he was travelling. St. R. Co., 66 Cal. 163; s. c., 18 Am. & "There is no distinction in principle whether the passenger be on a public con manner in which that case has now been overruled in England,1 indicate an entire abandonment of the doctrine that the contributory negligence of a carrier should be imputed to a passenger.2 In the second class of cases, the doctrine of Hartfield v. Roper 3 is followed in some jurisdictions; and it is held that the negligent conduct of a parent, guardian, or custodian in allowing a child non sui juris to be negligently injured is contributory negligence, which must be imputed to the child. But in other jurisdictions veyance like a railroad train or an omnibus, or be on a hack hired from a public stand in the street for a drive. Those on a hack do not become responsible for the negligence of the driver if they exercise no control over him further than to indicate the route they wish to travel or the places to which they wish to go. If he is their agent, so that his negligence can be imputed to them to prevent their recovery against a third party, he must be their agent in all other respects, so far as the management of the carriage is concerned, and responsibilities to third parties would attach to them for injuries caused by his negligence in the course of his employment. But, as we have already stated, 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 the injury. From the simple fact of hiring the carriage, or riding in it, no such liability can arise. The party hiring or riding must in some way have co-operated in producing the injury complained of before he incurs any liability for it. If the law were otherwise,' as said by Mr. Justice Dupue in the elaborate opinion in the latest case in New Jersey. 'not only the hirer of the coach, but also all the passengers in it, would be under a constraint to mount the box and superintend the conduct of the driver in the management and control of his team, or be put for remedy exclusively to an action against the irresponsible driver, or the equally irresponsible owner of a coach taken, it may be, from a coach-stand, for the consequences of an injury which was the product of the co-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.' New York, Lake Erie, etc., R. Co. v. Steinbrenner, 47 N. J. L. (18 Vroom) 161, 171; s. c.. 23 Am. & Eng. R. R. Cas. 330. "In this case, it was left to the jury to say whether the plaintiff had exercised any control over the conduct of the driver further than to indicate the places to which he wished him to drive. The instruction of the court below, that unless he did exercise such control, and require the driver to cross the track at the time the collision occurred, the negligence of the driver was not imputable to him so as to bar his right of action against the defendant, was therefore correct, and the judgment must be affirmed." 1. Case of the Bernina. The Bernina, 12 Prob. Div. 58, s. c., 57 Am. Rep. 494, et seq., note. 2. When the Rule properly applicable. - An examination of the cases cited will show a marked tendency to the entire abandonment of the doctrine of imputable negligence in cases of the class now under discussion. It may be questioned whether the rule has any proper application, except in cases where the maxim, qui facit per alium facit per se, can be invoked. Reedie v. London, etc., R. Co., 4 Exch. 244; Quarman v. Burnett, 6 M. & W. 499; The Bernina, 12 Prob. Div. 58; N. Y., etc., R. Co. v. Steinbrenner, 47 N. J. L. 161; s. c., 23 Am. & Eng. R. R. Cas. 330, 54 Am. Rep. 126 and note; St. Clair St. R. Co. v. Eadie, 43 Ohio St. 91; s. c., 23 Am. & Eng. R. R. Cas. 269; Cuddy v. Horn, 46 Mich. 596; s. c., 41 Am. Rep. 178; Little v. Hackett, 116 U. S. 366; Follman v. Mankato (Minn. 1886), 15 Am. & Eng. Corp. Cas. 238. 3. Imputable Negligence of Parents: Hartfield v. Roper.- Hartfield v. Roper, 21 Wend. (N. Y.) 615; s. c., 34 Am. Dec. 273; 2 Thomp. on Neg. 1121. In this case, it was held, that parents permitting a child two years old to be in a public highway unattended, are guilty of such contributory negligence as will defeat an action in the child's name for an injury done to it by the negligence of a traveller in the highway. 4. Where held Imputable to Child. — Gibbons v. Williams, 135 Mass. 333; McGeary v. Eastern R. Co., 135 Mass. 363; s. c., 15 Am. & Eng. R. R. Cas. 407; O'Connor v. Boston, etc., R. Co., 135 Mass. 352; s. c., 15 Am. & Eng. R. R. Čas. 362; Wright v. Malden, etc., R. Co., 4 Allen (Mass.), 283; Lynch v. Smith, 104 Mass. 52; s. c., 6 Am. Rep. 188; Schierhold v. North, etc., R. Co., 40 Cal. 447; Meeks v. Southern, etc., R. Co., 52 Cal. 604; s. c., 56 Cal. 513; 38 Am. Rep. 67; Gavin v. Chicago, 97 Ill. 66; s. c., 37 it is held that the negligence of the parent, guardian, or custodian is not imputable to the child, because it is in no way responsible for the danger, had no volition in establishing the relation of privity with the person whose negligence it is sought to impute to it, and should not be charged with the fault of such person in allowing it to be exposed to danger which it had neither the capacity to know nor avoid.1 In England it has been held that the negligence of a person in the actual custody of a child, at the time of its injury, which contributes to the injury, may be imputed to the child. And in some of the United States, similar decisions have Am. Rep. 89; Toledo, etc., R. Co. v. Grable, 88 Ill. 441; Chicago v. Hesing, 83 Ill. 204; Evansville, etc., R. Co. v. Wolf, 59 Ind. 89; Jeffersonville, etc., R. Co. v. Bowen, 40 Ind. 545; Atchison, etc., R. Co. 2. Smith, 28 Kan. 541; s. c., 8 Am. & Eng. R. R. Cas. 327; Leslie v. Lewiston, 62 Me. 468; Brown v. European, etc., R. Co., 58 Me. 384. Compare O'Brien v. McGlinchy, 68 Me. 552; McMahon v. Northern, etc., R. Co., 39 Md. 438; Baltimore, etc., R. Co. v. McDonnell, 43 Md. 534; Fitzgerald v. St. Paul, etc., R. Co., 29 Minn. 336; s. c., 8 Am. & Eng. R. R. Cas. 310, 43 Am. Rep. 212; Ihl v. Railroad Co., 47 N. Y. 323; s. c., 7 Am. Rep. 450; Casgrove v. Ogden, 49 N. Y. 255; s. c., 10 Am. Rep. 361; Mangam v. Brooklyn R. Co., 38 N. Y. 455. Parent barred when Child not.-In considering these and similar cases, it should not be overlooked that there is a marked distinction between cases brought in the name of the child itself, and cases brought by the parents to recover for the injuries sustained by them by reason of the homicide or injury of the child. Thus, when the parents sue, their negligence in exposing the child to injury will bar their recovery. Smith v. Hestonville, etc., R. Co., 92 Pá. St. 450; s. c., 2 Am. & Eng. R. R. Cas. 12, 37 Am. Rep. 705; Battishill v. Humphrey (Mich. 1887), 28 Am. & Eng. R. R. Cas. 597; Williams v. Texas, etc., R. Co., 60 Tex. 205; s. c., 15 Am. & Eng. R. R. Cas. 403. And this is a correct rule in all jurisdictions. But, as the cases just cited show, the contributory negligence of the parent will not keep the child from recov. ering, except in jurisdictions that have fully adopted the rule in Hartfield v. Roper. Erie City Pass. R. Co. v. Schuster, 113 Pa. St. 412; s. C., 57 Am. Rep. 471; Glassy 7. Hestonville, etc., R. Co., 57 Pa. St. 172; North Pa. Railroad Co. v. Mahoney, 57 Pa. St. 187. And the Question of Imputability for the Jury. It will also be noted that in Massachusetts, and several other jurisdictions, the rule of Hartfield v. Roper is held in the modified form. In Massachusetts the question of the contributory negligence of the parents which will bar the child is always held a question of fact for the jury, not of law for the court. McGeary Eastern R. Co., 135 Mass. 363; s. c., 15 Am. & Eng. R. R. Cas. 407; O'Connor v. Boston, etc., R. Co., 135 Mass. 352; s. c., 15 Am. & Eng. R. R. Cas. 362. See Beach on Cont. Neg. § 41; Patterson's Ry. Acc. L. $93; Texas, etc., R. Co. v. Herbeck, 60 Tex. 612; Galveston, etc., R. Co. v. Moore, 59 Tex. 64; s. C., 10 Am. & Eng. R. R. Cas. 746, 46 Am. Rep. 265; Robinson v. Cone, 22 Vt. 213; s. c., 2 Thomp. on Neg. 1129; s. c., 54 Am. Dec. 67; Norfolk, etc., R. Co. v. Ormsby, 27 Gratt. (Va.) 455. 1. Where held Not Imputable. - Govern ment St. R. Co. v. Hanlon, 53 Ala. 70; Bay Shore, etc., R. Co. v. Harris, 67 Ala. 6; Birge v. Gardiner, 19 Conn. 507; s. c., 50 Am. Dec. 261; Bronson v. Southbury, 37 Conn. 199; Daley v. Norwich, etc., R. Co., 26 Conn. 591; s. c., 68 Am. Dec. 413; Frick v. St. Louis, etc., R. Co., 75 Mo. 542; s. C., 75 Mo. 595; 8 Am. & Eng. R. R. Cas. 280; Boland v. Missouri R. Co., 36 Mo. 490; Battishill v. Humphrey (Mich. 1887), 28 Am. & Eng. R. R. Cas. 597; s. c., 57 Am Rep. 474, note; Huff v. Ames, 16 Neb. 139; s. c., 49 Am. Rep. 716; Bellefontaine R. Co. v. Snyder, 18 Ohio St. 400; Cleveland, etc., R. Co. v. Manson, 30 Ohio St. 451; St. Clair St. R. Co. v. Eadie, 43 Ohio St. 91; s. c., 23 Am. & Eng. R. R. Cas. 269; Erie City Pass. R. Co. v. Schuster, 113 Pa. St. 412; s. c., 57 Am. Rep. 471; Phila., etc., R. Co. v. Long, 75 Pa. St. 257; North Pa. R. Co. v. Mahoney, 57_Pa. St. 187; Smith v. O'Connor, 48 Pa. St. 218; Kay v. Penna. R. Co., 65 Pa. St. 269; s. c., 3 Am. Rep. 628; Whirley v. Whiteman, i Head (Tenn.), 610. 2. Negligence of Actual Custodian Imputable. — Waite v. North-Eastern R. Co., El. Bl. & El. 719, 727; Beach on Cont. Neg. pp. 130-132; 2 Thomp. on Neg. 1182, $ 32; Thomp. on Car. 291, § 7. But Mr. Pollock regards this case as resting upon the principle that the foundation of defendant's liability was not shown, because it did not appear that the negli gence of the defendant, rather than that of |