against Hay v. LeNeve, 2 Shaw's Scotch Appeals, 395, and the ordinary practice of the Court of Admiralty; for if, by the practice of the Court of Admiralty, the owner of a delinquent ship, where both ships are to blame, may recover one-half of his loss, a fortiori the innocent owner of the cargo cannot be deprived of a like remedy." But Thorogood v. Bryan has just been reaffirmed in England. Armstrong v. Lancashire Ry. Co., Law R. 10 Ex. 47. The law of Scotland is also opposed to Thorogood v. Bryan. Brown v. McGregor, Hay, 10. In this case the representatives of one Brown, a passenger riding upon the top of a coach, who was killed by the overturning of the coach in consequence of a collision with a post-chaise while both vehicles were driving at unusual speed, were allowed to recover against each of the proprie tors of the carriages. In this country the decisions are in conflict. In several of the States the doctrine of Thorogood v. Bryan prevails. See supra, p. 726. In others the contrary is held. Chapman v. New York, & N. H. R. Co., 19 N. Y. 341; Colegrove v. New York & N. H. R. Co., 20 N. Y. 492; Webster v. Hudson River R. Co., 38 N. Y. 260; Danville, &c., Turnpike Co. v. Stewart, 2 Met. (Ky.) 119. If any doubt was thrown upon the subject in New York by the dicta of Brown v. New York Cent. R. Co., 32 N. Y. 597, the question was settled by Webster v. Hudson River R. Co., supra. The doctrine of the latter cases is, we apprehend, the correct one. It is difficult to understand how the plaintiff can become “identified" with the driver or carrier. He certainly does not become so physically; and the only other way he could lose his identity in another, so far as such an expression has any intelligible meaning, is either by becoming the agent or servant of the other, or by making the other his agent or servant. The former would not be suggested; and the latter is quite as untenable. It needs no argument to show that the driver or carrier is not the passenger's servant. If he were, he could send him to another employment in the midst of the journey. Nor is he the passenger's agent. The situation is not materially different from that between a telegraph company and the sender of a telegram; and we have elsewhere endeavored to show that there is no agency in the legal sense in such a case. And for this we had some support from the authorities, which hold that the telegraph company are not agents of the sender of a despatch incorrectly transmitted, so as to bind him in contract to the receiver of the message. Henkel v. Pape, Law R. 6 Ex. 7; Verdin v. Robertson, 10 Ct. Sess. Cas. (3d series) 35. See ante, p. 624. The driver or carrier is simply the vehicle through which the plaintiff accomplishes his purpose. The plaintiff has no control over him after starting. He cannot terminate his authority; he cannot compel him to stop by the way; he cannot instruct him what road to take, or how to drive, or how to pass a coach or an obstruction. But an agent is bound to obey the reasonable instructions of his principal. In the case of The Milan, already cited, Dr. Lushington, speaking to the argument that a shipper who was not owner or part-owner was either principal or agent of the master of the vessel, said: "It is argued that he shall be so considered, and deprived of his remedy, because he himself, or his agent, selected the ship by which his goods were carried. But there is in my judg ment in the mere selection of the ship 4 Daly, 552; Chicago v. Starr, 42 Ill. for the conveyance of his cargo none 174; Pittsburgh, &c., R. Co. v. Vining, of the ingredients which constitute any 27 Ind. 513; Lafayette, &c., R. Co. v. kind of responsibility for a collision; for Huffman, 28 Ind. 287; Louisville CaI cannot conceive a responsibility for an nal Co. v. Murphy, 9 Bush, 522. See act done where the individual has not, Wharton, Negligence, §§ 309–312. either by himself or his agent, any power of interference or control." Again, if the relation of principal and agent existed between the passenger and carrier, the principal should be liable for any negligence of the agent in the course of the agency. Suppose I engage the owner of a carriage to convey me to an adjoining place, and that on the way he negligently runs over a man (who was free from fault); am I liable? The only case, we submit, where the so-called doctrine of identification or imputation can be applied is where the passenger actually participates in the carrier's fault, as by urging him on, or by plainly manifesting approval of his course, and thus encouraging him in it. (b.) Parent and Child. The doctrine of imputability has appeared in another form also. It has been held in many cases that the negligence of the parent or guardian of a young child in allowing the child to fall into danger is imputable to the child, so as to make out a case of contributory negligence on the part of the child in an action by it for personal injury sustained by reason of the negligence of another. Waite v. North-eastern Ry. Co., El., B. & E. 719; Holly v. Boston Gas Co., 8 Gray, 123; Callahan v. Bean, 9 Allen, 401; Wright v. Malden & M. R. Co., 4 Allen, 283; Lynch v. Smith, 104 Mass. 52; Brown v. Eastern, &c., Ry. Co., 58 Maine, 384; Hartfield v. Roper, 21 Wend. 615; Lehman v. Brooklyn, 29 Barb. 234; Mangam v. Brooklyn City R. Co., 36 Barb. 529; Flynn v. Hatton, But there are as many decisions to the contrary. Robinson v. Cone, 22 Vt. 213; Norwich & W. R. Co. v. Daly, 26 Conn. 591; Birge v. Gardiner, 19 Conn. 507; Bronson v. Southbury, 37 Conn. 199; Smith v. O'Connor, 48 Penn. St. 218; Glassey v. Hestonville, 57 Penn. 172; North Penn. R. Co. v. Mahoney, ib. 187; Bellefontaine, &c., R. Co. v. Snyder, 18 Ohio St. 399. See also Pittsburgh Ry. Co. v. Caldwell, 74 Penn. St. 421, where it was held that the negligence of a child's companion could not be imputed to the child; Chicago, &c., R. Co. v. Gregory, 58 Ill. 226; Karr v. Parks, 40 Cal. 188; Ihl v. Forty-second St. R. Co., 47 N. Y. 317; Boland v. Missouri R. Co., 36 Mo. 484; Whirley v. Whittemore, 1 Head, 610. It is clear, however, that the defendant cannot be liable without proof of negligence. Singleton v. Eastern Counties R. Co., 7 Com. B. N. s. 287. This, also, is clear, that if the child be itself guilty of contributory negligence, independently of negligence in its parent or guardian, there can be no recovery against the defendant. And whether the child was guilty of personal negligence depends upon its age and capacity to take proper care of itself. Lynch v. Smith, 104 Mass. 52; Elkins v. Boston & A. R. Co., 115 Mass. 190; Dowd v. Chicopee, 116 Mass. 93; Mulligan v. Curtis, 100 Mass. 512; Munn v. Reed, 4 Allen, 431; Lynch v. Nurdin, 1 Q. B. 29; Haycroft v. Lake Shore R. Co., 5 N. Y. Sup. 49; Crissey v. Hestonville Ry. Co., 75 Penn. 83; Phila. City Ry. Co. v. Hassard, ib. 367; Railroad Co. v. Gilman, 15 Wall. 401; Bronson v. Southbury, 37 Conn. 199; Schmidt v. Milwaukee, &c. R. Co., 23 Wis. 186. In some cases it has, however, been held that the same discretion is required of a child as of a man. Burke v. Brooklyn R. Co., 49 Barb. 529; Pittsburgh, &c. R. Co. v. Vining, 27 Ind. 513. See, also, Hughes v. Macfie, 2 Hurls. & C. 744; Lygo v. Newbold, 9 Ex. 302; Hoveysberger v. Second Av. R. Co., 2 Abb. App. Dec. 378; Brown v. European, &c. R. Co., 58 Maine, 384. And possibly this may sometimes be true provided the child is old enough to be capable of negligence. Whether the question of negligence be one of law or fact seems to depend upon the nature of the child's act or omission, as well as upon age and capacity. See the above cases; also Mulligan v. Curtis, 100 Mass. 512. It should seem, too, upon principle, in the case of a child too young to be capable of negligence, that if the negligence of the parent or person in charge of it were in the proper sense contributory to the injury, that is, if the injury was the natural and usual effect, as effect follows cause, of the guardian's negligence, the defendant cannot be liable. The plaintiff cannot prove that the defendant caused the misfortune; he cannot show that the defendant is, as to him, a wrong-doer. He is the guilty person who negligently suffered the child to get into the danger; and quære, if such person, when not the child's parent or guardian, might not be liable to the child? If, however, in such a case the parent's fault did not in the proper sense contribute to the injury, the defendant should be liable for his negligence. The parent or guardian could recover for an injury done to himself under such circumstances, by all of the authorities; the mere fact of the negligence of the injured man is nothing, unless it was in the legal sense contributory to the accident. A fortiori, then, should a child of tender years be able to recover in such a case. The relation of the parent or guardian to the child has in our view nothing to do with the situation, except as affording one of the conditions under which the injury arose; the only question being whether the defendant caused the misfortune. In the case of a young child, the fact that it was in a dangerous place will doubtless raise a presumption that the guardian was guilty of negligence, since it is hardly conceivable that the child should have found its way there had there not been a neglect of due care over it. And the question then will be whether that neglect resulted, in the natural sequence of effect following cause, in the injury. If it did, the defendant's negligence did not cause the injury, and the defendant is not liable; if it did not, the reverse is true, and the child is entitled to recover. If the parent sue for himself, upon the relation of master and servant, for loss of service, the same principles must apply. If the child be too young to be capable of negligence, the question will be whether the parent's negligence contributed, in the legal sense, to the misfortune; and if the child were capable of negligence, whether his negligence or the parent's contributed in law to the injury. We apprehend that, when properly understood, this is the meaning of the doctrine of imputability. The term is an unfortunate one; but no case in which this point is considered can be found which is an authority for the the injury, — else she, had she lived, position that the term is to be under- could have maintained an action. And stood in the broad sense that a child the facts of the case, as stated by the recan only recover when the parent or porter, show that such was the nature of guardian was not guilty of negligence the grandparent's negligence. She was towards it. In some cases the decision carelessly crossing the railway track, was made without considering whether and was hit by an approaching train. the parent's negligence was in the true sense contributory. Lafayette, &c., R. Co., v. Huffman, 28 Ind. 287. It is submitted that in this case the demurrer to the complaint should have been overruled. It is not the natural and usual effect of neglecting the custody of a child that it should stray upon the railroad track and get killed. But this point does not appear to have been taken. In Waite v. North-eastern Ry. Co., El., B. & E. 719, in which a child too young to take care of itself was injured by the defendants through lack of proper care on the part of the person in charge of it; the court, in an action by the child, said: "The jury must be taken to have found that Mrs. Park, the grandmother of the infant plaintiff, in whose care he was when the accident happened, was guilty of negligence, without which the accident would not have happened; and that, notwithstanding the negligence of the defendant, if she had acted upon this occasion with ordinary caution and prudence, neither she nor the infant would have suffered. Under such circumstances, had she survived [she was killed by the same accident], she could not have maintained any action against the company; and we think that the infant is so identified with her that the action in his name cannot be maintained." The words last italicized show why the child could not recover. The grandmother's negligence was contributory in the proper sense, that is, it operated as a true cause to So, too, in Mangan v. Atterton, Law R. 1 Ex. 239, another case in which the defendant was held not liable to a child for negligence, the child's misfortune was the direct and inevitable consequence of his own act; and he was apparently capable of negligence. The recent case of Lynch v. Smith, 104 Mass. 52, is especially in point. It was there held that if the parents of a child were not negligent in permitting him to cross a street alone, and while crossing he was injured by the negligence of another traveller, it is sufficient to entitle him to recover for the injury, if he was using that degree of care of which he was capable, though a less degree than would be required of an adult under like circumstances; and that, even if his parents were negligent in permitting him to cross the street alone, their negligence was not contributory, and he might recover if, in crossing, he did no act which prudence would have forbidden, and omitted no act which prudence would have dictated, whatever his physical or intellectual capacity. 'It does not necessarily follow," said the court, "because a parent negligently suffers a child of tender age to cross a street, that therefore the child cannot recover. If the child, without being able to exercise any judgment in regard to the matter, yet does no act which prudence would forbid, and omits no act that prudence would dictate, there has been no negligence which was directly contributory to the injury. The negligence of the parent in such a case would be remote. But if the child has not acted as reasonable care adapted to the circumstances of the case would dictate, and the parent has also negligently suffered him to be there, both these facts concurring constitute negligence which directly and immediately contributes to the injury, for which the defendant ought not to be required to make compensation." It would not be the natural and usual consequence of allowing a child nearly five years old, as was the plaintiff, to cross a street, that it would be run over; and hence, though the jury found the parents guilty of neglecting proper care of him, their negligence was not contributory. But, as to the latter part of the above language of the court, it can hardly be supposed that it was meant that there should be contributory negligence on the part of both parent and child. It is certainly enough that the negligence of either was contributory. See Jeffersonville, &c., R. Co. v. Bowen, 40 Ind. 545. See, further, Leslie v. Lewiston, 62 Maine, 468. On the other hand, it cannot be argued that the child, by being itself free from fault while the defendant was guilty of negligence which resulted in the injury, can always maintain his action, unless the negligence of the parent and that of the defendant was concurrent and equally the cause of the injury. If, for example, the parent negligently push his child into a pit which the defendant was bound to keep fenced, the latter clearly is not a wrong-doer towards the child, and cannot be liable to him. The child is in no better position than a man who without fault suffers injury from the negligence of several; and we have seen that such a person cannot maintain an action against another for negligence, if between that negligence and the injury there intervened the wrongful act of a third person. |