91; s. c. 23 Am. & Eng. R. R. Cas. 269, where the result of the cases up to that time is fully stated.

Illustrations will be drawn from the more recent cases.

Public Conveyances.-In Gray v. Philada., etc., Rd. Co. (C. C. N. D. N. Y.), 24 Fed. Rep. 168, it is held that where a fireman on a railroad train is injured by a collision at a crossing of two roads, caused by the concurring negligence of the engineer on his train and of the employee of the other road, his right to recover damages for such injury from the other road will not be defeated by reason of the negligence of the engineer. The court in giving the opinion observed: "Although the plaintiff was a fellowservant of the engineer, he was a subordinate, and had no control over the movement of the locomotive. If he was not guilty of any personal negligence, and did not countenance the negligent conduct of his fellowservant, upon reason, and according to the weight of authority, he ought not to be precluded from a recovery against the defendant. * * Upon the facts found by the jury he was no more accountable for the misconduct of the engineer than a passenger would be, or than the owner of a cargo would be for the negligent acts of the carrier whom he has employed to transport his property."

*

The recent decision of the United States Supreme Court, cited in Little v. Hackett, 116 U. 8. 366; s. c. 54 Am. Rep. 135, is a valuable contribution to this class of legal literature. In that case the plaintiff hired a public hack and gave directions to the driver as to the place to which he wished to be carried, but exercised no other control over the conduct of the driver. It was held that he was not responsible for the acts of negligence of such driver, nor was he prevented from re

covering against a railroad company for injuries suffered from a collision of its train with the hack, caused by the negligence of both the manager of the train and of the driver. Mr. Justice FIELD, who delivered the opinion, thoroughly reviews the authorities and gives most cogent reasons for a rejection of the rule of Thorogood v. Bryan.

Malmsten v. Rd. Co., 49 Mich. 94, holds that a passenger who has just landed from a steamboat is not so identified with the steamboat company as to make the company solely liable for an injury suffered by the passenger by the negligence of a third person immediately thereafter; relying upon Cuddy v. Horn, 46 Mich. 590, which holds that the rule by which one who rides in a private conveyance is presumed to control or be identified with the driver and to have no right of action for an injury done him by a collision caused by the driver's negligence, cannot apply to passengers in public conveyances, even though they have chartered the conveyance. In Tompkins v. Clay Street Rd. Co., 66 Cala. 163, the plaintiff was injured by the collision of two street cars caused by the concurring negligence of the managers of the respective cars. It was held that he might recover against either or both.

Private Conveyances.-Three Wisconsin cases have sustained a distinction between public and private conveyances as to the point under review, and have declared the rule that where the injured person is riding by invitation of the driver, the latter is the agent of the former, and the driver's negligence is imputable to such person: Prideaux v. Mineral Point, 43 Wis. 513, 526; Houfe v. Fulton, 29 Id. 296; Otis v. Janesville, 47 Id. 422. This distinction has also been adopted in Michigan: Lake

Shore, etc, Rd. Co. v. Miller, 25 Mich. 274, 287; Cuddy v. Horn, 46 Id. 596, and Iowa: Payne v. C. R. I. & P. Rd., 39 Iowa 523. A New York case, Brown v. N. Y. Cent. Rd., 31 Barb. 335, also adopted it, but later cases rejected it: Robinson v. N. Y. & II R. Rd. Co, 66 N. Y. 11; Dyer v. Erie, etc., Rd. Co., 71 Id. 228. In a recent case in the United States Circuit Court for the Northern District of Iowa, SHIRAS, D. J., charged the jury that the negligence of the driver of a private carriage in crossing a railroad is the negligence of the occupants: Morris v. Rd. Co., 26 Fed. Rep. 22. See Slater v. B. C. R. & N. Rd. C., 71 Iowa.

In other States a more reasonable rule has been adopted. In Fallman v. City of Mankato, 35 Minn. 522, the question presented was whether one who, by invitation or permission of another, rides in the private conveyance of the latter, and which is wholly under the management and control of the owner, is affected by the negli gence of such owner so as to prevent a recovery against a third party for negligence? The court answered in the negative, citing and relying upon Robinson v. Rd. Co., 66 N. Y. 11; Dyer v. Rd. Co., 71 N. Y. 228; Masterson v. Rd. Co., 84 Id. 247; Little v. Hackett, 116 United States 366; Bennett v. Rd. Co., 36 N. J. L. 225; R. R. Co. v. Steinbrenner, 47 Id. 161; Cuddy v. Пlorne, 46 Mich. 596; Transfer Co. v. Kelly, 36 Ohio St. 86; Rd. Co. v. Shacklet, 105 Ill. 365. See Phila. etc., Rd. Co. v. Hogeland, 66 Md. 149, for an interesting recent case.

The Pennsylvania doctrine is rather peculiar, and the reasons given by the Supreme Court of that State to support it are not easily comprehended. While the rule of Thorogood v. Bryan seems to have been adopted, yet, while adopting it, the reasons given

by the English, courts were expressly rejected. In the late case of Borough of Carlisle v. Brisbane, 113 Pa. St. 516; s. c. 57 Am. Rep. 483 (with note), the court holds that one who is injured by the joint negligence of a person with whom he is riding by invitation, and a third person, is not chargeable with the negligence of the driver. In course of the opinion, the court said: "Where a passenger is personally injured by the joint negligence of his carrier and another party, his remedy is against the carrier alone. The question was first raised in this court, and was very fully discussed in the case of Lockhart v. Lichtenthaler, 46 Pa. St. 151. The decision in that case was grounded upon the doctrine of the English cases: Bridge v. Grand Junction R. Co., 3 M. & W. 247, in the Court of Exchequer; Thorogood v. Bryan, 8 C. B. 115 (65 Eng. Co. Law), and Cattlin v. Hills, 65 Eng. Com. Law 123, in the Common Bench. These cases have since been followed and approved in the Exchequer by Armstrong v. Lancaster and York R. Co., 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 with the carriage in which he is traveling, that want of care on the part of the driver will be a defense of the owner of the other carriage that directly caused the injury. Our own case of Lockhart v. Lichtenthaler, supra, was followed by Rd. Co. v. Boyer, 97 Pa. St. 91, an action against a railroad company to recover damages for the death of a person caused by a collision of defendant's train with a street car, in which the deceased was a passenger. It was held that in order to recover, the plaintiff 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 injury. 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 another is against the common carrier only. The reasons for this rule are given in Lockhart v. Lichtenthaler, supra, by THOMPSON, J., as follows. "I would say the reason for it, 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 the responsibility upon a different principle in case of carriers, as already noticed, from that of a party who does not stand in that relation to the injured party, 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 would be altogether more just to hold liable him who has engaged to observe the highest degree of diligence and care and has been compensated for doing it, rather than upon 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 might be injured. This rule, it cannot be doubted, will be more likely to increase diligence than the opposite, which would enable a negligent and faithless party to escape the consequences of his want of care by swearing it on another, which he would assuredly do if the temptation and opportunity afforded. As this view accords best with the policy of the law, it is proof of the existence of the rule itself."

St. Louis, Mo.

B. E. BLACK.