Vermont Cent. R. Co., 24 Vt. 487; 566. The last clause in the rule stated in Tuff v. Warman (that the plaintiff might recover if the defendant could have avoided the consequences of his negligence) is evidently applicable only to cases in which the plaintiff's negligence precedes the defendant's. "But where," says Wells, J., ut supra, "the negligent conduct of the two parties is contemporaneous, and the fault of each relates directly and proximately to the occurrence from which the injury arises, the rule of law is rather that the plaintiff cannot recover, if by due care on his part he might have avoided the consequences of the carelessness of the defendant. Lucas v. New Bedford & T. R. Co., 6 Gray, 64; Waite v. Northeastern Ry. Co., 9 El. & B. 719; Robinson v. Cone, 22 Vt. 213; [Daniels v. Clegg, 28 Mich. 32; Walsh v. Miss. R. Co., 52 Mo. 434; Newhouse v. Miller, 35 Ind. 463]. Suppose the case of a collision upon a public highway; both parties careless and equally in fault, but either by the exercise of proper care on his part might have avoided the consequences of the carelessness of the other. By the proposition last quoted from Tuff v. Warman, each would be liable to the other, and each would be entitled to recover from the others for whatever injuries he might have received." only another way (and for an average jury, perhaps, a more suitable) of stating the rule above mentioned, to wit, that, if the plaintiff's conduct acted as an intervening cause between the act or omission of the defendant and the injury, the plaintiff cannot recover, since he cannot prove that the defendant's misconduct was the cause of the misfortune. The object of our examination has been to ascertain the ground of the doctrine of negligence, and to show that there is (or need be) nothing peculiar in it. In Illinois and Georgia, however, the courts allow juries to apportion the negligence of the plaintiff and defendant, respectively, somewhat like the rule in cases of marine torts, and to allow the plaintiff to recover in case the defendant's negligence was greater than the plaintiff's, but denying the right of recovery where the negligence of the plaintiff was as great as, or greater than, that of the defendant. Chicago, &c., R. Co. v. Van Patten, 64 Ill. 510; Chicago & North-western R. Co. v. Sweeney, 52 Ill. 330; Illinois Cent. R. Co. v. Baches, 59 Ill. 379. See O'Keefe v. Chicago, &c., R. Co., 32 Iowa, 467. But this doctrine (called the doctrine of comparative negligence) applies, probably, only in those cases where the plaintiff's negligence directly contributed, as an intervening causé, to the misfortune. Burden of Proof. - Upon the question of the burden of proof in respect of contributory negligence, there is a diversity of authority. In New England, Illinois, and elsewhere, the rule is that the plaintiff must show, in the first instance, that, when the injury occurred, he was in the exercise of proper care, and that the misfortune This, it will be observed, is, in effect, was not caused by his own negligence. The true question for the jury in the opinion of the court (aside from the burden of proof) was whether there was negligence on the part of the plaintiff, contributing directly, or as a proximate cause, to the occurrence from which the injury arose; if there was, the plaintiff could not recover. Murphy v. Deane, supra; Trow v. Vermont Cent. R. Co., 24 Vt. 487; Birge v. Gardiner, 19 Conn. 507; Park v. O'Brien, 23 Conn. 339; Dickey v. Maine Tel. Co., 43 Maine, 492; Dyer v. Talcott, 16 Ill. 300; Galena & B. R. Co. v. Fay, ib. 558; Dressler v. Davis, 7 Wis. 527; Evansville & I. R. Co. v. Hiatt, 17 Ind. 102. And in the first case cited it is stated that the plaintiff does not sustain that burden if the proof leaves it in doubt whether or not the injury resulted, in whole or in part, from the fault of the plaintiff. In the Supreme Court of the United States, in Pennsylvania, apparently in New York, and elsewhere, the contrary rule prevails; the plaintiff not being required to give evidence of his own care and prudence at the time of the accident. Railroad Co. v. Gladmon, 15 Wall. 401; Pennsylvania Land Co. v. Bentley, 66 Penn. St. 30; Cleveland R. Co. v. Rowan, ib. 393; Oldfield v. New York & H. R. Co., 3 E. D. Smith, 103; s. c. 14 N. Y. 310; Johnson v. Hudson River R. Co., 5 Duer, 21; s. c. 20 N. Y. 65; Button v. Hudson River R. Co., 18 N. Y. 248; Wilds v. Hudson River R. Co., 24 N. Y. 430; Smoot v. Wetumpka, 24 Ala. 112; Durant v. Palmer, 5 Dutch. 544; St. Anthony Falls Co. v. Eastman, 20 Minn. 277. This seems to be the more correct doctrine. To hold the contrary is in effect to raise a presumption of law that the plaintiff himself caused the accident; and this is contrary to the analogies of the law. The presumption as to the defendant is that he was acting according to law; and it is difficult to see why (in the absence of statute) the same presumption should not be raised in favor of the plaintiff. All men are presumed to act lawfully until the contrary is shown. Identification or Imputability. (a.) Passenger and Carrier. - We conclude this note on contributory negligence, and with it our chief labor on this book, with a consideration of what is sometimes called the doctrine of imputability. The rule prevails in England and in several of the States of this country that a passenger in a stage or railway coach becomes so far identified with the carrier, by the act of obtaining passage, that the negligence of the carrier is imputed to him, in the case of an action by the passenger against another through whose negligence an accident has occurred to the plaintiff's coach, resulting in injury to the plaintiff. That is, if the carrier was guilty of contributory negligence, the passenger cannot recover against the other. Thorogood v. Bryan, 8 Com. B. 115; Catlin v. Hills, ib. 123; Armstrong v. Lancashire Ry. Co., Law R. 10 Ex. 47; Cleveland, &c., R. Co. v. Terry, 8 Ohio St. 570; Puterbaugh v. Reasor, 9 Ohio St. 484; Smith v. Smith, 2 Pick. 621; Lockhardt v. Lichtenthaler, 46 Penn. St. 151. In Thorogood v. Bryan, supra, Coltman, J., said that the case raised distinctly the question whether a passenger in an omnibus was to be considered so far identified with the owner that negligence on the part of the owner or his servant was to be considered negligence of the passenger himself. "As I understand the law upon this subject," said he, "it is this: that a party who sustains an injury from the careless or negligent driving of another may maintain an action, unless he has himself been guilty of such negligence or want of due care as to have contributed or conduced to the injury. In the present case, the negligence that is relied on as an excuse is, not the personal negligence of the party injured, but the neg ligence of the driver of the omnibus in which he was a passenger. But it appears to me that, having trusted the party by selecting the particular conveyance, the plaintiff has so far identified himself with the owner and her servants that, if any injury results from their negligence, he must be considered a party to it. In other words, 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 said: "On the part of the plaintiff, it is suggested that a passenger in a public conveyance has no control over the driver. But I think that cannot with propriety be said. He selects the conveyance. He enters into a contract with the owner, whom, by his servant, the driver, he employs to drive him. If he is dissatisfied with the mode of conveyance, he is not obliged to avail himself of it. . . . If there is negligence on the part of those who have contracted to the carry passengers, those who are injured have a clear and undoubted remedy against them. But it seems strange to say that, although the defendant would not, under the circumstances, be liable to the owner of the other omnibus for any damage done to his carriage, he still would be responsible to a passenger." The other judges concurred. The above, it is believed, are the only grounds which have been taken in any of the cases for sustaining the rule. The doctrine has not been received without objection, even in England. "If," say the learned editors of Smith's Leading Cases (vol. i. p. 220, 4th Eng. ed.), “two drunken stage-coachmen were to drive their respective carriages against each other and injure the pas sengers, each would have to bear the injury to his carriage, no doubt; but it seems highly unreasonable that each set of passengers should, by a fiction, be identified with the coachmen who drove them, so as to be restricted for remedy to actions against their own driver or his employer. This, nevertheless, appears to be the result of the decision in Thorogood v. Bryan; but it may be questioned whether the reasoning of the court in that case is consistent with those of Rigby v. Hewitt, 5 Ex. 240, and Greenland v. Chaplin, ib. 243, or with the series of decisions from Quarman v. Burnett, 6 Mees. & W. 499, to Reedie v. London & North-western Ry. Co., 4 Ex. 244. Why in this particular case both the wrong-doers should not be considered liable to a person free from all blame, not answerable for the acts of either of them, and whom they have both injured, is a question which seems to deserve more consideration than it received in Thorogood v. Bryan." And this criticism is referred to as damaging" by Williams, J., in the course of the argument of Tuff v. Warman, 2 Com. B. N. s. 740, 750. So, too, Dr. Lushington, in the High Court of Admiralty, has declined to follow Thorogood v. Bryan. The Milan, 1 Lush. 388. This was a case of collision between two vessels, in mutual fault, in which the plaintiffs, owners of a cargo on one of the vessels, were held entitled to recover half the damages from the other vessel. As to Thorogood v. Bryan the learned judge observed: "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 principles laid down at common law; and, lastly, because it is directly 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 for the conveyance of his cargo none of the ingredients which constitute any kind of responsibility for a collision; for I cannot conceive a responsibility for an act done where the individual has not, 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, 4 Daly, 552; Chicago v. Starr, 42 Ill. 174; Pittsburgh, &c., R. Co. v. Vining, 27 Ind. 513; Lafayette, &c., R. Co. v. Huffman, 28 Ind. 287; Louisville Canal Co. v. Murphy, 9 Bush, 522. See Wharton, Negligence, §§ 309-312. 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; |