
    A. J. CRAMPTON v. IVIE BROS.
    (Decided May 5, 1899).
    
      Negligence — Concurring Negligence — Hade Drivers — Passenger — Hirer.
    1. The hirer of a hack, who merely directs where he is to he driven, and does not attempt to control the driving, is only a passenger, and is not responsible for the negligence of the driver.
    2. If a passenger is injured through the negligence of the driver in his employment he can sue the owner; or if he is injured through the negligence of the driver on another hack, lie can sue the owner of that hack; or if he is injured through the concurrent negligence of the drivers of both hacks, he can sue the owner of either hack or the owners of both.
    Civil ActioN for damages for personal injury sustained through the alleged negligent driving of defendant’s hack driver, tried before Starbude, J., at October Term, 1898, of MecKleNbueg Superior Court. The plaintiff, a traveling salesman, had hired a buggy with two horses, and a driver, from the livery stable of Grafton & Ogburn, .Eeidsville, N. C., on the morning of December 23, 1897, and was returning to Eeidsville that night, when he met on the road ■ the driver of the defendants, who was driving a two horse surrey, belonging to their livery at Leaksville, N. 0. An account of the occurrence is related in a letter of the plaintiff, A. J. Crampton, to the defendants Ivie Bros., which was introduced in evidence by the defendants. It was dated December 30, 1S97, and was written by the clerk of plaintiff, at plaintiff’s request, and was not seen by him after it was written, so he testified.
    A copy is subjoined:
    
      December 30th, 1897.
    Ivie Ritos.j Leaksville, N. C.
    
      Cfentlemen: — The writer last Thursday evening, December 23, returning from Leaksville to Reidsville in one of Grafton & Ogburn’s teams, when at about five miles from Leaksville at six o’clock in the evening, met your driver, Bob Small, coming towards us, singing and yelling and in a drunken condition. After trying to get him to hold up and give us a chance to pass, as we were in rather a bad part of the road, he paying no attention to us, but came driving towards us, horses on a trot, we endeavored to get out of the road; but it being dark we could not see, and even at that he nearly ran into us. Our buggy tipped and threw me out; consequently I struck with all my weight on my left shoulder, and severely injured my left shoulder and arm, so much so I shall probably be laid up with it for three or four weeks. I will have considerable of a doctor’s bill to pay, and consider it no more than fair and just that you should know these facts, and at least a part of my expenses will be made good by you.
    You can get full information otherwise from Orafton & Og-burn, Reidsville, N. 0., as they had another team which was compelled to get out of the road by this same driver only about fifteen minutes before we were run into; but they had an opportunity of getting out of the road, and we did’ not as we were climbing the hill on the Reidsville side of Rocky creek, midway up.
    Hoping to hear from you, and what you intend doing regarding the matter, I am,
    Yours very truly,
    A. J. OeamptoN.
    The two drivers were examined, Whit Hunt by the plaintiff, and Bob Smallwood by defendants' — each laid tbe blame on tbe other. Dr. Woodley testified that plaintiff’s injuries were permanent.
    Tbe issues were three in number:
    1. Was the plaintiff injured by the negligence of the defendants ?
    2. Did the plaintiff, by his own negligence, contribute to his injury ?
    3. What damage is the plaintiff entitled to receive ?
    The evidence, special prayers for instruction, and the exceptions of defendants to the Judge’s charge, are adverted to in the opinion.
    There were no exceptions to the evidence.
    The jury found the issues in favor of plaintiff, and assessed his damage at $1,000.
    Judgment for plaintiff. Appeal by defendants.
    
      Messrs. Burwell, Walker & Gansler, and Scott & Reid, for defendants, (appellant).
    
      Messrs. Jones £ Tillett, for plaintiff.
    MONTGOMERY, J., writes the opinion of the Court.
    Clare, J., writes dissenting opinion, concurred in by Eairoloth, C. J.»
   Montgomery, J.

The plaintiff, a traveling salesman, on the 23rd of December, 1897, hired a team, a buggy and two horses, with a driver furnished from a livery man in Reids-ville, to take him from Reidsville to Spray and return. On the way back from Spray to Reidsville, about 8 o’clock p. nn, the plaintiff’s team met in the road, in the darkness, a team of the defendants, a surry and two horses, driven by the driver of the defendants. The place where the teams met was a level surface about 50 yards long and 12 or 13 feet wide in. tbe clear. Tbe evidence of tbe plaintiff tended to prove that tbe two teams met just as tbe one of tbe plaintiff bad ascended a steep bill and reached tbe level road at tbe top, tbe defendants’ team traveling at tbe rate of 8 or 10 miles an bour; that it was so dark, and there being also a bend in tbe road, they could not see tbe defendant’s team until within 20 yards; that upon seeing tbe defendant’s team, they began to shout to tbe driver to stop, and that no attention was paid to 1be cries; that tbe plaintiff’s driver, to prevent; a collision and injury, turned suddenly out of tbe road and upon a bank, and in doing so upset tbe buggy, by which tbe plaintiff was thrown ont and injured.

Tbe defendants’ evidence tended to show that their team was going at a slow rate of speed, about three miles an bour; that there was plenty of room for both teams to pass without collision or injury to either, and that, at tbe time of meeting the defendants’ driver, pulled bis team as far out of tbe road as it was possible to do.

Tbe plaintiff made three special prayers for instruction in substance as follows: Eirst, that from tbe undisputed evidence tbe driver of tbe defendants’ team, at tbe time of tbe alleged injury of tbe plaintiff, was tbe servant of tbe defendants, and in tbe regular course of .bis employment, and if tbe driver was guilty of negligence on that occasion, then tbe defendants were as much responsible for that negligence as if tbe defendants themselves bad been driving tbe team. Second, that a recovery by tbe plaintiff would not be dependent upon an actual collision of tbe teams if by tbe negligence of tbe defendants’ driver tbe plaintiff was suddenly put in danger, and tbe driver of tbe plaintiff, in order to extricate himself and tbe plaintiff from peril, suddenly ■pulled tbe team upon a bank at tbe side of tbe road, and ■that was done under a reasonable apprehension that it was necessary for their safety, and the plaintiff thereby was thrown from the buggy and injured. Third, that notwithstanding the plaintiff might not have been injured if the buggy had not been driven out of the road and upon the bank, yet if the plaintiff was put in sudden peril by .the negligence of the defendants’ driver, and the buggy was driven on the bank under a reasonable apprehension that a collision would have occurred if it had remained in the road, and the pi a in l iff’s driver acted as a reasonably prudent man would have acted under the circumstances, in the effort to extricate himself from sudden peril, and the plaintiff was thereby thrown from the buggy and injured, then the plaintiff’s injury would be the direct consequence of the defendants’ negligence. Fourth, that it was the duty of the defendants’ driver to drive his team in such a manner that he would not unnecessarily imperil the rights of persons on the road, and that if it was dark and travelers from an opposite direction might not be seen or heard, it was all the more necessary that he should drive carefully to prevent sudden peril, accidents and injury to those he might meet, and that even if the road was wide enough for the teams to have passed in safety, yet if the defendants’ driver negligently delayed to turn out of the road until his horses’ heads got nearly to the heads of the plaintiff’s horses, and the plaintiff and his driver were thereby put in reasonable apprehension that there was about to be a collision, and to avoid the impending danger the buggy of the plaintiff was pulled up on the bank and the plaintiff thereby thrown from his buggy and injured, then the injury was the result of the defendants’ negligence. The instructions were given and the defendants excepted.

The error complained of as to the refusal to give the first prayer was that the Court assumed that the person who was driving tbe defendants’ team was tbe servant of ths defendants and acting in tbe usual course of bis employment. The exception was without merit. It was admitted in tbe answer that tbe team and driver were tbe team and driver of tbe defendants; evidence to that effect on both sides was introduced, and special instructions were requested by tbe defendants based on that assumption.

Exception to the second prayer for instructions was that bis Honor left out any instruction concerning tbe conduct of the plaintiff in jumping from tbe buggy, and applying tbe rule of tbe prudent man to the facts. Without passing just now, upon whether or not tbe defendants were entitled to any instruction as to whether tbe plaintiff jumped from tbe buggy, it' appears that an instruction — all tbe defendants were entitled to — was given in tbe following words: “Even if 1he plaintiff, Crumpton, was placed in a position of danger or peril, tbe law requires that be should exercise ordinary firmness in avoiding the peril of bis position, and if be became frightened and jumped from tbe buggy when a man of ordinary firmness would not have jumped under the same circumstances, any injury received by him in consequence of or as tbe result of this act can not be imputed to tbe negligence of tbe defendants, but would be considered as tbe result of his own negligence.”

As to tbe rule of tbe prudent man, bis Honor told tbe jury that tbe apprehension for their safety by tbe driver must have been reasonable; and to further illustrate that doctrine, be said, in his charge in chief: “To answer tbe first issue 'yes’ you must find by a preponderance of the evidence in the first place that defendants’ driver was driving in such a negligent manner as to cause tbe driver, Hunt (plaintiff’s driver), to believe bis buggy would be struck if he remained in the road, and that to avoid a collision Hunt drove upon tbe bank and tbe plaintiff was thereby thrown out and injured. In the next place you must find by a preponderance of the evidence that a driver of ordinary prudence under the circumstances, and when Hunt drove on the bank, would have had reason to believe that there was danger of collision, and would probably have driven upon the bank to .avoid the danger.”

The third instruction was correct in every particular. Vallo v. Express Co., 14 L. R. A., 745; Lincoln v. Nichols, 20 L. R. A., 855.

The ground of exception to the fourth instruction was the same as that made to the second, and we have disposed of that.

The defendants submitted the following prayers for instruction:

1. It was not negligence in the defendants’ servant in charge of their team to drive rapidly on an open country highway if the danger of collision was slight, and, even if the jury find that he was driving rapidly at the time he first saw, or could by reasonable care have seen, the team of Crafton & Ogburn, in which the plaintiff was riding, and that defendants’ servant, as soon as he saw the .team, did what he could under the circumstances to avoid any collision with the team of said Crafton & Ogburn, there was no negligence on the part of the defendants’ servant, and the jury will answer the first issue, “No.”

The Court declined to give the instruction, and the defendants duly excepted.

2. That the servant of defendants, who was driving their team, was required to exercise only that degree of care or prudence in driving over the public highway which careful drivers are accustomed to use, or that degree of care usual with careful drivers under the same circumstances, and if tbe jury find in tbis case that tbe defendants’ driver used that degree of care in order to avoid a collision with tbe other team, they will answer tbe first issue “No,” and tbe defendants’ servant in such case was not guilty of negligence.

Tbis instruction was given by tbe Court.

3. That if tbe defendants’ driver as soon as be discovered' tbe other team, either standing still or approaching him in tbe road, drove bis team out of tbe way as well as be could under the circumstances in order to give tbe other team sufficient space in tbe road to pass, and be thought at tbe time that tbe driver of Crafton & Ogburn bad sufficient space to pass bis téam in safety, and tbe driver of tbe defendants could not give more space than be did by reason of tbe fact that there were obstructions on bis side of tbe road which prevented tbe driving of bis team further away from tbe other team, tbe jury will find that there was no negligence on tbe part of tbe defendants.

Tbis instruction was refused as asked for, but tbe Court gave tbe same with tbis addition at tbe end thereof, to-wit, “after discovering tbe other team.”

To tbe refusal to give tbe instruction, and to tbe modification thereof, defendants duly excepted.

4. If tbe driver of tbe team of Crafton & Ogburn bad sufficient space in tbe roadway or traveled part of tbe road to pass tbe team of tbe defendants in safety, and tbe driver of Crafton & Ogburn’s team drove said team farther to tbe right than be was required to do under tbe circumstances in order to pass, and by reason thereof tbe plaintiff was thrown from buggy or vehicle in which be was riding, tbe jury will answer tbe first issue “No,” as tbe injury in such case was not caused by tbe negligence of tbe defendants’ servant, but by that of tbe driver of tbe team of Crafton & Ogburn.

Tbe Court refused tbis instruction, and defendants excepted. Tbe Court gave it in a modified form as follows:

If it was a fact, and would bave so appeared to a man of ordinary prudence and firmness under tbe circumstances, tbat tbe driver of tbe team of Grafton & Ogburn bad sufficient space in tbe roadway or traveled part of tbe road to pass tbe team of tbe defendants in safety, then, inasmuch as tbe evidence shows tbat tbe driver of Grafton & Ogburn’s team drove said team so as to throw tbe wheels on tbe embankment, tbe jury will answer tbe first issue “No,” as tbe injury in such case was not caused by tbe negligence of tbe defendants’ servant as tbe proximate cause, but by tbat of tbe driver of Grafton k Ogburn.

Tbe defendants excepted to tbe modification of tbe Court.

5. Tbat all tbat was required of tbe servant of tbe defendants, Ivie Bros., under tbe circumstances, was to use such a degree of care as was proportioned to tbe danger of tbe situation and surroundings, and to do what a reasonable and prudent man would bave done under tbe circumstances, and if be exercised tbat degree of care tbe jury will answer tbe first issue, “No.”

This instruction was given by tbe Court.

6. Tbat if tbe accident to tbe plaintiff occurred by reason of tbe fact tbat bis legs were so wrapped in tbe laprobe which be was using tbat be could not prevent bis fall from tbe buggy, and if tbe jury find tbat bis fall from tbe buggy was caused by tbe manner in which bis legs were wrapped in tbe laprobe they will answer tbe first issue, “No.”

Tbe Court declined to give tbe instructions, and tbe defendants duly excepted.

7. If tbe jury find that tbe plaintiff- either fell or was thrown from tbe bugyy by reason of tbe fact tbat tbe bit in tbe mouth of one of tbe horses drawing said buggy broke and tbe horse became unmanageable, the jury will answer the first issue, “No.”

This instruction was given by the Court.

8. If the jury finds the facts to be as set out in either of the prayers for instructions, numbers four, six and seven, they will answer the second issue, “Yes.”

The Court declined to give this instruction, and the defendants duly excepted.

9. If the jury believe from the evidence that, when the conveyances passed each other in the road, the plaintiff’s buggy was on an incline of only twelve or eighteen inches and that this was insufficient to capsize the buggy or throw plaintiff out, so that there was no reasonable ground for apprehension on his part that he would be thrown out, and under these circumstances he jumped out, the result of his fall can not be charged against the defendants.

This instruction was given by the Court.

10. If the jury believe from the evidence that the incline or tilt of the plaintiff’s buggy was not great enough to throw from it a man in the exercise of ordinary care under the circumstances when the plaintiff was thrown from the buggy, the fact is to be attributed, to want of care on his part, and the defendants can not be held responsible for the effects of his fall.

This instruction was given by the Court.

11. If the jury believe from the evidence that the driver of Ivie Bros., the defendants, as soon as he knew there was a conveyance meeting him in the road, turned his team to the right and moved to the right as far as he could with safety to himself and team, and that between his conveyance [and] the opposite side of the road there remained sufficient space for the plaintiff’s conveyance either to pass safely or to stand safely till he passed with his conveyance, then the defendants’ driver exercised all the care which the law required of him, and the defendants can not be held to account for the injury complained of by plaintiff, and this would be so even though defendants’ driver had been driving at’ a rapid gait just before that time.

The Court refused to give this instruction, and defendants excepted.

The Court gave the instruction with an addition thereto as follows:

Provided the driver of defendants, before he knew he was meeting a conveyance, was not driving so recklessly and carelessly as to reasonably cause plaintiff’s driver to believe at the time he turned out of the road that his buggy would be struck if he remained in it.

The defendants excepted to the modification of this instruction.

12. If the jury believe from the evidence that the plaintiff had passed over the road often, and was familiar with its condition, and thought it was too narrow for two conveyances to pass safely, and if he apprehended, when he saw the defendants’ conveyance approaching, that danger was imminent, and had time and opportunity to do so, it was his duty to get out of his conveyance until they did pass, and failing to do so he is guilty of contributory negligence, and can not recover.

This instruction was given by the Court.

18. If the jury believe from the evidence that the plaintiff’s conveyance was passed safely by the defendant’s conveyance and it was not necessarv for the plaintiff’s conveyance to have moved any further with its outside wheels elevated on the embankment, and if because of the bridle bit of one of his horses breaking, or for any other reason, the plaintiff’s buggy did move further on the incline before coming back into the road, and thereby the plaintiff was thrown from his buggy, this was no fault of the defendants’ driver, and tbe defendants can not be held responsible for tbe plaintiffs injury.

Tbe Court declined to give tbis instruction, and defendants excepted.

Tbe Court modified tbe instruction as follows:

If tbe jury believe from tbe evidence that tbe plaintiffs conveyance was passed safely by tbe defendants’ conveyance, and it was not necessary for tbe plaintiff’s conveyance to bave moved any further with its outside wheels elevated on tbe embankment, and it would bave so appeared to a man of ordinary prudence under tbe circumstances, and, if because of tbe bridle bit of one of bis horses breaking, or for any other reason, tbe plaintiff’s buggy did move further on tbe incline before coming back into tbe road, and thereby tbe plaintiff was thrown from bis buggy, tbis was no fault of tbe defendants’ driver, and tbe defendants can not be held responsible for tbe plaintiff’s injury.

To tbe modified instruction tbe defendants excepted.

14. If tbe plaintiff’s buggy was driven further to tbe right and up tbe embankment on that side than was necessary under tbe circumstances for tbe safe passage of tbe buggy by tbe team of tbe defendants, and tbe injury to tbe plaintiff was caused thereby, tbe jury can not impute negligence to tbe defendants as tbe cause of the injury to tbe plaintiff, and tbe first issue should be answered, “No.”

Tbe Court declined to give tbe instruction, and tbe defendants duly excepted.

15. If tbe plaintiff hired tbe team of Crafton & Ogburn for the purpose of being carried from Reidsville to Leaksville and Spray and back to Reidsville, any negligence of bis driver, Whit Hunt, which may bave caused or contributed to plaintiff’s injury, is by tbe law imputed to, and to be taken and considered by tbe jury as tbe negligence of tbe plaintiff himself.

Tbe Court decliued to give tbe instruction, and tbe defendants duly excepted.

16. If tbe negligence of tbe driver, Wbit Hunt, proximately caused tbe plaintiff’s injury, tbe jury will answer tbe first -issue, “No,” and if there was any negligence of tbe defendants in causing tbe injury, and tbe negligence of Wbit Hunt contributed thereto, tbe jury will answer tbe second issue, “Yes.”

Tbe Court declined to give instruction, and tbe defendants duly excepted.

17. Even if tbe plaintiff, Crampton, was placed in a position of danger or peril, tbe law requires that be should exercise ordinary firmness in avoiding tbe peril of bis position, and if be became frightened and jumped from tbe buggy when a man of ordinary firmness would not have jumped under tbe same circumstances, any injury received by him in consequence of or as tbe result of bis act can not be imputed to tbe negligence of tbe defendants, but would be considered as tbe result of bis own negligence.

This instruction was given by tbe Court.

Tbe first sentence of tbe first prayer could not have been given. It did not fit tbe facts in tbe case. Tbe remaining portion of that prayer was properly refused, as were tbe third and eleventh prayers, for they left out of consideration entirely tbe view of tbe alleged negligence of tbe defendants’ driver prior to tbe meeting of tbe teams. His Honor’s addition to tbe third prayer was proper. Tbe fourth prayer left out of consideration tbe idea of reasonable apprehension of danger on tbe part of tbe plaintiff’s driver, and was properly refused. Its modification by bis Honor was correct. There was no error in tbe refusal to give tbe sixth 'instruction, for there was no testimony upon which it could be based. Hunt, tbe plaintiff’s driver, was asked on bis cross examination, if be did not tell Hampton tbat tbe plaintiff bad told bim tbat if be bad not gotten bis feet tangled up in tbe laprobe be would not bave fallen out of tbe buggy ? To wbicli tbe witness said be bad made no sucb statement to Hampton. To affect Hunt’s credibility, tbe defendants introduced Hampton ■as a witness, wlio said tbat Hunt told bim tbat Orampton in jumping out bad bung bis feet in tbe laprobe, and tbat caused bim to fall. Tbat evidence was not sufficient to justify tbe giving of tbe sixth instruction. Tbe eighth prayer was properly refused. There was no error in bis Honor’s refusal to give without qualification the thirteenth prayer, but with tbe modification added by bis Honor it became a proper instruction.

Tbe fourteenth, fifteenth and sixteenth prayers were founded on t[ie defendants’ views of tbe law tbat if tbe plaintiff’s driver contributed to tbe injury of tbe plaintiff, tbe law would impute that negligence to tbe plaintiff himself, and tbat if tbe negligence of tbe plaintiff’s driver was tbe proximate cause of tbe injury, tbe defendants would not be liable, even if their driver bad been negligent. Tbe sixteenth prayer contained both propositions of law, and tbe view of tbe Court was tbat one was a correct proposition and tbe other was not, and bis Honor declined to give it as it was framed. But be did give tbe first section of the sixteenth prayer substantially in tbe following words: “Even if Smallwood (defendants’ driver) was driving negligently, and Hunt thought it necessary to drive upon tbe bank to avoid a collision, yet if an ordinarily prudent driver under tbe circumstances would not bave bad reason to believe there was danger of collision, or probably would not bave drawn on the bank, you will answer tbe first issue, ‘No,’ for in sucb case the defendants’ negligence was not tbe natural cause of Hunt’s driving on tbe bank. Hunt’s negligence did not contribute with and together with defendants’ negligence constitute the proximate cause. It was of itself the direct, the proximate cause of the injury. The other sections of the sixteenth prayer his Honor refused to give. On the contrary, he instructed the jury: “Now, even if Hunt was negligent in the manner of his driving while passing defendants’ conveyance, as for example by turning out more suddenly, or higher upon the bank than an ordinarily prudent man would have done, his negligence under these circumstances would be considered as concurring and contributing with defendants’ negligence in together being the proximate cause of any injury sustained by plaintiff, if plaintiff was thrown out by the driving upon the bank while passing. Defendants would not be relieved from liability by this concurring negligence of Hunt, which co-operated with his own driver’s producing the injury.” That instruction was, in our opinion, proper.

That view of the law is ably stated in the opinion of the Court in Little v. Hackett, 116 U. S., 366. There, the plaintiff below was injured by the collision of a railroad train with the carriage in which he was riding. The plaintiff had gone on an excursion from Germantown to Long Branch. At the latter place, having some spare time before taking the cars on his return home, he hired a carriage and directed the driver to go through a public park near the railroad station. The driver upon receiving the order turned the horses to go to the park, and in crossing the railroad track near the station, for that purpose, the vehicle was struck by the engine of a passing train and the plaintiff was injured. The carriage belonged to a livery stable keeper, and was driven by a person in his employment. It was an open carriage with the seat of the driver about two feet above that of the person riding. (That circumstance, however, did not in any way affect the reasoning of the Court in the decision of the case). The evidence went to show that the collision was the result of the concurring negligence of the trainmen and of the driver of the carriage. The Railroad Company set up the defence of contributory negligence, contending that the driver’s negligence was to be imputed to the plaintiff. On the trial his Honor instructed the jury as follows: “I charge you that when-a person hires a public hack or carriage which at the time is in the care of the driver for the purpose of temporary conveyance, and gives directions to the driver as to the place or places to which he desires to be conveyed, and gives no special directions as to his mode or manner of driving, he is not responsible for the acts or negligence of the driver, and if he sustains an injury by means of a collision between his carriage and another, he may recover damages from any party by whose fault or negligence the injury occurred, whether of that of the driver of the carriage in which he is riding, or of the driver of the other; he may sue either. The negligence of the driver of the carriage in which he is riding will not prevent him from recovering damages against the other driver, if he was negligent at the same time. The passenger in the carriage may direct the driver where to go, to such a park or such a place that he wishes to see. So far the driver was under his directions; but my charge to you is that, as to the manner of driving, the driver of the carriage or the owner of the hack — in other words he who has charge of it and has charge of the team — is the person responsible for the manner of driving, and the passenger is not responsible for that unless he interferes and controls the matter by his own commands or requirements.” That instruction was sustained. In the opinion of the Court, the contrary doctrine announced in the case of Thorogood v. Bryan, decided by the Court of Common Pleas, in 1849, 8 C. B., 114, is referred to and disapproved. Justice Field, wbo wrote the opinion of Court, said: “The doctrine resting upon the principle that no one is to be denied a remedy for injuries sustained 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 done 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.” The Court further said in Little v. Hackett, supra, “The truth is the decision in Thorogood v. BryaUj rests upon indefensible ground. The identification of the passenger with the negligent driver or owner, without his personal cooperation or encouragement, is a gratuitous assumption. There is no such identity. The parties are 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.” In that opinion it is stated that in this country Thorogood v. Bryan has not escaped criticism in the English Courts, and, in this country, has not been generally followed, and the eases in which it has not been followed are cited.

There is no error, and the judgment is affirmed.

Cuark, J.,

dissenting. “Próxima, sed non remota, causa spectatur.” The Court charged the jury: “Now, even if Hunt was negligent in the manner of his driving while passing defendants’ conveyance, as for example by turning out more suddenly, or higher upon the bank than an ordinarily prudent man would have done, Ms negligence under these circumstances would be considered as concurring and contributing with defendants’ negligence in together being the proximate cause of any injury sustained by plaintiff, if plaintiff was thrown out by the driving upon the bank while passing. Defendants would not be relieved from liability by this concurring negligence of Hunt, which cooperated with his own driver’s producing the injury.” This is clearly error. In such case the negligence of his own driver which threw the plaintiff out and injured him, was subsequent to, and independent of the negligence of the defendants. It was not the necessary consequence of defendants’ negligence, and was not concurrent with it, and was the proximate, direct cause of plaintiff’s injury. The defendants’ negligence was the remote cause. The Court in substance told the jury that if defendants’ negligence made the plaintiff’s driver turn out of the road, and the negligence, made the plaintiff’s driver turn out of the road, and the negligent manner of plaintiff’s driver in so doing injured the plaintiff, the defendant is liable. This can not be sustained by-precedent or in reason, and if followed up would have no limit. For instance, if the barkeeper had not sold defendants’ driver whiskey, he would not have been negligent, and if not negligent he would not have frightened the plaintiff’s driver into turning out, and the latter would not, by his negligent manner of driving, so have injured the plaintiff. And it could be carried still further back, one cause depending on another, in the manner of the “House that Jack built.” But the charge presupposes that the injury was caused by the negligence of plaintiff’s driver in running the buggy upon the bank and throwing the plaintiff out, and if so, the law can go no further back than this direct cause.

Little v. Hackett, 116 U. S., 366, has no application. There, the conveyance in wbicb the plaintiff was driving was struck by defendant’s train and he was injured. The driver of the conveyance and the engineer were both negligent, and it was held that the negligence being concurrent the plaintiff could sue both the owner of the conveyance and the Railroad Company. Clearly, if he could not, he could sue neither, for it took the negligence of both concurring to do the injury. And that would have been the case here, if the Two conveyances had run together, both drivers being negligent, causing injury to plaintiff.

But, here, the negligence of defendant caused plaintiff’s driver to do something, which something he did in a negligent manner whereby the plaintiff was injured, and the Court told the jury that, if so, the negligence was concurring. Clearly not so,.for plaintiff’s driver need not have turned out in a negligent manner, and, if he had not, the plaintiff would not have been injured. Here is the proximate cause which alone the law can consider. Anything beyond that opens the door to a wide and illimitable field of speculation. The negligence of plaintiff’s driver was not concurrent with that of defendant, but' subsequent thereto, and due to his own want of nerve or skill.

This instruction went to the marrow, and, being erroneous, a new trial should be granted.

Eatbcloth, 0. J. I concur in the dissenting opinion.  