
    Transfer Co. v. Kelly.
    In an action by a railroad passenger (who was, in fact, without fault himself), for a personal injury, against a defendant whoso negligence directly and proximatcly concurred with the negligence of the railroad company in producing the injury, the concurrent negligence of the company cannot be imputed to the plaintiff so as to charge him with contributing to his own injury.
    Error to the Superior Court of Cincinnati.
    Upon the trial of the case to a jury, issue having been joined by the defendants severally, and after the plaintiff had introduced all his testimony, the action was dismissed as to the railroad company on its motion, the court being of opinion that the testimony did not tend to prove a cause of action against it; thereupon further testimony was offered upon the issue between the plaintiff and the Transfer Company, and the following bill of exceptions was taken by the defendant, now plaintiff in error.
    
      “ Be it remembered, that at the trial of this cause at the May term, a.-d. .1876, of the superior court of the city of Cincinnati, it appeared from the testimony that the plaintiff, at the time of the happening of the injury complained of, was a passenger on a car owned and operated by the Cincinnati Consolidated Street Railroad Company, and there was evidence tending to show that the.injury to the-.plaintiff was caused solely by the negligence of the Covington Transfer Company; and the defendant, the Covington Transfer Company, having offered evidence tending to prove that the injury to the plaintiff was caused solely by the negligence of the Cincinnati Consolidated Street Railroad Company, and also evidence tending to prove that the injury was caused by the joint negligence of the Covington Transfer Company and of the Cincinnati Consolidated Street Railroad Company, asked the court to charge the jury, that if they found from the testimony that the injury to the plaintiff was caused by the joint negligence of the Covington Transfer Company and of the Cincinnati Consolidated Street Railroad Company, then the Cincinnati Consolidated Street Railroad Company alone would be liable to the plaintiff for the damages caused by such injury, and their verdict must be in favor of the Covington Transfer Company, which charge the court refused to give, and charged the jury that if they found from the testimony that the injury to the plaintiff was caused by the joint negligence of the Covington Transfer Company and of the Cincinnati Consolidated Street Railroad Company, -then both the Covington Transfer Company and the Cincinnati Consolidated Street Railroad Company would be liable to the plaintiff for the damages resulting from said injury, and that the jury could render a verdict against the said The Covington Transfer Company, although the Cincinnati Consolidated Street Railroad Company had been dismissed from the action. To which refusal to give said charge, and to the charge as given, the defendant, The Covington Transfer Company, by its counsel, then and there excepted, and presented this, its bill of exceptions, in that behalf, and prayed the court that the same might be signed, sealed, allowed and ordered to be made a part of the record in this cause; which was done accordingly at this the term of the trial, to wit: the May term, A. d. 1876.”
    Verdict and judgment having been rendered in favor of plaintiff below against ■ the Transfer Company, the latter prosecutes this proceeding to reverse the same on the ground of misdirection to the jury, as set forth in the bill of exceptions.
    The original action was brought by Kelly against the Covington Transfer Company and the Cincinnati Consolidated Street Railroad Company, to recover damages for a personal injury. The cause of action was thus stated :
    “ Plaintiff states that before and at the time of the committing of the wrongs and injuries hereinafter complained of, the defendant, The Covington Transfer Company, a corporation duly created under the laws of Kentucky, and having a managing agent and place of business in the city of Cincinnati, Hamilton county, Ohio, was the owner of the certain wagon and horses hereinafter referred to, and the said defendant, The Cincinnati Consolidated Street Railroad Company, a corporation duly created under the laws of Ohio, was the owner of the street railroad car hereinafter also referred to, and which was used by it to convey passengers in said city, for certain hire and reward.
    “Plaintiff says, that on the 8th day of August, 1871, he became and was a passenger in the said car of said street railroad company, tó be safely carried therein over its road, for certain hire and reward, and he was then received in said car, as said passenger, by the said street railroad company, and for which he paid to it the customary and required fare.
    “ That on said 8th day of August, 1874, while being thus seated and conveyed in said car, which'was then running along Third street, eastwardly, between Smith and Park streets, in said city of Cincinnati, the said defendant, The Covington Transfer Company, by its servants and agents, carelessly, negligently and unskillfully drove the said wagon belonging to it violently into the said street railroad car, and in the direction where the plaintiff sat therein as aforesaid, and the said defendant, The Cincinnati Consolidated Street Railroad Company, then and there, in disregard of its duty, did, by its servants and agents, carelessly, negligently and unskillfully conduct the running of said street railroad -ear, so that by the carelessness, negligence, unskillfulness and default of said defendants, The Covington Transfer Company and The Cincinnati Consolidated Street Railroad Company, through its servants and agents as aforesaid, and without any fault, neglect or carelessness whatever on his part, the right hand of the plaintiff was very badly cut and bruised and the bones thereof fractured and broken, causing him very great pain and suffering, rendering him totally unfit to attend to his necessary business for a long period, involving him in great expense in endeavoring to cure the said injuries, having been under constant treatment in a hospital, and yet, notwithstanding, his said hand has continued to be hitherto so'badly bruised and fractured that particles of broken bones are frequently taken therefrom, and the hand is now entirely useless, and so crushed, its bones so fractured and ligaments thereof so lacerated, as to be, and the same is, rendered permanently injured and crippled, and so will remain during his life, and whereby, on account of the premises, he has sustained damages in the sum of §2,000.”
    
      jDodds ds Wilson, for plaintiff in error :
    The remedy of a passenger who has been injured by the joint negligence of his carrier and another party, 'is against his carrier alone. Thorogood v. Bryan, 8 C. B. 115 ; Armstrong v. Railway Co., 10 Exch. (Law Rep. Series) 47 ; Lockhardt v. Lichtenthaler, 46 Pa. St. 151.
    
      Long, Kramer & Kramer, for defendant in error :
    As to joint liability for joint negligence, see Boyd v. Watt, 27 Ohio St. 259 ; Colgrove v. Railroad Co., 20 N. Y., 492 ; 1 Ohitty Pl. 86 ; 6 Taunton, 29 ; 1 Wash. 187; 6 Duer, 382 ; 7 Cowen, 485 ; 11 Weird. 539 ; 7 Mass. 169 ; 15 N. Y. 380 ; 19 Johns. 381; 2 Kern. 580 ; 19 N. Y. 341; 5 Exch. 240 ; Greenland v. Chaplin, 5 Exch. 243; Turnpike v. Stewart, 2 Mich. 714 ; Darey v. Chamberlain, 4 Exch. 229 ; Bennett v. Railroad Co., 36 N. J. 225; Webster v. Railroad Co., 38 N. Y. 260; Tuff v. Warman, 2 C. B. (N. S.) 740; 5 C. B. 573; Barrett v. Railroad Co., 45 N. Y. 628.
   MoIlvaine, C. J.

The exact question ,presented by this record, as we understand the bill of exceptions, arises upon the fact assumed in the request to charge and in the charge as given to the jury, that the wrongful acts of the defendants below, the railroad company and the transfer company, were not only concurrent in point. of time and place, but in such manner that the wrongful act of each was a direct and proximate course of the injury complained of by the plaintiff ; and this being so, it matters not whether the act of each, without the concurrence of the other, would have .produced the injury, or, that the negligence of neither would have caused it without such concurrence ; so that upon general principles and reason both or either ought to make compensation therefor. The general rule undoubtedly is, that where damage is caused by the joint or concurrent wrongful acts of two or more persons, they may be prosecuted therefor jointly or severally. To this general rule of liability, whether joint or several, there is an exception, howevei’, based upon reasons as sound as is the rule itself, namely : that where the injured party, by his own negligence or wrongful act, contributes to his own injury, the law will not afford him a remedy against all or any of the persons whose wrongful acts, in connection with his own, produced the injury. But the case before us does not come within the exception above stated, for the reason that it is here admitted by the pleadings, that the plaintiff below was w%faot without fault on his part. It is contended, however, by the plaintiff in error, that the plaintiff below was so identified with or related to the railroad company by the contract for carriage, that the fault of the carrier must be imputed to him as passenger.

The imputation thus contended for, however, is not based upon any alleged fault of the plaintiff below in entering into the contract for carriage with the railroad company; for there is not even a suggestion that the . contract was one which a reasonably prudent man would not have made; but simply 'upon the ground that the plaintiff below was a passenger upon the car of the company at the time when an act of carelessness, contributing to his injury, was committed by one of the company’s servants, namely: the driver of the car.

If the driver could, in any just sense, be regarded as the agent or servant of the passenger, or if the railroad company, whose servant the driver was, had been, under the contract, subject to the direction or control of the passenger, then, with some show of reason, it might be said that the passenger was responsible for the negligence of the driver.

But such was not the nature of the contract. The passenger was, it is true, entitled to a seat in the company’s car; but -was not entitled to direct or control the time or manner of its movement. That the company was bound to exercise the highest degree of care to the end that the passenger might be safely carried, is true ; but it was not subject to the direction or control of the passenger, either as to employment of servants or as to the manner in which the service should be performed. It seems to us, therefore, that the negligence of the •company or of its servants should not be imputed to the passengc,", .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, 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.

While we acknowledge the high authority of cases holding views contrary to those above expressed (Thorogood v. Bryan, 8 Com. Bench, 115; Armstrong v. Lancashire Railway Co., 10 Exch. Law R. Series, 47, and Lockhardt v. Lichtenthaler, 46 Pa. St. 151), we find, on the other hand, many cases of equally high standing holding, and, we think, with better reason, that the negligence of the carrying company cannot be imputed to a passenger who is rightfully on its train,- and who is guilty personally of no fault or negligence, in an action by such passenger against another party, whoso negligence has contributed directly to his injury. Chapman v. New Haven R. R. Co., 19 N. Y. 341; Colegrove v. N. Y. & N. H. R. R. Co., 20 N. Y. 492; Bennett v. N. J. R. R. Co., 36 N. J. 225; 1 Smith Lead. Cas. 450, 6 Am. Ed.; 43 Wis. 513 ; 14 Minn. 81; 11 Allen, 500; 50 N. H. 420.

We are also aware that by an almost unbroken line of decisions it is held that the negligence of a common carrier of goods, contributing to the injury of such goods while in its possession, is a good defense to an action by the owner of the goods against a third person whose negligence also contributed to the injury.

Whether these decisions conflict with the doctrine announced in this case depends entirely on the question whether or not a distinction, on principle, can be made between cases of carriers of goods and carriers of passengers. That there is a marked distinction between the relations of the parties to these different contracts is quite certain. The common carrier of goods has actual possession of and absolute control over them, and is ah insurer against loss or damage, except when occasioned by the act of Grod or a public enemy; while the carrier of passengers is only bound to the exercise of care; so that, in case of injury to a passenger over whose conduct the «arrier has no physical control, his own misconduct bars his remedy, whether the injury was caused by the concurring negligence of the carrier or the joint negligence of the carrier and others ; but in the case of goods, where the thing carried is incapable of contributory negligence, the law requires its safety to be insured. Now it may be that public policy, in the interest of trade and commerce, will not permit the liability of the carrier, who has failed in his duty in relation to goods, to be shifted to another, either with or without the consent of the owner; and, therefore, it may be that the law, in such case, requires the owner to seek redress from the carrier alone. But, however this may be, we are unanimous in the opinion that for a personal injhry to a passenger, who is himself without fault, occasioned by the joint and concurring negligence of the earner and another person, there is no sound principle of law which precludes the injured party from seeking redress from both or either of the wrong-doers.

Judgment affirmed.  