
    The Toledo Railways & Light Co. v. Mayers.
    
      Imputed negligence — Driver and occupant of automobile — Charge to jury — Degree of care by occupant — Control and authority ■ over driver — Collision with street car at crossing.
    
    Plaintiff was injured as a result of a collision of a street car and an automobile in which he was riding, as the guest of the owner and driver, and in the front seat with him, said collision occurring at an intersection of highways outside the city limits, Held:
    
    1. That the negligence of such driver is not imputable to the plaintiff, and if the collision was caused by the negligent operation of the street car, plaintiff may recover from the operating company unless his own negligent act or omission directly contributed to cause his injury:
    2. Though plaintiff was required to exercise ordinary care for his own safety and to reasonably use his faculties of sight and hearing to observe and avoid the dangers incident to crossing such track, an instruction that he “was not exonerated from any duty at all by reason of the fact that he himself was not driving the machine” is erroneous.
    3. In such case the giving of an instruction which assumes that the driver acted upon the permission, and suggests that he was under the control and subject to the authority, of the plaintiff, constitutes prejudicial error.
    (No. 14938
    Decided January 11, 1916.)
    Error to the Court of Appeals of Lucas county.
    The defendant in error, George E. Mayers, instituted an action in the court of common pleas of Lucas county against the plaintiff in error, The Toledo Railways & Light Company, in which he sought to recover damages for injuries which he claimed to have sustained by reason of the negligent operation of one of the street cars of said company, the averments of the petition being that “said street car was being propelled at a high and dangerous rate of speed, to-wit, thirty miles an hour, and the persons in charge of said car on behalf of said defendant negligently and carelessly wholly failed to give to any person who might be traveling or being transported along said boulevard any warning by any means whatever of the approach of said car towards said boulevard, and plaintiff says that he received the injuries hereinafter set forth wholly and directly through the carelessness and negligence of the said defendant as aforesaid.”
    The defendant by answer, after admitting the collision of car and automobile and denying generally the other allegations of the petition, avers that “plaintiff was himself negligent, and that plaintiff carelessly and negligently permitted and allowed the person operating said automobile to drive said automobile at a high rate of speed so that said automobile collided with said street car, and that plaintiff carelessly and negligently failed to use his senses for the purpose of ascertaining the approach of said street car, and carelessly and negligently failed to see to it that the person driving said automobile used his senses for the purpose of ascertaining the approach of said street car and to control said automobile, and that all said carelessness and negligence of plaintiff then and there directly contributed to the injuries complained of in his petition.”
    The evidence upon the trial disclosed that an automobile in which Mayers was riding, but which belonged to and was operated by Henry F. Riek, collided with the street car of the defendant company at the intersection of a road known as Dorr street and a boulevard, a short distance outside the cor-, porate limits of the city of Toledo. Plaintiff was seated on the right side; he being a guest of the owner and driver. There were also three persons in the rear seat. The top of the automobile was up, but the curtains were not on.
    At the close of the evidence adduced by the plaintiff the defendant moved the court for an order directing a verdict in favor of the defendant, which motion was renewed at the close of all the evidence. The motion in both instances was overruled. Before argument the court gave to the jury several instructions requested by counsel for the defendant, among which were the following:
    “7. If you find that the plaintiff was himself negligent in riding in the automobile driven by Riek, and permitting same to be operated, as you may 'find same was operated by Riek, and in remaining in same after observing Riek’s manner of operation, and if you find that such negligence on the part of plaintiff proximately contributed to his injuries, your verdict must be for the defendant.”
    “8. You are instructed that plaintiff could not ride in the automobile operated by Riek and sit in the front seat beside Riek and close his eyes and ears to all possible dangers and rely entirely upon Riek for plaintiff’s safety, but that on the contrary, it was plaintiff’s duty as much as it was Riek’s to exercise such care as reasonably prudent men would exercise in such circumstances to observe and ‘avoid such impending dangers as could be observed and avoided by the use of the senses of sight and hearing/ and if you find that plaintiff failed to exercise such degree of care, and that such failure on his part proximately contributed to his injuries, your verdict must be for the defendant.”
    “13. The fact, if you find it to be a fact, that the view of the plaintiff and the other occupants of the automobile up the street car tracks to the west was obscured wholly or partially as the automobile approached the tracks, would not relieve the plaintiff from the duty of exercising his senses of sight and hearing, to ascertain whether or not a car was approaching, but would, on the contrary, require him to exercise greater care in that respect, before proceeding to cross the car tracks.”
    In the course of the general charge the court instructed the jury as follows:
    “If the accident was proximately caused by the negligence of the witness, Riek, who drove the automobile, the plaintiff cannot recover. If the negligence of Riek and the street car company concurred and acted together as you find from the evidence, then the negligence of the witness, Riek, would not be imputed to the plaintiff as contributory negligence of .his own. But as you have already been instructed, the plaintiff was not exonerated from any duty at all by reason of the fact that he himself was not.driving the machine.”
    The trial resulted in a verdict for the defendant, upon which judgment was rendered in the court of common pleas. Upon a proceeding in error in the court of appeals said judgment was reversed, and to such judgment of reversal error is now prosecuted in this court.
    
      
      Messrs. Tracy, Chapman & Welles, for plaintiff in error.
    
      Mr. Charles H. Masters and Messrs. Kohn, Northup, Ritter & McMahon, for defendant in error.
   Matthias, J.

The pleadings in this case present the issues of negligence of the defendant and contributory negligence of the plaintiff. The record discloses the usual conflict of various witnesses upon these issues, there being a serious and wide difference as to the speed of the áutomobile and also as to the speed of the street car, the former varying from six to thirty-five miles per hour as it approached the intersection, and the latter seven to thirty-five miles per hour. This difference is illustrative of the conflict in the evidence upon material and important questions of fact which is characteristic of many cases, particularly those of the nature of the one under consideration. Counsel for the company contended before the court of appeals, and now contend, that even if any errors were committed by the trial court, they are unimportant and should not be given any consideration now for the reason that it appears from the entire record that the plaintiff should not recover, and, hence, that it was the duty of the trial court to direct a verdict for the defendant. Upon this contention we need only to say that we find the record discloses evidence upon the issues joined which required the submission of the case to the jury, under proper instructions by the court,

The action of the trial court chiefly complained of by the plaintiff Mayers in the proceeding in error instituted by him in the court of appeals, and because of which a judgment of reversal was entered by that court, was the giving of several instructions before argument requested by the defendant, and also certain language used in the general charge which has been set out in the statement of facts.

It has long been the settled law of this state that when one is injured by the wrongful act of another, without concurring negligence upon his own part or by some one who is under his direction or control, he is entitled to recover from him who caused the injury. It is likewise settled that the doctrine of imputed negligence does not obtain in Ohio. Cincinnati Street Ry. Co. v. Wright, Admr., 54 Ohio St., 181, and cases cited.

In 1 Shearman & Redfield on Negligence (6 ed.), Section 66, attention is directed to the fact that no court of last resort in this country longer applies or approves the doctrine announced by an English court in the well-known case of Thorogood v. Bryan, 8 C. B., 115, which was, in substance, that a passenger in a public vehicle, though having no control over the driver, must be held to be so identified with the vehicle as to be chargeable with any negligence on the part of the operator, which contributed to an injury inflicted upon such passenger by the negligence of a stranger. It is then said by that authority, on page 166, that “The only remnant of this doctrine which remains in sight anywhere is the theory that one who rides in a private conveyance thereby makes the driver his agent, and is thus responsible for the driver’s negligence,- even though he has absolutely no power or right to control the driver. This extraordinary theory, which did not even occur to the hair-splitting judges in Thorogood v. Bryan, was invented' in Wisconsin, and sustained by a process of elaborate reasoning; and this Wisconsin decision, in evident ignorance of all decisions to the contrary, was recently followed, with some similar reasoning, in Montana, and in Nebraska. * * * The notion that one is the ‘agent’ of another, who has not the smallest right to control or even advise him, is difficult to support by any sensible argument. This theory is universally rejected, except in the three states mentioned, and it must soon be abandoned even there.”

It is urged upon the other hand by this authority, supported by numerous cases, that a plaintiff cannot be excused from using- due care for his own safety by showing that he relied upon a stranger to do it for him. He must still exercise ordinary care to discover dangers and avoid injury, and cannot recover damages for an injury to which he directly contributed by his own negligence. The questions of fact, therefore, to be submitted to and determined by the jury in a case such as the one before us, are whether the company, by the negligent operation of its car, caused the injury to the plaintiff, and whether the plaintiff, by his own negligence, directly contributed thereto. In submitting such questions to the jury the instructions of the court should be based upon the facts disclosed by the record. It cannot be concluded from an examination of this record that the plaintiff, who was a guest of the owner and driver of the automobile, was engaged in a joint enterprise with him within the meaning of that term as used by the court in the case of The N. Y., C. & St. L. Rd. Co. v. Kistler, 66 Ohio St., 326. Other controlling and important facts to be borne in mind are that the plaintiff was not familiar with the operation of an automobile, having never owned or driven one himself; that he had probably not ridden in one all told more than ten times previous to the time of his injury, one, two or maybe three of them having been with Riek, the owner and driver of the machine in which plaintiff was riding at the time of the collision; that from observation the plaintiff deemed him to be a careful driver.

While it cannot be questioned that the plaintiff, seated as he was beside the driver, with apparently equal opportunity to observe impending dangers, and within easy access so as to readily communicate to the driver the result of his observations, was required to so. use his faculties of sight and hearing to discover dangers incident to such crossing and apprise the driver thereof, as would a person of reasonable and ordinary prudence under the same or similar circumstances, yet the language used by the trial court not only places such requirement upon the plaintiff but goes much further and is open to the objection of being misleading and prejudicial. The language used in Request No. 7., given before argument, is particularly unfortunate, in that it assumes that the manner of operation of the automobile was with the plaintiff’s permission, and contains a very strong suggestion, and probably an influential one upon the minds of the jury, that, under the circumstances present, the plaintiff was to be regarded as having authority over Riek and some control of the actual management and operation of the automobile, and that a failure to assert such authority or assume control would necessarily constitute negligence on the part of the plaintiff.

There is some evidence that between the point of starting and the intersection where the collision occurred Riek had driven rapidly, possibly at an excessive rate of speed, and, therefore, the question as to whether plaintiff was negligent in remaining in the automobile after observing the manner of its operation was properly submitted to the jury; but there is no evidence whatever upon which to base a submission of the question of negligence of plaintiff in riding with Riek in the first instance. There is no suggestion in the evidence that Riek was an inexperienced or incompetent driver, or had theretofore operated his automobile in a manner that would indicate carelessness or incompetency to the plaintiff or any one else. Such evidence as was offered on the subject was rather to the contrary. The evidence shows that he had owned and driven the same automobile about a year and a half, and no evidence was offered of any prior manifestation of want of efficiency or lack of care, nor was there any evidence which in the least tended to show any incapacity of Riek, by reason of intoxication or otherwise, at the time Mayers accepted the invitation and entered the automobile for the ride or thereafter. It was, therefore, quite misleading to submit to the jury the question of negligence of Mayers in accepting such invitation and riding in the automobile, carrying with it as it does a suggestion that the mere act of entering the automobile may be regarded as a negligent act.

The trial court-took cognizance of the rule fixed in this and many states which holds against the doctrine of imputed negligence, and stated in the general charge that the negligence of Riek would not be imputed to the plaintiff; but other language used in the general charge serves to place upon the plaintiff the duties and requirements of the driver of the machine, which is tantamount to holding the passenger liable for any negligence of the driver, and in its effect upon the minds of the jury probably amounts to the assertion of the doctrine of imputed negligence. That is the very probable effect upon the minds of the jury of the instruction that the duties of the passenger are the same as those of the driver, and that the passenger is “not exonerated from any duty at all by reason of the fact that he himself was not driving the machine.” Although in other portions of the charge the duty of the plaintiff was defined to be that of ordinary care under the circumstances, yet it is not apparent that such language would serve to relieve the portions to which we have referred from the objection that they place an undue and unwarranted burden upon the plaintiff.

In the main we regard the instructions of the court as a correct exposition of the law applicable to such case, but for the reasons we have stated we think it is apparent that the plaintiff must have been prejudiced by the language unhappily used in defiriing the duty devolving upon the plaintiff. It follows that the judgment of reversal entered by the court of appeals is affirmed.

Judgment affirmed.

Nichols, C. J., Johnson, Donahue, Wanamaker, Newman and Jones, JJ., concur.  