
    Street Railway Company v. Eadie.
    Negligence— "Whether that of parent may he imputed to minor so as to bar recovery.
    
    The plaintiff was a minor aged sixteen years, and was fully capable of taking reasonable care of herself. She was lawfully riding with her father, who was driving his own wagon, when she was injured by a collision between the wagon and a street car, caused by the mutual and concurring negligence of a street ear driver and her father, but without any fault or negligence on her part. Held, that the negligence of her father was not to be imputed or attributed to her, and did not bar a recovery against the street car company, whose negligence directly contributed to the injury. Transfer Co. v. Kelley, 36 Ohio St. 86, followed and approved.
    Error to the District Court of Cuyahoga county.
    The record presents several alleged errors, but in. affirming the judgment the court reserves for report but a single question. Upon this question the facts necessary to be stated are as follows:
    This action was originally brought in the common pleas court of Cuyahoga county by Ellen Eadie, by her next friend, who was also her father, James Eadie, against the Saint Clair Street Railway Company, which is and was a corporation operating a street railroad in Saint Clair street and other connecting streets in the city of Cleveland.
    In her petition, among other things, she alleges that she was, at the time of the bringing of her action and receiving the injuries complained of, a minor sixteen years of age; that in the evening of the fourth day of June, 1881, accompanied by her father and mother, she was proceeding homeward in her father’s wagon, drawn by one horse driven by her father, James Eadie, eastwardly along said Saint Clair street, and in her journey was approaching Wilson aveuue; that her father was driving along the southerly track of said street railway; that at some distance ahead of them was a passenger car of said defendant also proceeding eastwardly along the same track; that said car was driven on to a turn-table just westwardly of Wilson avenue and there turned around and started on its westward trip; that it proceeded to the frog or junction, situate seventy-eight feet from said turn-table, aud there, instead of taking the northerly track, as was usual, the driver of the car directed it into the southerly track on the left hand side of the road, and that the plaintiff was then at least 127 feet away; that her father saw it and immediately began to turn off the track, and made loud outcries ; that the car was being driven at a rapid rate of speed, and the same was driven violently against the wagon of said plaintiff’s father, upsetting it and greatly injuring the plaintiff, Ellen Eadie; that the injuries occasioned her were without her or her father’s fault or negligence.
    The defendant below denied all allegations of negligence on its part, and alleged negligence on the part of said plaintiff and her father. The trial resulted in a verdict and judgmeut for defendant in error. On a motion for new trial the following, among other errors of law, were assigned as grounds for a new trial:
    “ 8th. That the court erred in the trial of this cause in charging the jury, ‘that if there was negligence on the part of said plaintiff’s father, still she is not to be held responsible for it,’ and ‘that the conduct of her father who was driving that wagon, any negligence on his part, with which she had nothing to do, would not be attributed to her in that respect; even though the father by his negligence may have so contributed to that accident that he would be barred of a recovery by his contributory negligence, it still will not prevent this plaintiff of a recovery unless she herself participated in the negligence which caused the injury.’
    “9th. That the court erred on the trial of this cause in refusing to charge the jury that, ‘if the jury are convinced from all the testimony in the case that plaintiff’s said father, James Eadie, after he discovered that said car was coming down the south track on said road, had sufficient time by the use of ordinary care to get off from said track, and out of the way of said car, it was his duty to do so, and the plaintiff" can not recover in this action.’ ”
    It is assumed from the pleading and charge of the court, that evidence was offered tending to show that the defendant below was guilty of negligence directly contributing to the plaintiff’s injury, and that the plaintiff’s father was also guilty of contributory negligence.
    No claim was made that the company was negligent in employing the driver, nor that he was not competent, nor that the father was not also competent to drive his own wagon.
    The ground alleged for recovery was, that the car driver was driving too rapidly; did not keep a sufficient lookout, and did not stop the ear as he might have done, and so avoid the accident.
    For the purposes of this case we will assume that the verdict establishes the fact that the negligence of the driver caused the collision with the wagon in which she was riding, turning it over and injuring the plaintiff, and that her father, who was driving the wagon, was also negligent in being upon the railroad track, and was not exercising proper diligence and care to avoid the collision, thereby directly contributing to the injury. The plaintiff" herself was not guilty of any negligence in the premises, so that the sole question is, was her father’s negligence to be imputed or attributed to her?
    
      Foran Daioley, for plaintiff in error,
    on the question of contributory negligence on the part of one other than the person injured, cited the following authorities: Carlisle v. Town of Sheldon, 38 Vt. 44; Mooney v. Hudson River R. Co., 5 Robt. N. Y. 548; Beck v. East River Ferry Co., 6 Robt. 82; Brown v. New York Central R. Co., 31 Barb. 385; Munroe v. Leach, 7 Met. (Mass.), 274; Puterbaugh v. Reasor, 9 Ohio St. 484; Prideaux v. Mineral Point, 43 Wis. 513; Otis v. Town of Janesville, 47 Wis. 422; Houfe v. Fulton, 29 Wis. 296; L. S. & M. S. R. Co. v. Miller, 25 Mich, 274 ; 
      Cauley v. P. R. R. Co., 95 Pa. St. 398; Forks Township v. King, 84 Pa. St. 230 ; Holly v. Boston Gas Light Co., 8 Gray, 123 ; 65 E. C. L. 114; Leslie v. City of Lewiston, 62 Me. 468; Stillson v. Hannibal & St. J. R. R. Co., 67 Mo. 671 ; Nagle v. Allegheny Valley R. Co., 88 Pa. St. 35 ; 3 Central Law Journal, 415; Philadelphia & Reading R. Co. v. Boyer, 97 Pa. St. 91 ; Cooley on Torts, 684; Brown v. N. Y. Central R. R. Co., 32 N. Y. 597-602; 43 American Rep. 212; Lockhart v. Litchtenthaler, 46 Pa. St. 151; Payne v. C. R. I. & P. R. Co., 39 Iowa, 523; Lynch v. Smith, 104 Mass. 52; Callahan v. Bean, 9 Allen, 401; Carter v. Towne, 98 Mass. 567; Ohio & Miss. R. W. Co. v. Stratton, 78 Ill. 88; Waite v. Northeastern R. Co., El. B. & E. 728; 13 Central Law Journal, 384; Thorogood v. Bryan, 8 C. B. 115 ; Armstrong v. Lancashire & Y. Railway Co., L. R. 10 Exch. Cas. 47; 8 Southern Law Review, 119.
    
      Griswold $ Starr, for defendant in error, claimed that the negligence of the parent could not be imputed to the child, and cited : Thompson on Carriers, 284to 289; Bennett v. Railroad, 36 N. J. Law, 225; 19 N. Y. 341; 20 N. Y. 492; Danville Turnpike Co. v. Stewart, 2 Met. (Ky.), 119 ; Robinson v. Railroad Co., 66 N. Y. 11; Dyer v. Railway Co., 71 N. Y. 228.
   Johnson, J.

The plaintiff, though a minor, was sixteen years old, and was therefore sui juris.

She was fully capable of taking care of herself. Had her negligence or misconduct contributed to her injury she could not recover, though the company was also guilty.

The question fairly presented, therefore, is whether a minor child, who, being sui juris as to a reasonable care of her person and safety, lawfully and properly enters into a conveyance with her parent, and without fault on her part, is injured by the negligence of a street railroad company, is prevented from recovering against such negligent company because her parent has, by his negligence, contributed to the injury.

In Transfer Co. v. Kelley, 36 Ohio St. 86, this court held, that the concurrent negligence of a street car company, whose passenger the plaintiff' was, with that of a transfer company, whereby there was a collision between the wagon of the latter with the car of the former, can not be imputed to the passenger, so as to charge him witji contributory negligence.

In that case,as in this, the plaintiff was not in fault, but there, as here, it was contended that the plaintiff' was so identified with, or related to the railroad company by the contract of carriage, that the fault of the carrier must be imputed to the passenger.

Neither in that case nor in this,was there any fault alleged against plaintiff'for becoming a passenger. The two cases differ in two respects only. There- the carriage was by a public carrier, presumably for hire or reward, while here it was by private conveyance, and presumably gratuitous. There the driver of the street car was a stranger to the passenger, while here he was her father, with whom she was riding home.

In that case, it was held that the driver in the street car was in no just sense the agent or servant of the passenger. If the driver had been under the control of the passenger, then, it was said, there might be some show ot reason for holding the passenger liable for the negligence of the driver. But as there was no such power of direction or control, the negligence of the driver of the car could not be imputed to the passenger.

That was held to be a ease of joint negligence of the railroad company and the transfer company for which they might be sued jointly or severally.

After a thorough examination of the numerous and conflicting authorities upon this point, some of which are cited in the opinion, we then declined to follow the case of Thorogood v. Bryan, 8 C. B. 115, and other like cases, which holds the passenger liable for the contributory negligence of his driver, where there was mutual fault of two drivers causing an injury, and, as before stated, held, that upon principle as well as upon the better authorities, the passenger was not so identified with the vehicle in which he was riding as to make him responsible for the driver’s fault. It was held by us that the passenger in the street car was not responsible for the,negligence of the driver; that the latter was in no just sense the agent of the former, and had no control of or direction over the management of the vehicle in which he was riding, so as to identify driver and passe ngei’.

The opposite doctrine, though suppoi’tedby high authority, has not been received even in England with approbation.

We cite a few of the cases and text-books touching this vexed question, but since the subject was fully considered in The Transfer Co. v. Kelley, supra, we need not further consider it. See Armstrong v. The Lancashire and Yorkshire Railway Co., L. R. 10 Exch. Cas.47; Waite v. The N.E.R.R., El., B. & E. 719 (a case of a child too young to take care of itself); Lockhardt v. Litchenthaler, 46 Pa. St. 151 ; Thompson on Carriers of Passengers, Ch. VII, where all the cases pro and con. are cited, notes, p. 284; Bennett v. Railroad, 36 N. J. Law 225, 1 Smith Lead. Cases (8 Am. ed.), 505, *315; Danville, Turnpike Co. v. Stewart, 2 Met. (Ky.), 119; Chapman v. N. H. R. Co., 19 N. Y. 341; Colegrove v. N. Y. & N. H. R. Co., 20 N. Y. 492; Louisville C. & L. R. Co. v. Case, 9 Bush (Ky.), 728; Wharton on Neg., sec. 395; Webster v. H. R. R. Co., 38 N. Y. 260.

The foregoing cases mostly relate to passengers by public carriers, and where the passenger is injured by the negligence of another public earner or of a third pei’son.

It only remains to determine if a like rule applies where the plaintiff was a passenger in a private conveyance.

We think it does. The plaintiff in the case at bar was in no just sense the master, nor was her father her agent or under her control or direction.

In Puterbaugh v. Reasor, 9 Ohio St. 484, the want of ordinary care of plaintiff’s agent prevented his recovery, when the agent’s negligence directly contributed to the injury, though the defendant was also guilty.

But it is well settled that passenger-s in a public conveyance are uot so liable for the negligence of the employes of the carrier, because they are uot the agents of the passenger. The same reasons apply with equal force to a private carrier.

Plaintiff’s relations to her father, being that of a passenger in his wagon, going to their common home, did not in law, make him her servant or agent, and as such responsible for his misconduct. If he had brought an action for the loss of services of his daughter, caused by this injury, his contributory negligence would defeat a recovery, nor could he recover for his own injuries for the same reason. This is because he was guilty with the defendant of causing the collision. Neither does- the fact that she was the daughter defeat her right. If her father’s misconduct or negligence contributed to the injury, why should that fact exonerate a joint wrong-doer ?

Robinson v. The N. Y. Cen. & H. R. R. Co., 66 N. Y. 11, was the case of a female, who had accepted an invitation to ride with a gentleman, who was the owner and driver of a buggy, in which they were riding, when she was injured through the joint negligence of her driver and a train of cars. Church, C. J., says: “I am unable to find any legal principle upon which to impute to the plaintiff the negligence of the driver. . . . The acceptance of an invitation to ride creates no more responsibility for the acts of the driver than the riding in a stage-coach, or even a train of cars, providing there was no negligence on account of the character or condition of the driver, or the safety of the vehicle, or otherwise. It is no excuse for the negligence of defendant that another person’s negligence contributed to the injury, for whose acts the plaintiff was not responsible.”

We think this reasoning unanswerable, notwithstanding the adverse criticism and contrary holding in Prideaux v. The City of Mineral Point, 43 Wis. 513.

This doctrine of imputed negligence,” and the reasons for its application, were considered in B. & I. R. Co. v. Snyder, 18 Ohio St. 399. That was the case of a child six years old, and the negligence of the parent or custodian of the child did not prevent its recovery against one also guilty.

The court say the rule that contributory negligence bars a recovery is founded on : (1). The mutuality of the wrong; (2). The impolicy of allowing a party to recover for his own wrong; and, (3). The policy of making personal interests of parties depend on their own prudence and care. It was said all these are wanting in the ease then before the court.

With equal truth it can be said that all these reasons are wanting in the present case, where it is conceded the plaintiff was in no fault.

Whether in this case the father would have been jointly liable with the defendant we need not now determine. By the well-settled rule of law, he would be, unless his relations to her modifies this rule, for his culpable negligence, she being sui juris, and not guilty of want of proper care for her own safety. Boyd v. Watt, 27 Ohio St. 259; Wharton on Neg., sec. 144; Shearman & Redfield on Neg., sec. 58. If it be conceded that he would not be so liable, either by reason of his parental relation, or that it was a gratuitous service, that would not excuse the negligence of the defendant, nor bar the plaintiff, who was free from fault, from recovering from the other wrong-doer, whose negligence was a proximate cause of injury.

Judgment affirmed.  