
    Joseph Kessler, Jr., an Infant, by Joseph Kessler, Sr., his Guardian ad Litem, Respondent, v. The Brooklyn Heights Railroad Company, Appellant.
    
      Negligence — injury, by being run into by a railroad cm' while riding with others to a picnic^ liability of a guest for the driver’s negligence.
    
    In an action brought to recover damages resulting from inj uries caused by the alleged negligence of the defendant, it appeared that the defendant operated a 'double-track railway with dummy engines in an avenue of the city of Brooklyn; that, according to the plaintiff s version, a truck in which he was riding-with others was proceeding towards the' city on the right-hand track when the whistle of a train moving in the same direction was heard, and, in order to enable this train to .pass, the truck was driven to the left-hand track, and as soon as the train had passed was turned again towards the right-hand track, but before it had cleared the left-hand track a train coming on that track struck its end, the occupants were thrown out and the plaintiff was injured.
    There was also testimony that the condition of the highway was such that the truck could not turn to the right when the train approached from the rear, but was compelled to turn towards She left. The defendant denied this, asserted that the wagon was on the left-hand side of the highway, outside the tracks, and that it was suddenly turned across the track in front of the approaching train.
    
      Held, that the defendant had only the rights of any street railroad; it had only a paramount, not an exclusive, right of way;
    That if the condition of the highway was such as to make it necessary for vehicles to drive on the defendant’s tracks it was proper for them to do so;
    That upon the facts the case was a proper one for the jury.
    The evidence tended to show that the plaintiff was invited to go and that he went as a guest to a picnic; that the. other parties borrowed the horses and vehicles used, and selected one of their number to drive.
    
      Held, that the negligence of the driver could not be imputed to the plaintiff;
    That in order to make one of several persons engaged in a joint enterprise responsible for the act of another, the former must have some voice in the control, management or direction of the enterprise, which was not. affirmatively shown to be the fact in this case.
    Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 25tli day of July, 1895, upon the verdict of a jury rendered after a trial at the Kings County Circuit, and also from an order entered in said clerk’s office on the 24th day of July, 1895, denying the defendant’s motion for a ne\y trial made upon the minutes.
    
      
      S. D. Morris, for the appellant.
    
      Thomas F. Magner, for the respondent.
   Cullen, J.:

This is an action to recover damages for personal injuries. The plaintiff, with a number of others, was riding in a truck, along Myrtle avenue, in the suburbs of the city of Brooklyn. On that highway the defendant operates a double-track railway, with “ dummy ” or steam engines, drawing short trains of cars. According to the story told by the plaintiff’s witnesses, the wagon was proceeding towards the city, in the right-hand track, when from behind them was heard a whistle of a train moving in the same direction. To enable this train to pass, the wagon was driven over to theTefthand track. As soon as the train passed, the driver turned out of the left-hand track towards the track on which he had been originally going. Before he succeeded in entirely clearing his truck from the left-hand track, a train coming from the city struck the end of his wagon, the occupants of the wagon were thrown out on the ground and the plaintiff was severely injured. The witnesses for the plaintiff testified that the condition of the highway. was such that the wagon could not turn out to the right on the approach of the train from the rear,, but ivas compelled to turn into the other track. The defendant denied the truth of this story and asserted that the wagon was on the left-hand side of the_Jhigliway. outside of the tracks, when, suddenly, it was turned across the track in front of the approaching train.

We think it clear that these facts presented a proper case for the jury. The case was not that of an ordinary steam railroad operating its trains over its own right of way. The rights of the defendant were no greater than those of any other street railroad, whether operated by horses or electricity. It had only a paramount, not an exclusive, right of way. (Fleckenstein v. Dry Dock, E. B. & B. R. R. Co., 105 N. Y. 655.) Therefore, if the condition of the highway was such as to make it necessary for vehicles to drive in the defendant’s tracks, it was right that they should do so.

The serious question that arises on this appeal is whether the negligence of the driver, if any, was to be imputed to the plaintiff. The trial court charged that it was not. Though, as already stated, we think that negligence on the part of the driver was not established as a matter of law, this will not save the verdict if the charge in the respect quoted was, erroneous, for the jury might have found as a matter of fact that the driver was negligent. The principles applicable to the determination of this question are, we think, clear and well settled. In Robinson v. n. Y. C. & H. R. R. R. Co. (66 N. Y. 11) it was held that the contributory negligence of the driver could not be attributed to one'riding in a vehicle, where the person so riding had no control of the vehicle nor of the driver in its management; that the person riding was only liable for the negligence of the driver where there existed the relation-of principal and agent, or of master and servant, or they were engaged in a joint enterprise in the sense of mutual responsibility for each other’s acts. This decision has been repeatedly followed. (Dyer v. Erie R. R. Co., 71 N. Y. 228 ; Hoag v. N. Y. C. & H. R. R. R. Co., 111 id. 199 ; Crawford v. D., L. & W. R. R. Co., 121 id. 652.)

As to Callabane v. Sharp (27 Hun, 85 ; 95 N. Y. 672), seemingly against the rule above stated, a curious error has crept into the reports and digests. The case was first decided in accordance with the opinion reported. But a reargument having been had the case was decided exactly contrary to the first decision. This last decision is not reported, but it is-this decision and not the reported decision that was affirmed by the Court of Appeals in 95 N. Y. 672.

The ground on which it is sought to chai’ge the plaintiff in this case with the negligence of the driver is that he, with the driver and the other occupants of the wagon, were engaged in a joint enterprise. It appears by the evidence that the parties had gone out on a picnic, having borrowed the horses and vehicle; that the driver was one of their own number, who was selected to drive. As to how this picnic was arranged, and as to what part the several persons took in its management, the evidence is very meagre, and is still more meagre as to the part the plaintiff took in it. . I think enough appears in the evidence, however, to justify the statement of facts already given,' and also to warrant the conclusion that all the parties, other than the plaintiff, were engaged in a common enterprise. As to the connection of the plaintiff with the control and management of this excursion the following is the only evidence. The plaintiff testifies: “That day I went out on a picnic; was invited to a picnic and went with them. It was called c The Albert Sckneible Association.’ I was invited to go by Christian Seigrist. He is here.” Seigrist testifies: “ I recollect Joseph Kessler going. Q. How did he come to go on that? A. I invited him; I asked Mr. Smith if he could not' come and he says, c All right.’ I asked Joseph to come.. I asked Mr. Kessler — Mr. Smith could he come and he says, ‘All right,’ he "could come out and have a day’s fun with me.”

Neither party saw fit to inquire further into the relation of the plaintiff to this excursion. -It does not appear that he in any wise took part in. its organization; that he paid or contributed anything for its expense; that he had anything to do with its management or control, or that he was a member of the association. The testimony is that he “ was invited to go.” I think the fair interpretation of this statement is that he was to go merely as a guest. This certainly appears to have been the understanding at the trial. A motion was made tó dismiss the complaint at the end of the plaintiff’s evidence. The defendant urged that the plaintiff with the others were all engaged in the one enterprise. To this the court remarked : This boy appears to have been a guest, according to the testimony.” The counsel answered that it made no difference whether he was a guest or not, that the rule was the same, but there was no denial that he- . , 7 \ was a guest or any claim that the testimony was susceptible of a different inference.

If we assume, as we think we must, that this plaintiff was merely a guest, then we are of opinion that any negligence on the part of the driver of the vehicle could not be attributed to him. It is- doubtless true that in one sense he was engaged in a common enterprise with the others; that is, to go on the excursion and enjoy the picnic. This alone, however,, did not make him responsible for the acts of the driver. To be engaged in a joint enterprise so as to make one of the parties thereto responsible for the act of the other, the party must have some voice in the control, management or direction of the enterprise. In such case, even if any part of the work is delegated to one, the others are hable for his acts, because, as between the parties, the relation of principal and agent exists, as it does among partners. Between one who has no voice or control in the management of an enterprise, and no right to share in any control, and those who are actually conducting the enterprise, it is plain that no relation of principal and agent exists or can exist. The sole ground of imputed liability, whether of contributory negligence or of injuries done others by negligence, is that the party has some right, voice or. control in the conduct of the enterprise. We can see no distinction in principle between one riding in a vehicle upon the invitation and as the guest of one person or of a dozen. If he is a giiest the question of liability is the same in either case.. The plaintiff was, therefore, responsible only for his own negligence.

The judgment and order denying a new trial should be affirmed, with costs.

All concurred, except Bartlett, J., not sitting.

Judgment and order affirmed, with costs. 
      
       The opinion delivered upon the reargument was as follows :
      Oüllene, J.:
      This action was brought to recover damages for the death of plaintiff's intestate caused by defendant’s train of cars. The deceased’s mother had hired a carriage to take herself and her children (including deceased) to a funeral. On their return, in crossing the railroad of defendant in Atlantic avenue, Brooklyn, the carriage was struck by a passing train. The evidence tended to show negligence on the part of the driver in attempting to cross in front of the approaching train, and the first question to be determined is whether such negligence is" to be imputed to the deceased. I think not. - •
      
        First.. In my opinion the relation of master and servant did not .exist between the mother and driver. The driver was the servant and employee of Burtenshall, who furnished the carriage, and it may be assumed was in that business. The mother of deceased did not have control and direction over the driver and equipage. .The management of the team was intrusted to the driver by the owner. (Boniface v. Relyea, 6 Rob. 397; Story on Bailments [Bennett’s ed.], 328.)
      
        Second. If the relation of master and servant did exist.between the mother and the driver, still the negligence of the latter would not be attributed to the deceased. The child was some thirteen years old and, therefore, mi juris. Had he been alone he could have properly accepted an invitation from any person to ride in the carriage, and would have been guilty of no negligence in so doing. I do not see that the question is at all altered ih its legal aspect by the fact that he rode with his parent.
      At the close of the plaintiffs case the defendant moved to dismiss the complaint both because of the negligence of the driver, and because of the failure to show negligence on the part of the defendant. That motion, was denied. The defendant offered no evidence, except the act authorizing the operation of the railroad on Atlantic avenue, and evidence to show negligence on the part of the driver. The latter was excluded. At' the close of the case the defendant at first asked that the question of his negligence to be submitted to the jury. This challenge the plaintiff accepted, and the defendant then specifically withdrew his previous request. The court submitted it to the jury to determine the amount of damages. I think by defendant’s course on the trial he has precluded himself from raising any other question on this appeal than the propriety of the decision on his motion for a nonsuit. The first ground of that motion, the negligence of the.driver, has been shown to be untenable. Nor do I think the second well founded-.
      The only authority for the use of steam on this avenue was by the express terms of the statute made subject to such rules and regulations as to rate of speed and public safety as from, time to time the common council might prescribe." Three months before the accident the common council had directed gates to be erected at this crossing. With that direction the defendant had not complied. This-failure the jury would be justified in finding contributed to the accident. There was other evidence tending to show negligence, such as the failure to ring the bell or blow the whistle and as to the rate of speed. But it is unnecessary to review the details. We do not say that the evidence conclusively established negligence on defendant’s part. It is not necessary to say even that the weight of evidence tended to that effect. It is sufficient to say there was evidence to support such a finding, and that, therefore, the motion for a nonsuit was properly denied.
      The defendant’s requests to charge were all immaterial. He had declined to go to the jury on the question of his negligence, and accepted the decision of the court thereon. That question was, therefore, withdrawn from the jury, and it was not necessary that they should be informed of the law on the subject. If the defendant repented of his previous refusal to go to the jury on the subject he should have specifically asked the court to submit the question of his negligence to the jury.
      The judgment appealed from should be affirmed, With costs.
      Barnard, P. J., concurred; Dyicman, J., dissented.
      Judgment and order denying new trial affirmed, with cost's:
     