209 N.W. 165 | Mich. | 1926
Lead Opinion
It is settled in this State that where injury is occasioned to passengers by the concurrent negligence of two common carriers, or by the negligence of another and a common carrier, the negligence of the common carrier can not be imputed to its injured passenger. Cuddy v. Horn,
"The rule is well settled in this State that negligence of the driver of a private conveyance, in which a person of mature years is riding as a voluntary passenger, is imputable to the latter, who is held to have assumed the risk of the driver's negligence." Lake v. Township of Springville,
Before taking up the adjudicated cases, it may be well that we have in mind some textbook definitions. In 4 R. C. L. p. 549, it is said:
"Distinction between Private and Common Carrier. The authorities recognize two classes of carriers, viz., private carriers and common carriers. All persons who undertake, for hire, to carry the goods of another, belong to one or the other of these classes. The former, like ordinary bailees for hire, are liable only for the injury or loss of the goods intrusted to them when it results from the failure of themselves or their servants to exercise ordinary care. The latter are liable as insurers for all injury or loss not resulting from the act of God or of the public enemy. The former are not bound to carry for any reason unless they enter into a special agreement to do so. The latter are bound to carry for all who offer such goods as they are accustomed to carry and tender reasonable compensation for carrying them; and if they refuse to perform their obligation in this respect, they are liable to respond in damages. Private carriers are *183 such as carry for hire, and do not come within the definition of a common carrier. But a private carrier may in a particular case be held to the duties and liabilities of a common carrier if by express contract he assumes the risks of a common carrier."
In the same volume, at page 1059, it is said:
"It is elementary that a common carrier of passengers, whether by land or water, is obliged to receive and carry, for a reasonable compensation, all persons who apply for passage at the proper time and place, and who comply with the regulations of the carrier as to intending passengers, if the accommodations are sufficient, unless there is a proper excuse for refusal."
In 10 C. J. p. 607, it is said:
"The distinction between a public or common carrier of passengers and a special or private carrier of the same is that it is the duty of the former to receive all who apply for passage, so long as there is room and no legal excuse for refusing, while such duty does not rest upon the latter."
Mr. Hutchinson in his work on Carriers (vol. 1 [3d Ed.], § 35), thus defines private carriers for hire:
"Private carriers for hire are such as make no public profession that they will carry for all who apply, but who occasionally or upon the particular occasion undertake for compensation to carry the goods of others upon such terms as may be agreed upon."
And in section 62 he points out that a common carrier is under legal obligation to carry for all and liable for refusal to carry. It is there said:
"Lastly, the party must be under such a legal obligation to carry that an action will lie against him for a refusal without sufficient excuse. 'The true test of the character of a party, as to the fact whether he is a common carrier or not,' says Chief Justice Simpson, 'is his legal duty and obligation with reference to transportation. Is it optional with him whether he will or will not carry, or must he carry for all? If it is his legal duty to carry for all alike who comply with the terms as to freight, etc., then *184 he is a common carrier, and is subject to all those stringent rules which, for wise ends, have long since been adopted and uniformly enforced, both in England and in all the States, upon common carriers. If, on the contrary, he may carry or not as he deems best, he is but a private individual, and is invested, like all other private persons, with the right to make his own contracts, and when made to stand upon them.' 'One of the obligations of a common carrier,' says Nisbet, J., 'is to carry the goods of any person offering to pay his hire; with certain specific limitations this is the rule. If he refuses to carry, he is liable to be sued, and to respond in damages to the person aggrieved, and this is perhaps the safest test of his character.' "
Defendant Conger was licensed to operate a jitney on Hamilton avenue; the sign on his car so showed; he was, in operating such a jitney on Hamilton avenue, a common carrier; he was obligated to accept for carriage over his route for the stated fare all who applied for passage so long as there was room, but he was not obliged to carry any one off his route anywhere they might see fit to go, and in fact if he did so he violated the ordinance. Plaintiff knew when she made the arrangements with him that it took him off his route. Their arrangement contemplated that she should not pay a stated sum, but should herself fix the compensation. He owed no duty to accept as a passenger every one asking such service for such compensation; he owed no duty to accept plaintiff on such terms. He could accept or reject her offer. If he accepted the offer, it made a contract for private carriage under the definitions above quoted. He was bound to carry all who applied for carriage on Hamilton avenue until his conveyance was full; he was not bound to carry any one elsewhere.
Numerous cases will be found, and some have been called to our attention, where livery-stable keepers and garage owners have furnished both the conveyance and driver for an agreed consideration, in which it is *185
held that as to third persons injured by the negligence of the driver, the driver hired by the owner of the conveyance was his agent. Illustrative of this class of cases will be found:Shepard v. Jacobs,
In Forbes v. Reinman Wolfort,
"So it may be said at the outset that the relation between the hirer of the vehicle and the owner is that of bailee and bailor, and the liability of the owner is governed by the rules applicable to such a contract of bailment. Appellees hired to Forbes an automobile and driver to be used by him and his guests in driving around the city of Little Rock; and thus they became a private carrier for hire, and as such were required to use ordinary care and diligence in the performance of the duty imposed upon them by the contract." *186
In Georgia Life Ins. Co. v. Easter,
189 Ala. 472 (66 So. 514 , L.R.A. 1915C, 456), the Harris Transfer Warehouse Company did a transfer business and also let out picnic wagons with drivers to parties who desired to drive into the country on picnics. One Margaret Easter was killed while a passenger in one of these picnic wagons. She carried insurance and the question before the court was whether she met her death "while a passenger in or on a public conveyance by a common carrier for passenger service." It was held:
"In this case, under the law, the facts show that, in the particular business in which this transfer company was engaged when the plaintiff's intestate was killed, it was not a common carrier, but only a private carrier for hire."
A somewhat similar question arose in Rathbun v. OceanAccident Corp.,
"The main question in this case is whether or not Plaintiff in error's liability is a single liability of $6,000 and interest or a double liability of $12,000 and interest. This question is to be determined solely upon the single proposition whether or not Rayle Bros. were common carriers in the service they were rendering Dr. Rathbun at the time that he was accidentally killed. * * * As to the services performed by Rayle Bros. for Dr. Rathbun, as already suggested, we are unable to see that such services amounted to more than the ordinary services performed by livery-stable keepers. The fact that Rayle Bros. were licensed in Danville to run taxicabs, if such be the case, can have *187 nothing to do in determining the question whether or not they were common carriers in rendering the services in question. The license conferred no privileges beyond the city limits of Danville. The advertisement in the telephone directory for similar reasons has no direct bearing on the question. There is no evidence that Rayle Bros. were running a jitney or taxicab line from Danville to Missionfield or from Danville to any other town. When Dr. Rathbun hired the car it was for a special service to him and he had control of both the car and the driver. It certainly could not be successfully contended that Rayle Bros. owed him the extraordinary duty of a common carrier, or that they were liable to him, as such, for any injury that he might sustain on such trip. The automobile was not a passenger car in the sense in which we are now using that term. It was, in fact, a car contracted for by Dr. Rathbun by a private contract for his use in his profession and under his control."
In Terminal Taxicab Co. v. District of Columbia,
We are persuaded that the question so clearly submitted to us by counsel of whether the defendant, in his relation to plaintiff, was, when the accident occurred, a common carrier, must be answered in the negative, and, under a long line of decisions not necessary to cite, his negligence was imputable to plaintiff.
The judgment against defendant Weber should be reversed and as to him a new trial should be granted. He should recover costs of this court.
SNOW, STEERE, and CLARK, JJ., concurred with FELLOWS, J.
Addendum
Defendants made no claim on the trial, nor do they here make claim, that plaintiff was herself guilty of any negligence which contributed to her injury. The reasoning of Mr. Justice FELLOWS and the authorities cited and quoted from by him are persuasive that, in the strict sense of the term, the driver of the jitney was not, under the circumstances, a common carrier. That the trial court instructed the jury that he was, and that counsel for plaintiff state in their brief that this is the only question to be considered, do not justify a reversal, if the verdict of the jury may properly be sustained upon the entire record.
The only questions submitted to the jury were whether the defendants (one of whom was the driver), or either of them, were negligent, and the amount of plaintiff's damages. If the question of the driver's *189 negligence being imputed to plaintiff was properly withheld from the consideration of the jury, it can make no difference whether the reasons stated by the trial court for doing so do, or do not, meet with our approval.
We are, therefore, confronted with the question, and I think should decide it, whether the negligence of the driver of a conveyance in which an adult passenger is riding for hire can be imputed to such passenger.
In Mullen v. City of Owosso,
An examination of these decisions will disclose that the doctrine must rest (as was said by Mr. Justice HOOKER in his dissenting opinion in the Mullen Case), "upon the theory that the passenger was so identified with the driver of his vehicle as to be chargeable with his negligence," or "upon an inference that the driver is the agent of the passenger, or at least that he is under the direction and control of the passenger."
A person driving with another for pleasure may be said to take the chances of the care which the person with whom he is riding will exercise. He may be said to have, at least to some extent, the right of direction or control. Or, as stated in 20 R. C. L. p. 163, as a reason for such holding:
"Voluntary entrance into a private conveyance adopts the conveyance for the time being as one's own, and assumes the risk of the skill and care of the person guiding it."
The reasoning which supports these views is not, in my opinion, applicable to a passenger who, in order *190 to meet a business engagement, or prompted by any other motive deemed by him to be sufficient, secures the service of a conveyance for hire. He trusts his person to the care of a driver, who, for a consideration, undertakes to deliver him safely. He has no more control over the driver than if the conveyance were being operated by a common carrier. He may, in either case, insist on alighting if of the opinion that the driver is careless and that his safety is imperiled by remaining in the conveyance. But, if such carelessness be first revealed when an accident happens, the law will be harsh indeed which will hold him blameworthy for the driver's recklessness.
If the relation of master and servant exists between the passenger and the driver, and the latter's negligence contributes to the injury of the former, such negligence is imputable to the master. This rule has also been applied where the driver and passenger are engaged jointly in a common enterprise. 20 R. C. L. p. 161. It is not, however, applicable to fellow servants. In City of Grand Rapids v. Crocker,
In my opinion, we should not extend the doctrine of imputed negligence to a passenger in a private conveyance for hire. The judgment should be affirmed.
BIRD, C.J., and WIEST and McDONALD, JJ., concurred with SHARPE, J.
