116 Ind. 121 | Ind. | 1888
Lucinda Musgrove sued the town of Knightstown to recover damages for injuries alleged to have been sustained by her on the 1st day of July, 1886, without any fault on her part, while riding along a public street in the above mentioned town, in which there was a dangerous unguarded obstruction.
There was a trial by jury and a verdict and judgment in favor of the plaintiff for seven hundred dollars.
At the trial the defendant offered to prove that Hunter had been at the place where the gravel was unloaded, on the evening of the accident, and that he talked with the men who hauled it about leaving it there in the condition in which it was left. The object of the testimony was to show contributory negligence on the part of Hunter, with a view of insisting that the plaintiff was so identified with him as that his negligence should be imputed to her. The testimony having relation to that subject was all excluded and it is now urged that the judgment ought to be reversed on account of this ruling. It is not claimed that the plaintiff was herself guilty of any default, nor was it proposed to show that she knew or had any reason to suspect that Hunter was not a prudent, safe and competent driver, but, assuming that the excluded evidence would have shown that Hunter was negligent, the claim is, that his neglect ought to be imputed to the plaintiff, and that her right of recovery should have been thereby defeated, notwithstanding the neglect of the defendant. Thorogood v. Bryan, 8 C. B. 115, is perhaps the leading case in support of the doctrine upon which a reversal is claimed. It appeared in that case that a passenger who had alighted from an omnibus was run down and
Without entering upon a review of the cases, it is sufficient to say the general principle deducible from the decisions is, that one who sustains an injury without any fault or negligence of his own, or of some one subject to his control or direction, or with whom he is so identified in a common enterprise as to become responsible for the consequences of his negligent conduct, may look to any other person for compensation whose neglect of duty occasioned the injury, even though the negligence of some third person with whom the
Before the concurrent negligence of a third person can be interposed to shield another whose neglect of duty has occasioned an injury to one who was without personal fault, it must appear that the person injured and the one whose negligence contributed to the injury sustained such a relation to each other, in respect to the matter then in progress, as that in contemplation of law the negligent act of the third person was, upon the principles of agency, or co-operation in a common or joint enterprise, the act of the person injured. Until such agency or identity of interest or purpose appears, there is no sound principle upon which it can be held that one who is himself blameless, and is yet injured by the concurrent wrong of two persons, shall not have his remedy against one who neglected a positive duty which the law enjoined upon him.
In a case like the present, where one accepts the invitation of another to ride in his carriage, thereby becoming in effect his comparatively passive guest, without any authority to direct or control the conduct or movements of the driver, or without reason to suspect his prudence or competency to drive in a careful and skilful manner, there is no reason why the want of care of the latter should be imputed to the former, so as to deprive him of the right to compensation from one whose neglect of duty has resulted in his injury.
As was in effect said in Brannen v. Kokomo, etc., Co., 115 Ind. 115, this court has heretofore adopted and followed the line of decisions which hold that in such a case negligence will not be so imputed. Town of Albion v. Hetrick, 90 Ind. 545 ; Terre Haute, etc., R. R. Co. v. McMurray, 98 Ind. 358 (369).
In Brannen v. Kokomo, etc., Co., supra, the conclusions above stated were distinctly recognized. It appeared, however, in that case that the owner and driver of a team, in whose wagon the plaintiff, with others, was seated, attempted while in a state of intoxication to run the toll-gate without
The plaintiff was lawfully using the street at the time she suffered the injury. It was the duty of the corporation to keep the street in such condition that persons using it properly, who were not so deficient in reasonable prudence and ordinary care as to bring injury upon themselves, could do so without peril.
It should be observed that the doctrine of imputable negligence as applicable to the relation of parent and child, and other kindred relations, which has been the subject of much recent discussion, is not involved in the facts of the present case, although the conclusions reached might seem to cover cases involving that relation, especially where the action is by an infant. That question is, however, to be considered open for examination when it arises.
The evidence tends to sustain the verdict.
The judgment is therefore affirmed, with costs.