Randolph v. O'Riordon , 155 Mass. 331 ( 1892 )

Morton, J.

The presiding judge instructed the jury, in substance, among other things, that they might find one or both of the defendants liable; that in order to find either liable they must find that there was carelessness on the part of his driver, which was the natural, probable, and proximate cause of the accident; and that if the accident was due to the carelessness of both drivers, then both defendants were liable. He also instructed them, that if one driver was careless, and his carelessness was the natural, probable, and proximate cause of the accident, and the other driver was not careless, then they should return a verdict against the defendant who was master of the careless driver, and for the defendant whose driver was not careless. The jury rendered a verdict against the defendant O’Riordon, and for the defendant Bryant. The defendant O’Riordon now contends that the jury should have been instructed also as he requested; namely, that if the carelessness of Bryant’s driver contributed to the accident, he (O’Riordon) was not liable, whether it was or was not the proximate cause of the accident. This claim rests on the position that the negligence, if any, of the driver was to be imputed to the plaintiffs, and that again on the position that the relation of servant and master existed between him and them. If the plaintiffs and the driver of Bryant’s hack had been total strangers to each other, it is obvious that it would have been no defence for O’Riordon to say that the negligence of Bryant’s driver contributed to the accident. That defence could not be availed of by him unless there was some relation between the plaintiffs and the driver which would make them responsible for or identified with his acts; and in the present case that relation, if it existed at all, must have been the relation of master and servant.

The facts were that the defendant Bryant was hired by the plaintiff, Peter Randolph, to superintend the funeral of his grandchild, Bryant to furnish the carriages and drivers. Bryant furnished a hack, and a driver named Hewton, who had been in Ms employ for some time as his hackman. While the plaintiffs were returning from the funeral, Hewton driving, the accident occurred, bic directions appear to have been given by the plaintiffs to, or control assumed over Hewton. We think, upon these facts, that the relation of master and servant did not exist between the plaintiffs and Hewton. What Bryant really agreed with the plaintiffs to do was to transport them to and from a certain place or places. For that purpose he sent his hack and his driver. The hack was in his control, through his agent or driver, all the time. It was the same as if Bryant himself were driving, and managing and controlling the team; and it would be contrary to common experience to say that Bryant would have been, or that Hewton was, the servant of the plaintiffs, or that they were Hewton’s master or would have been Bryant’s master. Whether the hack and driver were hired at a public stand or of a private person could make no difference, nor whether the party furnishing them was engaged in the business of a common carrier of passengers or not. It would not do to say that one who buys a passage from New York to Liverpool sustains the relation of master to the officers and crew and owners of the steamer on which he embarks. No more would it do to say that one who buys conveyance for his own person or his family from one place to another within the same city, or to an adjoining city, thereby assumes towards the driver of the hack, which the party who agrees to convey him furnishes, the relation of a master to a servant, or liability for his acts uncommanded and uninterfered with by him. The defendant O’Riordon relies upon Thorogood v. Bryan, 8 C. B. 115. It is enough perhaps to say of that case that it has been expressly overruled and dis-affirmed in England, and has not been followed by the Supreme Court of the United States, and the courts of last resort in many different States. It “ rests upon indefensible ground,” says the Supreme Court of the United States. Little v. Hackett, 116 U. S. 366, 375. Mills v. Armstrong, 13 App. Cas. 1. The Bernina, 12 P. D. 58. State v. Boston & Maine Railroad, 80 Maine, 430. Chapman v. New Haven Railroad, 19 N. Y. 341. Dyer v. Erie Railway, 71 N. Y. 228. Bennett v. New York Railroad, 7 Vroom, 225. New York, Lake Erie, & Western Railroad v. Steinbrenner, 18 Vroom, 161. Transfer Co. v. Kelly, 36 Ohio St. 86. Wabash, St. Louis, & Pacific Railway v. Shacklet, 105 Ill. 364. Tompkins v. Clay Street Railroad, 66 Cal. 163. Cuddy v. Horn, 46 Mich. 596. Danville, Lancaster, & Nicholasville Turnpike v. Stewart, 2 Met. (Ky.) 119. Louisville, Cincinnati, & Lexington Railroad v. Case, 9 Bush, (Ky.) 728.

In the case of Allyn v. Boston & Albany Railroad, 105 Mass. 77, 79, it did not appear how the plaintiff and Haskell came to be riding together, and the court held, and rightly so, that “ if the plaintiff failed to use the care which prudence required, relying upon the vigilance of his companion, he must prove that Haskell was in the exercise of due care, not only in the management of his horse, but in using the necessary precautions to guard against danger from passing trains.” This was very different from saying that Haskell’s negligence was to be imputed to the plaintiff, if he had been a passenger in a hack of which Haskell was the driver. It was merely saying that if, in a dangerous place, one person trusted another person to look out for him, he must show that such person used due care. We think, therefore, that the instructions requested were rightly refused.

The defendant O’Riordon objects, in the next place, to the instruction that the fact of his team being on the left of the middle of the travelled part of the road was evidence of negligence. The court in substance instructed the jury that it was a question of fact whether under all the circumstances his being in that position was negligence; that the fact that he was upon the wrong side of the way was evidence tending to show that he was in fault, but was not conclusive; and that it was a question upon all the evidence whether or not the party upon the wrong side of the way was negligent, that being a circumstance. These instructions conformed to the law as heretofore laid down by this court, and were correct. Jones v. Andover, 10 Allen, 18. Steele v. Burkhardt, 104 Mass. 59. Damon v. Scituate, 119 Mass. 66.

If the fact that one of the jurors took notes of the evidence, which he carried into the jury-room with him, were valid ground of complaint, it was disposed of by the finding of the court that it had been waived by the defendant O’Riordon.

The request as to the time within which the action should have been brought has not been argued, and we therefore treat it as waived. Exceptions overruled.