Citation Numbers: 36 S.E. 351, 126 N.C. 894
Judges: DOUGLAS, J.
Filed Date: 6/14/1900
Status: Precedential
Modified Date: 1/13/2023
MONTGOMERY and FURCHES, JJ., dissent from that part of the opinion in which a new trial is granted.
This is a petition to rehear the case reported in
We may regard it as settled law that the negligence of the driver of a public conveyance is not imputable to a passenger therein, unless the passenger has assumed such control and direction of said vehicle as to be considered practically in exclusive possession thereof. In other words, the possession of the passenger must be such as to supersede for the time being, the possession of the owner to the extent of making the driver the temporary servant of the passenger. The contrary doctrine that the negligence of the driver was imputable to the passenger seems to have had its origin in the English case of Thorogood v. Bryan, decided in 1849, and reported in 8 C. B., 115. For a time this celebrated case bade fair to receive general acquiescence, but was frequently doubted, and finally directly overruled in the recent English case of The *Page 578
Bernina, 12 Prob. Div., 58. In the meantime, the doctrine had met but scant favor in this country, and was distinctly repudiated by the Supreme Court of the United States in Little v. Hackett,
We have endeavored briefly to lay down the principles that should govern a new trial, but the testimony may so materially alter the application of these principles or bring new ones in requisition, that it is impossible to anticipate the course of the trial.
For reasons stated above a new trial must be ordered.
New trial.
Cited: Duval v. R. R.,
(897)
Crampton v. . Ivie , 124 N.C. 591 ( 1899 )
Small v. Clark , 83 Colo. 211 ( 1928 )
Price v. City of Monroe , 234 N.C. 666 ( 1951 )
Tillman v. Bellamy , 242 N.C. 201 ( 1955 )
Jordan v. . Power Co. , 180 N.C. 664 ( 1920 )
Harper v. . Harper and Wickham v. . Harper , 225 N.C. 260 ( 1945 )
Pusey v. . R. R. , 181 N.C. 137 ( 1921 )
Spittle v. . R. R. , 175 N.C. 497 ( 1918 )
Smith v. . R. R. , 200 N.C. 177 ( 1931 )
Parker v. . R. R. , 181 N.C. 95 ( 1921 )
Hunt v. . R. R. , 170 N.C. 442 ( 1915 )
Tyree v. . Tudor , 183 N.C. 340 ( 1922 )
Fowler v. . Underwood , 193 N.C. 402 ( 1927 )
White v. . Realty Co. , 182 N.C. 536 ( 1921 )
Duval v. . R. R. , 134 N.C. 331 ( 1904 )
Harper v. . R. R. , 211 N.C. 398 ( 1937 )
Williams v. . R. R. , 187 N.C. 348 ( 1924 )
McMillan v. . R. R. , 172 N.C. 853 ( 1916 )