Little v. Hackett

On the twenty-eighth of June, 1879, the plaintiff below, defendant in error here, was injured by the collision of a train of the Central Railroad Company of New Jersey with a carriage in which he was riding; and this action is brought to recover damages for the injury. The railroad was at the time operated by a receiver of the company appointed by order of the court of chancery of New Jersey. In consequence of his death, the defendant was appointed by the court his successor, and subjected to his liabilities; and this action is prosecuted by its permission.

It appears from the record that on the day mentioned the plaintiff went on an excursion from Germantown, in Pennsylvania, to Long Branch, in New Jersey, with an association of which he was a member. While there, he dined at the West End Hotel, and after dinner hired a public hackney-coach from a stand near the hotel, and, taking a companion with him, was driven along the beach to the pier, where a steam-boat was landing its passengers, and thence to the railroad station at the West End. On arriving there he found he had time, before the train left, to take a further drive, and directed the driver to go through Hoey's Park, which was near by. The driver thereupon turned the horses to go to the park, and, in crossing the railroad track near the station for that purpose, the carriage was struck by the engine of a passing train, and the plaintiff received the injury complained of. The carriage belonged to a livery-stable keeper, and was driven by a person in his employ. It was an open carriage, with the seat of the driver about two feet above that of the persons riding. The evidence tended to show that the accident was the result of the concurring negligence of the managers of the train and of the driver of the carriage,-of the managers of the train in not giving the usual signals of its approach by ringing a bell and blowing a whistle, and in not having a flagman on duty; and of the driver of the carriage in turning the horses upon the track without proper precautions to ascertain whether the train was coming. The defense was contributory negligence in driving on the track; the defendant contending that the driver was thereby negligent, and that his negligence was to be imputed to the plaintiff. The court left the question of the negligence of the parties in charge of the train, and of the driver of the carriage, to the jury, and no exception is taken to its instructions on this head. But with reference to the alleged imputed negligence of the plaintiff, assuming that the driver was negligent, the court instructed them that unless the plaintiff interfered with the driver, and controlled the manner of his driving, his negligence could not be imputed to the plaintiff.

'I charge you,' said the presiding judge to them, 'that where a person hires a public hack or carriage, which at the time is in the care of the driver, for the purpose of temporary conveyance, and gives directions to the driver as to the place or places to which he desires to be conveyed, and gives no special directions as to his mode or manner of driving, he is not responsible for the acts or negligence of the driver, and if he sustains an injury by means of a collision between his carriage and another, he may recover damages from any party by whose fault or negligence the injury occurred, whether that of the driver of the carrage in which he is riding, or of the driver of the other. He may sue either. The negligence of the driver of the carriage in which he is riding will not prevent him from recovering damages against the other driver, if he was negligent at the same time.' 'The passenger in the carriage may direct the driver where to go,-to such a park or to such a place that he wishes to see. So far the driver is under his direction; but my charge to you is that, as to the manner of driving, the driver of the carriage or the owner of the hack-in other words, he who has charge of it, and has charge of the team-is the person responsible for the manner of driving, and the passenger is not responsible for that, unless he interferes and controls the matter by his own commands or requirements. If the passenger requires the driver to drive with great speed through a crowded street, and an injury should occur to foot-passengers or to anybody else, why then he might be liable, because it was by his own command and direction that it was done; but, ordinarily in a public hack, the passengers do not control the driver, and therefore I hold that unless you believe Mr. Hackett exercised control over the driver in this case, he is not liable for what the driver did. If you believe he did exercise control, and required the driver to cross at this particular time, then he would be liable because of his interference.' The plaintiff recovered judgment, and this instruction is alleged as error for which its reversal is sought.

''Robt. W. Deforest and F. L. Hall'', for plaintiff in error.

[Argument of Counsel from pages 369-371 intentionally omitted]

Robert H. Hinckley and Peter L. Voorhies, for defendant in error.

FIELD, J.