BURKE v. ANACOSTIA & POTOMAC RAILWAY COMPANY

BURKE v. ANACOSTIA & POTOMAC RAILWAY COMPANY. Negligence; Contributory; Imputation. 1. The negligence of the owner, an experienced driver, in running his automobile into a street car, is not imputable to his mother, riding as his guest, without having the right, or attempting to direct or control his actions. (Citing Baltimore é O. R. Co. v. Adams, 10 App. D. C. 97.) 2. A guest in the rear seat of another’s automobile is not guilty of contributory negligence because ofyher failure to jump therefrom upon seeing a rapidly approaching street car about 50 feet away, with which the automobile almost instantly collided, nor because of her failure to direct the movements of the driver. No. 3127. Submitted December 3, 1918. Decided January 6, 1919. Note. — On the question of imputing negligence of driver of vehicle to guest, see notes in 8 D.R.A.(N.S.) 648, and L.R.A.1915A, 763. Hearing on an appeal from a judgment of the Supreme Court of the District of Columbia, on verdict, in an action to recover damages from a street railway for negligence. lie versed. The Court in the opinion stated the facts as follows: This is an action to recover damages from the Auacostia & Potomac Railway Company for alleged negligence in the operation of one of its street cars. There was a verdict for the defendant. Mrs. Ellen E. Burke and her two sons were riding west on L street near Eleventh, in this city, in an automobile at the time of the accident complained of. She was in the rear seat, the sons were in the front seat. The automobile belonged to one of tbe sons, an experienced driver, who was running it. As they approached Eleventh street they were going at the rate of 6 or 8 miles an hour. The driver sounded the automobile horn but received no response. When he first looked north, a house on the northeast corner of the intersection permitted him to see diagonally np Eleventh street only about 100 feet. He observed nothing coming, nor did he hear a hell. Upon reaching the east curb line of Eleventh street he looked again and saw a car, about 50 feet away, approaching at the rate of 18 or 20 miles an hour, — so rapidly, he said, that he could do nothing hut turn north on Eleventh street, for if he had kept on towards the west the street car would have struck the automobile in the side. As he turned, the front part of the car missed the automobile, hut the left side, towards the rear, hit his left chassis and threw the automobile between tbe tree and a water fountain. The motorman, upon seeing that the front of his car had passed the automobile, increased his speed, and was unable to bring his car to a. stop until it had reached the south side of Massachusetts avenue, about 150 feet from where the collision happened. The force of the impact threw- Mrs. Burke to the floor of the automobile, rendering her unconscious and injuring her head, arm, and shoulder. She was also made extremely nervous, and was in consequence at the time of the trial unable to perform her usual household duties. She testified that the street car as it approached “looked like it was flying;” that all the occupants of the automobile saw it at the same time, and that the collision between the car and the machine was sudden. She did not warn her son to “look out” when they were nearing Eleventh street, nor did she otherwise attempt to control his action save that “she screamed and then the terrible crash came.” Mr. Wilton J. Lambert and Mr. Rudolph H. Yeatman, for the appellant, in their brief cited: B. & O. R. Oo. v. 'Adams, 10 App. D. C. 97; Brommer v. Penn. R. Co. 179 Eed. 577; Capital Traction Co. v. Apple, 34 App. D. C. 559; Capital Traction Co. v. King, 44 App. D. 0. 315; City <& 8. R. Co. v. Cooper, 32 App.- D. C. 550; 15 Enc. PI. & Pr. 427; 5 Enc. PI. & Pr. 10; Kwing v. Chase, 37 App. D. 0. 53; Faber v. St. Paul, etc. R. Co. 29 Minn. 465; Klotz v. Winona, etc. R. Co. 68 Minn. 341; Mahoney v. Dank-wart, 108 Iowa, 321; McQuillan, Mun. Corp. 584; Riley v. Wabash, etc., R. Co. 18 Mo. App. 385; Sluder v. St. Louis Transit Co. 189 Mo. 107; United R. & E. Co. v. Biedler, 98 Md. 564; United R. & E. Co. v. Crain, 123 Md. 322. Mr. John S. Barbour, for the appellee, in his brief cited: Accousi v. C. A. Slowers Furniture Co. 87 S. W. 861; Allyn v. Boston & A: R. Co. 105 Mass. 77; Article 12 of the Police Regulations; Ashford v. Evening Star, 41 App. D. 0. 395; Baltimore & O. R. Co. v. State, 104 Md. 75, 64 Atl. 304; B. & P. v. Carrington, 3 App. D. 0. 101; Barbour v. Moore, 4 App. D. 0. 541; Bials v. Finlcinbiner, 12 App. D. 0. 29; Bliclcnell v. New York C. & H. R. R. Co. 120 N. T. 290; Boss v. Litten, 5 Oar. & P. 407; Brannen v. Kokomo, C. & J. Qravel Road Co. 115 Ind. 115, 7 Am. St. Rep. 411, 17 N. E. 202; Branson x. New York C. & II. II. II. Go. — App. Div 242; Bricknell x. New York G. & II. R. R. Go. 120 N. T. 290, 11 Am. St. Eep. 648, 24 N. E. 449; BrigMwood x. Garter, 12 App. D. C. 155; Brommer x. Penn. R. Co. 29 L.E.A.(N.S.) 928, 119 Fed. 511; Brunner x. O. R. J. & P. R. 162 N. W. 43, 45 IV. L. E. 342; Burke x. A. & P. R. Go. 45 W. L. E. 68; Bush x. Union P. R. Go. 62 Kan. 109, 64 Pac. 624; Gan. P. R. Co. x. Clark, 13 Fed. 16, 14 Fed. 362; Capital Traction Co. x. King, 44 App. D. C. 311; Capital Traction Co. x. Apple, 38 App. I). C. 559; Chaffee x. Boston & L. R. Gorp. 104 Mass. 108; Chicago, B. & Q. R. Co. x. LUley, 4 Neb. (Unof.) 286, 93 N. W. 1012, 4 Neb. (Unof.) 300, 91 N. W. 413; Chicago, 8. F. & O. R. Go. x. Bentz, 38 111. 485; 1 Chitty, PI. p. 121; Chun x. C. & S. 23 App. D. C. 551; City & 8. R. Go. x. Cooper, 32 App. I). C. 550; Colorado & S. R. Go. x. Thomas, 33 Colo. 511, 10 L.E.A. 681, 81 Pae. 801; Crescent Twp. x. Anderson, 114 Pa. 643, 60 Am. Eep. 361, 8 Atl. 319; Cunningham x. Thief River Falls, 84 Minn. 21, 86 N. W. 163; Davis x. G. R. I. é P. R. Co. 16 L.E.A.(N.S.) 429, 159 Fed. 10 ; Dean x. Pa, R. Co. 129 Pa. 524, 6 L.E.A. 143, 15 Ana. St. Eep. 133, 18 Atl. 721; De Logo x. New York C. & II. R. R. Go. 92 Hun, 149, 36 N. T. Supp. 697; Dem.berger x. B. & O. R. Co. 243 Fed. 21; Dill. Him. Corp. 4th ed. sec. 83; District of Columbia x. Bolling, 4 App. D. C. 524; District of Golunjbia x. Brunner, 7 App. D. 0. 113; District of Columbia x. Petty, 31 App. D. C. 156; District of Columbia x. Whipple, 17 App. D. C. 415; Ewing x. Chase, 31 App. D. C. 53; Farley x. Wilmington & N. C. Electric U. Co. 3 Penn. (Del.) 584, 52 Atl. 543; Fox x. Ohelsea, 171 Mass. 297, 50 N. E. 622; Friedlander x. Rapley, 38 App. D. O. 208; Gaynor x. Old Colony N. R. Go. 100 Mass. 108; Gibson x. Pepper, 2 Salk. 631; Gloria x. United States, 30 App. D. C. 559; G. F. & O. D. It. R. x. Ilemmerly, 40 App. D. C. 196; G. F. & O. D. R. R. x. Hill, 34 App. D. C. 304; Griffith x. B. & L. 44 Fed. 314; Hajsek x. Chicago, B. & Q. R. Co. 5 Neb. 61, 91 N. W. 327; Henderson x. Penn. R. Go. 223 H. S. 118; Hines x. Georgetown Gas Company, 3 App. D. C. 315; Holden x. Mis souri B. Co. 77 Mo. 456, 76 S. W. 1045; Home v. Mammoth Min. Co. 27 Utah, 168, 75 Pac. 381; Hurdle v. W. & Q. B. B. S App. D. C. 120; I. & St. L. B. B. v. Horst, 93 U. S. 291; Illinois C. B. Co. v. McLeod, 78 Miss. 334, 52 L.R.A. 54, 85 Am. St. Rep. 630, 20 So. 76; Interstate Commerce Commission Regulation, sec. 1; Jaqueiie v. C. T. Co. 34 App. D. C. 358; Joyce v. St. Louis Transit Co. Ill Mo. App. 565, 86 S. W. 469; Judgment (Sup. 1904), 58 Atl. 1103; Lebeau v. Dyerville Mfg. Co. 26 R. I. 34, 57 Atl. 1092; Louisville & N. B. Co. v. Molloy, 28 Ky. L. Rep. 1113, 91 S. W. 685; Malay v. New York C. B. Co. 40 IIow. Pr. 274, 58 Barb. 182; Met. B. B. Co. v. Ilmvult, 13 App. D. C. 370; Metzger v. Metzger, 35 App. D. O. 389; Miles v. Fonda, J. & C. Co. 86 Hun, 508, 33 N. Y. Supp. 729; Miller v. Louisville, N. A. & C. B. Co. 128 Ind. 97, 97 Am. St. Rep. 416, 27 N. E. 339; Missouri., K. & T. B. Co. v. Bussey, 66 Kan. 735, 71 Pac.. 261; Mittelsdorfer v. West Jersey & S. B. Co. 77 N. J. L. 702, 73 Atl. 540; Moms v. C. B. & L. B. — Neb. —, 163 N. W. 799, 65 W. L. R. 536; Public Utilities Commission Regulation, sec. 1; B. & D. v. Didzonet, 1 App. D. C. 482; Bobinson v. Denver City Tramiuay Co. 90 C. C. A. 160, 164 Eed. 174; 35 Stat. atL. 246, sec. 16; 37 Stat. atL. 995, see. 8, paragraph 96; Schramm v. Parker, 72 N. J. L. 243, 62 Atl. 410; Smith v. Maine C. B. Co. 87 Me. 339, 32 Atl. 967; Sprow v. Staples, 38 App. D. 0. 219; State v. Boston & ill. B. Co. 80 Me. 430, 15 Atl. 36; Sullivan v. ‘C. T. Co. 34 App. D. C. 358; Thurston v. McLellan, 34 App. D. 0. 294; Toledo &. O. C. B. Co. v. Fatherton, 20 Ohio O. C. 297; United B. & F. Co. v. Biedler, 98 Md. 564, 56 Atl. 813; United B. £ F. Co. v. Crain, 123 Md. 322, 91 Atl. 405; United B. & F. Co. v. Watkins, 102 Md. 263, 62 Atl. 234; United States FI. L. Co. v. Sullivan, 22 App. D. C. 115; Venduplank v. Miller, 1 M. & M. 169; Walter v. B. & 0. 6 App. D. 0. 20; Ward v. District of Columbia, 24 App. D. C. 524; Warner v. B. £ 0. 7 App. D. O. 79; Washington £ O. D. B. Co. y. Zell, 118 Ya. 755, 88 S. E. 309; Williams v. Holland, 10 Bing. 61, 6 Car. & P. 23; Willfond v. Omaha & St. L. R. Co. 117 Iowa, 548, 90 N. W. 358; 28 Cyc. 393; 5 Euc. PI. & Pr. 10. [MAJORITY — Nr. Chief Justice Smyth] Nr. Chief Justice Smyth delivered the opinion of the Court: The court instructed the jury that if they found the plaintiff guilty of contributory negligence she could not recover. Appellant asserts, among other things, that there was no evidence of contributory negligence on the part of the plaintiff to go to the jury. It is well settled in the Federal jurisdiction that the negligence of the driver of a passenger vehicle is not imputable to his passenger, where the latter has no right to control his actions and makes no effort to do so. Baltimore & O. R. Co. v. Adams, 10 App. D. C. 97, 105; Little v. Hackett, 116 U. S. 366, 371, 29 L. ed. 652, 654, 6 Sup. Ct. Rep. 391; Union P. R. Co. v. Lapsley, 16 L.R.A. 800, 2 C. C. A. 149, 4 U. S. App. 542, 51 Fed. 174; Pyle v. Clark, 25 C. C. A. 190, 49 U. S. App. 260, 79 Fed. 744, 2 Am. Neg. Rep. 100; Southern P. Co. v. Wright, 160 C. C. A. 339, 248 Fed. 263. In the Adams Case this court (¡noted the following language from the decision of the Supreme Court of the United States in Little v. Hackett: “A person who hires a public conveyance and gives the driver directions as to the place to which he wishes to be conveyed, but exercises no other control over the conduct of the driver, is not responsible for his acts or negligence.” The circuit court of appeals for the eighth circuit, speaking through Judge Sanborn in the Pyle Case, ruled that “the negligence of the owner and driver of a vehicle cannot be imputed to one who is riding with him gratuitously, so as to defeat a recovery for an injury caused by the concurring negligence of the driver and the third person.” This is directly in point. So is the Southern P. Co. Case. One Wright, while riding upon an auto truck, was instantly killed at a railroad crossing, in a collision between the truck and an engine of a passenger train operated by the defendant company. The truck was being run by a person put in charge of it by the owner. Wright had no control over him. It was contended that the driver’s negligence should be imputed to Wright. In rejecting the contention, the court said that, until Wright had some reason to suspect that the driver A?as incompetent or careless, “he not only had the right, but it Avas his duty, to assume that he would not rashly or carelessly go into peril. Generally it is the duty of the passenger to sit still and say nothing. It is his duty, because any other course is fraught Avith danger. Interference, by laying hold of an operating lever, or by exclamation, or even by direction or inquiry, is generally to be deprecated; in the long run, the greater safety lies in letting the driver alone.” In the case at bar, according to the undisputed testimony, the plaintiff had no right to direct her son, and did not attempt to do so. The automobile Avas his, and he was experienced in the handling of it. She Avas his guest. So, if there Avas testimony from which the jury could find .negligence on his part contributing to the accident it did not affect her case. Plaintiff’s OAAm conduct discloses no want of proper care for her safety. What could she have done under the circumstances to protect herself? The law did not require her to jump from the automobile. If she did, her injuries would in all probability have been more serious than they were. If she sought to direct her son, her efforts, no doubt, would have been more confusing than otherwise. He was compelled to act on the spur .of the moment, and it would have been impossible for her to have influenced his action for her safety under the circumstances. Besides, it is a matter of common knowledge among those familiar with the handling of automobiles in motion that “driving from the back seat” is extremely dangerous. We can perceive nothing in the evidence on which the jury could have predicated negligence on plaintiff’s part, and therefore Ave think the court erred in submitting the question to the jury. For the reasons stated the judgment is reversed, Avith costs, and the case remanded to the loAA'er court, with directions to grant a neAV trial. Reversed. A motion for rehearing was overruled January 25, 1919.