road Co., 4 Pac. Rep. 1165); and in the Supreme Court of the United States in the recent case of Little v. Hackett, 116 U. S. 366.

The rule that the negligence of the driver or manager of a vehicle is to be treated as the negligence of a passenger, in an action by the passenger against a third party, is put upon the ground that the passenger, in selecting the conveyance, has placed himself in the care of the driver, and hence must be taken to be in the same position; and the driver, as to third persons, is to be so far regarded as the agent or servant of the passenger as to make the latter chargeable with the driver's negligence, and hence not entitled to recover, although he may have been free from fault himself.

In Carlisle v. Sheldon, 38 Vt. 440, which was an action for injury to a wife caused by a defect in the highway while riding in a carriage driven by her husband, the doctrine is stated by KELLOGG, J., as follows: "The question is whether a lack of ordinary care and prudence on the part of the husband is in law, under the circumstances of the case, a bar to a recovery for an injury to the wife when she herself was in the exercise of that degree of care, and was in no fault whatever. The wife was riding in a wagon drawn by a horse driven by her husband. She was a passenger over the highway, and she stands in no different position in respect to her rights as against the town from that which she would occupy if the driver of the vehicle in which she was carried had been, instead of her husband, one employed for that purpose. The negligence or want of ordinary care of her servant would have the same effect, and be attended with the same legal consequences, which would follow from her own negligence or want of care. If she had been a passenger in a stage-coach on this occasion, and had received the same injury under precisely the same circumstances, although she might have had a cause of action against the proprietor for the negligence or want of care of the driver, we regard it as clear that no action could have been maintained against the town, because the proprietors and their driver would, in respect to the town, be treated as being her agents and servants, and their negligence or want of ordinary care would be attended with the same consequences which would result from her own negligence and want of

such care. The passenger would, in respect to the town, stand upon the same footing that he would if he had himself been the driver. There is nothing in the marital relation which would change the situation of the wife in respect to her husband's negligence under such circumstances; for the same consequences would have followed if the relation, instead of being that of husband and wife, had been that of parent and child, father and daughter, or master and servant, or if she had been an entire stranger, and had been carried by her husband as a passenger gratuitously and without any expectation of reward. She was under the care of her husband, who had the custody of her person and was responsible for her safety, and any want of ordinary care on his part is attributable to her in the same degree as if she were wholly acting for herself."

On the other hand, this doctrine is declared to be unsound, and in conflict with the principle that no one should be denied a remedy for injuries sustained without fault by him or by a party under his control or direction; that the relation of master and servant or principal and agent does not exist in cases where the passenger has no control over the driver; that it is the right to control the conduct of the agent which is the foundation of the doctrine that the master is to be affected by the acts of his servant, and that no one is responsible for the negligence of another unless the latter is his servant or agent. In Robinson v. Railroad Co., 66 N. Y. 11, which was the case of a person injured by a collision of the defendant's train of cars with a carriage in which the plaintiff was riding, by invitation of the owner, who was driving, and whose negligence it was claimed contributed to the injury, CHURCH, C. J., says: "The court charged the jury that if the defendant was negligent, and the plaintiff was free from negligence herself, she was entitled to recover, although the driver might be guilty of negligence which contributed to the injury. In determining this question, it is important to first ascertain the relation which existed between the plaintiff and Conlon, the driver. It is very clear, and was found by the jury, that the relation of master and servant did not exist, nor was Conlon in any sense the agent of the plaintiff. * *It is the case of a gratuitous ride by a female, upon the invitation of the owner of the horse and carriage.

The plaintiff had no control of the vehicle, nor of the driver in its management. It is not claimed but that Conlon was an able-bodied, competent person to manage the establishment, nor that he was intoxicated or in any way unfit to have charge of it. Upon what principle is it that his negligence is imputable to the plaintiff? It is conceded that, if by his negligence he had injured a third person, she would not be liable. She was not responsible for his acts, and had no right and no power to control them. True, she had consented to ride with him, but, as he was in every way competent and suitable, she was not negligent in doing so. Can she be held, by consenting to ride with him, to guaranty his perfect care and diligence? There was no necessity for riding with him; it was a voluntary act on the part of the plaintiff, but it was not an unlawful or negligent act. She was injured by the negligence of a third person, and was free from negligence herself; and I am unable to perceive any reason for imputing Conlon's negligence to her. * * * It is no excuse for the negligence of the defendant that another person's negligence contributed to the injury, for whose acts the plaintiff was not responsible."

Bennett v. Transportation Co., 36 N. J. Law 225, was the case of a passenger in a horse-car injured by the negligent management of a locomotive by the defendant's engineer, and it was held no defense to show contributory negligence in the driver of the horse-car. In delivering the opinion of the court, BEASLEY, C. J., said: "The proposition claimed to be law is that, when a passenger enters a public conveyance, he in some sort becomes affected by the negligence of the agents of those in charge of such conveyance-it least, to the extent of debarring him from suits against third parties for injuries occasioned by the joint carelessness of such third parties and that of the servants having the control of the vehicle in which he is riding. This position has for its support the case of Thorogood v. Bryan. The authority is in every respect in point. * * The reason given for the judgment is that the passenger in the omnibus must be considered as identified with the driver of the omnibus in which he voluntarily becomes a passenger, and that the negligence of the driver is the negligence of the passenger. But I have entirely failed to perceive how it is that the passenger in a public

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conveyance becomes identified, in any legal sense, with the driver of such conveyance. Such identification could only result in one way; that is, by considering such driver the servant of the passenger. I can see no ground upon which such a relationship is to be founded. In a practical point of view, it certainly does not exist. The passenger has no control over the driver or agent in charge of the vehicle; and it is the right to control the conduct of the agent which is the foundation of the doctrine that the master is to be affected by the acts of his servant. To hold that the conductor of a street car or of a railroad train is the agent of the numerous passengers who may chance to be in it would be a positive fiction. In reality, there is no such agency; and if we impute it, and correctly apply legal principles, the passenger, on the occurrence of an accident from the carelessness of the person in charge of the vehicle in which he is being conveyed, would be without any remedy. It is obvious, in a suit against the proprietor of a car in which he was a passenger, there could be no remedy if the driver or conductor of such car is to be regarded as the servant of the passenger. And so, on the same ground, each passenger would be liable to every person injured by the carelessness of each driver or conductor, because, if the negligence of such agent is to be attributed to the passenger for one purpose, it would be entirely arbitrary to say that he is not to be affected by it for other purposes."

The recent case of Little v. Hackett, in the Supreme Court of the United States, was the case of a person hiring a public hack and injured by a collision of the hack and a railway train, caused by the negligence of both the managers of the train and the driver of the hack, over whom the passenger exercised no control except in directing where he wished to be conveyed. Speaking for the court, Mr. Justice FIELD said: "Cases cited from the English courts, as we have seen, and numerous others decided in the courts of this country, show that the relation of master and servant does not exist between the passenger and the driver, or between the passenger and the owner. In the absence of this relation, the imputation of their negligence, when no fault of omission or commission is chargeable to him, is against all legal rules. If their negligence could be imputed to him, it would render him, equally with them,

responsible to third parties thereby injured, and would also preclude him from maintaining an action against the owners for injuries received by reason of it. But neither of these conclusions can be maintained; neither has the support of any adjudged cases entitled to consideration. The truth is, the decision in Thorogood v. Bryan rests upon indefensible ground. The identification of the passenger with the negligent driver or the owner without his personal co-operation or encouragement is a gratuitous assumption. There is no such identity. The parties are not in the same position. The owner of a public conveyance is a carrier, and the driver or person managing it is his servant. Neither of them is the servant of the passenger, and his asserted identity with them is contradicted by the daily experience of the world. * * There is no distinction, in principle, whether the passenger be on a public conveyance, like a railroad train or an omnibus, or be on a hack hired from a public stand in the street for a drive. Those on a hack do not become responsible for the negligence of the driver if they exercise no control over him further than to indicate the route which they wish to travel, or the places to which they wish to go. If he is their agent so that his negligence can be imputed to them to prevent their recovery against a third party, he must be their agent in all other respects, so far as the management of the carriage is concerned and responsibility to third parties would attach to them for injuries caused by his negligence in the course of his employment. But, as we havo already stated, responsibility cannot, within any recognized rules of law, be fastened upon one who has in no way interfered with and controlled in the matter causing the injury. From the simple fact of hiring the carriage, or riding in it, no such liability can arise. The party hiring or riding must in some way have co-operated in producing the injury complained of before he incurs any liability for it:" Little v. Hackett, 116 U. S. 366, 374, 375, 379.

These remarks apply with equal force to the case of a person hiring a passage in a private conveyance or accepting a gratuitous invitation to ride in the carriage of another. The foregoing are actions by passengers injured by the negligence of the driver or manager of the conveyance in which they were riding, coupled with the negligence of the managers of another public