(— Miss. —, 81 So. 406.) proximately contributed to the injury, if the negligence of the injured person was a proximate contributing cause of the injury. The mere statement of the proposition reveals the error. Under the present statutes and decisions, both Federal and state, concurrent negligence of the injured party in no case defeats his recovery, but merely goes to a diminishment of the damages, provided the negligence of the defendant be shown to have proximately contributed to the injury. In Spokane & I. E. R. Co. v. Campbell, 133 C. C. A. 376, 217 Fed. 524, the court said, in speaking of the Concurrent Negligence Statute: "The effect of this statute is to eliminate the element of proximate cause, where concurring acts of the employer and employee contribute as a cause for the injury or death of the employee." Also see Smith v. Atlantic Coast Line R. Co. 127 C. C. A. 311, 210 Fed. 761; Louisville & N. R. Co. v. Wene, 121 C. C. A. 250, 202 Fed. 887; Grand Trunk Western R. Co. v. Lindsay, 120 C. C. A. 173, 201 Fed. 836, id. 233 U. S. 42, 58 L. ed. 838, 34 Sup. Ct. Rep. 581, Ann. Cas. 1914C, 168. The rule is so thoroughly established in all jurisdictions that I shall merely cite the authorities generally. It seems too plain for argument that, under our Concurrent Negligence Law, the injured party may recover in any case where the negligence of the defendant is established as the cause proximately contributing, in whole or in part, to the injury. The true rule is that it is only in cases where the negligence of the injured person is the "sole proximate cause" of the injury that no recovery can be had. When this is true, it necessarily follows that the defendant is guilty of no negligence at all, since the injured party's act is the sole and only cause of the injury. This court has held that the injured party may recover damages ligence proximately contributing to the injury, even though the injured person be guilty of gross negligence proximately contributing to the injury. In such case the negligence of the injured party merely goes to the diminishment of damages. Yazoo & M. Valley R. Co. v. Williams, 114 Miss. 236, 74 So. 835. In the case of Louisville & N. R. Co. v. Wene, 121 C. C. A. 250, 202 Fed. 887, the court said: "If, under the Employers' Liability Act, plaintiff's negligence, contributing with defendant's negligence to the production of the injury, does not defeat the cause of action, but only lessens the damages, and if the cause of action is established by showing that the injury resulted in whole or in part from defendant's negligence, the statute would be nullified by calling plaintiff's act the proximate cause, and then defeating him, when he could not be defeated by calling his act contributory negligence. For his act was the same act, by whatever name it be called. It is only when plaintiff's act is the sole cause-when defendant's act is no part of the causation-that defendant is free from liability under the act." Here is the testimony in the record on that feature of the case: Floyd Nelson testified as follows: And when the truck rolled up on him, he began to reach up with his right hand to catch something to hold his head up, but it got so far on his chest that it practically choked that wheel and dragged him on the ground. Q. How far did the truck go on the ground that way before it stopped? A. About 15 feet. Q. Did he hollo when it first caught him? A. Yes, sir. Q. What did the driver do while Mr. Hurley was being dragged this 15 feet? A. He sat by his seat like he was sitting; never moved at all. Q. Did he make any attempt to where the defendant is guilty of neg-stop the car at that time? Q. When the car finally did stop, where, on his person, did the wheel stop on him? A. Right up against his chest. The negro driver was asked the following questions: Q. You had not put on the brakes? Q. Didn't you tell Mr. Strong that Otto Strong testified: Q. Did you have any talk with him (the negro driver) about whether the brakes were put on or not? A. Yes, sir. Q. What did he state about it? A. He said to me that he did not have the brakes on. The testimony of Wilson Powell, a disinterested witness, is: Q. Did you see Mr. Hurley at the time he was hurt here down near the track of the Pascagoula Street Railway & Power Company? A. Yes, sir. Q. Tell all you know about it, and just like you saw it. at the first report. Soon as the truck passed I thought I heard Mrs. Bishop coming. After the truck passed, I thought I heard Mrs. Bishop coming, and I turned to go to the door, and I heard Mr. Hurley hollo, but Í did not see the truck when it first ran on him, but soon as he holloed I turned my head and I saw the truck on him, and I went right on there to where he was. I was about 200 feet, or possibly a bit further; I don't know exactly. A. At the time Mr. Hurley was hurt, I was superintendent of the waterworks, and I went to see Mrs. Bishop, close by where he was hurt, and I knocked at the door, and there was so much noise I could not make Mrs. Bishop hear, and about that time the truck passed with men on it, and they were making so much noise, I turned and went to the gate Q. After you heard him hollo, state what the truck did? A. The truck was still moving after he holloed. After I turned my head, I saw he was under the wheel, and by the time I got there the truck was stopped. Q. How far did you have to run? Q. How far did the truck carry him after he holloed, after you heard him hollo and after he was under there? A. I judge about 15 feet, maybe a little more than 15 feet. Q. What was his condition under the car when he was lying there? A. He was lying on his back. The wheel seemed to be here on his breast, and it slipped off. It looked like it slipped off, and when I got there he was being taken out from under the wheel. Otto Strong then testified as follows: Q. When you saw Mr. Hurley, what was his attitude under the car? A. The car was rolling up on him this way (indicates) with his legs out and the truck wheel across his body. When I first saw him he was holding his head up, and it got this far on him (indicates). The case at bar is certainly one where the negligence of the defendant proximately contributed to the injury as established by the evidence. To say the least of it, the testimony introduced by the appel lees presented a question of fact of negligence or not on the part of the driver of the truck in not stop (Miss., 81 So. 406.) ping it after the deceased fell under the wheels, and was properly submitted to the jury for their determination in the lower court. The testimony abundantly shows that when Mr. Hurley, the deceased, fell under the truck wheels, he and others immediately holloed, and the driver was thus notified immediately of the danger to Mr. Hurley; but, notwithstanding this notice and alarm which he is reasonably bound to have heard, he did not apply his brakes to the truck, or make any effort to stop it, but continued to drag the deceased under the wheels for a distance of 15 feet while the truck was running at the slow speed of 3 miles per hour, and could have been stopped in less than 10 feet distance, thereby preventing the injury. The testimony shows that if the driver had used reasonable care and applied his brakes and stopped the truck, even after it had dragged the deceased 12 feet, the injury causing death would not have occurred. Surely the question of negligence of the driver was for the determination of the jury, and if they found as a matter of fact, which they did find, that the negligence of the driver contributed proximately to the injury, then the defendant is liable in damages, even though the jumpwhich proximately contributed to ing off of the truck by the deceased in the first instance was negligence the injury; in which latter event the amount of damages would be diminished accordingly. In other words, if the driver, as agent of the employer, appellant, was guilty of any substantial negligence whatever which contributed proximately to the injury, then a recovery is proper, notwithstanding the fact that the injured party was guilty of gross contributory negligence in jumping off of the truck and falling under the wheels. The main opinion rests upon a construction of the rule which appears to me to be radically wrong, and I feel certain that in the course of time this court will be compelled to overrule this decision as being unsound, in view of the statutes and decisions of all the courts that have passed upon the question of concurrent negligence or contributory negligence of the parties to such actions. The main opinion now is clearly in the way of following the well-established law on that subject in this state and in the United States. It is unfortunate and is to be regretted that the appellees, the widow and children of the deceased, are to be defeated in their cause of action by this erroneous decision, which, I think, will be eventually til the recovery of appellees has been overruled by this court, but not un annulled and lost to them forever. Ethridge, J., concurs in the above opinion. ANNOTATION. Duty and liability of carrier of passengers for hire by automobile. I. Jitneys, 1500. II. Taxicabs: a. Generally, 1501. b. Effect of passengers giving di rections as to route, 1503. c. Employees restraining and caus- d. Failure to complete trip as III. Rented automobiles: a. Injuries to hirer: 1. Generally, 1504. 2. Accidents on wet street, 1506. 3. Accidents from car starting during chauffeur's absence, 1507. b. Injuries to guests, 1507. IV. Miscellaneous, 1508. 1. Jitneys. The owner of a jitney bus is a common carrier of passengers, and as such owes the duty to passengers to exercise a high degree of care for their safety. Schott v. Weiss (1918) - N. J. 105 Atl. 192; Singer v. Martin (1917) 96 Wash. 231, 164 Pac. 1105; McDorman v. Dunn (1918) 101 Wash. 120, 172 Pac. 244. It has been held that this duty is not met, as a matter of law, by the mere observance of the laws of the road, but that the negligence of the operator, if any, as between him and his passenger, is to be measured by his duty as a common carrier, and not by his duty to other users of the highway. Singer v. Martin (1917) 96 Wash. 231, 164 Pac. 1105. In this case a statute, fixing the rate of speed at crossings and between street intersections, which was in force at the time the plaintiff sustained an injury, but which was subsequently repealed, was held to enter into the contract of carriage, and it was held that the repeal could not operate retrospectively to relieve the carrier from liability for injury to the passenger, and that the statute did not merely furnish a rule of evidence which would not survive the repeal. The claim in this case that the state statute could only be invoked in favor of pedestrians was held to be without merit, the court stating that it could be invoked in favor of any person who could show that its violation was the proximate cause of his injury, in the absence of contributory negligence on his part. It was also held in the Singer Case that, in order that an illegal rate of speed be actionable, it must have been the proximate cause of the injury, but it was further held that the excessive speed of the jitney would be enough, without more, if it alone brought the car to the place of collision with another car, when that place was occupied by the other car. A requested instruction in the Singer Case, that before the jury could find a verdict against the defendant they must, in addition to the finding of excessive speed, further find that the driver of the jitney failed to take the care of a reasonably prudent man to avoid the other car after he saw the danger of collision, was held erroneous as invoking one phase of the rule of last clear chance, a doctrine which was wholly inapplicable to the facts, as between the carrier and the passenger. In Bean-Hogan v. Kloehr (1918) 103 Kan. 731, 175 Pac. 976, an action to recover for injuries sustained by a passenger through the overturning of an automobile, the evidence was held to warrant a finding that the injury was the result of negligence on the part of the defendants, there being testimony tending to show that the defendants were operating a line of automobiles carrying passengers; that the plaintiff entered one of the cars as a passenger; that while the machine was running at the rate of 25 to 30 miles an hour on a city street, on which the maximum speed allowed by law was 12 miles an hour, two dogs ran in front of the machine, the distance between them being from 15 to 20 feet; that the driver turned slightly to avoid hitting the first, but that the machine ran into the second and was overturned. It was asserted in this case that, inasmuch as the defendants were admittedly common carriers, negligence on their part was inferable from the fact that the car was overturned, and the court stated that the authorities seemed to bear out this contention, but found it unnecessary to base the decision on this phase of the case. The question whether the high degree of care required had been exercised was held for the jury, in Schott v. Weiss (1918) N. J. 105 Atl. 192, it appearing that the plaintiff, a passenger in the defendant's jitney bus, had signaled the driver to stop at a street corner, and that he was in the act of rising from his seat preparatory to leaving the bus when the front wheel struck a large stone and, by reason of the impact, the plaintiff was thrown out through the door of the bus and sustained injuries. The evidence in McDorman v. Dunn (1918) 101 Wash. 120, 172 Pac. 244, where the plaintiff sought to recover for an injury sustained while riding as a passenger in a jitney bus, which collided at the intersection of streets with another vehicle, was held sufficient to warrant a recovery, there being testimony that the pavement was wet and slippery, but that the jitney was not equipped with chains; that it was being driven at a rate of speed estimated from 25 to 35 miles an hour, and, immediately prior to the collision, swerved toward the left and when near the middle of the street intersection, struck the other machine with such force as to throw the jitney across the street, a distance of 85 feet, and that when it stopped it was turned around in the opposite direction; that the other automobile was thrown 75 feet, and that that machine was also being driven at a reckless rate of speed, estimated at from 25 to 35 miles an hour, and that neither vehicle slowed down as it approached the street intersection. In this case, a charge that the jitney, which was proceeding in a northerly direction, had a right of way against a vehicle being driven in a westerly direction, with which the jitney collided, but that this did not mean that the jitney driver had the exclusive right to operate the machine at any rate of speed which he saw fit, and would not excuse him from exercising the highest degree of care under the circumstances, and that if he saw the other machine, running westerly, approaching the intersection of streets where the accident occurred at a high, unlawful, excessive, and dangerous rate of speed, then, regardless of the negligence of the driver of such machine, the jitney driver, in the exercise of the highest degree of care, should have used every reasonable precaution to prevent the machine from colliding with the jitney buswas held not erroneous as being so confused and involved as to be unintelligible, nor, in view of other instructions given, objectionable imposing upon the jitney driver the unqualified duty of exercising the highest degree of care, without the qualifying clause, "consistent with the practical conduct of the business." as And instructions, in substance, that it was the duty of the driver of the jitney to exercise the highest degree of care compatible with the practical operation of the jitney at the time and place in question, and that if he did not exercise that degree of care, and the accident resulted because of that fact, and that if the bus was operated in a careless and negligent manner, and the collision occurred solely because of the negligence of the jitney driver, a recovery might be had, were held in the McDorman Case, not erroneous, as authorizing a recovery regardless of whether negligence proved against the defendant was the proximate cause of the accident. In Chaufty v. De Vries (1918) R. I., 102 Atl. 612, where a recovery was sought against a jitney owner for an injury sustained by passengers picked up while the owner's son was operating the machine, as the owner claimed, off its authorized route, the evidence, which was conflicting, was held to justify the jury in finding that there were no precise limitations of the route over which the son was authorized to take passengers for hire; and in finding that, at the time he took up the plaintiff and his family and started to carry them, he accepted them and received their fares as passengers in the due and regular course of the father's business, and as his servant, although there was evidence that the son at the time was returning from a trip of his own, which was outside of his father's business, and was carrying some of his friends on their return trip to their home. II. Taxicabs. a. Generally. It has been held, in cases involving the right of a passenger to recover from a taxicab company, that a company of this character, which holds itself out to serve all who apply for transportation for a fixed or agreed fare, is a common carrier of passengers. Van Hoeffen v. Columbia Taxicab Co. (1913) 179 Mo. App. 591, 162 N. W. 694; CARLTON V. BOUDAR (reported herewith) ante, 1480. And, in an abstract of the decision, |