cised ordinary care, the plaintiff might recover; that if a person of average prudence, placed in exactly the situation in which Dearborn and the plaintiff were immediately before and at the time of the accident, possessed of the same knowledge and means of knowledge which they had of all the surrounding circumstances, would or might have done as they did, they exercised ordinary care and were free from fault; that if either Dearborn or the plaintiff did not exercise ordinary care, and by such care the plaintiff would have escaped injury, the verdict should be for the defendant. Verdict for defendant. D. F. Dudley, for plaintiff. W. G. Buxton and Chase & Streeter, for defendant. CLARK J.-The case raises the question whether a person who is guilty of no personal negligence, receiving an injury while riding in the carriage of another, caused by a defect in the highway and the carelessness of the driver, over whom he has no control, is prevented by the negligence of the driver from recovering against the town; whether the negligence of the driver of a carriage is a defense to an action brought by a passenger, personally free from fault, for the recovery of damages for all injury happening from a defective highway. Upon the question whether the negligence of the driver or manager of a carriage is imputable to a passenger the authorities are conflicting. In the leading English case of Thorogood v. Bryan, 8 C. B. 115, a passenger in alighting from an omnibus was thrown down and injured by the negligent management of another omnibus, and it was held that an action could not be maintained against the owner of the latter if the driver of the omnibus in which the passenger was riding, by the exercise of proper care and skill, might have avoided the accident which caused the injury. Although this case has been criticised by English judges, we are not aware that it has been overruled in the English courts; and in Armstrong v. Railway Co., L. R. 10 Exch. 47, decided in 1875, it was followed and approved. In the latter case the plaintiff was injured by a collision of a train of the London and Northwestern Railway Company, on which he was a passenger, with some coal cars of the defendant company. The jury found that the collision was caused by the joint negligence of the London and Northwestern Company and the defendant; and it was held that the plaintiff was so far identified with the London and Northwestern Company that he could not recover: 12 Moak, Eng. R. 508. In this country the doctrine of Thorogood v. Bryan has been approved and followed in some States, and in others it has been questioned and its soundness denied, and the weight of authority seems to be against it. Cases supporting it are found in Wisconsin (Houfe v. Fulton, 29 Wis. 296; Prideaur v. Mineral Point, 43 Wis. 513); in Pennsylvania (Lockhart v. Lichtenthaler, 46 Pa. St. 151; Forks Township v. King, 84 Pa. St. 230); in Iowa (Payne v. Railroad Co., 39 Iowa 523); and in Vermont (Carlisle v. Sheldon, 38 Vt. 440). Two Massachusetts cases are cited as supporting the doctrine: Smith v. Smith, 2 Pick. 621, and Allyn v. Railroad Co., 105 Mass. 77. But all that was decided in Smith v. Smith was that one who is injured by an obstruction unlawfully placed in a highway cannot maintain an action for damages if it appears that he did not use ordinary care by which the obstruction might have been avoided; and Allyn v. Railroad Co. merely decides that there was no evidence for the jury that the plaintiff was in the exercise of due care. The question does not arise in highway cases in Massachusetts and Maine, as it is there held that a town is not liable for an injury caused by a defect of the highway and the negligent act of a third party combined, the construction given to the statute being that no action can be maintained unless the injury arises wholly from the defect: Rowell v. Lowell, 7 Gray 100; Shepherd v. Chelsea, 4 Allen 113; Moulton v. Sanford, 51 Me. 127; Perkins v. Inhabitants of Fayette, 68 Me. 152. The doctrine of Thorogood v. Bryan is denied in New York (Robinson v. Railroad Co., 66, N. Y. 11; Dyer v. Railway Co., 71 N. Y. 228); in New Jersey (Bennett v. Railroad Co., 36 N. J. Law 225; Railroad v. Steinbrenner, 47 N. J. Law 161, 171); in Ohio (Transfer Co. v. Kelly, 36 Ohio St. 86, 91); in Illinois (Railway Co. v. Shacklet, 105 Ill. 364); in Kentucky (Turnpike Co. v. Stewart, 2 Metc. (Ky.) 119; Railroad Co. v. Case's Adm'r, 9 Bush 728); in California (Tompkins v. Rail VOL. XXXVI.-16 cised ordinary care, the plaintiff might recover; that if a person of average prudence, placed in exactly the situation in which Dearborn and the plaintiff were immediately before and at the time of the accident, possessed of the same knowledge and means of knowledge which they had of all the surrounding circumstances, would or might have done as they did, they exercised ordinary care and were free from fault; that if either Dearborn or the plaintiff did not exercise ordinary care, and by such care the plaintiff would have escaped injury, the verdict should be for the defendant. Verdict for defendant. D. F. Dudley, for plaintiff. W. G. Buxton and Chase & Streeter, for defendant. CLARK J.-The case raises the question whether a person who is guilty of no personal negligence, receiving an injury while riding in the carriage of another, caused by a defect in the highway and the carelessness of the driver, over whom he has no control, is prevented by the negligence of the driver from recovering against the town; whether the negligence of the driver of a carriage is a defense to an action brought by a passenger, personally free from fault, for the recovery of damages for all injury happening from a defective highway. Upon the question whether the negligence of the driver or manager of a carriage is imputable to a passenger the authorities are conflicting. In the leading English case of Thorogood v. Bryan, 8 C. B. 115, a passenger in alighting from an omnibus was thrown down and injured by the negligent management of another omnibus, and it was held that an action could not be maintained against the owner of the latter if the driver of the omnibus in which the passenger was riding, by the exercise of proper care and skill, might have avoided the accident which caused the injury. Although this case has been criticised by English judges, we are not aware that it has been overruled in the English courts; and in Armstrong v. Railway Co., L. R. 10 Exch. 47, decided in 1875, it was followed and approved. In the latter case the plaintiff was injured by a collision of a train of the London and Northwestern Railway Company, on which he was a passenger, with some coal cars of the defendant company. The jury found that the collision was caused by the joint negligence of the London and Northwestern Company and the defendant; and it was held that the plaintiff was so far identified with the London and Northwestern Company that he could not recover: 12 Moak, Eng. R. 508. In this country the doctrine of Thorogood v. Bryan has been approved and followed in some States, and in others it has been questioned and its soundness denied, and the weight of authority seems to be against it. Cases supporting it are found in Wisconsin (Houfe v. Fulton, 29 Wis. 296; Prideaux v. Mineral Point, 43 Wis. 513); in Pennsylvania (Lockhart v. Lichtenthaler, 46 Pa. St. 151; Forks Township v. King, 84 Pa. St. 230); in Iowa (Payne v. Railroad Co., 39 Iowa 523); and in Vermont (Carlisle v. Sheldon, 38 Vt. 440). Two Massachusetts cases are cited as supporting the doctrine: Smith v. Smith, 2 Pick. 621, and Allyn v. Railroad Co., 105 Mass. 77. But all that was decided in Smith v. Smith was that one who is injured by an obstruction unlawfully placed in a highway cannot maintain an action for damages if it appears that he did not use ordinary care by which the obstruction might have been avoided; and Allyn v. Railroad Co. merely decides that there was no evidence for the jury that the plaintiff was in the exercise of due care. The question does not arise in highway cases in Massachusetts and Maine, as it is there held that a town is not liable for an injury caused by a defect of the highway and the negligent act of a third party combined, the construction given to the statute being that no action can be maintained unless the injury arises wholly from the defect: Rowell v. Lowell, 7 Gray 100; Shepherd v. Chelsea, 4 Allen 113; Moulton v. Sanford, 51 Me. 127; Perkins v. Inhabitants of Fayette, 68 Me. 152. The doctrine of Thorogood v. Bryan is denied in New York (Robinson v. Railroad Co., 66, N. Y. 11; Dyer v. Railway Co., 71 N. Y. 228); in New Jersey (Bennett v. Railroad Co., 36 N. J. Law 225; Railroad v. Steinbrenner, 47 N. J. Law 161, 171); in Ohio (Transfer Co. v. Kelly, 36 Ohio St. 86, 91); in Illinois (Railway Co. v. Shacklet, 105 Ill. 364); in Kentucky (Turnpike Co. v. Stewart, 2 Metc. (Ky.) 119; Railroad Co. v. Case's Adm'r, 9 Bush 728); in California (Tompkins v. Rail VOL. XXXVI.-16 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 |