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sons to a funeral of which the undertaker had charge, was held liable for an injury resulting from the negligence of the chauffeur, to a funeral guest who, at the direction of the undertaker, got into one of the cabs. The court stated that the defendant was a common carrier as to the plaintiff, notwithstanding that the service was being paid for by someone else.
As it is not necessary, in order to constitute a public conveyance common carrier, that it come within the definition of a public utility
as to be subject to the rules and regulations of the public utility commission, or move between fixed termini or upon fixed routes, a taxicab company which keeps its cabs for the general use of the members of the public, who are subjected to fixed charges based on mileages rates, is a common carrier, and an instruction to the effect that the duty which such company, as a common carrier, owes to its passengers, requires its employees, in the operation of its cars, to exercise the highest degree of care reasonably to be expected from human vigilance and foresight in view of the mode and character of the conveyance adopted, and consistent with the practical prosecution of its business, is proper. ANDERSON V. YELLOW CAB Co. (reported herewith) ante, 1197.
In Varley v. Columbia Taxicab Co. (1922) Mo. -, 240 S. W. 218, the plaintiff, a passenger for hire in a taxicab, was injured in a collision between the cab and an automobile, which occurred at a time when both the cab and the automobile were violating traffic ordinances, and recovery was allowed against both the owner of the automobile and the taxicab owner.
In Denker v. Lowe (1921) 192 Ky. 660, 234 S. W. 294, where the plaintiff, a passenger in a taxicab driven at a rapid speed,
who had warned the driver of a bad place in the street which he was approaching, was injured when the taxicab, which had not been slowed down, struck the defect in the street, the court held that it was a clear case of combined and concurrent negligence of the city in permitting the street to become defective,
and of the taxi driver in failing to slacken his speed and drive around the obstruction, and that the tort-feasors were jointly and severally liable.
Where a sheriff entered into an agreement with a taxicab company, the terms of which were communicated to his deputies, for the use of the defendant's cabs, by which no cab was to be sent by the sheriff or taken by his deputies outside of the city limits, the taxicab owner is not liable for injuries to a deputy sheriff sustained while he was a passenger in a taxicab owned by the defendant and driven by one of its employees, where the accident happened on a country road, on returning from a trip to a distant town which the employee had undertaken at the instance of the deputy, under the belief that the deputy had the right to compel him to make such trip, it appearing that the driver had objected to such trip, but that his objections had been overcome by the deputy. Blue Bar Taxicab & Transfer Co. v. Hudspeth (1923) Ariz. 216 Pac. 246.
And it has been held that a passenger in a taxicab who was injured in a collision cannot recover from the owner of the cab where the uncontradicted evidence is that the chauffeur who was driving the cab was ployed to work only during certain hours of the day, and that at the time of the accident, his hours of work had ceased, and that he had, in disregard of express instructions and for purposes of his own, undertaken to carry the plaintiff to her destination. Slater V. Friedman (1923) Cal. App. 217 Pac. 795. And since the driver was acting beyond the scope of his employment, the plaintiff could not complain of the action of the trial court in failing to find that the defendant, as a taxicab operator, was a common carrier. b. Effect of passenger giving directions
as to route. (Supplementing annotation in 4 A.L.R. 1503.)
In Morris v. La Bahn (1922) 194 Iowa, 377, 189 N. W. 797, in affirming a judgment for the plaintiff in an ac
tion for injuries received by her while the act of a reasonable person. It a passenger in the defendant's cab, might well be that for a passenger to due to a collision between it and a cab attempt to leave a taxicab being belonging to another company, the driven at an unlawful rate of speed court treated the defendant company would be a most unreasonable and as a common carrier, and held that the reckless act. Neither were they negligence of the driver was not im- bound to attract or distract the atputable to the injured passenger tention of the driver simply because merely because she had told him the he was proceeding at an unlawful rate destination to which she wanted to go, of speed, unless the taking of steps to but had given no direction as to how that end would, under the circumfast he was to drive or what route he stances, have been the act of a reawas to take.
sonable person; since it might well
be that so to do would involve greater c. Employees restraining and causing arrest as ground of action.
danger than would arise from pro
ceeding at said rate of speed. The No latter decisions herein. For
instructions of the court made no alearlier cases, see 4 A.L.R. 1503.
lowance for these alternatives, but d. Failure to complete trip as breach of bound the plaintiffs, upon their mere contract.
knowledge that the driver was proNo later decisions herein. For ceeding at an unlawful rate of speed, earlier decisions, see annotation in 4 to either leave the machine or compel A.L.R. 1504.
a reduction of the speed, regardless
of whether either of these things e. [New] Duty of passenger; contribu
could be done or attempted with tory negligence.
reasonable safety, and under penNo duty is imposed on a passenger
alty of losing their right to rein a taxicab to object to the conduct
cover in the event of an accident of the chauffeur in driving at an un
caused by such excessive speed. The lawful speed. Dowd v. Atlas Taxicab
result of the adoption of the rule em& Auto Service Co. (1921) 187 Cal.
bodied in these instructions would be 523, 202 Pac. 870, where, in an action
that of imposing upon every passento recover for injuries sustained by
ger in a public conveyance, whether the occupants of a taxicab which
a railroad train, a street car, or a skidded and overturned on a slippery
motor vehicle, the duty, whenever they pavement while being driven at an un
deemed it was proceeding at an unlawful speed, it was held that the lawful or excessive rate of speed, plaintiffs were not barred from re
of leaving the conveyance, or of pullcovering, because they voluntarily ing the bell cord, signaling the motorcontinued to ride in the automobile man, attracting the attention of the after having knowledge that it was be- driver, or taking such other steps as ing driven at a rate of speed pro- were available to either leave the hibited by law, and that an instruction vehicle or to compel the engineer, the to the jury that, if such were the case, motorman, or driver to bring the vehino recovery could be had, provided it cle to a standstill, or, at least, work was found that the accident was a reduction in its speed." partially caused or contributed to by As the duty rests upon a common reason of the speed of the machine, carrier by taxicab to be alert and was erroneous. The court stated: watchful at all times, and to exercise "Knowing that the vehicle was being all the care necessary to transport his driven at an unlawful rate of speed, passengers safely, a passenger has they [the plaintiffs) were only bound the right to presume that the carrier to take such proper precautions for is familiar with dangers to be appretheir own safety as a reasonable per- hended, and will use proper care, son under similar conditions would skill, and vigilance to avoid them, and take. They were not bound to leave owes no duty to make suggestions or the machine unless such act would be to give warnings, and his failure to protest against the manner in which driver that one of the plaintiff's comthe taxicab is operated, or to give panions stated, in his presence, that warning of the likelihood of a collision the accident would not have happened with another vehicle, does not relieve had the plaintiff been seated in the the operator from liability for in- proper manner. jury to the passenger resulting from
III. Rented automobiles. negligence. McKellar v. Yellow Cab Co. (1921) 148 Minn. 247, 181 N. W.
a. Injuries to hirer. 348, affirming a judgment for a pas
1. Generally. senger in a taxicab for injuries sustained in a collision between the cab
(Supplementing annotation in 4 and an automobile at a street inter
A.L.R. 1504.) section, in which the company sought
The duty of a private carrier of to escape liability on the ground that
passengers for hire by an automobile the plaintiff had failed to protest
is equated to that of the keeper of a against the excessive speed at which
livery stable, and he is bound to furthe machine was being driven, or to
nish a safe car and a safe and compecall the attention of the driver to an
tent chauffeur, and to exercise the approaching car with which he collid- usual skill, care, and diligence ordied.
narily exercised by those engaged in In McDonald v. Yellow Taxicab Co. the same pursuit, which includes ordi(1921) 192 Iowa, 1183, 184 N. W. 291,
nary care and prudence in inspecting where a passenger in a taxicab was
the automobile. Duffy v. J. W. Bishop killed when the cab skidded and upset
Co. (1923) 99 Conn, 573, 122 Atl. 121. on a slippery hill, the court reversed Although an undertaker who conan order of the trial court directing
tracts to carry guests to a funeral by a verdict for the defendant, based on
automobile is a mere private carrier, the theory that the passenger was con
he is under the same obligation to tributorily negligent as shown by the carry the passengers safely as is a evidence of the driver, who testified
public carrier. Mahany v. Kansas that the passenger, who was sitting on
City R. Co. (1923) Mo. 29 the front seat, became frightened and
A.L.R. 817, 254 S. W. 16. grabbed the steering wheel, causing And see Mahany v. Kansas City R. the car to overturn, holding that, in
Co. (1921) 286 Mo. 601, 228 S. W. 821, view of contradictory testimony, the
where the court observed that, under question of contributory negligence
the statute in force at that time, the should have been submitted to the
driver of an automobile furnished by jury. The opinion stated that some
the owner thereof to transport a members of the court preferred to put
funeral party for hire was required to their concurrence on the ground that
exercise the highest degree of care the defendant was a common cạrrier,
that a very prudent person would use and the burden was on it to explain in the operation of the automobile. the circumstances of the fatal accident (On the general question as to the liaconsistently with its own freedom bility of an undertaker or funeral difrom negligence.
rector for injury to a passenger in a And in Ramlo Five-Hundred
vehicle furnished by the former, see Taxicab Co. (1922) 119 Wash. 379, 206
annotation in 29 A.L.R. 827.) Pac. 20, the court affirmed a judgment
One engaged in a general transfer for the plaintiff, who was injured
business, who occasionally hires or while a passenger in the defendant's rents his trucks on holidays to carry cab, although it was contended that passengers to and from picnics, is, the plaintiff at the time of the injury when engaged in carrying passengers, was intoxicated, and that the injuries a private carrier, and as such is were the result of his staggering bound to exercise ordinary care and through the glass partition of the cab; diligence to carry his passengers the only evidence in support of the safely, and will be liable for an incontention was the testimony of the jury to a passenger caused by the fail
ure of one of his servants to exercise ular place, and had, without the ordinary care. Gornstein v. Priver knowledge of the owner, been sent to (1923) Cal. App. 221 Pac. 396, a different place, and the injury ocwhere the defendant, who was en- curred on such trip, for, while the degaged in the general transfer busi- fendant would be liable for any negliness, hired two of his trucks to the gence on the part of his chauffeur in plaintiff and others to carry them to a the management of the automobile, if picnic, furnishing a driver for each, his service or employment was within who at the request of the hirers re- the terms of the contract, he would not moved the staves from the sides of the be responsible for a wrongful assumptrucks and permitted the passengers tion of direction and control by the to sit on the floor in such manner that hirer of the machine, in violation of their legs hung over the sides or ends the contract. of the truck; the plaintiff, seated in The driver of a private automobile this manner on the rear end of the for hire, who, after feeling the steerfirst truck, was injured when the truck ing wheel shift and knowing that the stopped behind a street car, and the car wabbled from side to side, did not second truck, through the negligence stop or try to ascertain the cause of of its driver, who unquestionably must the trouble, but permitted the car to have observed the street car which run for a distance of 500 feet, when the truck ahead of him was following, the trouble recurred, and even then as well as the manner in which the failed to stop the car as soon as he plaintiff was seated, struck her. In might, but permitted it to run up a affirming a judgment for the plaintiff, bank and overturn, is negligent, and the court observed: “As we have an injury caused to a passenger who stated, plaintiff's position must have was thrown out is a direct result of been observed by the driver of the such negligence. Duffy v. J. W. rear truck. The care which the law de- Bishop Co. (1923) 99 Conn. 573, 122 manded of him was commensurate Atl. 121. with the peril incident to the position And one who is engaged in the busiin which he knew that plaintiff had ness of furnishing private limousines placed herself, and it was his duty and chauffeurs for hire is liable as to exercise such reasonable care in bailee for the loss of the baggage of regulating the speed of his vehicle one of its patrons, which was stolen and its proximity to the truck ahead as while the owner had temporarily left might be necessary to protect plaintiff it in charge of the chauffeur, for, as from injury during all the time that the defendant must have known that she was a passenger on the foremost the bridal couple who had hired the truck. His failure to exercise such car to carry them to a train would reasonable care in the operation of his have with them the ordinary hand truck must be considered the sole baggage usually carried on such proximate cause of the injury, not- occasions, it was within the implied withstanding the perilous position in terms of the contract that they might which plaintiff, with defendant's per- intrust the baggage to the chauffeur, mission, had placed herself. Her who in assuming to care for it, was position on the truck was only the acting within the scope of his employcondition—the remote cause of the ment. Tracy v. Grand Concourse injury."
Service Co. (1922) 199 App. Div. 348, In Fritz v. F. W. Hochspeier Co., 192 N. Y. Supp. 88, affirmed without (1919) 287 Ill. 574, 123 N. E. 51, it opinion in (1923) 234 N. Y. 649, 138 was held that the owner of a rented N. E. 483. The court stated, however, automobile would not be liable for in- that, as the defendant was not rejuries sustained by the passengers quired to have a license in its busitherein, in a collision caused by the ness, and was under no obligation to negligence of the driver furnished by furnish service to the public at a fixed the owner of the machine, if the ma- charge, and did not in fact hold itself chine had been hired to go to a partic- out as being ready and willing to do so, that no recovery could be had on cause of an injury to him, when, the theory that the defendant was a through the negligent operation of the common carrier.
driver of the car, it collided with an
object on the highway. 2. Accidents on wet street.
An injured passenger who, riding No later decisions herein. For
with his back to the driver, knew that earlier decisions, see annotation in 4
the car was going at a high rate of A.L.R. 1506.
speed, but did not know of any de3. Accidents from car starting during
fects, and who had no control over chauffeur's absence.
the operation of the car, is not guilty No later decisions herein. For
of contributory negligence simply beearlier decisions, see annotation in 4 cause he did or said nothing, unless A.L.R. 1507.
the negligence of the driver was so
apparent and gross that he was bound b. Injuries to guests.
to know of it. Duffy v. J. W. Bishop (Supplementing annotation in 4 Co. (1923) 99 Conn. 573, 122 Atl. 121. A.L.R. 1507.)
(Supplementing annotation in 4 automobile had been hired from the
A.L.R. 1508.) defendant to carry guests to a wed
In Smith v. Peets (1922) 217 Mich. ding, it was held that a guest, riding 255, 186 N. W. 397, an evenly divided at the invitation of the person who
court affirmed a judgment directing hired the machine, was entitled to re
a verdict in favor of the defendant in cover from the owner of the machine
an action to recover damages alleged for injuries caused through the negli
to have been sustained by the plaintiff, gent operation thereof by the chauf
who had agreed to pay a specified sum feur, who was employed by the de
for a ride to a given point in the defendant.
fendant's automobile, when the auto
mobile overturned while, with defendc. [New] Duty of passenger; contribu- ant's permission, it was being driven tory negligence.
by the plaintiff's niece, who had never In order to bar a recovery by a pas- driven a car before. The affirmance senger for hire on the ground that he
seems to have been on the ground that was negligent the evidence must be the records did not show that the insufficient to establish that his negli- experience of the girl driving was the gence was the proximate cause of the
proximate cause of the plaintiff's ininjury. Guilfoile Smith (1920) jury, and were not sufficient to bring 95 Conn. 442, 111 Atl. 593, where, in the cause of action out of the realm an action for damages for injuries of conjecture. Moore, J., dissenting, caused by a collision of the auto in states that when the owner of an autowhich the plaintiff was riding, with a mobile carrying a passenger for hire water tank, the court, in reversing a turns the driving of the machine over nonsuit based on the theory that the to one who has never driven an autoproximate cause of the injury was the mobile, the height of negligence is negligence of the plaintiff, held that, shown, and that, where the machine, while it was negligence for a passen- in the course of a short distance after ger in an automobile to ride with part the inexperienced driver took the of his body protruding from the car wheel, left the road and turned over, in such a way as to make it liable to it was not difficult to trace the cause come into contact with passing ob- to the inexperienced, driver, and the jects it did not necessarily follow that question of negligence should have such negligence was the proximate been submitted to the jury.
G. S. G.