Assuming that' the collision was caused by the negligence of Adams, the engineer, was such negligence imputable to McFall? In Little v. Hackett, 116 U. S. 366, Mr. Justice Field, delivering the opinion of the' court, said: “That one cannot recover damages for an injury to the commission of which he has directly contributed is a rule of established law, and a principle of common justice. And it matters not whether contribution consists in his participation in the direct cause of the injury, or in his omission of duties which, if performed, would have prevented it.” In that case the court held “a person who hires a public hack, and gives the driver directions as to the places 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, nor prevented from recovering against a railroad company for injuries suffered from a collision of its train with the hack, caused by the negligence of both the managers of the train and of the driver.” The court, after a review of many cases upon the subject, said: “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 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 have already stated, responsibility cannot, within any recognized rules of law, be fastened upon one who has in no zvay interfered zvith 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.”
In New York, Lake Erie & Western Railroad Company v. Steinbrenner, 47 N. J. L. 161, s. c. 23 Am. & Eng. Railroad Cases, 330, a leading case, in which there is a long review of authorities, the following rule is laid down: “A passenger in a hired coach may, by words or conduct at the time, so sanction or encourage a special act of rash or careless driving as to commit an act of negligence as will debar him from a suit against a third person for an injury resulting from the co-operating negligence of both parties. But for whatever purpose the negligence in invoked — whether as a cause of action for an injury done by the driver, or as contributory negligence to bar an action by the passenger against a third person for an injury sustained— the negligence, to be imputed to the passenger, must be such as arises in some manner from his 'own conduct. The negligence of the driver, without some co-operating negligence on his part, cannot be imputed to the passenger in virtue of the simple act of hiring.”
Mr. Beach, in work on Contributory Negligence, § ioo, says: "The general rule is that when the plaintiff’s own want of ordinary care is a proximate cause of the injury he sustains, he cannot recover damages from another therefor. But, under certain exceptional conditions, * * * a plaintiff may be legally chargeable with the negligence of some third person, which is imputed to him as though it were his own. In this particular the law of negligence is analogous to the general principles of the law as to the liability under which one is primarily liable for his own acts, and only secondarily for the acts of others, as e. g. those of his servant or agent. The rule upon this branch of our subject.is that the contributory negligence of third persons constitutes a valid defense to the plaintiff’s action only when that negligence is legally imputable to the plaintiff. There must, in order to create this imputability, be some connection which the law recognizes between the plaintiff and the third person from which the legal responsibility may arise. The negligence of the third person and its legal imputability must occur. It is clear that there is no justification for the negligent misconduct of the defendant in that same third person, a stranger, was also in the wrong. When the defendant pleads the negligence of a party other than the plaintiff in bar of the action, it must appear, not only that such third person was in fault, but that the plaintiff ought to be charged with that fault.”
It follows, then, that in cases where the injured and nearligent do not sustain to each other the relations of master and servant, or principal and agent, or other relation by which alone one is responsible for the act of the other, the contributory negligence of a third person will not be imputed to the party thereby affected unless he was at the time subject to the control of the injured person, and the wrong, the negligence, was committed at a time when it was within the power of such person to prevent it, and it was his duty to do so, and under circumstances which indicated that he assented to or acquiesced in the wrong by his failure to interfere, or directed it to be done; and that when the conditions are reversed, the reverse is true — it will be imputed.
The engineer of a railroad train is presumed to have been selected on account of his fitness for the position he fills. Being qualified, it is not the duty of the conductor to keep him under his constant supervision. In the discharge of his duties the engineer must be left to a large extent to the exercise of his own judgment. There was no evidence in this case tending to prove that engineer Adams was not, before the collision of his train at Ravenden, careful and competent for the discharge of his duties, or that McFall, his conductor, had reason to believe that he was not.
The jury, in returning a verdict in favor of the plaintiff, necessarily found that the negligence of Adams was not imputable to McFall, and that McFall was not guilty of contributory negligence. The evidence was sufficient to sustain their findings.
Judgment affirmed.