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Marston & Eastman, for plaintiff.
Copeland & Elderly aud J. S. H. Frink, for defend-

ants.

may seem to them entitled to more respect than the rule of law that excludes it. The statement, withdrawn not because it is contrary to the fact, but because it is not a legal mode of proving the fact, may do as much damage as if it had not been withdrawn. Erroneous testimony corrected by the witness who gave it, and an erroneous ruling corrected by the judge who made it, stand on different ground.

If a party should sit as a joint juror in his own case, it might not be enough for his counsel to request him to ignore his own interest, and for the court to instruct him it is his duty to do so. If all the jurors had formed a decided opinion on the merits of the case before they were impanelled, the request of coun

SMITH, J. [Omitting other points.] The defendants' counsel, in his argument to the jury, commented on the fact that one of the physicians consulted by the plaintiff had not been called as a witness. This was fair matter of argument. The defendants could rightfully ask the jury to believe, that if the physician had been called, his testimony would have been unfavorable to the plaintiff. However slight the weight such an inference ought to have, the jury could not be instructed that as a matter of law they were bound to wholly disregard it. The case does not raise the ques-sel, and the instructions of the court, not to be swayed tion whether any argument could have been legally advanced in reply. No argumentative reply was made, but the plaintiff's counsel said that the physician had not been called because he found from conversation with him that he had examined the plaintiff, and could give no testimony as to her condition. If this hearsay proof of a material fact had been received from a witness, its unrevoked admission would have been corrected by a new trial. The physician conversed without the moral and legal sanction of an oath, and without the test of cross-examination. His conversation, not provable by a witness,

was

proved by a person not a witness, not sworn, and not subject to cross-examination. Had the plaintiff's whole case been proved in the same way the error, though extended in fact over more ground, would not have been raised to a higher degree of illegality. If the plaintiff could retain a verdict obtained or enhanced by her counsel's unsworn assertion of inadmissible hearsay in argument, the actual wrong done the defendants would be no greater were it accomplished by other persons giving the jury the same kind of proof privately and criminally. The court had no more authority to admit the hearsay, and dispense with the oath and the opportunity for cross-examination required by law, than to render judgment, without any form or pretense of trial, upon a rumor casually heard in the street.

The law does not transfer the defendants' property to the plaintiff as damages without a fair trial, and in a legal sense a trial is not fair when such statements as were made in this case have any influence favorable to the party making them. He is therefore bound to do every thing necessary to be done to rectify his wrong, and restore to the trial the fairness of which he has divested it. He is legally and equitably bound to prevent his statement having effect upon the verdict. This he cannot do without explicitly and unqualifiedly acknowledging his error, and withdrawing his remark in a manner that will go as far as any retraction can go to erase from the minds of the jury the impression his remark was calculated to make. But it is by no means certain that the jury will, at his request, disregard the fact stated. It is necessary they should be instructed that the unsworn remark is not evidence, and can have no weight in favor of the party improperly making it. It is the duty of the wrong-doer to request such instructions. The other party does his duty when he objects to the wrong inflicted upon him, and does not allow it to be understood that he waives his objection. In spite of the fullest and frankest retraction, and the most explicit and emphatic instructions to lay the remark entirely out of consideration, the trial may not be fair. It may not be in the power of the retracting counsel and the court to remove the prejudice. Their combined and vigorous exertions may not control the mental operations of the jury. The jury may not be able to wholly free their memory or the judgment from the unfair and illegal impressions made by a plausible statement of fact, which

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by their former convictions, or by what they had heard
at their lodgings, or read in the newspapers during
the trial, might not make the trial fair. After every
thing possible is done, the bias of interest or previous
opinion may not be wholly overcome.
In such cases
as this the operation of the retraction and the re-
quested instructions can be most accurately esti-
mated at the trial term after verdict. Burnham v.
Butler,, 58 N. H. 568; Cole v. Boardman, 63 id. 580,
583. In some cases they may, and in others they may
not, be effectual. Much may depend upon the sin-
cerity and earnestness of the retractor's efforts to
counteract his fault. If the trial is allowed to go on,
he will be bound, after the verdict in his favor, to ob-
tain a finding that the result was not affected by his
tort, and ought not to be annulled on account of it.
Whether the error is such that justice seems to re-
quire the trial to be stopped, and begun anew before
another jury, immediately or after a lapse of time
(Hamblett v. Hamblett, 6 N. H. 333, 347; Pennsylvania
Co. v. Roy, 102 U. S. 451, 459) is ordinarily a question
of fact. If the trial is broken off or the verdict set
aside, there is a question of costs. Whatever is done,
indemnification is the duty of the party by whom, for
a time at least, the course of justice is interrupted and
perverted. He is not entitled to a discharge of the
jury, a waiver of the objection, or a gain of any ad-
vantage.

* *

In Brown v. Swineford, 44 Wis. 282, the court, reversing a judgment and ordering a new trial on an exception of this kind, say: "The learned counsel went beyond the legitimate scope of all argument, by stating and commenting on facts not in evidence * * * The appellant took his exception, and his counsel now supports it by numerous cases. * * *All of them support the rule now adopted by this court, that it is error sufficient to reverse a judgment for counsel, against objection, to state facts pertinent to the issue and not in evidence, or to assume arguendo such facts to be in the case when they are not. Some of the cases go further, and reverse judgments for imputation by counsel of facts not pertinent to the issue, but calculated to prejudice the case. * There are cases in conflict with those which support this rule. But in the judgment of this court, the rule is supported by the weight of authority and by principle. Doubtless the Circuit Court can, as it did in this case, charge the jury to disregard all statements of fact not in evidence, but it is not so certain that a jury will do so. Verdicts are often found against evidence, and without evidence, to warrant so great a reliance on the dis-' crimination of jurors. And without notes of the evidence, it may be often difficult for jurors to discriminate between the statements of fact by counsel, following the evidence, and outside of it. It is sufficient that the extraprofessional statements of counsel may greatly prejudice the jury and affect the verdict.

* * *It is the duty of counsel to make the most of the case which his client is able to give him; but counsel is out of his duty and his right, and outside of

*

the principle and object of his profession, when he travels out of his client's case, and assumes to supply its deficiencies. Therefore is it that the nice sense of the profession regards with such distrust and aversion the testimony of a lawyer in favor of his client. * The very fullest freedom of speech within the duty of his profession should be accorded to counsel; but it is license, not freedom of speech, to travel out of the record, basing his argument on facts not appearing, and appealing to prejudices irrelevant to the case and outside of the proof.

In that case there was no retraction by counsel, and no finding of the fact of a fair trial.

In Jacques v. Bridgeport H. R. Co., 41 Conn. 61, the plaintiff's damages were assessed by a judge without a jury, certain evidence was admitted, subject to the defendants' "objection, to be heard in the argument." After the argument, this evidence "was ruled out and rejected, and no portion of it was considered by the judge, who so stated in open court when rendering his decision." The court say: "Nor is the effect of this testimony upon the mind of the judge, in reachine the decision pronounced on the merits, to be entirely disregarded. We cannot accede to the claim of the plaintiff that the defendant could not have been injured by this testimony because it was ultimately rejected and ruled out. The operations of our minds are mysterious even to ourselves. We cannot always appreciate the influences which lead us to a result. No doubt the judge who tried the cause intended to disabuse his mind of any influence from this testimony. No doubt he was unconscious of being affected by it. Possibly he was not. Still we do not deem it improbable that he was; especially when we look at the amount of damages assessed in the case, which seems to us unwarrantably large in view of the legitimate evidence."

In Dougherty v. Welch, 63 Conn. 558, 560; S. C. ante, 704, the court say: "No man can be quite certain that he is aware of all the influences which have produced conviction. It is one thing to prevent the entry of an influence into the mind; quite ar other to dislodge it."

But the court also say: "It would be impossible to conduct judicial investigations upon the theory that every thing which reaches the ear of the trier affects his final determination of questions of fact, beyond all power of resistance upon his part."

Whether the final determination is thus affected is a question of fact; and in our practice the rule is that questions of fact are not to be settled at the trial

term.

In State v. Towler, 13 R. I. 661, 665, some of the cases are cited in which it is held that an error committed by the admission of incompetent testimony is cured by its subsequent rejection or withdrawal, if the jury are clearly directed not to regard it. "The ground of these decisions," say the court, "is that the testimony, after being rejected or withdrawn, is no longer legally before the jury, but is out of the case; and the jury being instructed to disregard it, it is to be presumed that they follow the instruction. The defendant contends that the rule ought not to be applied to the case at bar, because the testimony was withdrawn, not as incompetent, but avowedly to remove all ground for exceptions. We think however that the rule does not depend on the motives which influenced the withdrawal. The question is, did the withdrawal take the testimony out of the case? If it did, it is to be considered as if it had never been admitted. We think the withdrawal, being by consent of court, it is to be regarded as the act of the court, and that in contemplation of law it purged the case absolutely of the testimony. The defendant insists that the testimony, though withdrawn, must inevitably have had an influence on the jury, and that this influence must have

been aggravated by the statement of the prosecuting attorney that he had other witnesses to reputation, which he withheld because of the defendant's objection. We have no doubt that juries are often influenced by extrinsic matters. We regret to say too, that there is reason to think that lawyers sometimes do and say things for the purpose of producing an ef fect on the minds of a jury which is not legitimate. Such conduct may afford ground for new trial if there is reason to suppose the jury has been influenced by it, as indeed the erroneous admission of testimony, subsequently ruled out, may afford ground for a new trial if there is reason to think the jury has been in fluenced by it. But the true mode of getting a new trial on such ground is by petition addressed to the discretion of the court, and not by bill of exceptions; for we cannot presume that the jury has been influenced, and in a bill of exceptions the court exercises no discretion on matters of fact, but only grants a new trial where in point of law some material error has been committed. Unangst v. Kraemer, 8 Watts. & S. 391. The court does not get, by a bill of exceptions, the information which will enable it to exercise a judicial discretion. In the case at bar we are informed only in regard to what occurred in the matter of the rulings which are reported for revision. For any thing that appears, the evidence against the defendant, independently of the evidence of reputation, may have been utterly overwhelming, and there may be no foundation whatever for the supposition that the jury was influenced either by the evidence of reputation or by the reprehensible remarks of the prosecuting attorney."

In a capital case, if the prosecuting officer, having introduced a great amount of every kind of incompetent testimony, should at last meet repeated objection by informing the jury, expressly or by insinuation, in an observation addressed to the court, that he had a convincing mass of similar evidence of the prisoner's guilt, but would withhold it for the purpose of avoiding technical exceptions, and for the same purpose would withdraw what had been objected to, the withholding and withdrawing might be made an effective part of the State's case, and the life of the accused might be endangered by his exercising his right of ob. jection. The law would not depend upon the motive of the prosecuting officer; but having violated the right of fair trial, and necessarily assumed the affirmative and the burden of proof on his implied plea, in confession and avoidance, that he had made complete amends, his apparent motive, whether averred or inferred, might be important evidence an the question of fact raised by the plea.

State v. Towler is an authority for a conclusive legal presumption, on a bill of exceptions, in such a case, that the jury are not influenced by the illegal proceeding if they are fairly instructed to disregard it, and for the rule that the defendant's remedy is a petition for a new trial. After judgment of conviction in a criminal case. a new trial may be granted on the defendant's petition, when justice has not been done through accident, mistake, or misfortune, and a further hearing would be equitable. Buzzell v. State, 59 N. H. 61. In the present case the illegal proceeding occurred during the trial, and in open court; and if a supplementary petition for a new trial is a possible remedy, it is unnecessary. State v. Ayer, 23 N. H. 301, 320; Allen v. Aldrich, 29 id. 63, 75; State v.Knapp, 45 id. 148, 157-160. In our simple and couvenient system of practice, if the indisputable error was harmless, that fact can be found on the plaintiff's motion at the trial term. The party violating the right of fair trial accepts the burden of presenting and proving his claim that he has made full restitution, and that the decision of the jury was not affected by

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ceived, unless he is prevented by one of the excepted perils. The plaintiff, in suing upon such a contract, is obliged to say that that was the contract, and in pleading he does aver, and must aver, that the loss was not occasioned by any perils of the seas. I think that in pleading the plaintiff always avers that to put himself within the terms of the contract. But it is imme

his admitted wrong. On the question of influence, his
acknowledgment, retraction and apparent motives,
the instructions given at his request, and the verdict,
are evidence, but do not shift the burden of proof.
That burden is not to be unjustly thrown upon the
other party, by putting him to a petition for a new
trial; nor is his exception unjustly overruled by a con-
clusive legal presumption as to the effect of instruc-diately apparent that the plaintiffs' allegation is a neg-
tions. If a perfect reparation of the violated right is
not found as a fact, the injured party remains enti-
tled to redress, and neither on exception nor on peti-
tion can the fact be falsely found by an inference of
law. A discretionary power of compelling him to sub-
mit to an unfair trial is not vested in the court. What
is called judicial discretion in such a case is a perform-
ance of the duty of correctly deciding the question of
fact at the trial term. Bundy v. Hyde, 50 N. H. 116,
120: Darling v. Westmoreland, 52 id. 401, 408.

The defendant is entitled to a new trial unless the
plaintiff obtains an amendment of the record supply-
ing the fact that has not been found. If the plaintiff
desires an opportunity to move for such an amend-
ment, the case will be continued nisi to await the re-
sult of a hearing on his motion.

Blodgett, J., did not sit; the others concurred.
[See note, 48 Am. Rep. 336.--ED.]

SHIP AND SHIPPING-PERILS OF THE SEA-COL-
LISION-BURDEN OF PROOF.

ENGLISH COURT OF APPEAL, JUNE 8, 1886.

THE XANTHO.*

In an action against a shipowner for loss of goods carried
under a bill of lading containing the exception "dangers
and accidents of the seas, "the defendants do not, by
merely proving that the loss has been occasioned by a
collision, show a peril of the sea so as to shift the onus on
to the plaintiffs of proving that the collision was occa-
sioned by the defendants' negligence, the onus being upon
them to bring themselves within the excepted perils; and
if they fail to do so the plaintiffs are entitled to judg-

ment.

THE opinion states the case. The plaintiff bad judg

ment below.

Sir Walter Phillimore, Q. C. and J. P. Aspinall, for defendants.

Myburgh, Q. C. and Hollams (with them Sir C. Russell, A. G.), for respondents.

ative allegation. It is a negation of circumstances as to something which has happened on board the ship, and as to circumstances which are solely within the knowledge of the defendants. In my opinion, it has long been the usual and proper course for the plaintiff simply to put in the bill of lading and to prove that the ship has arrived, but that his goods have not been delivered. If the ship has arrived and his goods have not been delivered, it seems to me that by putting in the bill of lading, he has shown a state of circumstances which the shipowner is called upon to answer. Prima facie, the non-delivery of the goods is negligence on the part of the shipowner, and unless there were special circumstances to prevent him delivering, there must be negligence on his part. Therefore I say that the burden of proof which the plaintiff has taken upon himself in the pleadings is satisfied by showing that the ship has arrived, and that the goods have not been delivered. In these circumstances it devolves upon the shipowner to show the reason why he has not delivered the goods, and if he can, to show that the non-delivery was caused by one of the perils excepted in the bill of lading. If he shows that the goods were lost or injured by one of the perils which are specifically mentioned in the bill of lading, he has prima facie brought his case within the exceptions. Now in construing a policy of insurance, it is the causa proxima of the loss which is looked at; but in the case of a bill of lading that is not so, for there you look to what is the real moving cause of the loss. Therefore though the shipowner may have brought himself within the terms of one of the exceptions, if the plaintiff can show that that which is stated to be the cause of the loss was not the real moving cause, but that something else which is not excepted was the real cause of the loss, then there is no defence; and therefore it has been held, that if the real moving cause is the defendant's negligence, the loss is not caused by any of the excepted perils, because the negligence of the defendant is not one of the excepted perils. It is on that ground that the defendant fails, and not on any supposed reason that he cannot take advantage of his own negligence. The moment it is shown that the real moving cause of the loss was the shipowner's negligence, then that is a loss by a cause which is not within the excepted perils. Now suppose that the real moving cause of the loss is not one of the excepted perils, but is the result of the negligence of some one other than the defendant, does the same reasoning apply? You are to take the real moving cause of the loss. If you are to accept the reasoning in the first case, you must accept it in this also. There is no exception in the bill of lading of a loss caused by the negligence of any one other than the defendant. For that reason we held in the case of Woodley v. Michell, ubi supra, that if the cause of the loss was the negligence of either of two colliding vessels without the winds or the waves, or any extraor

LORD ESHER, M. R. In this case the plaintiffs are shippers of goods, and they have brought an action upon a bill of lading against the owners of the ship carrying the goods for non-delivery of the goods. At the trial the bill of lading was put in, and in it we find certain excepted perils. The case was run extremely fine by both sides, for all that appeared in evidence was an admission-it does not appear by which side-that there had been a collision between the defendants' ship and another vessel. The question is, whether upon this evidence the finding of the learned judge without a jury is correct, by which he held that the plaintiffs were entitled to recover. From that judg-dinary difficulty of navigation contributing to the colment the defendants now appeal, and they say that they ought to succeed because the plaintiffs did not show that this was a collision which was caused by the negligence of the defendants. Now let us see how the matter stands. The contract, no doubt, is that the shipowner binds himself absolutely to deliver the goods in the same condition in which they were re*55 L. T. Rep. (N. S.) 203,

lision, such a loss, the cause of which is negligence, is not a loss occasioned by any of the excepted perils. We held therefore that a loss the immediate cause of which is a collision, but the real cause is the negligence of either ship, is not a loss caused by any of the excepted perils. It is caused by negligence, and that is not an excepted peril. It is not necessary to say whether any collision caused in

any other way is within the excepted perils or not. If a collision was caused without any negligence on either ship, merely by the action of a storm or violent sea, or an unknown current-if the collision is the result of that which everybody would take to be a peril of the sea, why then the mere fact of the collision intervening would not alter the case, and the loss would be by a peril of the sea. There are also collisions occasioned by negligence and the action of the sea, about which I decline to have any thing to say. 1 therefore hold that there are three classes of collisions in which the loss cannot be said to be the result of an excepted peril, viz., where there has been negligence on the part of the carrying ship; where the collision has solely been the result of the negligence of another vessel; and where the collision has been the result of the joint negligence of both vessels. That being so, what follows? Why that collision is not one of the perils excepted in the terms. The only way in which you can get the loss by collision covered by the perils is to show that a peril excepted and not the collision was the real cause of the loss. Now in this case the plaintiff shows that his goods were shipped under a bill of lading. It is shown that the vessel carrying the goods sank. But you have something more than the mere non-arrival of the ship, which is evidence that she has foundered at sea; but you have it that there was a collision which was the immediate cause of the loss. Now it is consistent that a collision is not one of the perils excepted. But is a collision even prima facie a peril of the sea? Is it more usual for a collision to be caused by the action of the wind and seas in an abnormal state than by the negligence of man? Certainly not. No one can doubt that the very great majority of collisions are occasioned by negligence. Now we are asked to say that the mere fact of proving a collision is prima facie bringing the defendant within the perils of the seas. But in my view, that is not enough. Therefore it seems to me that here the plaintiff made a prima facie case, and that the defendants gave no answer at all which could absolve them from their liability under the bill of lading. The appellants have cited several cases in support of their contention. But in all those cases it will be found that there was evidence that the loss was occasioned by one of the perils expressly excepted. Of course if the shipowner can show that the immediate cause of the loss was one of the excepted perils, that is a prima facie case on the part of the shipowner, and throws on the plaintiff the burden of proof that the real cause of the loss was the negligence of some one, and not the peril which it is said was the cause. That was the case in The Helene, ubi supra. It was proved there that the immediate cause of the loss was leakage, and by the bill of lading the shipowner was liable for loss caused by leakage. There the shipowner was prima facie brought within the exception, and the court held that the burden of proof was on the plaintiff to show that the leakage was caused by negligence.

In The Norway, Br. & L. 404, the loss was caused by the master jettisoning the cargo. The privy council were of opinion that the burden was upon the goods owner to prove that the stranding which necessitated the jettison was occasioned by the shipowner's negligence.

The case of Taylor v. Liverpool & Great West. Steam Co., ubi supra, seems to be an authority in support of my proposition. Lush, L. J.. there seems to put the very point with which we are now dealing. He says: "The remaining question is, is it for the defendants or the plaintiffs to show that the loss is within one of the exceptions of the bill of lading--on whom does the onus lie? I think it is for the defendants to bring the case within the exception." I think therefore that in this instance the defendants have run their case too

fine in merely showing that there had been a collision which is not an excepted peril, and which is as likely to have been occasioned by negligence as by the action of the wind or waves. I think that whether the decision in Woodley v. Michell, ubi supra, be good law or not, and even if the House of Lords differ from it, the defendants will be unable to succeed. For these reasons I think this appeal must be dismissed with costs.

BOWEN, L. J. I am of the same opinion. This is an action by a cargo owner against a shipowner. The shipowner having promised to deliver the goods excuses himself by saying that the non-delivery was occasioned by an excepted peril. The bill of lading excuses the shipowner in the case of acts of God, the Queen's enemies, and all and every other accident of the sea, rivers, and navigation whatsoever.

In the case of Taylor v. Liverpool & Great Western Steam Co., ubi supra, it was decided that it lay on the shipowner to bring the loss within one of the exceptions, and though under the old forms of pleading prior to the Judicature Act it was proper for the plaintiffs to set out the bill of lading, and to negative that the loss or damage was occasioned by this, that, or the other peril, yet that does not affect the law as to burden of proof. Sir Walter Phillimore, on behalf of the shipowner, says that the plaintiff has at the trial, through the mouth of his counsel, admitted enough to to shift the onus of proof. He says he has admitted that the loss was occasioned by a collision, and upon that he puts his argument in two ways: First of all, he says that the plaintiff, in admitting a collision, admits a peril of the sea, because all collisions are perils of the seas. In the second place, he says that even if collision does not necessarily amount to a peril of the sea, yet when unexplained, it is prima facie a peril of the sea, and therefore throws the onus on the plaintiff of showing that in the particular instance the collision was not a peril of the sea-an onus which he says the plaintiff has in the present instance failed to discharge. In the first place, is he right in saying that a collision is necessarily a peril of the sea? We must be careful to distinguish the meaning to be attached to words like "perils of the sea" when we are dealing with contracts of carriage between shipowners and shippers, and when we are dealing with policies of insurance between underwriters and shipowners. Con fining ourselves for a moment to the case of contracts of carriage between shipowners and cargo owners, can it be said that a collision is a peril of the sea within the meaning of a bill of lading? Now a collision may be caused in different ways. There may be a collision caused by negligence on either ship, or by joint neg ligence, and the sea may have no part to play in the misfortune, and the action of the wind and waves may not be the cause of the loss. We have already precluded ourselves from saying that a collision caused by negligence is a peril of the sea, because in the case of Woodley v. Michell, ubi supra, this court held that where there is no possibility of the accident having arisen from the action of the wind or waves, and where the cause of the collision is negligence, that is not a peril of the sea. That was one instance in which a collision was not a peril of the sea. After that case it is impossible for us to accept Sir Walter Phillimore's contention that a collision is necessarily a peril of the sea. His second contention is that a collision until explained implies a peril of the sea. But does that in itself throw the onus of proof on the plaintiff of showing that the collision is not a peril of the sea? It is perfectly well known in the conduct of cases at nisi prius what is meant by shifting the onus of proof. From time to time the onus of proof shifts according to the evidence given, and when you ask yourself upon whom the onus of proof rests, you in other words,

ask yourself who will lose the case, according to law, if no more evidence is given. Sir Walter Phillimore asks us to hold that as soon as the attorneygeneral admitted that this loss was caused by collision, he had admitted enough to shift the burden of proof on to his own shoulders from the shoulders of the shipowner, where it previously rested. Now in my view, in order to bring the case within the exceptions, the burden of proof, in the first instance, rests upon the shipowner; and how has that burden been shifted? Now collision is a general term, and we are asked, without being allowed to look into the particular circumstances of this particular collision, to infer that it is more probable than not that it has occurred in such a way as will make it a peril of the sea. But there may be many cases where the collision has been occasioned by joint negligence, or by the negligence of either ship; and the decision in Woodley v. Michell tells us that that is not a peril of the sea. Then there may be cases of collision in which there is negligence on the part of either or both ships, and a contribution to the misfortune by the action of the wind and waves. That class of case I now decline to discuss. The authorities have not finally exhausted the inquiry whether such a collision would be a peril of the sea. Lastly, there may be a collision which is solely caused by the action of the wind and waves. It may be a rare case, but it is a conceivable case. In all probability, though I am deciding nothing more than is required for this case, it would in most cases be a loss caused by a peril of the sea. What are we to say when we are simply told that a collision has occurred? Why are we to infer that it is a peril of the sea, and that it was occasioned by the action of the wind and waves in such a manner as to bring it within the exception clause? It seems to me that neither as a matter of law nor of common sense ought we to draw that inference. The answer of all common-sense people would be, "tell me more of the circumstances." With regard to what has been said about the cases of The Helene, ubi supra, and The Norway, ubi supra, I have nothing to add. I think the case of Woodley v. Michell, ubi supra, was rightly decided. It seems to me to decide nothing more than what it is said to decide in the head-note, and does not go the length which Sir Walter Phillimore sought to carry it. For these reasons I think the appeal must fail. Fry, L. J., concurred.

NEGLIGENCE CONTRIBUTORY NEGLIGENCE OF DRIVER OF PRIVATE CARRIAGEINJURY TO GUEST

MINNESOTA SUPREME COURT, OCT. 1, 1886.

FOLLMAN V. CITY OF MANKATO.*

One who while riding in the private carriage of another, at his invitation, is injured by the negligence of a third party (a municipal corporation), may recover against the latter, notwithstanding the negligence of the owner of the carriage in driving it may have contributed to produce the injury, the plaintiff being without fault, and having no authority over the driver.

APPEAL from an order of the District Court, Blue

Earth county, overruling motion for new trial. Daniel Buck, E. P. Freeman, and Pfau & Schessler, for appellant.

James Brown, for respondent. DICKINSON, J. While the plaintiff was riding upon a public street in the city of Mankato with one Kiefer *S. C., 29 Northwestern Reporter, 317.

and his wife, in Kiefer's private carriage, and at his invitation, the carriage was precipitated into a ditch or gully in the street, causing the injury complained of. The plaintiff was a sister of Mrs. Kiefer. The ground of action is the alleged negligence of the city in respect to the condition of the street. The case presented an issue as to whether Kiefer was chargeable with negligence in the driving of his team which contributed to produce the injury.

The court instructed the jury that if Kiefer was chargeable with such negligence the plaintiff could not recover. The correctness of this instruction is the only subject which we shall have to consider. The question is whether one who, by invitation or permission of another, rides in the private conveyance of the latter, and which is wholly under the management and control of the owner, is affected by the negligence of such owner, so as to prevent a recovery against a third party for negligence.

The authorities are somewhat in conflict. Since the decision of Thorogood v. Bryan, 8 C. B. 115, it may be said that the principle or reason upon which the decisions have generally been based in England, in the case of injuries in public conveyances, is opposed to a right of recovery in such cases as this. In that case the injury resulted to the plaintiff's intestate while he was a passenger in a public conveyance, an omnibus, and the question was whether the contributory negligence of the driver barred a recovery in an action for negligence against the proprietor of another public conveyance. Distinctions might be suggested between such a case and that now before us; but it is enough for our present purpose to say that the reasons as signed for the determination in Thorogood v. Bryan, and generally in the decisions which have held to the same doctrine of imputed contributory negligence, if such reasons are valid, might also be accepted as reasous for a like conclusion in this case. We therefore deem such decisions to be authority in favor of the respondent.

The reason assigned for the conclusion that there could be no recovery in Thorogood v. Bryan is that "the deceased must be considered as identified with the driver of the omnibus in which he voluntarily became a passenger, and that the negligence of the driver was the negligence of the deceased."

In a late case (Armstrong v. Lancashire & Y. Ry. Co., L. R., 10 Exch. 47), involving the same question, Pollock, B., referring to the decision in Thorogood v. Bryan, said: "If it is to be taken that by the word 'identified' is meant that the plaintiff, by some conduct of his own, as by selecting the omnibus in which he was travelling, has acted so as to make the driver his agent, that would sound like a strange proposition, which could not be entirely sustained. But what I understand it to mean is that the plaintiff, for the purpose of the action, must be taken to be in the same position as the owner of the omnibus, or his driver." In Prideaux v. City of Mineral Point, 43 Wis. 513, was presented the case of one (the plaintiff) riding in a conveyance hired and driven by another person, and injury to the plaintiff from the concurrent negligence of the driver and of the defendant. The court denied a right to recover under such circumstances. The reason upon which the decision is based will be seen from the following extract from the opinion, in which reference is made to what may be distinctively called the English rule, as above stated: "When the agency of a person in control of a private conveyance is express, there is no difficulty in the rule. The contribu tory negligence of the servant will defeat the master's action for negligence against a third person; and it seems that there ought to be as little difficulty in the rule when the agency is implied only. One volunta

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