prevails in some jurisdictions, that the driver of a private carriage is to be regarded as the servant or agent of one who is riding with him and trusting to his skill and discretion. The opposite view was entertained in Platz v. City of Cohoes, 24 Hun, 101, wherein it was ruled that "the plaintiff was not responsible for any carelessness on the part of her husband in driving, unless she did some act encouraging it." In the more recent case of Hoag v. New York Cent. etc. R. R. Co., 111 N. Y. 199, it was ruled that, under similar circumstances, the negligence 387 of the husband was not to be imputed to the wife; and Platz's case is cited with approval. For other cases upon the same line see Sheffield v. Central Union Telephone Co., 36 Fed. Rep. 164, and Shaw v. Craft, 37 Fed. Rep. 317, decided in the circuit court of the United States for the northern district of Ohio. In Davis v. Guarnieri, 45 Ohio St. 470, 4 Am. St. Rep. 548, the rule was laid down that the negligence of a husband would not be imputable to the wife unless she had expressly constituted him her agent for the purpose in hand. This, we think, is the test, which in every case should be applied. In support of the correctness of this view, we quote from the opinion of McBride, J., in Louisville etc. Ry. Co. v. Creek, 130 Ind. 139, who says: "A husband and wife may undoubtedly sustain such relations to each other in a given case that the negligence of one will be imputed to the other. The mere existence of the marital relation, however, will not have that effect. In our opinion there would be no more reason or justice in a rule that would, in cases of this character, inflict upon a wife the consequences of her husband's negligence, solely and alone because of that relationship, than to hold her accountable at the bar of sternal justice for his sins because she was his wife." This admirable statement of the law we think should be decisive of the question with which we are now dealing. In the subsequent case of Chicago etc. R. R. Co. v. Spilker, 134 Ind. 380, the supreme court of Indiana again applied the wise and just rule above indicated; and Howard, J., cites numerous decisions bearing upon the subject.

In California the negligence of the husband is imputed to the wife, or rather, bars her recovery, for a reason peculiar to that state. By the California code the damages recovered in such a case would become the joint property of the husband and wife, and the court 388 holds that it would be inequitable for him thus to share in the proceeds of his own

wrong: McFadden v. Santa Ana etc. Ry. Co., 87 Cal. 464, This rule would seem to be fully as unjust to the innocent wife as the other rule would be to the wrongdoer; and one would think that an innocent person was entitled to protection before a wrongdoer. Be this as it may, however, the reason given by the court in the case cited does not also obtain in this state. In Georgia, by express statute (Acts of 1887, p. 43), a mother is given an independent right of action for the homicide of a child negligently killed (upon certain conditions not pertinent to the subject now under discussion); and it is expressly provided that a recovery by her in accordance with the terms of the statute shall be her separate and individual property, not subject to any debt or liability of the husband.

Under the facts of the present case the father was in no sense acting as the agent of, or in any manner representing, his wife. Only upon the idea of identity of interest could the act of one be regarded as that of the other. We have already shown that the rule which once obtained, whereby. upon the theory of "identity" or agency, the negligence of a father was imputed to his infant child, has been utterly repudiated in most jurisdictions, and no longer has any firmn footing in the law of this country. The same reasons which have been urged against the injustice and harshness of that rule apply equally well to so indefensible a doctrine as that which would seek to charge a wife with the negligence of her husband, simply because of the marital relation existing between the two. Like the child, the wife has distinct, individual, legal rights, which cannot be defeated simply by showing that another, to whom she was related by ties of wedlock, but over whom she exercised at the time no control, was guilty of negligence 389 concurrent with that of the defendant. Incidentally, the husband might derive some benefit from a recovery by her; indeed, upon her death, might inherit her estate, including the money so recovered. This, however, would likewise be true in a case where a child was allowed to recover, despite the negligence of its father; and yet this is universally held not to be a sufficient reason for unjustly depriving the child of its legal rights as against a wrongdoer entitled to no protection whatsoever as to liability growing out of his own gross misconduct.

It would seem that the efforts on the part of the courts of an earlier day to formulate rules which would extend the

doctrine of imputable negligence so as to include persons other than those who actually sustained toward each other the relation of master and servant, or principal and agent, or who were jointly engaged in the prosecution of a common enterprise, have proved to be entirely unsuccessful legal ventures. Such rules have already met the fate which must inevitably sooner or later have befallen them, for they stand upon no foundation of logic, wisdom, or justice.

In East Tenn. etc. Ry. Co. v. Markens, 88 Ga. 60, this court summarily disposed of the question whether the negligence of the driver of a public hack could be imputed to a female passenger, and quoted with approval the rule laid down in the American and English Encyclopedia of Law, volume 16, page 447, that: "In order for the negligence of one person to be properly imputable to another the one to whom it is imputed must stand in such a relation of privity to the negligent person that the maxim Qui facit per alium facit per se is directly applicable."

It follows inevitably, from what has been said, that the doctrine of imputable negligence cannot, under the facts of the present case, be successfully invoked so as to defeat the plaintiff's right to recover.

390 4. We come now to deal with the proposition announced in the fourth headnote. It is one of very great importance, and we have given it long and anxious consideration. Our own cases are not in perfect harmony on this subject but after a careful review of them, and an exami nation of a very large number of authorities, we believe we have reached the true law of the question.

This question was also involved, but not discussed, in the case of Atlanta etc. Ry. Co. v. Leach, 91 Ga. 419, ante, p. 47, which was an action by Mrs. Leach for the homicide of her husband, who was the uncle of the plaintiff's son, having him in charge when killed, and who, as already stated, was himself killed at the same time and place. Mrs. Leach's right to recover was so plainly and manifestly defeated by the gross negligence of her deceased husband, irrespective of other considerations, that we were content to rest our decision of that case on that ground alone.

We will now notice briefly, and in their chronological order, the cases decided by this court which bear upon the question under consideration. This list is intended to be exhaustive, and though we may omit some cases which

AM ST. REP., VOL. XLIV. -11

might be considered as somewhat in point, we think we have all of them really material, and some of these are not vitally so.

In Augusta etc. R. R. Co. v. McElmurry, 24 Ga. 75, the injury complained of, which was the killing of a slave and the destruction of a cart, was evidently committed upon a crossing, or so near to it as to be practically upon it. The evidence is not set forth in the report; but the requests presented and refused, and the rulings of this court in connec tion with them, show that both court and counsel treated the case as one to which "the crossing law" was directly applicable. This is true notwithstanding it was alleged in 391 the pleadings that the injury was done "at or near" a crossing, and although Judge Lumpkin, in dealing with one of the requests, remarks that a particular speed is required "at or near" the crossing. Thus understood, there is nothing in this case militating against what is ruled in the case at bar; but, on the contrary, many of the expressions used in the opinion are entirely in harmony with, and to some extent support, it.

The first distinct announcement by this court touching the question whether the law regulating the speed of trains in approaching crossings was applicable in a case where the injury occurred elsewhere than at a public crossing, was in Holmes v. Central R. R. etc. Co., 37 Ga. 593. The injury for which the action was brought was the killing of a slave on the track of the railroad, which took place at a point from sixty to eighty yards distant from a public crossing, but on a part of the track very much used by foot-passengers. There was a verdict against the company, and a new trial was granted by the superior court, whose judgment was affirmed by this court, upon the actual merits of the case. Counsel for the plaintiff in error endeavored to show that the company was liable for disregarding the provisions of the law in question, it being the act of January 22, 1852 (Acts of 1851-52, p. 108), and which is now, except as to certain changes immaterial to the present inquiry, embodied in sections 708 to 710 of the code. Upon this contention Judge Walker plainly and unequivocally stated that: "This act was intended for the protection of persons and property at public crossings of the road. The public have a right to cross the railroad track at the public road crossings. When traveling the highway persons are lawfully on the railroad

track at the point of crossing; and if an injury is done at such public crossing, then the provisions of the act of 1852 become material. In this case the 392 accident having occurred elsewhere, the provisions of this act are not applicable. The fact that so many persons traveled on foot over the portion of the road where the negro was killed did not make the railroad a public crossing." This case has never, in terms, been overruled in the manner prescribed by statute; and the decision having been made by a full bench, the doctrine announced in it is therefore still of force. The clear and distinct statement of Judge Walker is in no sense qualified because he adds that: "In deciding the question of what would be reasonable care and diligence, possibly this fact [meaning the fact that many persons traveled on foot over the portion of the road where the negro was killed] might be taken into consideration, in connection with all the other facts of the case." The liability of a railroad company for running over and killing or injuring people at places along its track which the public is known to frequent, and where it is probable they will be found, depends upon legal rules entirely distinct from the law prescribing what they shall do in approaching public crossings.

In the case of the Western etc. R. R. Co. v. Main, 64 Ga. 649, the railroad company was held liable for the killing of a cow between a signal post and a public crossing; and it is inferable from the statements contained in the opinion of Crawford, justice, that the servants of the company in charge of the train had failed to obey the provisions of section 708 of the code, and this failure seems to have been regarded as a ground of liability. It is impossible to reconcile the charge of Judge McCutchen, which this court approved, with the case of Holmes v. Central R. R. etc. Co., 37 Ga. 593. Again, in Western etc. R. R. Co. v. Jones, 65 Ga. 631, the injury for which the company was made liable was the killing of a horse at a point just beyond a public crossing. In so far as these two cases conflict with that of Holmes the doctrine of the latter, for the reason stated in the above comments thereon, must prevail.

393

The case of Central R. R. Co. v. Brinson, 70 Ga. 207, which was an action for personal injuries inflicted by a moving train not at a crossing, was decided by two justices, who did not themselves fully agree upon the question with which we are now dealing, in so far as it was then involved. After a