cause to the plaintiff's injury, the purpose of the statute, the harm that it was enacted to prevent, is quite material. In Bosworth v. Swansey, 28 the Massachusetts Supreme Court held that a plaintiff who was traveling on Sunday, in violation of a statute, could not recover from a city for an injury occasioned by a defect in the highway.29 This case seems to conflict with the principle just stated, although the same result has been reached elsewhere on the ground that a city does not owe a duty of care to one who is using the highway unlawfully.30 Other courts have held that the purpose of statutes prohibiting acts of labor, etc., on Sunday, is to prevent a desecration of the Sabbath and not to protect travelers and property from harm, and that the illegality (i. e., the mere circumstance that the time of the injury was Sunday) has no causal connection with the injury which the plaintiff has sustained.31 The latter view is more widely adopted, and seems sounder, particularly in other cases than those involving injuries on a highway. Even the Massachusetts court did not think that the fact that it was Sunday would prevent a traveler on that day from recovering for a dogbite. The proper principle is that unless the purpose of the statute was to prevent just such injuries as the plaintiff has sustained, he can recover notwithstanding the fact that when he was harmed he was violating a statute. Where the purpose was to 28 10 Metc. 363 (Mass.).

29 The rule has been changed by statute in Massachusetts.

30 Johnson v. Irasburgh, 47 Vt. 28.

31 Mohney v. Cook, 26 Pa. 342; Gross v. Miller, 93 Iowa 72, 61 N. W. 385, and Sutton v. Wauwatosa, 29 Wis. 21.

32 White v. Lang, 128 Mass. 598.

prevent such harm, the illegality in the act is a contributing cause and the plaintiff cannot make the violation of the law the foundation of his claim.33

Thus, in another Wisconsin case, the plaintiff attempted to cross a bridge with a traction engine without complying with the statute which required planks to be laid endwise across the bridge. The bridge collapsed, but the plaintiff could not recover, although the bridge was defective. He was not entitled to have the jury guess whether the bridge would or would not have sustained the weight of the engine had the statute been complied with.3*

33 Welch v. Geneva, 110 Wis. 388, 85 N. W. 970.

34 As to what constitutes contributory negligence in defectives and children, see §§ 59 and 60.

CHAPTER IV.

IMPUTED CONTRIBUTORY NEGLIGENCE.

82. Imputed negligence.-In the law of master and servant, the master is made responsible for his servant's negligence in the performance of acts which are done within the scope of the latter's employment.35 This is true whether the master is sued or whether he sues a third person for negligence.3 This responsibility is created by the peculiar relation of master and servant and rests on principles different from those usually discussed under the term "imputed negligence."

36

There has been an attempt made in certain other situations to bar, on account of the negligence of some one else, a plaintiff who has personally been guilty of no negligence; that is, it has been urged that the other's negligence should be "imputed" to him.

83. Carrier's negligence imputed to passenger.In Thorogood v. Bryan,37 the plaintiff's intestate got out of an omnibus in which he was a passenger, and was knocked down and killed by another omnibus owned by the defendant. The drivers of both omnibuses were negligent. The court said that the deceased must be considered so identified with the

35 See subject, AGENCY.

36 Nesbit v. Garner, 75 Iowa 314, 39 N. W. 516.

37 8 C. B. 115 (Eng.).

driver that the latter's negligence should be ascribed or imputed to him. It is to be noted that the omnibus driver was not the servant of the plaintiff and the result cannot therefore be ascribed to the rule noted in the preceding section. It is difficult to see why the passenger must be deemed to be thus identified. The rule thus announced has been generally rejected in this country and was overturned in England by the case of "The Bernina."' 38 The present rule is, therefore, that the negligence of a driver of a vehicle or of an agent of a carrier of any kind cannot be ascribed to the passenger unless the driver was the agent or servant of the passenger. Thus, one who accepts an invitation from an acquaintance to ride will not be barred by that person's negligence,39 though it should be borne in mind that a reasonably prudent and careful man thus riding upon invitation would under certain circumstances be himself somewhat attentive about keeping a lookout for danger. If such were the case and the plaintiff failed to act as the reasonably prudent man would act, he would be barred by his own negligence," though not by the driver's negligence. Whether he did so act, is a question for the jury.

84. "Common enterprise" rule.-In some jurisdictions the rule has been announced that "where several are engaged in a common enterprise wherein each has authority to act for all, the negligence of one in the management of the means to execute the common enterprise will be imputed to all the 38 L. R., 12 P. D. 36 (Eng.), LEADING ILLUSTrative Cases. 39 Shultz v. Old Colony St. Ry. Co., 193 Mass. 309, 79 N. E. 873. 40 Fechley v. Springfield T. C., 119 Mo. App. 358, 96 S. W. 421.

others." 41 Thus, if several should unite to hire a carriage for a ride and one of the number should act as the driver, his negligence would be imputed to the others.42 It would seem that this rule rests on the principles spoken of in § 82.

85. Parent's negligence imputed to child.-Another situation wherein an attempt has been made to "impute" negligence from one person to another is that involving children. In Hartfield v. Roper,43 a child of two years was left unattended by its custodian. It wandered into the road and was there run down by reason of the defendant's negligent driving. The court held that the negligence of the parent or custodian in failing to care for the child was a contributing factor in its hurt and that this negligence should be imputed to the child. Of course, practically it is true that any recovery which the child could get would largely find its way into the pocket-book of the parents, but it seems unfair that the fault of another should be visited on a child so young as to be incapable of protecting itself or of choosing its protector. The rule here proposed has not appealed to many of the courts and has been rejected in many jurisdictions.44 Of course, if the child were old enough to be sui juris (of his own right), he might be barred by his own negligence.45

86. Same subject-Other instances.-Some courts attribute the negligence of a bailee, in conduct involv

41 Nesbit v. Garner, 75 Iowa 314, 39 N. W. 516.

42 Wosika v. St. Paul City Ry., 80 Minn. 364, 83 N. W. 386.

43 21 Wend. 615 (N. Y.).

44 Bisaillon v. Blood, 64 N. H. 565, 15 Atl. 147.

45 See § 60.