SOMEBYILLE, J.
The plaintiff, as an employee of the fire department of Birmingham, while riding on a hose-cart, or reel, in the regular pursuit of his duties as a fireman, was [526]*526injured badly by tbe capsizing of tbe vehicle, as it turned suddenly from 22d street into Avenue A, which intersected the street at right angles. The horses of the cart were driven by one Mullins, also a fireman, and were under his exclusive control. The alleged cause of the accident was the impinging or concussion of the cart wheels on the iron rails of the defendant’s dummy line railway, which projected above the surface of the track. The evidence tended to show that the condition of the dummy or street railway track was bad, and had become dangerous for the passage of vehicles, by reason of being defectively ballasted and surfaced; and that the duty of keeping the track in good condition devolved on the defendant as owner of the line, and by special contract with the city. The action is alleged to have been caused by the negligence of the defendant in failing to keep its track in proper repair.
1. The court charged the jury, that the negligence of Mullins, the driver of the hose-carriage, could not be imputed to the plaintiff, and would be no bar to his recovery in the present action, provided the plaintiff himself was guilty of no negligence. And many charges, requested by the defendant, were refused, which sought to impute the alleged negligence of the driver to the plaintiff, although the latter had no control over the management of the hose-carriage, or the control of the horses attached to it.
The question raised by these rulings is the old one first decided in the familiar and much criticized English case of Thorogood v. Bryan, 8 C. B. 115 (1849), and followed after-wards in Armstrong v. Lancashire & Yorkshire Railway Co., (Law Rep.) 10 Ex. 47 (1875). The action in that case was one founded on Lord Campbell’s act, in which the deceased, a passenger in an omnibus, as he was alighting, was knocked down and killed by collision with another omnibus belonging to the defendant. The defense interposed was the contributory negligence of the driver of the vehicle in which the plaintiff was riding. The question was, whether a passenger in an omnibus is to be considered so far identified with the owner, that negligence on the part of the owner, or his servants, is imputable to the passenger himself.
It is difficult to perceive any sound principle upon which the case of Thorogood v. Bryan can be maintained; and it is now admitted on all sides, by the great and increasing weight of authority, that the decision rests on indefensible ground. In this State I find two cases opposed to it in [527]*527principle, and none in support of it. In Otis v. Thom, 23 Ala. 469, (1853) where a stage-coach in a ferry-boat was lost by negligent collision with a steamboat, and an action was brought against the latter by the owner of the coach, it was decided that the contributory negligence of the ferryman was a fact entirely irrelevant to the issue of the defendant’s liability. So, in the recent case of Georgia Pacific Railway Co. v. Hughes, 87 Ala. 610 — an action for personal injuries sustained by the plaintiff through the negligent collision of two railroad trains at a crossing — it was held that the contributory negligence of the plaintiff’s carrier was no bar to plaintiff’s recovery, not being imputable to him.
In Little v. Hackett, 116 U. S. 366, (1885) the decisionin Thorogood v. Bryan was fully discussed, and utterly repudiated, not only as indefensible in principle, but as opposed to the weight of American authority, as to which latter point there seems now tobe no question. Mr. Justice Fields uses this language: “The identification of the passenger with the negligent driver, or owner, without his personal co-opperation or encouragement, is a gratuitous assumption. There is no such identity. The parties are not in the same position. The owner of a public conveyance is a carrier, and the driver or the person managing it is his servant. Neither of them is the servant of the passenger, and his asserted identity with them is contradicted by the daily experience of the world.”
It is needless to review the cases on this subject. This view is concurred in by a strong current of American authority, the doctrine of Thorogood v. Bryan being now disapproved by the highest courts of Alabama, New York, New Jersey, Maine, New Hampshire, Maryland, Ohio, Illinois, Indiana, Kentucky, Minnesota, Michigan, California, and other States. In a few States it has been adopted, in a modified form, some of the courts repudiating the reason on which the doctrine was founded by the English Courts. — Ga. Pac. Railway Co. v. Hughes, 87 Ala. 610; Robinson v. N. Y. Cent. R. R. Co., 66 N. Y. 11; 23 Amer. Rep. 1, and note p. 4; New York & Lake Erie R. R. Co. v. Steinbrenner, 47 N. J. Law, 161; 54 Amer. Rep. 126; Noyes v. Boscawen, 64 N. H. 361; 10 Amer. St. Rep. 410, note p. 419; Borough of Carlisle v. Brisbane, 113 Penn. St. 544; 57 Amer. Rep. 483, and note, p. 488, 511, and cases cited; Nesbit v. Town of Garner, 75 Iowa, 314; 9 Amer. St. Rep. 486; note p. 491; Wabash, St. Louis & c. Railway C.o v. Shacklet, 105 Ill. 364; 44 Amer. Rep. [528]*528791; Transfer Co. v. Kelly, 36 Ohio St. 86; 38 Amer. Rep. 558; Cuddy v. Horn, 46 Mich. 596; 41 Amer. Rep. 178; Brown v. N. Y. Cent. R. R. Co., 88 Amer. Dec., note, p. 359; 1 Shearman & Redfield on Negligence, 4th Ed. 66; Beach on Contrib. Negl., 111, 114; Campbell on Negl., 2d Ed. 185; 1 Smith’s Lead. Cases, 4th Ed. p. 220, note a.
Added to this vast array of authorities is the crowning fact, that the case of Thorogood v. Bryan has recently been expressly overruled by the English Court of Appeals, after having been weakened by constant criticism from the English bench and bar for more than thirty years. In the case of The Bernina, 12 Prob. Div. 58, decided as late as 1887, in an able and elaborate review of the authorities, both English and American, Lord Esher, the Master of Rolls, observes, that the court “can not see any principle on which it can be supported;” that “the preponderance of judicial and professional opinion in England is against it, and that the weight of judicial opinion in America is also against it.” “We are of opinion,” he concludes, “that the proposition in it [meaning the case of Thorogood v. Bryan, supra] is essentially unjust, and inconsistent with other propositions of law.” Lindley and Lopes (L. JJ.) concur in opinions fully discussing the subject, the former observing: “The doctrine of identification laid down in Thorogood v. Bryan is to me quite unintelligible. It is, in truth, a fictitious extension of the principles of agency; for to say that the driver of a public conveyance is the agent of the passengers, is to say that which is not true in fact. Such a doctrine, if made the basis of further reasoning, leads to results which are wholly untenable; e. g., to the result that the passengers would be liable for the negligence of the person driving them, which is obviously absurd, but which, of course, the court never meant.”
The doctrine of Thorogood v. Bryan, 8 C. B. 115, may now be considered as effectually exploded on both sides of the Atlantic.
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SOMEBYILLE, J.
The plaintiff, as an employee of the fire department of Birmingham, while riding on a hose-cart, or reel, in the regular pursuit of his duties as a fireman, was [526]*526injured badly by tbe capsizing of tbe vehicle, as it turned suddenly from 22d street into Avenue A, which intersected the street at right angles. The horses of the cart were driven by one Mullins, also a fireman, and were under his exclusive control. The alleged cause of the accident was the impinging or concussion of the cart wheels on the iron rails of the defendant’s dummy line railway, which projected above the surface of the track. The evidence tended to show that the condition of the dummy or street railway track was bad, and had become dangerous for the passage of vehicles, by reason of being defectively ballasted and surfaced; and that the duty of keeping the track in good condition devolved on the defendant as owner of the line, and by special contract with the city. The action is alleged to have been caused by the negligence of the defendant in failing to keep its track in proper repair.
1. The court charged the jury, that the negligence of Mullins, the driver of the hose-carriage, could not be imputed to the plaintiff, and would be no bar to his recovery in the present action, provided the plaintiff himself was guilty of no negligence. And many charges, requested by the defendant, were refused, which sought to impute the alleged negligence of the driver to the plaintiff, although the latter had no control over the management of the hose-carriage, or the control of the horses attached to it.
The question raised by these rulings is the old one first decided in the familiar and much criticized English case of Thorogood v. Bryan, 8 C. B. 115 (1849), and followed after-wards in Armstrong v. Lancashire & Yorkshire Railway Co., (Law Rep.) 10 Ex. 47 (1875). The action in that case was one founded on Lord Campbell’s act, in which the deceased, a passenger in an omnibus, as he was alighting, was knocked down and killed by collision with another omnibus belonging to the defendant. The defense interposed was the contributory negligence of the driver of the vehicle in which the plaintiff was riding. The question was, whether a passenger in an omnibus is to be considered so far identified with the owner, that negligence on the part of the owner, or his servants, is imputable to the passenger himself.
It is difficult to perceive any sound principle upon which the case of Thorogood v. Bryan can be maintained; and it is now admitted on all sides, by the great and increasing weight of authority, that the decision rests on indefensible ground. In this State I find two cases opposed to it in [527]*527principle, and none in support of it. In Otis v. Thom, 23 Ala. 469, (1853) where a stage-coach in a ferry-boat was lost by negligent collision with a steamboat, and an action was brought against the latter by the owner of the coach, it was decided that the contributory negligence of the ferryman was a fact entirely irrelevant to the issue of the defendant’s liability. So, in the recent case of Georgia Pacific Railway Co. v. Hughes, 87 Ala. 610 — an action for personal injuries sustained by the plaintiff through the negligent collision of two railroad trains at a crossing — it was held that the contributory negligence of the plaintiff’s carrier was no bar to plaintiff’s recovery, not being imputable to him.
In Little v. Hackett, 116 U. S. 366, (1885) the decisionin Thorogood v. Bryan was fully discussed, and utterly repudiated, not only as indefensible in principle, but as opposed to the weight of American authority, as to which latter point there seems now tobe no question. Mr. Justice Fields uses this language: “The identification of the passenger with the negligent driver, or owner, without his personal co-opperation or encouragement, is a gratuitous assumption. There is no such identity. The parties are not in the same position. The owner of a public conveyance is a carrier, and the driver or the person managing it is his servant. Neither of them is the servant of the passenger, and his asserted identity with them is contradicted by the daily experience of the world.”
It is needless to review the cases on this subject. This view is concurred in by a strong current of American authority, the doctrine of Thorogood v. Bryan being now disapproved by the highest courts of Alabama, New York, New Jersey, Maine, New Hampshire, Maryland, Ohio, Illinois, Indiana, Kentucky, Minnesota, Michigan, California, and other States. In a few States it has been adopted, in a modified form, some of the courts repudiating the reason on which the doctrine was founded by the English Courts. — Ga. Pac. Railway Co. v. Hughes, 87 Ala. 610; Robinson v. N. Y. Cent. R. R. Co., 66 N. Y. 11; 23 Amer. Rep. 1, and note p. 4; New York & Lake Erie R. R. Co. v. Steinbrenner, 47 N. J. Law, 161; 54 Amer. Rep. 126; Noyes v. Boscawen, 64 N. H. 361; 10 Amer. St. Rep. 410, note p. 419; Borough of Carlisle v. Brisbane, 113 Penn. St. 544; 57 Amer. Rep. 483, and note, p. 488, 511, and cases cited; Nesbit v. Town of Garner, 75 Iowa, 314; 9 Amer. St. Rep. 486; note p. 491; Wabash, St. Louis & c. Railway C.o v. Shacklet, 105 Ill. 364; 44 Amer. Rep. [528]*528791; Transfer Co. v. Kelly, 36 Ohio St. 86; 38 Amer. Rep. 558; Cuddy v. Horn, 46 Mich. 596; 41 Amer. Rep. 178; Brown v. N. Y. Cent. R. R. Co., 88 Amer. Dec., note, p. 359; 1 Shearman & Redfield on Negligence, 4th Ed. 66; Beach on Contrib. Negl., 111, 114; Campbell on Negl., 2d Ed. 185; 1 Smith’s Lead. Cases, 4th Ed. p. 220, note a.
Added to this vast array of authorities is the crowning fact, that the case of Thorogood v. Bryan has recently been expressly overruled by the English Court of Appeals, after having been weakened by constant criticism from the English bench and bar for more than thirty years. In the case of The Bernina, 12 Prob. Div. 58, decided as late as 1887, in an able and elaborate review of the authorities, both English and American, Lord Esher, the Master of Rolls, observes, that the court “can not see any principle on which it can be supported;” that “the preponderance of judicial and professional opinion in England is against it, and that the weight of judicial opinion in America is also against it.” “We are of opinion,” he concludes, “that the proposition in it [meaning the case of Thorogood v. Bryan, supra] is essentially unjust, and inconsistent with other propositions of law.” Lindley and Lopes (L. JJ.) concur in opinions fully discussing the subject, the former observing: “The doctrine of identification laid down in Thorogood v. Bryan is to me quite unintelligible. It is, in truth, a fictitious extension of the principles of agency; for to say that the driver of a public conveyance is the agent of the passengers, is to say that which is not true in fact. Such a doctrine, if made the basis of further reasoning, leads to results which are wholly untenable; e. g., to the result that the passengers would be liable for the negligence of the person driving them, which is obviously absurd, but which, of course, the court never meant.”
The doctrine of Thorogood v. Bryan, 8 C. B. 115, may now be considered as effectually exploded on both sides of the Atlantic. And the rule must be regarded as now fully settled, both in England and America, and certainly in this State, that the negligence of the driver of a vehicle can not be imputed to a passenger therein, when the passenger is free from personal negligence, and has no control over the driver, and has not been guilty’ of any want of care in his selection. The Circuit Court did not err in charging this to be the law, and in refusing to give the numerous charges asserting a contrary doctrine.
2. It is insisted, however, that the above rule has no [529]*529application, to this case. The reason for this contention is said to be, that the plaintiff, Mingea, and the driver o£ the hose-cart, Mullins, were in the common employment of the city of Birmingham as firemen, and were, at the time of the injury, engaged in a joint enterprise, and for this reason the contributory negligence of the one should be imputed to the other. There is a class of cases where such a principle is recognized, but we discover no evidence in the record which would justify the inference that this case falls within that class. Where several persons are engaged in a joint enterprise, so that each is mutually responsible for the acts of the other, and no one has any exclusive control of the vehicle or vessel in which all are travelling, the one in management may be regarded as the agent of the others; and in such cases the rule we have first above announced would have no application, that rule being based on the fact, that there is no relation of principal and agent between the driver of a vehicle and one who rides with him -without authority to control him in its management. — Beck v. E. R. Ferry Co., 6 Rob. 82; Robinson v. N. Y. Cent. R. R. Co., 23 Amer. Rep. 1, 3; Nesbit v. Town of Garner, 9 Amer. St. Rep. 486. The charges based on this contention were abstract, - not being supported by the evidence, and there was no error in refusing them.
3. It is not negligence per se, for - one who knows the dangerous condition of a highway to persist in travelling over it. He may lawfully proceed to do so, if the act, under the circumstances of the particular case, does not evince a want of ordinary care on his part. — City Council of Montgomery v. Wright, 72 Ala. 411; 47 Amer. Rep. 422; Henry County Turnpike Co. v. Jackson, 44 Amer. Rep. 274; note, p. 276; Town of Albin v. Hetrick, 46 Amer. Rep. 230; Thompson on Neg. 203. A fortiori does this principle apply to one who rides with another, and has no authority to control the team, or to dictate the route the vehicle should go. Whether the plaintiff, therefore, was negligent in not warning the driver as to the rate of speed he was going, or in not calling his attention to the defect in the highway,' if in fact he so failed to do, was a question of fact for the determination of the jury, and not a question of law to be decided by the court. It was properly submitted to the jury, and there was no error in refusing such of the defendant’s charges as sought to take away from them its decision by devolving this inquiry on the court.
[530]*5304 There is no evidence tending to show that the driver was not generally careful and competent for the discharge of his duties, or that the plaintiff had reason to believe him imprudent; and all charges based on this idea of any contributory negligence on the plaintiff’s part, were properly refused. In the absence of such evidence arising from the case made by the plaintiff, the onus was on the defendant to prove such contributory negligence.
5. The contract between the city of Birmingham and the defendant, dated April 24th, 1885, was admissible in evidence to show a license conferred by the city authorizing the construction of the dummy line, if not to show the understanding of the parties as to what was a proper state of repair in .which the track had to be kept. The rule is, that when a railroad company lays its track along a public street, it impliedly assumes the duty of keeping the part of the street so occupied in a reasonable state of repair for the safe passage of travellers over it. This implies the duty of keeping the track properly surfaced and ballasted, free from dangerous defects, and conformed to the grade of the street. And for a violation of these duties the defendant would be liable to travellers for injuries sustained in consequence. 1 Shearman & Redfield on Negligence, § 357. This is not a liability on the contract made with the city, but a liability for a tort, committed under the license of the contract, which has resulted in injury to another.
6. The action of the court was obviously unobjectionable in permitting the complaint to be amended, so as to more fully describe the nature of the negligence imputed to the defendant, as a failure to keep the road-bed of the railway in reasonably safe condition at the point of the accident.
7. The third count also added no new or independent cause of action. The introduction of the city ordinance in . this count was only the statement of a new logical premise, from which the conclusion of negligence would follow in failing to keep the track in a proper condition of repair for the free passage of vehicles. The failure to comply with a regulation imposed by a city ordinance on a railroad, and not shown to be unreasonable, is generally held to be per se culpable negligence. — South & North Ala. R. R. Co. v. Donovan, 84 Ala. 141. The third count, in other words, only stated a new reason for the fact of negligence previously alleged in the other counts.
We have particularly noticed as many of the assignments [531]*531of error as seem to us to be plausible. The others have been examined with proper care, and are deemed not to be well founded.
We discover no error in the rulings of the court, either on the evidence or the law, and the judgment must be affirmed.