Harlan F. Stone

“ It rests on the assumption that he is the more culpable whose opportunity to avoid the injury was later.
On the facts assumed by the Circuit Court of Appeals-that Merchant was driving the car reckleassly with respondent's encouragement or acquiescence-the respondent and Merchant were engaged in a common venture which, acting together, they were carrying on in a careless manner. In such a case their courses of conduct are not sufficiently independent to let it be said that either one or the other had in fact a later opportunity to avoid the consequences of their joint negligence. ”

“ The court considered this erroneous, saying:
'Though the plaintiff was negligent in the respect stated, if, as evidence adduced indicated, the defendant's employee was aware of such negligence in time to have avoided the injury by the use of reasonable care, and he failed to use such care, that failure might be found to be the sole proximate cause of the injury, and plaintiff's negligence be deemed a remote cause. Chunn v. City & Suburban Ry., 207 U.S. 302 (28 S.C.t. 63, 52 L. Ed. 219) . ”

“ There was evidence from which the jury could have found that the accident and injury were caused by the negligent operation of the motorcar by Merchant at a dangerously high rate of speed. There was also evidence from which it might have found that respondent contributed to his own injury either by urging Merchant to drive at excessive speed or by failing to object to Merchant's obvious negligence. ”