(BnrnpU Cam irlyonl ICibraty Cornell University Library KF 2209.B53 1921 The law of automobiles / 3 1924 019 379 894 ,_ P^^I'^■'^-■^^-;^^^-''\^., Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924019379894 THE LAW OF AUTOMOBILES By C. PfBERRY OF THE ST. LOUIS BAR THIRD EDITION CHICAGO CALLAGHAN AND COMPANY 1921 4?^^^^/ Copyright 1921 BY CALLAGHAN & COMPANY To & K. 1., JE. p. IS. and i. $. li. This book is lovingly dedicated. PREFACE The last edition of this work met with such kindly consideration from the profession that the publishers and author issue this edition with full assurance of its hearty approval by the practicing members of the profession, and take this opportunity of expressing to them their grateful appreciation for the reception accorded the former editions. As in the former editions, so in this, the effort has been to place in the hands of the lawyer a practical working tool. As the subject is not, strictly speaking, a division of the law, the work has been classified according to facts as well as law. Many of the chapters, therefore, are entitled according to the class of accidents which they treat. It has been necessary to divide some of the chapters of the second edition into several, owing to the material included in such chapters becoming so voluminous as to be unwieldy if con- fined to the old classification. As an instance of this, the old chapter treating of and entitled Injuries to Pedestrians, has been divided into three chapters entitled respectively. Injuries to Pedes- trians; Injuries to Persons Boarding or Alighting From Street Cars; Injuries to Children. There is in this edition a more specific classification or subdi- vision of the work into sections, making any given point more readily accessible to the searcher.' The great increase in the number of chapters and sections, and in the volume of the work generally, indicates the care which has been exercised to make this work exhaustive. New subjects which have arisen or which have been passed upon by the courts since the issuance of ihe last edition, have been fully treated. For an instance of this, see the chapter relating to Filling Stations. It is thought that in this edition the lawyer will find a more improved and serviceable work on the subject than any hereto- fore available. C. P. Berry. St. Louis, April, 1921. PREFACE TO SECOND EDITION The sole aim in compiling a work of this character is to show theiawyer, in the most practicable and accessible form, the appli- cation of the principles of law to the use and regulation of the automobile. As no new principles are created or involved, the work is justified only because it furnishes ready reference to cases wherein the law has been applied to facts peculiarly within the province of the automobile to create. This work has been arranged with this idea constantly in view, and in so far as it is practicable the arrangement follows a fact classification. For instance, the cases involving injuries have been grouped in chapters entitled and outlined according to the particuleir class of accident to which they belong. Each class is given a separate chapter. There is a chapter treating of injuries to pedestrians, and one concerning col- lisions with street cars; one about collisions with railroad trains, and a chapter treating of injuries due to horses taking fright, and so on, thirty chapters in all. In each chapter the general rights and duties of the parties are discussed, and all of the cases touch- ing the respective subject are reviewed, the facts in each fully set forth, together with the ruling of the court thereon. The citation of every automobile case appearing in this edition and not in the' first edition is followed by the year in which it was decided. It is hoped and thought that this work will prove highly service- able to the practitioner. C. P. Bekry. St. Louis, Mo., September, 1916. Vll TABLE OF CONTENTS CHAPTER I DEFINITIONS AND HISTORY § 1. Origin of term "automobile." § 2. Automobile variously defined. § 3. The term as used in this work. § 4. Automobile terms defined. § S. Statutory definitions of automobile. § 6. Automobile as stage coach. § 7. Motor-cycle defined. § 8. Early history of the automobile. § 9. Recent inventions and developments. § 10. Use of the automobile. § 11. Popularity and success of the automobile. § 12. History of the bicycle. CHAPTER II LEGAL STATUS § 13. Automobile is lawful conveyance. § 14. Automobile is not a nuisance. § IS. Automobile as dangerous per se. § 16. Same — Quotations from the courts. § 17. Not classed with ferocious animals. § 18. Ordinance relating to animals not applicable. § 19. Is included in statute relating to "teams, carts and carriages." § 20. Automobile is a vehicle. § 21. Automobile is a carriage. § 22. Decisions that the automobile is a carriage. § 23. Automobile held not to be a carriage. , ; § 24. Characteristics of the automobile. § 25. Tendency to frighten horgeg. § 26. Noises incident to operation. § 27. Judicial notice. § 28. Status of the bicycle. § 29. Same— Is a vehicle or carriage. § 30. Same — Held not to be a vehicle or carriage. ix X TABLE OF CONTENTS CHAPTER III STATE POLICE REGULATIONS §31. Police power described., i ' t § 32. Power of the state to regulate use of property. §33. Limitation of police 'power. § 34. Power of state to regulate use of automobiles. § 35. Power to exclude automobiles from- highways. § 36. Repeal of law by implication in regulation of automobiles. §37. Necessity for regulation. § 36. -Necessity for uniform regulation. § 39. Regulation of speed. § 40. Construction of penal statutes regulating automobiles. § 41. Effect of partial invalidity of statute regulating automobiles. § 42. One subject to be expressed in the title. § 43. Automobile regulations as class legislation. § 44. Exempting automobiles kept in stock. § 45. Registration and display of number— Purpose. § 46. Same — Constitutionality of the law. § 47. Same— Taking of property. § 48. Same — Personal liberty. § 49. Same — ^Meaning of "due process of law'' or "law of the land." § 50. Same — Privileges and immunities of citizens. § 51. Discrimination between residents and nonresidents. § 52- Discrimination against nonresidents. § 53. Discrimination between nonresidents. § 54. Requiring motorist to stop on signal from driver of horse. § 55. Crime to have possession of automobile with manufacturer's number removed. § 56. Taxing automobile agents and dealers. § 57. RequiHng driver or owner to give name, address, and assistance in case of accident. ' § 58. Making owner liable for all injuries done by automobile except when stolen. § 59. Making claim for damages caused by automobile lien thereon. § 60. Making owner liable when automobile operated with his consent. § 61. Taking automobile without owner's consent made a crime. § 62. Providing for service of process on owner in any country. § 63. Requiring nonresident owner to appoint agent on whom process may be served. CHAPTER IV MUNICIPAL OR tOCAL POLICE REGULATIONS § 64. Police power of municipal corporations. § 65. Power to regulate the use of streets. § 66. Ordinance regulating automobiles "within the city limits." § 67. Power to regulate the speed of automobiles. § 68. Giving right of way to certain vehicles. TABLE OF CONTENTS xi § 69. Failure to place signs'as required. § 70. Ordinance forbidding crossing of streets except at designated crossings, inoperative until designation made. § 71. Power to require ligtts on automobiles. § 72. Forbidding escape of smoke, gas, etc. § 73. Requiring automobiles to pass to right of street cars. § 74. Requiring motorist to stop at rear of street cars. § 75. Requiring fenders on motor trucks. § 76. Ordinance requiring obedience to police officers invalid. § 77. Forbidding riding on motorcycle in front of driver. § 78. Regulating parking of automobiles. § 79. Registration of automobiles and display of number. §80. Enjoining enforcement of ordinance requiring registration. § 81. Construction of charter powers. § 82. Police ordinances. § 83. Construction of ordinances. § 84. Construction of ordinances passed under express power. §85. Construction of ordinances passed under implied power. § 86. Construction of penal ordinances. § 87. Discrimination — ^Class legislation. § 88. Distinction between "regulate" and "prohibit." § 89. Title of ordinances. § 90. Ordinance void in part. § 91. Conflict of ordinance with state statute. § 92. Same — Illustrations. § 93. Same — Forbidding municipalities to deny free use of streets. § 94. Same act may be offense against state law and ordinance. CHAPTER V STATE LICENSE LAWS § 95. License defined. § 96. Distinction between "license fee," "license tax," and "tax." § 97. Power of state to license automobiles. § 98. Power to impose privilege tax. § 99. Purpose of license. i § 100. License is personal. § 101. License may be revoked. § 102. License fee must be reasonable. § 103. Fixing the amount of the fee. § 104. Revenue incidentally derived from license. § 105. Disposition of license fee.' § 106. License fee not a tax on automobiles. § 107. Equality and uniformity of taxation. § 108. Excise, privilege, or license tax. § 109. Double taxation. § 110. Statute as both police and revenue measure. xH TABLE OF CONIENTS § 111. License tax as to persons in interstate commerce. § 112. Local or. special. law. '•' , ; ./.> ;: ' § 113. Classification for purpose of license or tax. §114. Classification according to horse power. § 115. Annual lump sum tax. ; § 116. Exempting automobiles from taaatibn. § 117. County license — Necessary in every county. § 118. False representations in application for license. r. § 119. Mandamus to compel issiiance of license. . ., i! -,. § 120. Verified copy of application ' for license as evidence.. CHAPTER yi MUNICIPAL OR LOCAL' LICENSE LAWS .u 1 , .'..n I, ■ § 121. Power of municipal corporation to impose license. § 122. Construction of riower to license and tax. § 123. Distinction between power to license and power to tax. § 124. Power to license does not imply power to tax. § 125. Power to regulate includes power to license. § 126. Power to license and regulate impljes power to .charge license fee. § 127. Amount of license fee. §128. Same — Illustrations. - ^ . § 129. Same — All licenses expiring at samp time. § 130. Power to license or regulate does not imply power to prohibit. § 131. Licensee fee not a tax on automobiles. § 132. License from both state and city. § 133. Exempting automobiles from,municip4]f license and tax. § 134. Uniform rate of taxation. §135. Classification of subjects of license. §136. Unreasonable searches an4vse¥UT6Si'/) >; ; , i i .' i, S 137. Scope of phrase "Transporting persons or property." CHAPTER VH FEDERAL LAWS AFFECTING THE AUTOM06tLE § 138. Federal control of automobiles. § 139. Automobile in use by man in naval service duringiwar, - .. §140. Automobiles in United States mail service. ,. . ', .: ■ § 141. Cust6ms duties on automobiles. § 142. Automobiles carrying gasoline on passenger vessels. §143. Automobile used in fraudulent evasion ::Qf ;Federali tax. §144. Automobiles in interstate commerce. ,. .,; .. : . § 145. Taxihg automobiles used in interstate commerce. § 146. Automobiles operating between. tWQjStitesi, , ■^ABLE OF CONTENTS xiii CHAPTER VHI RIGHTS AND DUTIES ON THE HIGHWAYS GENERALLY § 147. Right of motorist tq use highways. § 148. Use of automobile not negligence per se. - § 149. Unreasonable use of highway. ' § ISO. Care required of operator. § ISl. Same — Commensurate with dangers of vehicle and , surroundings, i § 1S2. Care dependent upon condition of , automobile, § 153. Higher degree of care, imposed by statute. § 154. Care required of motorist for his own safetjf, §155. Statute creating only criminal liability ,f or violation, , § 156. Must observe statutory requirements. § 157. Inexperience as affecting liability. § 158. Liability of occupants of automobile for injury to another. § 159. Evidence of want of care. § 160. Presumption as to skill of operator, § 161. Intoxicated driver. § 162. Duty as to brakes. § 163. "Two independent brakes." § 164. On private land by invitation. § 165. Negligent speed. § 166. Same — Under statute tnaking specified rate prima facie evidence of n^g^gence, § 167. Same— Introduction of hospital quiet zone signs as evidence of. § 168. Same — Unable to stop within distance objects are yisible. § 169. Same — Application of speed regulations to Fire Department. Vehicles. . , § 170. Speed greater than is reasonable, etc. § 171. Speed that endangers life, limb or, property. § 172. Speed in approaching a descent-^Statutory provision, § 173. Racing in highways. § 174. Coasting as negligence. § 175. Laws regulating traction engines not applicable to automobiles. § 176. Duty to have lights qn automobiles at night.. ^ § 177. Driving without lights at night as negligence! §178. To create liability absence of lights, must proximately cause injury. § 179. Lights required on automobile "Operated or Driven." § 180. Lights to show in direction in which vehicle is prbceedirig— Standing Automo- bile. § 181. Lights required on "Front" of automobile. § 182. Judicial notice of time of sunset. § 183. Rain collecting on windshield — '"Obstruction."' § 184. Requiring automobiles to stop in rear'df street carsi ' § 185. Duty to sound warning of approach. § 186. Same — When warning would be unavailing. § 187. "Signal upon approaching, and upon -crossing." § 188. Testimony concerning giving of warning signal. ' § 189. Towing truck without brakes on slippery street. § 190. General r%hts and duties at street intersections.' § 191. Same — Vehicles having right of way. § 192. Turning at street intersections — Cutting corners. xiv TABLE OF CONTENTS § 193. Care in turning corners and at curves. § 194. Turning corner wliere view is, obscured. § 195. Statute regulating speed in approaching or traversing an intersepting way con- ^ strued. ' § 196. May assume others will exercise due care. § 197. Violation of statute or ordinance as negligence. § 198. Same — Must be proximate cause of injury to create liability. § 199. Imminent peril. / § 200. Proximate cause of injury. § 201. Last clear chance doctrine. §202. Same — Doctrine of discovered peril. § 203. Same — Under statute imposing high degree of care. § 204. Same — Doctrine explained. , § 205. Application of Res Ipsa Loquitur. § 206. Same — Automobile starting of own accord. § 207. Rebuttal of res ipsa loquitur by defendant's evidence. § 208. Statute or ordinance enacted tor particular purpose. § 269. Liability of joint tort feasors. § 210. Liability of persons whose independent acts concur in causing injury. §211. Rights and duties of incapaciated persons. § 212. Insane persons. * ^ § 213. Deaf persons. § 214. Persons with defective sight. §215. Blind persons. § 216. Intoxicated persons. § 217. Verdict as warning to other operators or as protection to other travelers. § 218. Skidding automobiles. § 219. Same^Striking lamp standard. § 220. Same — Evidence of negligence. § 221. Collision with telephone pole in highway. § 222. Leaving automobile unattended in highway. § 223. Same — Started by gravity. § 224. Same — ^Leaving automobile on car track. § 22s. Backing automobile. § 226. Man under automobile injured by another car colliding therewith. LAW OF THE ROAD § 227. General consideration. § 228. Highway defined. § 229. Turnpike defined. § 230. Use of the highway. § 231. Use of automobiles on the highways. § 232. Right of automobiles on turnpikes. § 233. Right-of-way on highways. § 234. Duty to turn to right. § 235. Driving on wrong side of highways. § 236. Same — Backing northerly on west side to park car. § 237. Same — Creates civil liability only when cause of injury. ' § 238. Traveler may justify driving on wrong side; ^ § 239. When not meeting other vehicles. § 240. Forced to leave roadway by negligence of other driver — Emergency. ' TABLE OF CONTENTS xv § 241. Vehicles passing in same direction, §,242. Same — Rule does not apply to automobiles passing street cars. " § 243. Turning around in street. § 244. Vehicles having right-of-way by law. § 24S. Regulation of traffic by police officers. CHAPTER IX REGISTRATION AND LICENSING— FAILURE TO COMPLY WITH LAW. § 246. Effect on rights of parties of operating unregistered automobile. § 247. Same — Contrary view. § 248. Same— Distinction between right when injured by another traveler and when injured by defective highway. §249. Same — ^Burden of proof. ., '§ 2S0. Permitting use of unregistered automobile. § 251. Dealer's number on automobile operated by private owner. § 2S2. Automobile operated for pleasure under, dealer's registration. § 2S3. Effect on registration of death of owner. v § 254. Failure to remove registration tags when car is sold. §255. "Owner" or "custodian" to register automobile. . § 256. "Operating" automobile under false registration. § 257. Registration in name of fictitious partnership or firm name. § 258. Registration in name of one of two joint owners. § 259. Term of exemption for nonresidents. § 260, Operating automobile without license.- .,. §261. License to operate does not authorize carrying , passengers for hire— Effect of violation of law. § 262. Failure of applicant for license to disclose infirmity. § 263. License provision as to nonresidents not applicable to - foreign corporation,, when. § 264. Employing unlicensed chauffeur. § 265. Unlicensed person accompanied by licensed operator. § 266. Helper on truck, cranking engine, not an operator. § 267. Automobile owned by corporation or partnership. CHAPTER X REGULATORY TERMS DEFINED ! 268. "Paved street." (269. "The road." (270. "Curb." (271. "Meeting" on highway. [272. "As near the right-hand curb as possible." i 273. "As close as practicable to the right curb.", (274. "Slowly moving vehicles.",. i 275. "Traffic." xvi TABLE OF' CONTENTS § 276. "Intersecting highways." § 277. "Vigilant watch."!: ," ■' § 278. "Ride or drive." § 279. "Absolute control at all times." § 280. Meaning of "steam" as applied to automobiles by statute. § 281. "Average rate of speed." § 282. "Business portion." § 283. "Approaching." § 284. "Approaching a high embankment." § 28^. "Uniform rulfs," § 286. "Traveler." CHAPTER XI INJURIES TO PEDESTRIANS § 287-. Mutual rights and duties generally. §288. Each must anticijjate use of highWaijf by the othier. § 289. Duty of 'operator generally. §290. Same — At crossings. § 291. Diverting automobile to front or rear of ' pedestriahi § 292. Compelling pedestrian to yield way. § 293. Duty of pedestrian generally. § 294. Duty to look and listen for automobile. § 29S. Stop, look and listen rules does not apply. § 296. Need not continuously look and listen. §297. Duty tb look to the rear. § 298. Care required not the same as when crossing street car or railroad tracks. § 299. May assume motorist will exercise 'due cafe. §300. May use any p'airt of highway. ' ' ' ' §301. When ordiilance or statute gives vehicles right of way between ' ci-oSsings. § 302 . Pedestrians required by statute to cross at crossings. §303. Pedestrians having I'ight of way at crossings. §304. Duty of mere licensee. §305. Last clear chance doctrine. § 306. Same — ^Illustrations. , § 307. Evidence of probable conduct of pedestrian when confronted with danger. SPECIFIC ACTS OR OMISSIONS ' § 308. Overtaking and colliding with' pedestrian'. § 309. Same — Overloaded machine — dark night — slippery road— high speed. § 310. Same — Pedestrian in charge of animals. §311. Leading horses into street from yard. §312. Automobile not seen by pedestrian. § 313. Same — ^In village street. §314. Neither seen by the other. § 31S. Pedestrian emerging from in front of team. §316. Pedestrian emerging from close in front of street car. § 317. Pedestrian emerging from behind vehicle in middle of Mock. TABLE OF CONTENTS xvii §318. Emerging from behind crowd in middle of block, § 319. View of both Obscured by team. § 320. Automobile obscured by wagon. §321. Automobile obscured by street car. § 322. Automobile turning suddenly around street car. § 323. Driving past standing street car — Pedestrian crossing in front of car. § 324. Automobile, zigzagging, obscured by standing vehicle. §32S. Pedestrian emerging from behind wagon — Automobile ' on wrong side. § 326. Driving between curb and row of parked automobiles. § 327. Carrying umbrella in rain — Not seen by motorist. , § 328. Automobile on wrong side on dark, rainy right-r-Pedestrian carrying um- brella. I §329. Pedestrian not seen by driver on rainy night — ^Highspeed, §330. Pedestrian becoming confused or excited on approach of automobile. § 331. Falling from fright at automobile approaching without warning.. §332. Automobile swerving — ^Pedestrian moving back and forth to avoid it. § 333. Stepping back from place of safety in front of automobile. §334. Alighting backwards from standing truck. §335. Alighting from truck in country road and crossing in front of automobile. § 336. Stepping back from approaching automobile in front of street car. ■ § 337. Pedestrian walking in roadway between crossings. § 338. Same-;-Falling on ice in avoiding machine. § 339. Walking in street to avoid material left by contractor — ^Liability of latter; § 34O4 Crossing diagonally carrying sack of grain. § 341. Driver carrying armful of pies, crossing street from rear of wagon. § 342. Walking close in front of automobile. § 343. Crossing congested street. § 344. Crossing street after seeing automobile. §345. Pedestrian having seen automobile — Res ipsa loquitur. § 346. Pedestrian standing in street. § 347. Pedestrian waiting in street for street car to pass. § 348. Elderly woman struck near curb while stooping overj § 349. Pedestrian crossing roadway of bridge. § 350. Struck on driveway to public building. § 3S1. Struck while sitting on bridge approach railing. § 352. Woman lying prostrate in street. § 353. Tripping over towing rope. § 354. Pedestrian crossing in plain view. § 355. Pedestrian on crosswalk in view. § 356. Automobile 450 feet distant when pedefetirlan started to cross street. § 357. Excessive speed of automobile. § 358. Striking pedestrian at high speed in daylight. , § 359. Failure to give warning or slacken speed. § 360. Struck by automobile turning or just after turning Corner. §361. Struck on crosswalk from rear by automobile turning corner. § 362. Motorist disregarding signal of traffic officer — ^Duty of pedestrian. § 363. Skidding automobiles— Due to excessive speed. §364. Same-^Turning corner. § 365. Same — Tbrning from wet car track. § 366. Same — Turning quickly in emergency. § 367. Same — Due to collision of automobiles. xviii TABLE OF CONTENTS § 368. Slippery, crowded street. " § 369. Automobile running onto sidewalk — ^Res ipsa loquitur. § 370. Fire automobile forced onto sidewalk by negligence of street car motorman § 371. Struck on sidewalk by overhang of truck. § 372. Struck on sidewalk by overhanging tire. § 373. Struck by locking ring from passing automobile. § 374. Automobile running without lights. § 37S. Approaching crossing at high speed and without lights.. § 376. Both pedestrian and motorist blinded by street car headlight. § 377. Struck by backing automobile. § 378. Truck backing without warning on wrong side of street. § 379. Struck on sidewalk by machine backed out of yard. §380. Failure to look for backing automobile. §381. Cutting corner. . §382. Automobile starting i when cranked. . §383. Automobile deflected against pedestrian by collision with standing automo- bile. § 384. Attempting to pass in rear of pedestrian. § 385t Automobile diangihg course towards pedestrian. ; § 386. Automobile speeding to cross in front of team. § 387. Automobile moving out of driveway between buildings. § 388. Automobile turning rapidly into alley. § 389. Inexperienced operator. § 390. Iron bars extending from rear striking pedestrian in making turn. § 391. Street car employees struck while in street. §392. Motorist blinded by light— Injury to street car conductor adjusting trolley. §393. Spectator at race injured by automobile leaving course. § 394. Same — Spectator as a trespasser. § 39S. Officer employed at races struck by machine which left tracks. § 396. Pedestrian crossing race track at fair. § 397. Motorist struck while stopped in highway putting up top. § 398. Struck while placing tire in tire holder on rear of car. § 399. Pedestrian intoxicated. , § 400. Matters properly shown in defense. CHAPTER XII INJURIES TO PERSONS BOARDING OR ALIGHTING FROM^ STREET CARS § 401. General duty of motorist. §402. Rights and duties generally of pedestrians. § 403. Driving past street car stopped to take on or let off passengers. § 404. Transferring from one car to another during rush hour. AIvTGHTINr, P.VSSENC.P^KS § 40S. Failure to look for approaching automobile. § 406. Struck by automobile before seeing it. § 407. Officer stepping from front end of car. § 408. In act of stepping from car. TABLE OF CONTENTS xix 5 409. Struck just after alighting. § 410. Crossing in front of car to left sidewalk. 5 411. Struck within safety zone. }412. Jumping from moving car. § 413. Accident at regular stopping place not at street crossing. \ 414. Automobile following car and passing same when stopped. PERSONS ABOUT TO BOARD CARS ] 41S. Waiting at crossing for car. 1416. Same — ^Alitomobile on wrong side of street. ! 417. Starting on wrong side of street and striking pedestrian as she steps from curb. ! 418. Failure to look after leaving curb. 5 419. Struck just before boarding car. j 420. Turning back on approach of automobile which unlawfully passes car. 5 421. Driving over crosswalk between interurban car and person intending to board car. CHAPTER XIII INJURIES TO CHILDREN § 422. Care required of motorist for safety of children. § 423. Rights and duties of children. § 424. Aged motorist with defective sight and hearing. § 425. Minor driving car in violation of law — Effect on right to recover for injury. § 426. Attempting to deflect car around child. ' § 427. Depending on child heeding signal of approach. § 428. Child starting unattended truck, injuring playmate. § 429. Driving through crowd of children. § 430. Striking one of a group of children in plain view. §431. Excessive spepd of automobile. § 432. Automobile backing without warning. § 433. Steering gear failing to work. § 434. Automobile skidding onto sidewalk. §435. Automobile turned to left to avoid other vehicle. § 436. Automobile on wrong side of street. § 437. Both automobile and child starting after having stopped. § 438. Parent permitting child to cross in front of automobile. § 439. Child pulling away from mother in sudden peril. § 440. Neither seeh by the other. § 441. Struck on sidewalk at private driveway. § 442. Child struck near curb — ^Not seen by chauffeur. § 443. Roller skating into collision with automobile. § 444. Roller skater holding to automobile in violation of law. § 445. Rolling hoop in street. § 446. Children coasting in street. § 447. Coasting into rear wheel of motor truck. § 448. Boys playing football in street. 8 449. Walking in front of jtutomobile without seeing it. XX TABLE , OF CONTENTS § 450. Chad going into street close in front of automobile. § 4S1. Boy walking into course of automobile turning towards curb after passing wagon. § 4S2. Walking into street following crowd. ' § 453. Running into street in play. § 454. Boy^running in street overtaken by automobile. § 455. Boy turning back after running into street. § 456. Running from children. § 457. Running from sidewalk after ball. § 458. Playing in highway — Struck by truck approaching from the front. § 459. Running suddenly into street at night. §460. Running suddenly onto driveway of' bridge. § 461. Running against side of automobile. § 462. Automobile turning towards same side of street boy running to, striking him near curb. § 463. Failure of boys on crossing to look, for automobile. § 464. Running from behind street car. § 465. Boy emerging from behind wagon. § 466. Driving past street car — Child emerging from behind telegraph pole. § 467. Running from in front of horses — ^Automobile passing other vehicle. §468. Driving around another vehicle — Failure to see child. § 469. Crossing street in middle of block near other children. § 470. Crossing street at school yard gate. ' § 471. Newsboy in plain view — ^Last clear chance. § 472. Newsboy running in front of automobile. §473. Struck after jumping from wagon. .' § 474. Saine — Bundle delivery boy. § 475. Same — At regular crossing. § 476. Same — From rear of wagon. § 477. Same — ^Moving wagon. § 478. Same — ^Automobile on left side of street. § 479. Driving behind vehicle on rear of which children are riding. § 480. Boy riding in small wagon attached to and trailing behind wagon. § 481. Child climbing on and playing about automobile. § 482. Child climbing on running board.- § 483. Starting while child on running board. § 484. Boy permitted to ride on running board. § 485. Child found injured in street — Res ipsa loyuitur. CHAPTER XIV INJURIES TO PERSONS EMPLOYED IN STREETS § 486. General rights and duties of persons employed in the streets. §487. Prima facie case. § 488. Laborer relying on warning being given. § 480. Street paver struck. § 490. Street swfieper struck from rear. § 491. Street sweeper struck by backing automobile. § 492. Employee sweeping snow from car track. TABLE OF CONTENTS xxi § 493. Laborer working at night. § 494. Police officer struck "By automobile on wrong side of street. § 49S. Traffic officer colliding with obstruction while exceeding sp^Sd limit. § 496. Street car employee <;rossing street from car. § 497. Taking wood from pile at night without displaying light. § 498. Worker on floor of private subway used by automobiles. § 499. Telephone employee working at manhole at night without a red light as required by ordinance. CHAPTER XV INJURIES TD OCCUPANT OTHER THAN DRIVER § SOO. Negligence of operator not attributable to occupant. § SOI. The rule in Michigan and Wisconsin. § S02. As between members of family. § 503. Husband and wife riding in community property automobile. § S04. As between co-employees. § SOS. As between members of fire department. § S06. As between policemen and automobile patrol chauffeur. § S07. As between nurse and driver of ambulance. § SOS. As between dealer's chauffeur and prospective purchaser. § S09. Presumption when passenger is killed. § SIO. Operator and occupant as fellow servants. § Sll. Rules of the road as applicable. § S12. Occupant having right of control of automobile. § S13. Speed statute not applicable to guest. ^ § S14. Joint or common enterprise. § SIS. Same — Illustrations. § S16. Same — Co-employees. § S17. Same — Operator and invited guest. § S18. Same — Guest suggesting ride and directing course to take. § S19. Same — ^Policeman and patrol driver — ^Fireman and driver. § S20. Care required of occupant. § S21. Same — Intoxicated occupant. § S22. Occupant not required to take same precautions as driver. § S23. Occupant inactive in presence of danger. § S24. Failure to look for danger. § 52S. Riding with back towards danger. § S26. Failure to direct or warn driver or to alight. § 527. Failure to protest against negligence. § 528. Passenger injured by overturning of automobile due to striking dog. § 529. Collisions with street cars. § 530. Same — Automobile stalled on track. § 531. Same — Captain of fire department with control over driver. § 532. Riding on running board of truck, struck by rear of street car rounding curve. § S33. Collisions with railroad trains — Duty of occupailt. § S34i Same — Occupant in rear seat. § 535. Same — Father watching son drive. § 536. Same — Crossing bell ringing. xxii TABLE OF CONTENTS § S37. Same — Illustrations. § S38. Jumping from automobile on approach of train which gives no crossing signal. § S39. Riding with intoxicated or negligent driver. § S40. Same — Occupant and driver drinking together. § 541. Riding in automobile without proper lights. § S42. Overloaded automobile. § 543. Participation or acquiescence in driver's negligence. § 544. Statute imputing negligence of operator to gratuitous passenger vojd. § 545. Liability of operator or owner to guest for negligence. § 546. Same. § 547. Same — Driving into open canal. § 548. Same — Guest invited by servant of owner. § 549. Guest injured by skidding of automobile — Res ipsa loquitur. § 550. Passenger jumping from automobile while in motion. § 551. Duty and liability to person requesting ride. CHAPTER XVI FRIGHTENING HORSES § 552. Duty generally of opej-ator. § 553. Samfe — ^Illustrative cases.' ' § 554. Failure to stop after horse frightened. § 555. Duty to stop engine as well as automobile. § S56. Engine running while automobile stopped at the side of road. § 557. Emission of vapor or steam near horses. § 558. Excessive speed. § 559. Speed greater than reasonable and proper, etc. § 560. Overtaking and passing horsedrawn vehicles. § 561. Driving close, to team. § S62. Automobile on wrong side, continuing near horse. § 563. Automobile on wrong side — Curtaiins flapping. § 564. Stopping close to team. § 565. Sudden appearance of automobile without warning. § 566. Loose horses .driven in highway. § 567. Assisting to get horse past automobile. § 568. Horse taking fright second time(, after Automobile has departed. § 569. "Whenever it shall appear." ' § 570. Failure to stop as required by statute. § 571. Duty of driver of horses. § 572. Driving horses known to be afraid of automobiles. § 573. Driving team by standing automobile. § 574. Injured by holding to frightened horse. § 575. Evidence of other team having been frightened by same automobile. NOISE § 576. General duty of operator as to noise made by automobile. § 577. Reckless sounding of horn. ' § 578. Overtaking and passing other vehicle. TABLE OF CONTENTS xxiii i S79. Cranking automobile near team. J S80. "Chugging" of automobile in passing team. ! S81. Failure to take precautions after frightening team — Last clear chance. ) S82. Evidence as to noise of automobile. SIGNAL BY DRIVER OF HORSES TO OPERATOR OF AUTOI(IOBII,E ! 583. Signal by person other than driver. f S84. Calling to operator. ! S8S. Duty of operator upon signal. i S86. Duty of operator when no signal given. i 587. Stopping on signal and moving forward when necessary. CHAPTER XVII COLLISIONS WITH STREET CARS § 588. Mutual obligations of motorist and street car motorman. § 589. Duty of street car motorman. § 590. Same — ^Instruction. § 591. Duty of automobile operator. § 592. Duty under stop, look and listen rule. § 593. Same — Where view is obstructed. § 594. At what distance from track motorist should look. § 595. Street car having right of way at crossing. § 596. May assume that street car will be operated with due care. § 597. Stopping of street car as invitation to motorist to cross. , § 598. Street cars operated on private right of way. § 599. Liability of street railway company for injury to passenger struck by auto- mobile. § 600. Duty "of employees not in charge of street car. § 601. Law of road not applicable. § 602. Automobile stalled on track — ^Mutual obligations. § 603. Same — At bottom of grade at night. § 604. Neither driver nor motorman attempting to stop. § 605. Taxicab running against street car — Failure to sound goiig on latter. § 606. Salvage corps automobile- — ^Injury to employee. § 607. Fir^ apparatus having right of way. ACT OR OMISSION OF MOTORIST § 608. Duty of motorist to look to the rear for street cars. § 609. Ignorant of tracks — Car in view. § 610. Excessive speed — Unable to stop after seeing car. § 611. Driving against moving car. § 612. Turning automobile so as to receive glancing blow. § 613. Vision of sprinkling truck driver obscured by tank. § 614. Turning suddenly from one track onto another. § 615. Turning suddenly while paralleling track. §616. Turning from behind one car in front of another on parallel track. § 617. Turning onto opposite-bound track on bridge in cloud of smoke. § 618. Crossing behind standing car in front of another on parallel track. xxiv TABLE OF CONTENTS § 619. Turning around other vehicles and coUiding head-on with car. §, 620. Driving onto track after seeing car. § 621. Driving slowly across track without looking. § 622. Failure to see car in sight. §623. Struck by car following close behind another. , § 624. Motorist having right of way failing to see car until near him. § 62S. Continuing on track after seeing approaching car. § 626. Driver continuing across when car reduces speed. § 627. Failure to look after passing obstruction. § 628. Driving on track close in front of cai:. § 629. Turning onto track in front of car. § 630. Car coming from opposite direction than expected. ^ §631. Turning onto track without signalling, after passing car. § 632. Automobile required by another vehicle to stop on track at street crossing. § 633. Stopping automobile on track without looking for car. § 634. Backing onto track. § 63S. Driving out of garage in front of car. § 636. Driving in front of lighted car at night. § 637. Driving against street car. § 638. Unable to turn off track on account of snow. , § 639. Meeting car in snow storm. § 640. Driving onto private right of way in center of street at night. § 641. Driving on track to avoid vehicles in street. §642. Driving onto track to pass vehicle aheadi '' § 643. Conductor on running board struck by automobile. § 644. Automobile colliding with passenger riding on bumper of street car. § 64S. Steering gear of automobile breaking. § 646. Following and colliding with car. § 647. Stopping close to_ track. § 648. Struck by overhang of street car rounding curve. § 649. Motorcyclist struck by trailer. § 6S0. Statutory presumption that collision was due to car company's negligence. ACT OR OMISSION OF STREEl' CAR OPERATIVES §651. Street car running j)n dark night without lights. § 6S2. Failure to sound warning signal. §'653. Car backing onto Y. § 654. Street car overtaking and colliding with automobile. § 655. Trolley pole breaking and falling on automobile. § 656. Automobile seen 100 feet distant. § 657. Street car leaving track — Res ipsa loquitur. § 658. Excessive speed of car. § 659. Excessive speed of car at crossing. § 660. Same — Automobile reducing speed on track. § 661. High speed — Mistake in^judgment by motorman. § 662. High speed — ^No signal. § 663. Same — Rainy night. § 664. High speed — View partly obscured by another car. § 665. Motorman signalling motorist to cross, then starting car. § 666. Motorman signalling motorist to cross — Struck by another car. TABLE OF CONTENTS xxv § 667. Street car at high .speed striking slowly moving truck, visible for long distance. § 668. Excessive speed not essential to wantonness. § 669. Motorman unable to stop within limit of his vision. LAST CLEAR CHANCE DOCTRINE § 670. Generally — Illustrations. § 671. Instructions to jury. § 672. Instruction under vigilant watch ordinance. § 673. Concurring negligence. § 674. No apparent danger until too late to stop street car. § 675. Stopping on track. § 676. Car and automobile meeting. § 677. Stopping truck near track after passing car. § 678. Engine "kiUed" on track.. § 679. Turning slowly onto track. § 680. Looking back while driving across track. § 681. Automobile in view several hundred feet. CHAPTER XVIII COLLISIONS WITH RAILROAD TRAINS § 682. Duty of motorist approaching r|ilroad crossing. § 683. Relying on exercise of due care by railroad company. § 684. Evidence as to signals having been given. § 68S. Duty to stop as well as look and listen. § 686. Duty to look and listen. § 687. Time and place motorist should look and listen. § 688. Looking in only one direction. § 689. Duty to continuously look until out of danger zone. § 690. Motorist presunied to see that which he can see by looking. § 691. Private crossings. § 692. Duty of motorist where there are more than one track — Train moving in; opposite direction from customary travel. § 693. Where view or sound is obstructed. § 694. Same-4llustrative cases. § 69S. "View obscured" defined. § 696. View obscured by rain and snow. '§ 697. Noise of automobile and wind. § 698. Sun shining in operator's face. § 699. Struck after having stopped, looked, and listened. § 700. Collision between railroad motor car and automobile. § 701. Poles and wires as warning of railroad. ACT OR OMISSION OF MOTORIST § 702. Driving against standing train at night. § 703. Driving against moving freight train at night. § 704. Colliding with flat car attached to interurban car. xxvi TABLE OF CONTENTS § 70S. Colliding with side of train unlawfully blocking crossing — Slippery road. § 706. Motorist looking to rear. § 707. Motorist employee of railroad company with knowledge of train time and in sight of semaphore. § 708. Approaching crossing, obstructed by workmen, on down grade, in fog, with- out stopping. § 709. Exceeding speed ,limit. , § 710. Backing onto track— Last clear chance. § 711. Disregarding flagman's signals. § 712. Struck by train that could have been seen. ' § 713, Heedless of train in plain view. § 714. Same — Last clear chance doctrine. § 71S. Driving on track at night without looking. § 716. Driving on track soon after passing of train. § 717. Same — Struck by train moving in opposite direction. §■ 718. Failure to look for train approaching at excessive speed. § 719. Struck, after stopping and listening, by car on far track obscured from view. § 720. Crossing after seeing approaching train. § 721. Driving on track without looking after signal from track man. § 722. JFailure to look until too late] § 723. Looking where view is limited without again looking. § 724. Looking when SO feet from track — Struck by railroad motor car. , § 72S. Both railroad and public road in deep cuts. § 726. Automobile stalled on track. § 727. Trusting to momentum to carry automobile across track. § 728. Motorist wrapped in robe and in inclosed machine. § 729. Attempting to cross in front of car. § 739. Driver and occupants unaware of railroad.. § 731. Leaving automobile too near track — Unlawful speed of train. § 732. Stopping automobile too near track — Last clear 'chance. § 733. Crossing track at place other than crossing. § 734. Relying on speed ordinance. § 73S. Relying on statute passed for particular purpose. § 736. Intoxicated motorist. / ACT OR OMISSION OF RAIIvROAD COMPANY § 737. Duty of trainmen at crossings. § 738. Same — Illustrations. § 739. Private crossings. § 740. Engineer may assume that motorist will take usual precautions. § 741. Rate of speed as negligence. § 742. Duty of trainman stationed on rear of backing train. § 743. Failure to sound crossing signals. § 744. Same — ^Illustrative cases. § 74S. Same — Causal connection supplied by statute. § 746. Same-r— Motorist becoming confused. § 747. Same — ^Where driver's view of crossing obscured — ^Excessive speed: § 748. Same — As to driver who sees approaching train. § 749. Train near crossing suddenly backing. § 7S0. Backing train without proper lookouts or signals. TABLE OF CONTENTS xxvii § 7S1. Same — Automobile stopped on track in emergency. § 7S2. Engine baddng at night without lights indicating direction of movement. § 7S3. No headlight at night and no signals. § 7S4. Failure to stop after seeing automobile stalled on track. § 7SS. "Kicking back" or "flying switches." § 7S6. Same — iContributory negligence. § 7S7. Duty of crossing flagman. § 7S8. Duty of crossing flagman when automobile stalls on track. § 7S9. Failure to station flagman at crossing. § 760. Absence of customary flagman. § 761. Signaled to cross by watchman. § 762. Flagman raising gates or signalling autoist to cross. § 763. Failure of flagman to signal.' § 764. Stopping on track in obedience to flagman. § 76S. Trainman signalling autoist to cross". § 766. Crossing gates up. , § 767. Same — Colliding with cars standing on crossing. § 768. Gates lowered on automobile. § 769. Colliding, with gates lowered in front of automobile. § 770. Crossing gates down — Insufficient light. § 771. Crossing bell silent. § 772. Leaving box car in street with door and bar projecting. § 773. Car moving south on northbound track — Stating cause of action. § 774. Injury due to defective crossing. § 775. Sufficiency of crossing. § 776. Unnecessary obstructions to view on right of way. § 777. Failure of company to remove obstruction in compliance with order of service commission. § 778. Box car projecting into street — No signals. § 779. Box cars near crossing — Excessive speed. § 780. Last clear chance cases. § 781. Discovered peril cases. § 782. Res ipsa loquitur applied. CHAPTER XIX COLLISIONS BETWEEN AUTOMOBILES I 783 i Turning to left on meeting. ! 784. Unable to turn to right out of rut. [ 78S. Automobile on wrong side of highway. ( 786. Automobile on wrong side colliding with motorrcycle. ( 787. Skidding onto left side of street. i 788. Head-on collision. i 789. Rear wheels of automobile sliding in ruts. ( 790. Colliding with automobile parked at curb. f 791. Colliding with motor-cycle while passing vehicle moving in same direction. xxviii TABLE OF CONTENTS § 792. Front car stopping or slackening speed without warning. § 793. Evidence as to custom of drivers to signal intention to stop. § 794. Driving dose behind another car. I 79S. Front car turning without signal. § 796. Front car turning into intersecting way. § 797. Requirement to look to rear before turning — Occupant looking. § 798. Attempting to pass in front of turning car. § 799. Driver's failure to comply with own signals as contributory negligence. § 800. Automobile struck by street car causing it to collide with another machine. § 801. Bacldng autoniobile causing motorcycle to collide with another machine. § 802. Racing in highway. §803. Motor-cyclist looking down at engine. § 804. Plaintitf seated on floor between seat and hood when injured in collision. § 80S. Jitney passenger riding with leg over rear door. § 806. Leaving opera house on signal from vehicle officer. OVERTAKING AND PASSING 1807. Generally. § 808. Failure of front car to give room. § 809. Turning too short after passing. § 810. Passing on right as forward car turns in same direction. § 811. Automobile standing on left side of road struck by another headed in same directfon. Al' STREET INTERSECTIONS § 812. Generally. § 813. Same — ^Illustrative cases. § 814. Rights and duties when one vehicle has right of way. § 81S. Same — ^Illustrative cases. § 816. Same — Construction of provisions of statutes and ordinances. § 817. Fire department vehicles. § 818. Failure to give right of way to car entitled thereto moving at excessive speed. § 819. Driving in front of automobile entitled to right of way. § 820. Cutting corner. §821. Plaintiff driving on wrong side of street. § 822. Swerving to left side of street. § 823. Turning to left at intersection to avoid a collision. § 824. View obscui-ed by other vehicles. § 82S. Skidding on wet street at crossmg where view obscured. § 826. Failure to slacken speed or signal at intersection. §' 827. Failure to see automobile in view. § 828. Unlighted truck colliding with automobile stopped near corner. § 829. Reducing speed at intersection then starting faster. § 830. Excessive speed. § 831. Truck moving at excessive speed without signalling. § 832. Acting in emergency. §833. Last .clear., chance. TABLE OF CONTENTS xxix CHAPTER XX COLLISIONS OF AUTOMOBILES WITH OTHER VEHICLES AND WITH ANIMALS § 834. Reciprocal rights and duties. WAGONS AND BUGGIES § 835. Overtaking and passing. § 836. Same — ^Illustrative cases. § 837. Running straight into rear of milk wagon, driver of which was absent. §838. Struck while sitting on steam roller by truck approaching from rear. § 839. Failure of overtaken vehicle to turn out. • § 840. Plaintiff overtaking and colliding with unlighted wagon at night. § 841. Buggy suddenly stopping without warning. § 842. Deaf driver. § 843. Motorist, blinded by light from another automobile, colliding with buggy. § 844. Automobile turning suddenly across street — ^Not seen by driver of buggy. § 84S. Wagon in act of turning to left into driveway struck from rear. § 846. Driving wagon into highway from lane. § 847. Team on wrong side of road. § 848. Team failing to turn to rights — Motorcyclist attempting to pass. § 849. Assuming that motorist would turn out. § 8S0. Stopping wagon across road. § 851. Wagon stopped in road just past turn at night. § 852. Wagon stopped at side of country road at night. § 853. Wagons stopped near center of road at night. § 854. Wagon stopped at left side of city street at night. § 855. Wagon without light in violation of statute. § 856. At intersection of highways. § 857. Automobile excee^ling speed limit on wrong side at street intersection. § 858. Automobile turning corner close to left curb. § 859. Horse and wagon backed against parked automobile. § 860. Automobile backing without warning. § 861. Automobile backing into collision with horse. §862. Colliding with iron beams protruding from wagon stopped on street cross- ing. § 863. Bars protruding from truck striking passing automobile when turning. § 864. Motorist attempting to pass between vehicles. § 863. Motor truck suddenly increasing speed. § 866. Driving heavily loaded dray onto slippery downgrade. § 867. Evidence of plaintiff's state of mind at time of collision. §868. Application of res ipsa loquitur. BICYCLES §869. GeneraUy. §870. Automobile overtaking and colliding with bicycle. § 871. Same — As bicyclist in act of turning. § 872. Failure^ of automobile to turn to right. XXX TABLE OF CONTENTS § 873. Cyclist crossing in front of automobile at intersection. § 874. Cyclist struck from rear after turning into street. § 87?. Automobile on wrong side at intersection where view obscured. § 876. Cyclist turning into path of automobile. § 877. Truck turning before reaching center of intersecting street. § 878. Cyclist caused to strike curb by act of motorist. § 879. Automobile, swerving to left. '§880. Head-on collision in center of street. ' § 881. Failure of bicyclist to see truck at intersection of roads. § 882. Bicyclist suddenly emerging from private road. § 883. Bicyclist speeding across in front of turning automobile. § 884. BicycUst on wrong side of road. § 88S. Bicyclist falling in front of truck. §886. Bicyclist injured by towing-rope — Liability of owner of towing car and guest ' of owner of towed car. §887. Attempting to pass. between automobile and curb. ANIMALS § 8!88. Generally. §889. Colliding with and killing dog. § 890. Running over turkey. § 891. Hogs running under automobile. §892. Damage to automobile from striking dog — Liability of owner of dog. § 893. Horse being led behind buggy — ^On left side of street in emergency. § 894. Horse being led in street by long rope. § 89S. Leading young bull by rope halter. § 896. Striking horse tied to hitching post — Res ipsa loquitur. § 897. Striking one of a herd of cattle. §898. Colt at large in highway. § 899. Animals unlawfully at large in the highway. §900. Mule, being ridden in highway, backing into collision, with passing automobile. § 901. Horseback rider. § 902. Driver struck while walking in highway driving team. CHAPTER XXI INJURIES FROM DEFECTIVE HIGHWAYS \ 903. Duty of municipality as to its streets or highways. ! 904. Same — ^For use by automobiles. i 90S. Duty to light streets. I 906. "Defective street" or street "out of repair." i 907. Highways beyond corporate limits. * ! 908. Defect outside prepared or traveled portion of highway. I 909. Notice on part of municipality of defect. (910. Rights and duties of motorists in use of highways. I 911. Driving on road with knowledge- that it is being reconstructed. TABLE OF CONTENTS xxxi § 912. Racing and testing automobiles in street. § 913. Joy riders. § 914. Intoxicated person. I §915. Street made slippery by application of tar and oil. §916. Barricade in street. § 917. Ditch left by street railway employees. § 918. Roadway a narrow fill for 30 feet. § 919. Excavation without warning lights. §920. Driving between two rows of red lights at night. § 921. Defective railroad crossing. § 922. Rope stretched across highway. § 923. Negligent operation of drawbridge. § 924. Trap door in drawbridge partly open. § 92S. Crossing drawbridge upon being signaled by tended. § 926. Defective bridges. § 927. Defective bridge approach. § 928. Unlighted bridge entrance. § 929. Defective bridge railing. § 930. Defective culvert — Contractor removing planks. § 931. Crossing bridges with great weight. § 932. Crossing bridge at high speed. § 933. Paving blocks left in street by city employee. § 934. Snowdrift left by highway officers in breaking snowbound road. § 935. Gravel pit outside macadamized portion of roads. § 936. Depression causing automobile to strike a pedestrian. §937. Jolted from truck by depression in street. § 938. Excavation improperly refilled. §939. Slight depression. § 940. Losing control of truck and colliding with pile of paving stones. §941. Colliding with and exploding can of gasoline used by workmen. § 942. Driving over stump. § 943. Manhole extending above surface of street. § 944. Stone in highway. § 945. Stones in highway as nuisance. §946. Absence of barriers or guard rails. § 947. Absence of barriers and signs at curve where at night street appears to con- tinue straight on. § 948. Declivity outside of highway. § 949. Culvert without railings — Motorist approaching in cloud of dust. § 950. Striking stone, going over unguarded embankment. § 951. Breaking through guard rail. §952. Defective gear causing machine to break through guard fence. § 953. Narrow grade approaching culvert— No guard rails. § 954. Automobile skidding over embankment on wet road. § 955. Missing bridge at night and driving over embankment. § 956. Driving into river after bridge carried away by flood. § 957. Obstruction left in street by contractor. § 958. Building material in street. § 959. Electric poles in street. § 960. Telegraph pole lying in street. xxxii TABLE OF CONTENTS §961. Tree blown across park driveway. § 962. Bundle of papers lying in street. §963. Unable to avoid collision owing to fence in street. §964. Truck breaking through roadway into drain. § 96S. Duty and liability of turnpike company. §966. Same — Hole in road causing injury to occupant of automobile. § 967. Proof of cause of accident when object not seen before collision. CHAPTER XXII moeAsure of recovery for damage to automobile §968. Generally. § 969. Cost of repairs. § 970. E;spenses incurred in an effort to preserve or restore the car. § 971. Da,mages for conversion of automobile. ' § 972. U^able value of automobile while being repaired. §973. S?ime-T-Pleasure car. § 974. Cost of hiring another niachine-^Cost of gas and upkeep. § 97S. Rental value of car — ^No machine hired to replace it. § 976. Average daily net earnings. § 977. Wages paid chauffeur while automobile being repaired. §978. Cost of storage. §979. Loss of profits. §980. Old parts replaced with new of better quality. j § 981. Failure of agent to return old part to manufacturer who replaced it with new part. § 982. Depreciation in value on account of accident. § 983. Effect of insurance carried by either plaintiff or defendant. § 984. Liability for damage done by stopping engine of car belonging to another. ,§-98S. Evidence — Who may testify. § 986. Same— Repair bills. ^ § 987. Liability of infant for damaging borrowed machine. ' CHAPTER XXJII EVIDENCE OF SPEED AND AS TO STOPPING SPEED j 988. Opinion evidence generally. i 989. Opinion as to rate of speed of automobile. [990. Same. ( 991. Opposing party not entitled to preliminary examination as to qualifications of witness. TABLE OF CONTENTS xxxiii § 992. Witness intoxicated at time of accident. § 993. Opinion as to speed not formed until after tlie accident. § 994. Opportunity of witness to observe. § 99S. Estimated from noise of automobile. § 996. As determined by exhaust of engine. § 997. Opinion based on marks made by wheels in stopping: § 998. Distance traveled by automobile after accident. § 999. Skidding of automobile after application of brakes. § 1000. General description of speed. ^ § 1001. Comparative speed. § 1002. Rate of speed such as to attract attention. § 1003. Rate of speed on other occasions or at other places. § 1004. Effects of collision. § loos. Bruises received by occupant in collision. § 1006. Testimony as to intoxication of driver. § 1007. Testimony of motorcycle officer based on speedometer. § 1008. Proof of reliability of speedometer. § 1Q09. As shown by Photo-Speed-Recorder. § 1010. Res gestae. § lOll. Partiality of witness. STOPPING § 1012. Opinion of expert. § 1013. Opinion of competent operator as' to stopping loaded truck. § 1014. Opinion of motorman as to possibility of stopping car. § lOlS. Opinion as to competency of chauffeur. § 1016. Experiments made in stopping automobile at place of accident. § 1017. Stopping similar automobiles. § 1018. Wheel marks as showing attempt to stop. § 1019. Distance' in which automobile in question was actually stopped. § 1020. Operator with only one foot. § 1021. Judicial notice. § 1022. Judicial notice of means of stopping. CHAPTER XXIV THE CHAUFFEUR 1 1023. Definition and origin of the word "chauffeur." i 1024. Driver in service of United States Army. i 1025. "Duly licensed chauffeur." ■ 1026. The position of chauffeur. i 1027. The chauffeur's license. i 1028. Regulation of chauffeurs. f 1029. Classification of chauffeurs. i 1030. Authority of chauffeur to bind owner for repairs. 1 1031. Chauffeur accepting commission on supplies. xxxiv TABLE OF CONTENTS CHAPTER XXV LIABILITY OF OWNER FOR ACTS OF CHAUFFEUR OR OTHER OPERATOR OF HIS AUTOMOBILE § 1032. The relation of master and servant. § 1033. When relation of master and servant exists. § 1034. Same — Salesman on commission. §^103S. Liability of owner for acts of his servant generally. § 1036. Statutory liability when automobile operated with , consent of owner. § 1037. Liability of joint owners. § 1038. When owner is not liable for injury caused by his automobile. § 1039. Same — Illustrations. §1040. Intrusting automobile to incompetent person. § 1041. Intrusting automobile to one of prohibited age. § 1042. Liability of owner on theory of dangerous instrumentality. § 1043. Same — Owner permitting car out of repair to be used. § 1044. Liability of municipal corporation for negligent operation of automobile. § 104S. Liability of fire chief or commissioner for acts of subordinate driver.^ § 1046. Liability of partnership when car operated by one of partners. § 1047. What the plaintiff must prove. , § 1048. Question for jury. § 1049. Proof of ownership. § lOSO. Same — Car registered in defendant's name. . § lOSl. Plea of genera] issue admits ownership. § 10S2. Proof of control of automobile. CHAUFFEUR § 10S3. Evidence of relationship generally. § 10S4. Scope of employment. § loss. Same — ^Illustrative cases. § 10S6. Ratification of chauffeur's acts. § 1057. Mistake of owner as to competency of chauffeur. § 1058. Presumption from chaufieur operating employer's automobile. § 10S9. Same. , § 1060. Same-^Contra. § 1061. CJfBce and effect of this presumption. § 1062. Same — ^Prima facie case held for jury. § 1063. Inference from owner riding in car driven by another. § 1064. Proof of ownership as showing driver was acting for owner. § 1065. Same — Contra. § 1066. Name on automobile as proof of agency of driver. § 1067. Name of owner on automobile and driver's cap. § 1068. Automobile bearing registration number issued for use only in defendant's business. § 1069. Liability insurance carried on car by defendant. § 1070. Use by permission of owner as proof of agency of driver. § 1071. Inference from chauffeur purchasing supplies and repairs in owner's name. § 1072. Chauffeur using car for own pleasure or business. § 1073. Same — Illustrative cases. TABLE OF CONTENTS , xxxv § 1074. Using automobile in violation of instructions. § 107S. Employee using automobile after working hours. § 1076. Chauffeur taking family on pleasure trip on Sunday. § 1077. Chauffeur going in automobile for own laundry. § 1078. Chauffeur using automobile to go to his meals. § 1079. Chauffeur taking friends for a ride. §' 1080. Employee using automobile to take friend to theater. § 1081. Chauffeur using car for own convenience in" employer's business. § 1082. Using employer's automobile to reach work earlier. § 1083. Chauffeur on trip to secure parents' consent to drive car for owner. § 1084. Employee practicing driving in evenings. § 1085. Driving own automobile for another. § 1086. Deviation from route or instructions. § 1087. Same — Cases holding the owner not liable. § 1088. Same — ^Cases holding the owner liable. § 1089. Same — ^Accident occurring before deviation commenced. § 1090. Same — Returning after deviation by regular route. § 1091. Following proper route in improper manner. § 1092. Act to gratify personal malice. § 1093. Chauffeur with general control of automobile. § 1094. Authority to "look the car over." § 1095. Driver inviting another to ride with him. § 1096. Returning for owner after using car for own purpose. § 1097. Chauffeur testing car. § 1098. Chauffeur testing car on pleasure trip of own. § 1099. Chauffeur going for suppllies or to have car repaired. § 1100. Hired automobile and chauffeur going beyond trip employed for. § 1101. Chauffeur, who took car to shop, injuring person while placing it as diretced by shopman. § 1102. Chauffeur driving land owner's car carrying client of real estate agent to look at land. § 1103. Chauffeur permitting children to climb on automobile. § 1104. Same — Truck as attractive nuisance. § llOS. Defendant and chauffeur riding in car registered in defendant's name. § 1106. Chauffeur carrying passengers contrary to orders. § 1107. Chauffeur of automobile for hire taking young lady home without charge. § 1108. Chauffeur operating automobile for hire on commission. § 1109. Injury to person riding with chauffeur. § 1110. Failure of owner to deny authority of chauffeur. § 1111. Chauffeur permitting another to operate automobile. § 1112. Chauffeur temporarily in service of anotehr. ^§1113. Driver and machine hired to another. §1114. Same — Cases in which owner held liable. § 1115. Letting car under agreement that owner shall be liable for driver's acts. §1116. Employee of repairman making trip for owner while testing truck. § 1117. Chauffeur doing work for another employee. DEALER FURNISHING CHAUFFEUR TO DEMONSTRATE CAR OR TO INSTRUCT PURCHASER. § 1118. Furnishing chauffeur to instruct purchaser. § 1119. Taking car through congested part of city for purchaser. §1120. As mere accommodation to purchaser. xxxvi TABLE OF CONTENTS ■§ 1121. Salesman demonstrating automabile. § 1122. Returning from making demonstration. §1123. Demonstrator permitting prospective purchaser to crank car. § 1124. Operated by employee of prospective purchaser under control of demonstrator. § 112S. Demonstrating car by delivering goods for prospective purchaser. § 1126. Seller's employee permitting employee of prospective purcBaser to drive car. § 1127. Owner driving car while mechanic listens to engine. BORROWER AND HIRER. § 1128. Owner not liable for acts of borrower or "hirer. §1129. Same— Statutory liability. § 1130. Chauffeur or other employee as borrower. § 1131. Same — Illustrative cases. . • § 1132. Car borrowed by committeeman to transport political speaker. § 1133. Family car, borrowed by campaign committee, driven by owner's daughter. § 1134. Liability of borrower. MISCELLANEOUS. § 113S. Mechanic employed to repair automobile. § 1136. Garageman demonstrating car left by owner for purpose of sale. § 1137. Employee getting automobile from repair shop. § 1138. Car driven by conditional buyer, title being in seller. §1139. Cash register sales agent employed on commission driving car in business. § 1 140. Repairman driving owner's car to repair shop. § 1141. Friend of chauffeur driving car to police station for chauffeur after latter's arrest. § 1142. One volunteering to take car to garage when owner arrested. § 1143. Car owned by corporation and driven by its president. § 1144. Car owned by torporation used by its officers. § 114S. Car owned by president of corporation and operated by chauffeur employed by corporation. , § 1146. Car owned by corporation and driven by its manager. § 1147. Manager of autoniobile company testing car for customer. § 1148. Car owned by officer of corporation driven by another officer. § 1149. Superintendent using employer's car to drive home. § IISO. Motor sales agent inviting another to ride,, contrary to rule of employer. § llSl. Salesman using car for private purpose. § 1152. Car kept for salesman operated by bookkeeper. § 11S3. Employee taking car to demonstrate. § 1154. Employee of third person testing car for defendant. § IISS. Employee procuring another to drive car. § 1156. Orderly of hospital interfering with -driving of ambulance by employee of garage. § 1157. Owner, who was present, permitting another to operate car. § 1158. Owner riding in car with tester. § 1159. Liability of automobile school for negligence of student. TABLE OF CONTENTS xxxvii CHAPTER XXVI LIABILITY OF OWNER WHEN AUTOMOBILE OPERATED BY MEMBER OF FAMILY OR GUEST § 1160. Generally. § 1161. Owner made liable by statute. § 1162. Son as employee. §' 1163. Automobile kept for use and pleasure of faitiily. § 1164. Same— Contra. § 116S. Same — Denying use to certain member of family. § 1166. Son-in-law using family car. § 1167. Daughter lending family car to stranger. §1168. Third person driving family car at request of wife of owner. § 1169. Daughter being taught to drive. § 1170. Son learning to operate car under instructions of selling agent. §1171. Presumption from son driving father's car. § 1172. Intrusting automobile to incompetent child. § 1173. Son known to be reckless. §1174. Permitting minor to operate car in violation of statute. § 1175. Duty of owner accompanying wife- or minor child. §1176. Automobile used partly for purpose of child and partly for purpose of parent. I § 1177. Car kept partly for benefit of son's health. § 1178. Adult child. § 1179. Adult son using car for own purpose. 51180. Owner riding with adult son. § 1181. Adult son using car without asking pernjission. § 1182. Adult daughter using car about own affairs without express permission. § 1183. Adult son taking fellow employees for ride. § 1184. Son driving car containing wife of owner. § 118S. Son driving car containing owner's wife and daughter and guests. § 1186. Son taking servant home who had assisted at daughter's luncheon; § 1187. Son and daughter returning from dance. § 1188. Son driving car to take young lady home. § 1189. Son general chauffeur of father. § 1190. Car borrowed by son and operated by third person. §'1191. Son leaving car unlighted in street according to custom. § 1192. Daughter using car owned by father and mother. § 1193. Automobile operated by chauffeur under orders of daughter. § 1194. Children using car in absence of parents. § 119S. Minor daughter on errand for mother in violation of owner's instructions. § 1196. Minor son driving car. , § 1197. Minor son driving c~ar in father's business — Presumptoin. § 1198. Minor son taking car without authority. § 1199. Minor son- operating car for hire. § 1200. Minor son driving with sister and guest. § 1201. Minor son driving with wife of owner. § 1202. Minor sons using car to take guests to a dance. § 1203. Minor son using car contrary to father's orders. xxxviii TABLE OF CONTENTS § 1204. Owner riding in car with minor son. ' , , • § 120S. Fauier riding with minor son driving son-in-law's car. § 1206. Minor son habitually using father's car. §■ 1207. Liability of owner to guest of daughter. § 1208. Girl driving car belonging to uncle. § 12P9. Liability of husband for negligent driving of wife. § 1210. Liability of husband to wife. §1211. Wife as servant or agent of owner. §1212. Wife driving husband's car with his consent. § 1213. Legal title to car in wife who employs chauffeur. § 1214. Mother riding with minor son, over whom she has control. § 121S. Mother using daughter's car and chauffeur. § 1216. Wife riding in husband's car driven by third person. § 1217. Wife sending chauffeur for physician for injured person founcj on highway. § 1218.' Husband driving wife's car. § 1219. Owner's, brother driving car in which mother is riding. § 1220. Owner's chauffeur driving son-in-law. § 1221. Chauffeur driving for guests at direction of member of family. § 1222. Owner in Europe — Daughter using car in general control of chauffeur. § 1223. Member of family permitting another to drive car temporarily. § 1224. Physician permitting son to use his automobile. § 122Si Automobile used by guests. § 1226. Liability of guests riding with owner. 1 1227. Guest operating car for partners. § 1228. Owner being driven by husband's employee. CHAPTER XXVII LIABILITY OF OWNER FOR INJURIES TO CHAUFFEUR. § 1229. Presumption as to chauffeur's competency. § 1230. Employee having full control of automobile. §1231. Owner moving spark lever causing engine to back fire when cranked. § 1232. Engine backfiring, injuring inexperienced employee. § 1233. Demonstrator injured by defective steering gear. ^ § 1234. Defective brakes. § 123S. Brake failing to hold. § jl236. AutQmobile starting due to defective brakes. § 1237. Starting lever flying back. § 1238. Wrench slipping gff of lug. §1239. Band flyuig off of wheel. § 1240. Using automobile contrary to orders, § 1241. Injured while exceeding speed limit. § 1242., Injured on testing track. § 1243. Mechanician injured on defective race track. TABLE OF CONTENTS xxxix CHAPTER XXVIII THE GARAGE. § 1244. Garage defined. § 124S. Garage not a livery stable within Sunday closing law. § 1246. Public garage. § 1247. Same — In which automobiles "are kept in storage or for sale or rent." § 1248. Garage not a nuisance per se. § 1249. Restraining erection of garage in violation of permit. REGULATION. § 12S0. Power of municipality to regulate garages. § 1251. Reasonableness of municipal regulation. § 12S2. Statute requiring notice to land owners before issuance of permit. §1253. Buildings ■ used exclusively for residence purposes — Determining character of buildings. § 1254. Requiring consent of property owners to location of garage. § 1255. Prohibiting garage near school. § 1256. Prohibiting garage where two-thirds of lots are devoted to residence purposes. § 1257. Meaning of "block." § 1258. Cancellation of illegal permit for garage. § 1259. Prohibition of conduct or maintenance of garage does not prevent erection. § 1260. Prohibiting gasoline in building used for garage as amounting to, eviction. AS VIOLATIVE OF PROPERTY RESTRICTIONS. § 1261. Small private garage as violation of restriction against garages. § 1262. Not included in restriction against stable. § 1263. Offensive to neighborhood. § 1264. Offensive to neighborhood for dwellings. § 1265. Offensive purpose or occupation.- § 1266. Land restricted to residence purposes. § 1267. Restricted to dwelling and usual outbuildings. § 1268. All buildings excluded except dwelling. § 1269. Restriction against nuisance. CHAPTER XXIX FILLING STATIONS. § 1270. Storing of explosives as constituting a nuisance. § 1271. Same — Gasoline. § 1272. Filling station as nuisance — Injunction. § 1273. Maintenance of filling station in violation of ordinance enjoined, when. § 1274. Power of legislature to -authorize placing of filling pumps in streets. § 1275. Permitting use of public street for gasoline pump — ^Power of municipalities. § 1276. Same — Revocation of permit. xl TABLE OF CONTENTS CHAPTER XXX THE GARAGEMAN AND REPAIRMAN. § 1277. Garage-keeper defined. § 1278. Garageman as common carrier. § 1279. Duty of garageman as to care of automobiles. § 1280. Same— Custom. § 1281. Duty and liability when automobile is stolen from garage. § 1282. Storing car in place other than that contracted for. § 1283. Redelivery of automobiles. § 1284. Automobile damaged, lost or stolen while in possession of garageman — ^Pre- sumption. § 1285. Conversion by garageman — Car stolen from garage. § 1286. Duty and liability as to other property left in his care by customer. § 1287. Liability of garageman giving free inspection service to purchaser of car. § 1288. Termination of the bailment. § 1289. Right of action in garageman for damage to car by third person. § 1290. Liability for wrongfully withholding' possession of automobile. § 1291. Presumption as to employee acting in scope of employment. § 1292. Employee taking slored car without permission. § 1293. Retaining employee with hbait of wrongfully taking cars. § 1294. Chauffeur of garage calling for or delivering owner's car. § 1295. Chauffeur furnished by garageman to drive owner's car. § 1296. Garage employee as servant of owner of car left to be repaired. § 1297. Employee in vulcanizing department voluntarily calling for car to be stored. § 1298. Employee driving passenger without authority. § 1299. Duty of garage keeper in letting vehicles. § 1300. Letting automobile to one unfamiliar with that kind. § 1301. Car let by night watchman having no authority. § 1302. Duty of garage keeper in hiring chauffeurs. , § 1303. Care required of hirer of automobile § 1304. Hirer going beyond trip, or putting car to different use, than car was^let for. § 1305. Liability of employer when hired automobile is stolen while servant using it ' for own purpose. § 1306. Duty and liability to hirer and third persons for acts of chauffeur. § 1307. Liability to guest of hirer. § 1308. Liability for negligence of hirer. § 1309. Ordinance" making failure to pay for rig misdemeanor invalid. § 1310. Letting automobile on Sunday. §1311. Liability for injuries to persons in garage on business. § 1312. Liability to employee slipping on oily floor. § 1313. Liability for injuries due to explosion of gasoline. § 1314. Employee pumping gasoline before motorist reaijy. § 1315. Explosion of tank caused by open flame blowpipe — Res ipsa loquitur. § 1316. General duty and liability of repairman. § 1317. Lien of garageman and repairman. §1318. Recovering less than amount demanded — ^Effect oii lien. § 1319. Recovery of automobile by owner in case of excessive charge. § 1320. When lien attaches. § 1321. Lien on automobile repaired for lessee. TABLE OF CONTENTS xli § 1322.- statutory lien as good against innocent purchaser. § 1323. For what lien attaches. § 1324. Lien as dependent upon possession. § 132S. Special agreement may waive lien. § 1326. Time for filing lien— "Delivery" of car. § 1327. Assignability of lien. § 1328. Lien for repairs to several cars under one contract. § 1329. Superiority of lien for repairs over lien of mortgagee or conditional seller. § 1330. Same — Unrecorded chattel mortgage or conditional sale agreement. § 1331. Same — Car mortgaged in one state and repaired in another. § 1332. Lien for constructing new body before delivery of car to conditional buyer. § 1333. Lien for repairs ordered by person other than owner. § 1334. Same — ^Estoppel of owner to assert rights against repairman. § 1335. Repairman as "wheelwright." § 1336. Validity of lien statute making no provision for owner to be heard on dis- puted claim. § 1337. Discharge of lien. § 1338. Proof of repairs made on automobile. § 1339. Proof of ownership of repaired automobile. § 1340. Liability of owner for repairs not ordered. § 1341. Setting off cost of subsequent repairs against repair bill. § 1342. Contract to put car "in good running condition" — ^Performance of. CHAPTER XXXI SALES § 1343. When title passes in sale of car. § 1344. When title to automobile ordered by sample passes. § 1345. Contract of sale signed by only one party. §' 1346. Implied acceptance of order. § 1347. Sale of automobile not owned. § 1348. Estoppel of owner to assert title to car sold — Exception. § 1348a. Sale of car by cjiauffeur without owner's consent. §'1349. Failure to return car as acceptance. '' § 1350. Order and acceptance as sale. § 1351. Provision as to acceptance of order iriay be waived by seller— Estoppel. § 1352. Conditional acceptance. ( § 1353. Conditional sales. § 1354. Lien of conditional seller superior to statutory lien of person injured by ma- chine. § 1355. Consignment to bank as sale to customer. § 1356. Statute of frauds— Oral sale— Memorandum. § 1357. Old car as part payment-^Time of performance. § 1358. Repudiation of part of order by buyer. § 1359. Validity of purchase by minor. § 1360. Disaiffirmance of purchase by minor. §1361. What is sufficient "restoration" by minor. § 1362. Ratification by parent of purchase by minor as agent. § 1363. Distinction between sale and executory contract of sale. xlii TABLE OF CONTENTS §1364. Distinction between sale and consignment. § 136S. Distinction between mortgage and pledge of automobile. § 1366. Sale or lease. § 1367. Statute making sale invalid unless car registered. § 1368. Purchase by corporation or officer. § 1369. Sales in interstate commerce. § 1370. Authority of salesman to sell.. § 1371. Automobile in possession of seller damaged after sale. § 1372. Purchasing incumbered automobile. § 1373. Statutory lien on car for injuries inflicted. § 1374. Possession as evidence of ownership. § 137S. Failure to deliver automobile on time. § 1376. Remedy of seller or buyer when other refusse to carry out sale contract. § 1377. Measure of damages when purchaser refuses to accept car. § 13 78-. Offer of seller to perform after refusal to perform. § 1379. Rights and remedies of conditional seller and buyer. § 1380. Same — ^Unrecorded sale agreement. § 1381. Retaking car by seller. § 1382. Same — Right to tires and other replacements. § 1383. Conditional buyer may recover for damage to car. § 1384. Fraudulent procurement of cancellation of order for automobile. § 138Sl Same — Measure of damages. § 1386. Defense of failure or want of consideration. § 1387. Failure of seller to keep full line of supplies as represented. § 1388. Express warranty. § 1389. Same — ^Illustrative cases. § 1390. Cut of automobile in catalog as warranty as to equipment. § 1391. "Seller's talk" not warranty. § 1392. Expression of opinion. § 1393. Guaranty for year as warranty of fitness. § 1394. Warranty as to material and workmanship. § 139S. "WeU made of good material." § 1396. Guaranty to run certain number of miles. § 1397. Warranty made after sale. § 1398. Limited warranty. § 1399. Automobile warranted satisfactory to purchaser. § 1400. Warranted to give satisfaction in particular business. § 1401. Guaranty that, automobile will give good service. § 1402. Authority of agent to warrant. § 1403. Liability of agent for misrepresentations made on authority of manufacturer. § 1404. Liability credit sales company for misrepresentations of company selling car ' through it. ' § 140S. Evidence of failure of tractor to develop rated horse power. § 1406. Caveat emptor. § 1407. Implied warranty. § 1408. Same — ^As to second hand cars. § 1409. Warranty when sold for particular use. § 1410. Automobile not reasonably fit for particular purpose as amounting to non- performance of contract. § 1411. Implied warranty excluded by express warranty, when. § 1412. Same— Automobile sold for particular purpose. TABLE OF CONTENTS xliii § 1413. Bank through which sale effected as co-warrantor. § 1414. Waiver of breach of warranty. § 141S. Effect of written warranty or contract of sale. , § 1416. Fraud may always be proved by parol. § 1417. Fraud — What amounts to, and its effect. §' 1418. Same — Illustrations. § 1419. Remedy of one fraudulently induced to purchase automobile. § 1420. Remedy of one fraudulently induced to exchange automobile for mortgage. § 1421. Measure of damages for fraudulent procurement of exchange of automobile for land. § 1422. Remedy for breach of warranty. § 1423. Same — ^Paying sight draft before opportunity to inspect automobile. § 1424. Remedy for breach when sale depends on conditions precedent. § 142S. Return of automobile for breach of warranty. § 1426. Sufficiency of tender of automobile. § 1427. Rescission of contract must be in reasonable time. § 1428. Same — Illustrative cases. § 1429. Parties defendant in breach of warranty a'ction. § 1430. Notice of rejection required after first use — Deinonstration as "first! use.'' § 1431. Buyer exercising ownership over car as affecting right to rescind. § 1432. Right to rescind for structural defect which seller guaranteed to repair. § 1433. Measure of damages for breach of warranty. § 1434. Measure of damages for failure to replace defective parts under guaranty. § 1435. On rescission of sale and refusal of seller to accept, right of buyer to recover storage and insurance charges. § 1436. Evidente of condition or value' of automobile. § 1437. Proof of market value of automobile by experts. § 1438. Right of purchaser to recover rebate, offered by company provided certain number of cars were sold. § 1439. Automobile exempt to head of family. CHAPTER XXXII THE AGENT AND MANUFACTURER. § 1440. Meaning of "agency."' § 1441. Meaning of "dealer." § 1442. Proof of agency. § 1443. Agent's lien on consigned cars. § 1444. Service on agent as service on manufacturer. § 144S. Exclusive agency contract not in restraint of trade or competition. § 1446. Fixing resale price not contrary to public policy. § 1447. Agency for automobile's as including taxlcabs. § 1448. Mutuality of agency contract. § 1449. Indefiniteness of contract as to description of automobiles. § 14S0. Ratification of agent's acts. § 14S1. Proof of employee's authority to make agency contract for company. § 14S2. "Best energies" of agent. § 1453. Discharge of salesman for misconduct. § 1454. "Current catalogs." xliv TABLE OF CONTENTS § 14SS. Waiver of terms of agency contract. § 14S6. Waiver by agent of right to cancel contract for breach. § 14S7. Threatened cancellation by manufacturer — Duty of agent. § 14S8. Mutual abandonment or rescission of contract. § 1459. Notice essential to cancellation. § 1460. Recovery of deposit upon cancellation or breach of contract. § 146'!. Forfeiture of deposit for breach of contract after termination of contract. § 1462. Right of manufacturer to cancel contract requiring satisfactory performance. § 1463. Right to set off one breach against another. § 1464. Accepting agency for other cars as breach of contract of agency. § 146S. Right to abandon contract of agency gives right to cancel order. § 1466. Dissolution of partnership acting as agent. § 1467. Ordering automobiles. § 1458. Refusal to deliver cars after acceptancel of order under contract limiting liability. § 1469. Stipulation that manufacturer need not honor order for cars. § 1470. Agent's commission. § 1471. Same — Car sold by manufacturer outside of agent's territory to resident thereof. § 1472. Same — Salesman in one department securing buyer for automobile in a different department. § 1473. Breach of contract by agent to purchase automobiles. § 1474. Same — Measure of damages. § 147S. Same— Where seller has a limited supply of cars. § 1476. Measure of damages for breach of agency contract by the manufacturer. § 1477. Same — ^Loss of profits. § 1478. Same — Sale by manufacturer in agent's territory. § 1479. Liability of manufacturer jor fraud of agent. CHAPTER XXXIII LIABILITY OF MANUFACTURER FOR INJURIES CAUSED BY DEFECTIVE AUTOMOBILES. § 1480. General rules. § 1481. Automobile as imminently dangerous. § 1482. dare required of manufacturer. § 1483. Knowledge or notice of defect by manufacturer. § 1484. Concealment of defect by manufacturer. § 148S. Knowledge of defect by purchaser. CHAPTER XXXIV THE AUTOMOBILE IN PUBLIC SERVICE GENERALLY § 1486. Regulation of automobiles in public service. § 1487. Same — By municipalities. § 1488. Power of municipalities to operate bus line. TABLE OF CONTENTS xlv § 1489. AutomobUes operated in interstate commerce. § 1490. Control of by Public Utilities Commission. § 1491. Automobiles for hire as forming class for regulation. § 1492. License to operate for hire is mere privilege — Revocation. § 1493. Regulation of public hacks and hack stands. § 1494. Same — Discretion in. officer as to whom permits shall be given. § 149S. Sight-seeing car as public hact. § 1496. "Hackney coach" defined. § 1497. Automobile as public hack. § 1498. "Plying for hire." §1499. Obstructing streets. S § ISOO. Rights of owner of property abutting hack stand. § ISOl. Municipality through which automobile is operated may require license. § 1S02. Public automobile as common carrier. § 1S03. Motorist transporting others to and from work for hire not common carrier. §' 1S04. Duty to carry according to contract. § 1S05. Obligations in carrying baggage. §1506. Liability of sight-seeing automobile operator to passengers. § 1507. Injury to passenger by skidding automobile. §' 1508. Injury to passenger in collision. § 1509. Injury to passenger by bus backing down hill. § 1510. Chauffeur is servant of the owner. § 1511. Carriers for hire — ^Undertaker included. jitneys: ' § 1512. "Jitney" defined. § 1513. Jitney is common carrier. § 1514. Duty of operator to passengers — 'Degree of care. § 1515. Injury to passenger — Prima facie case. § 1516 Regulation generally. §' 1517. Same — Jitneys operating under license previously issued. § 1518. Power of municipal' corporations to regulate. § 1519. Jitneys as forming a class for legislation. § 1520. Same — ^As distinct from other vehicles operated for hire. § 1521. Operating in violation of law — ^AU persons assisting are guilty. § 1522. Street railway company enjoining illegal operation of jitney. § 1523. Requiring operator to state irf application for license that he is owner of jitney. § 1S24. Excluding jitneys from certain zones. § 1525. Forbidding taking on or letting off passengers near street railway. § 1526. Requiring certificate from public utility commission, and a license. § 1527. Jitney operated "through" town without license. i § 1528. License graduated according to capacity of vehicle. § 1529. Prohibitive tax for operating on certain streets. § 1530. License or occupation fee not a tax. § 1531. License tax of five per cent of income. , § 1532. May require indemnity bond. § 1533. Who may recover against bond. § 1534. Priority of claims against bond. § 1535s Prorating amount of bond among several judgments arising out of same accident — Laches. xlvi TABLE OF CONTENTS § 1S36. Successive recoveries against same bond. § 1S37. Liability of surety directly to injured person. § 1S38. Filing bond for more than required amount — ^Liability of sureties. § 1S39. Liability of surety when bond issued for person other than owner and operator on misrepresentations. § 1S40. Liabiliy of surety when jitney operated by person other than owner on com- mission basis. § 1S41. Liability of surety when jitney rented by owner to another. § 1S42. Liability of surety when jitney operated by person to whom owner at- tempted illegally to sell it. § 1S43. Territorial extent of liability under bond. § 1544. Failure of insured to give notice to insurer as affecting rights of injured person. § 1S4S. Liability of surety company as compared with gratuitous sureties. § 1546. "Operated in service of common carrier" — Driving to repair shop. TAXICABS. § 1547. "Tkxicab" defined. § 1548. Is "public conveyance" within accident insurance policy. § 1549. Taxicab is public utility § 1550. Taxicab company is common carrier. \ §1551. Duty to protect ' passengers from injury by employees.^ § 1552. When relation of carrier and passenger terminates. § 1553. Effect of refusal of passenger to pay fare. CHAPTER XXXV VIOLATION OF POLICE REGULATIONS AND PROSECUTIONS THEREFOR. § 1554. Arrest without warrant. § 1555. Liability of officer for loss due to illegal arrest. § 1556. Officer firing at car to cause driver to stop. § 1557. Charging an offense. § 1558. Same — ^Illustrations. § 1559. Duplicity in alleging offense. § 1560. Jurisdiction of court. § 1561. Summary trial and trial by jury. § 1562. Proof and variance. § 1563. Two punishments for the same act. § 1564. Criminal intent. § 1565. Uncertainty of statute. § 1566. Applicability of speed regulation to peace officer. MANSLAUGHTER. § 1567. Generally. §' 1568. Criminal intent. § 1569. Negligence must be proximate cause of death. TABLE OF CONTENTS xlvii § 1S70. Negligence must be gross or wanton in some states. § 1S71. "Culpable negligence." § IS 72. Intoxication as evidence of negligence. § 1S73. Accident occurring while motorist violating law. § 1S74. Same — ^Driving without license while intoxicated. § 1S7S. Sufficiency of evidence. § IS 76. Evidence of speed at place other than that of accident. § 1S77. Running over child in plain view. § 1S78. Disease supervening and causing death. § 1S79. Conviction of owner who was riding with chauffeur. § 1S80. Conviction of manslaughter under indictment for murder. MISCELLANEOUS § 1S81. Driving without registration number. § 1582. Same— Failure to display due to mistake. § 1583. Same — Unable to secure number plate. § 1S84. Failure to display rate card. § 1S8S. Operating automobile while intoxicated. §' 1S86. Driving while intoxicated as public nuisance. § 1S87. Using dealer's number for private purpose. § 1588. Displaying borrowed license tag. § 1589. Assault and battery. § 1590. Assault to do great bodily harm. § 1591. Assault with intent to murder. § 1592. Breach 'of. peace — "Tumultuous and offensive carriage." § l593. Malicious mischief. § 1594. Carrying revolver "about the person" — Carried behind seat cushion. § 1595. Forcing another into dangerous place. § 1596. Taking automobile without consent of owner. § 1597. Same — Aiding another to take car. § 1598. Same— As larceny. § 1599. Wrongfully operating car on highway — ^Instruction. § 1600. Faflure to stop on signal by occupant of horse-drawn vehicle. § 1601. Leaving place of accident without giving name, etc. § 1602. Same — Sufficiency of evidence to convict. § 1603. Larceny of automobile formerly only misdemeanor in Texas. § 1604. Forbidding operation of automobiles: having taximeters — ^Violation. § 1605. Violating speed regulation — Speed greater than is reasonable, etc. § 1606. Same — Where statutory signs are not erected. § 1607. Passing other vehicles at forbidden rate of speed. § 1608. Rate of speed as evidence of negligence. § 1609. Criminal negligence. § 1610. Owner guilty of violation of law while riding with chauffeur. § 1611. Same — Owner unaware of violation. § 1612. Requirement that turn be made close to curb. § 1613. Obstructing traffic. § 1614. Violation of Sunday law in holding motor-cycle races. § 1615. Reward for evidence of violations of speed law. xlviii TABLE OF CONTENTS CHAPTER XXXVI INSURANCE § 1616. Authority of company to insure. § 1617. Validity of insurance. § 1618. "Covering note" as insurance. § 1619. Oral contract of insurance. § 1620. Transfer of policy from one car to another as new contract — Compliance with rules of association. § 1621. Character of company required to maintain reserve. § 1622. By what law policies are governed. ' § 1623. Valued policy law. . ^ § 1624. Duty and liabality of company to insured. § 162S. Duty of company as to and upon taking appeal-. § 1626. Effect of neglect of company to appeal from judgment against insured. § 1627. Reformation of policy. § 1628. Effect of company repudiating obligation under policy. § 1629. Effect of company assuming defense of suit or settlement of claim. § 1630. Liability of company for depreciation in value of damaged automobile after being repaired. § 1631. "Suit" does not include criminal prosecution. ■, § 1632. "Accident." § 1633. "Immediate" notice of accident. § 1634. What accidents must be reported. § 163S. Waiver of provision as to notice — Estoppel. § 1636. Waiver of notice by defending suit. § 1637. Request for past-due assessments as waiver of forfeiture of policy. § 1638. Rejection of claim on one ground as waiver of other grounds. § 1639. "In or on" a private conveyance. § 1640. Insurance against loss by accident as limiitng liability to use of car by owner. § 1641. Same — Car operited by member of insured's family of legal age. § 1642. Liability of insurer when car owned by individual partner is used in partner- ship business. §-1643. Insurance against loss by payment of judgment — ^Waiver — Estoppel. § 1644. Liability, of company when insolvent insured borrows money and pays judgment. § 164S. Effect of insured giving note in payment of judgment. § 1646. Payment of judgment within ninety days, etc. § 1647. Misrepresentations by insured. § 1648. Same — Cost and value and period of service. § 1649. Same— Model. § 16S0. Same — ^No defense to recovery on policy, when. § 16S1. Misstatement as to property traded for automobile. §1652. Misstatement of license number — Reformation of policy. § 1653. Whether car is new or second hand. § 1654. Insuring car after disposing of same. § 1655. Warranty that automobile is not rented to another. § 1656. Warranty against operating automobile for hire. § 1657. Same — Applies to both mortgagor and mortgagee of car. § 1658. Change of ownership, interest, title or possession — Waiver. TABLE OF CONTENTS xlix § 16S9. Breach of warranty against incumbrance. § 1660. Sole and unconditional ownership. § 1661. Same — Waiver. § 1662. Policy as covering unlawful use of automobile. §■ 1663. Automobile driven in violation of law as to age of driver. § 1664. Loss occurring while car is being "used for demonstrating and testing." § 166S. Insuring against ,sinking of vessel transporting automobiles — Seaworthiness of vessel. § 1666. Skidding and overturning as causing damage by "derailment." § 1667. Right of injured person against insured not affected by insurance. § 1668. Right of person, injured by insured, against company. § 1669. Settlement by insured without company's consent. § 1670. Settlement of suit by insured after refusal of company to defend. § 1671. Right of insured to settle for liabliity in excess of policy. § 1672. Company cpercing insured to contribute to settlement. § 1673. Failure or refusal of insured to assist in settlement oi claim. § 1674. Failure of insured to assist in defense of action. § I67S. Interfering in actions and in negotiations for settlement. § 1676. Settlement by company — Right of insured to recover damages from claim- ant incurred in same accident. § 1677. Authority of adjuster. § 1678. Joining owner and insurer as parties defendant. ^ § 1679. Subrogation of company to rights of insured. § 1680. Same — In whose name action against wrongdoer may be maintained. §1681. Waiver of right of subrogation. § 1682. Effect of defeat of subrogation by insured. § 1683. Right of trustee in bankruptcy under indemnity policy. § 1684. Notice of cancellation sent by mail. FIRE INSURANCE. § 168S. Total destruction of car as entitling insured to face value of policy. § 1686. Burden of proof on plaintiff to show value. § 1687. Admission of liability — what amounts to. § 1688. Duty to safeguard insured property — Increase of hazard — ^Negligence. § 1689. Depreciation in value of car after being insured. ' § 1690. "Fire originating within the vehicle." § 1691. Violation of private garage warranty. § 1692. Shed or lean-to as a "garage." § 1693. Waiver of violation of private garage warranty. § 1694. Settlement with mortgagee as waiver of proof of loss by owner. § 169S. Proof of loss — Failure to furnish blanks waiver of, when. § 1696. Same — Making appraisement as waiver of. § 1697. Company not liable to statutory penalty for failure to settle when insured refuses to arbitrate. § 1698. Gasoline in premises. § 1699. Award signe'd by only two appraisers. § 1700. Award vitiated by misconduct of appraiser. § 1701. Waiver of right to appraisement by admission of value. § 1702. Remedy upon failure of company to pay award. § 1703. Agreement as to repairs supercedes policy and bars action thereon. § 1704. Identification of burned car by extrinsic evidence. 1 TABLE OF CONTENTS THEFT, ROBBERY OR PILFERAGE. § 170S; Generally. § 1706. What amounts to theft, robbery or pilferage — Illustrative cases. § 1707. "Pilferage." § 1708. Recovery of car after time for payment of loss— Abandonment to company. § 1709. Diminution in value due to use by thief. § 1710. Liability of company when car is destroyed after being stolen. § 1711. Conversion by borrower. § 1712. Fraudulent conversion by bailee. § 1713. Theft or conversion by conditional buyer. § 1714. Conversion by one in possession for purpose of sale. § 1715. Theft by person not in employment, service or household of insured. § 1716. Theft by employee of public garage. §■ 1717. Theft by employee of corporation, of which insured is president. § 1718. Items for which insured, a conditional vendor, entitled to recover. § 1719. Notice of theft— Waiver. §' 1720. Proof of theft. § 1721. Duty and liability of company when car has been recovered. COLLISIONS. § 1722. "Collision with object." § 1723. "Roadbed"^ — ^^CoUision with embankment at side of road. § 1724. Gutter and curb as part of road-bed. § 172S. Automobile backed and falling into elevator shaft in building — "Entering or leaving any building." § 1726. Running automobile into river. § 17|27. Damages due to collision after upsetting. §1728. Damage due to "upsets" — Car falling from bridge and colliding with water, etc. § 1729. Suit on policy for total loss — Pleading value of car. THE LAW OF AUTOMOBILES CHAPTER I' DEFINITIONS AlSiD HISTORY § 1. Origin of term "automobile." § i?; Aijtoijaobile variously defined. § 3. The term as iused in this work. § 4. Aiitomobile terms defined. § S. Statutory definitions of automobile. § 6. Automobile as stage coach. § 7. Mjotor-cycle defined. J 8. Early history of the automobile. § 9. Recent inventions and developments. • § 10. U?e of the automobile. . , . § 11. Popularity and success of the autOr mobile. § 12. History of the bicycle.. § L Origin of term "Automobile." "Auto" is an element in conipound words of Greek origin meaning self, of itself (natural), of one's self (independently). It is very common in Englisti and other modern languages, especially in scientific teriris. "Mobile" comes from the Latiii mobilis and signifies self -moving, or self -movable; changing its own place, or able to effect a change of its Own place. The term automobile, therefore, is derived from the Greek and Latin, and in modern English is applied generally to a self-moving vehicle designed to travel on common roads, and specifically, to a wheeled vehicle for use on roads without rails, which carries in itself a mechanical motor with its source of power.^ § 2. Automobile variously defined. The automobile has been variously defined, as "a self-acting or self-regulating road wagon" ;^ 1 Century Diet, and Cyc, tit. "Auto- mobile;" Bonds V. State, 16 Ga. App. 401, 8S S. E. 629 (191S), quoting from this work. B. Autos. — 1 2 March's Thesaurus, tit. "Automo- bile." ' t , LAW OF AUTOMOBILES "self-propelling, self-moving, applied especially to niotor vehicles, such as carriages and cycles of those types usually formerly pro- pelled by horse or man; an autocar or horseless carriage";' and "as a self-moving carriage propelled by electric or other power." * Automobile is the generic name which has been adopted by popular approval for all forms of self-propelling vehicles for use upon highways and streets for general freight and passenger service. Howevet, this- definition should not include such self-propelling machines as steam road rollers or traction engines designed for hauling loaded trucks or vans in train, nor such vehicles as re- quire tracks for their operation.® i •' w ', "The word 'automobile' has a well-fixed significance lij the popular uriderstandipg. It is understood to refer to a wheeled Vehicle, propelled by gasoline, steam, or electricity, and used for the transportation of persons and merchandise." ^ "An automobile may be defined as a wheeled vehicle, propelled by steam, electricity, or gasoline, and used for the transportation of persons or merchandise. The courts, without making clear distinctions, have generally used the terms automobile, motor vehicle, motor car, and in the earlier cases, horseless carriage, as being synonymous with each other. Except where special provision ife made to the contrary, a motor-cycle is considered as falling within statutes yvhich use such terms.".'' * . , .In popular meaning, or as commonly understood, an aut9mobile is a jpiQtor ^vehicle usually propelled by ^team, electricity or gaso- line, and carrying its own motive power within itself. Concerning the use of highways, as provided in some lay^s, the automobile fzills within the appellation of "carriage" and "veliicle." * The term also means "to ride in an automobile yehicle." ' Autoi^pbiles are distinguishable from locomotives because they do not travel on a (fixed tra.ck as the latter do. They are a,lso dis- 8 standard Diet. Supp., tit. "Auto- in Bonds v. State, 16 Ga. App. 401, 8S mobile." ., , , , ,;, S. E. 629 (1915). \ 4 International Lib. of Ref ., tit. "Au- 8 Bethlehem Motors Corp. v. Flynt, tomobile." 178 N. C. 399, 100 S. E. 693 (1919); 28 6 2. New International Ency., tit. "Au- Cyc. 24. tomobile;" Bonds v. State, 16 Ga. App. Relative to the use of highways, the 401, 8JS S. E. 629 (191S), quoting from Connecticut statute provides that "the this work; Kellaher v. Portland, 57 Oreg. word 'vehicle' shall be construed to in- 575, 112 Pac. 1076 (1911). elude bicycles, tricycles and motor-car- 6 Carter v. State, 12 Ga. App. 430, riages." ^ Gen. Stat. Conn. 1902, § 2038, 78 S. E. 205 (1913). ' 9 Century Diet. & Cyc., tit. "Automo- 7 2 R. C. L. 1167, quoted approvingly . bile." > DEFINITIONS AND HISTORY 3 tinguishable from locomotives and traction' engines by carrying loads instead of drawing them in other vehicles. Within the meaning of a statute imposing a license tax on sellers of automobiles, the term "automobiles" includes motortruck^.*" § 3. The term as used in this work, fhp term automobile as used in this work may be (defined as a self-propelling vehicle qr carriage for the transportation of persons or property and whose operation is not confine;d to a fixed track. This diefinition excludes the steam road roller, the traction engine, and such vehicles as jun only on rails or tracks; and it may be observed that, by the use of the word "vehicle" in the sense in which it is employed in the defi- nition above, it also excludes the flying .machine. This definition includes the automobile-bicycle and automobile-tricycle,** This definition is in accordance with both the popular and, statur; tory acceptation , of the term. Moreover so far as it has been ju- dicially defined it is in harmony with the decisions.** § 4. Automobile terms defined. The automobilfe is variously referred to as auto, autocar, car, machine,** motor, motor-car, and other terms equally as common, but neither complimentary nor endearing. However, these are merely popular terms and inaccu- rate. Thus, it has been held that the word "motor," as used in a statute empowering street railway companies^ with the conserit of the municipal authorities, to use electric or chemical motors as a propelling power of their cars, was intended to describe the motion producing contrivance of the car, and not the entire car.** 10 Bethlehem Motor Corp. v. Flynt, i , New Hampshire: Emerson Troy Gran- 178 N. C. 399, 100 S.' E. 693 (1919). ite Co. v. PeaTsqn, 74. N. H. 22, 64 Atl. "Bonds V State, 16 Ga. App. 401, 85 S82. ■ , . . ., .; ;,, , r,' ,') ' S. E. 629 (19 IS), quoting from this work.' New Jersey: Kolankiewiz v. Burke, 91 liDistrict of Columbia: GassenHeimer N. j. L. 567, 103 Atl. 249 (1918). ' V. District of Columbia, 26 App. Cas. New York: Thies v. Thomas, 77 'N. (D. C.) 557; Washington Electric Ve^ ^,Y. Sopp. 276, 279; Malloryw. Saratoga hide Transp, Co. v. District of Columbia, Lake Bridge Co.,/ 53 Misc; 446, 104 N. Y. 19 App! Cas. (D.^C.) 462. j. ^"PP- ^°^^' Na,spn v. West, ;31 Migc. 583, ■ Illinois: Christy v. Elliott, 21(5 lU. 31, 65 N. Y. Supp. 651. , 40, 74 N. E. 1035; 3 Ann. Cas. 487, 1 L. Pennsyivama: Com. v. Hawkins, 14 R. A. (N. S.) 215, 108 Am. St. Rep. 196; Pa. Dist. 592, 5^4. Chicago V. Banker, 112 111. App. 94. iSDoherty v. Ayer, 197 Mass. 241, 83 Indiana: Mclntyre v. Orner,; 166 Ind. N: E. 677, 14 L. R. A. (N. S.) 816. = 57, 63, 76 N. E. 750 8 Ann. Cas. 1087, instate v. Trenton, 54 N. J. L. 92, 4 L. R. A. (N. S.) 1130, 117 Am. St. Rep. 23 Atl. 281. ,. . 359. Massachusetts: Baker v. Fall River, 187 Mass. 53, 57, 72 N. E. 336. 4 LAW OF AUTOMOBILES "Automobilism: The use of jiutoinoWle vehicles." f^* "Automobile-bicycle: A motor-cycle.^' ^* ' "Autocar: An automobile vehicle, especially ifor street travel."" Auto stage: A statute provides as follows: "'Automobile' shall mean the ordinary four-wheeled motor ve- hicle, and shall be synonymous with the teirm 'motor vehicle' except as otherwise herein provided. ** * " 'Auto stage' as distinguished from 'automobile' shall meaii a motor vehicle used for the purpose of carrying passengers, baggage or freight on a regular schedule of time and rates." ^ " 'For hir^' shall be taken to mean all motor vehicles', other than auto stages, operated for hire." , "Except ais otherwise provided by law, this act shall be control- ling, upon the Registration and numberirig of motor vehicles, upon the use of motor vehicles upoh the public highway's, and upon penal- ties for the violation of any of the provisions of this act." Held, that undeir such provisions automobiles carrying pa&seAgers on regular schedules and for regular fares, are auto stages,: and required to be licensed, as such, and not; as automobiles for hirey although opera,ted entirely within the limits of a city." ''Autotruck: A self-propelling or self-moving truck adapted for heavy drayage." " > ., "Automobilist: One who owns, rides in, or drives an auto- mpbile.""" "Locomobile: A road locomotive.!! ^^ ' "Motor-car: A railway car carrying its own mptor; a com- bined passenger car and locomotive; an electric street car that draws a trailing car." *^ "Motor-car: A car which carries its, own propelling mechan- ism, as an electric motor, pneumatic engine, steE^m engine, etc., and is therefore a locomotive. Many such cars have sufficient power to draw other cars attached to th^m."^^ "Motor-car: An automobile, locomobile, or locomotive de- signed to run and be steerfed on a street or roadway; especially an automobile specially designed for passengers.'! ^* "Motorist: One who motors, especially habitually." '^ IB Century, Diet. & Cyc. 20 Standard Diet. Supp. 16 Century Diet. & Cyc., tit. "Motor- 21 Standard Diet. '^''Jlf'" 22 Standard Diet. 17 Standard Diet. Supp. as ' "• ' "State V. Ferry Line Auto Bus Co., ^™*- ^"^'^■ 99 Wash. 64, 168 Pac. 893 (1917). 24 Webster's New Intern. Diet. 19 Standard Diet. Supp.' 25 Webster's New Intern. Diet. . DEFINITIONS AND HISTORY S "Automobile line: 'Stage line,' 'railroad line,' and 'automobile line' are expressions which are ordinarily understood to mean a regular line of vehicles for public use operated between distant points, and between different cities, and do not include hacks, stages, and automobiles which nierely operate from point to point in one city for the transportation pf the public.'"'® , " 'Joyriding,' . seems to be a term , peculiarly applicable to pleasure trips in automobiles." ^'' i , "When two or more persons voluntarily drive or ride an a,uto- mobile upon a pnblic highway at a, dangerously high rate of speed merely for the purpose of enjoying the exhilarating and pleasu- rable sensations incident to the swirl and dash of rapid transit, they may piroperly be said to be joy riding. Such joy riders not only assume the risks of danger attendant upon the sudden and violent movements of the car, but also such as arise froni the inability of the driver, when traveling at a high rate of speed, 'to make short, quick stops to avoid collisions, or defects in the street,' or direct the car at bends or curves in the road so as to keep in the traveled way." "^ Four-wheel carriage for passengers, held to include an auto- mobile!^' Motor vehicle: Under a statute providing that whoever oper- ates a motor vehicle on the public roads at an unreasonable or im- pi^bper speed, having regard to the traffic and general rules of the road, so as to endanger property or life, shall be fined, etc., the words "motor vehicle" include an automobile.*" Public service motor vehicle: ' In Connecticut, by statute, a Public Service Motor Vehicle, "shall include driy motor vehicle operated as a jitney and aiiy motor vehicle used for the purpose of soliciting and receiving paSsertgers upon any public highway and carrying such passengers upon the payhienf of an individual fare, but not including omnibuses, running regularly between railway stations or boat landings and hotels." "There are not two independent conditions prescribed in this jior- tion of the definition either one of which being satisfied the public service character of the motor vehicle is established. There is only one, and that one embraces soliciting, receiving, arid carrying for 26 Com. v., Walton, 31 Ky. L. Rep. 29 Proprietors v. Fitts, ^ N. H. — , 916, 104 S. W. 323. 107 Atl. 626 (1919). 27 Jones y. Belle Isle, 13 Ga.App. 437, SOSchier y. State, 96, Ohio 245, 117 79 S. E. 3S7 (1913). N. E. 229 (1917). 28 Winston's Adm'r. v. Henderson, 179 Ky.,220, 223, 200 S. W. 330 (1918). 6 . LAW OF AUTOMOBILES hire. The grammatical "construction of the sentence inevitably leads to that conclusion. The insertion of the 'and' after the word 'jitney,' the nonrepetition of the words 'any motor vehide' or words of similar import before the word 'carrying,' and the use of 'such' after 'passengers,' evidently refefring to those who had been solicited and received, are clear indications of the legislative intent not to be ignored, and especially in a penal statute such Us this in its present aspect is. It is too plain to be mistaken that all the language following' the words 'any motor vehicle' where they ap- pear the second time in the definition is used in its entirety as qualifying that term." '^ ' § 5. Statutory definitions of automobile. The statutory defi- nitions of the automobile are not uniform, but most of them are in accord to the extent that the term includes all vehicles propelled by power other/than muscular power, except traction engines, j steam road rollers, and such vehicles as run only on rails or tracks. Some statutes exclude f roni their operation in express terms such mechanically propelled vehicles as street sprinklers, fire engines and apparatus, police patrol w;agpns,. and anabulances, The terms "automobile" and "motor-cycle," as used in the stat^ utes of New Hampshire, have been held by jJie courts of tb^t state to include all vehicles propelled by oth^r than muscular, power, except railroad and railway cars and motor vehicles running onlj^ upon rails or tracks, and road rollers. Under this, statute tlie, supreme court of that state declared that a road locomotive or faction engine used to draw cars on the highway was included within its operation.'^ Unless expressly excluded, the motor-cycle falls within the defi- nition of the automobile as the term has been used by the various state legislatures, and also within the general definition: as hereto- fore given.'' The definitions given by the statutes depends upon the objects to be accomplished by the particular statute. Thus, the. South Dakota legislature, desiring to impose a tax upon the privilege of using the highways by automobiles whose, operation was not con- fined principally to the streets of cities and towns, and in this manr. ner to raise a fund to be expended on the repair and maintenance of the public highways beydild the liihits of cities and towns, d%- 81 State V. Shiffrin, 92 Conn. S83, io3 wiz v. Burke, 91 N. J. L:'s67, 103 Atl. Atl. 899 (1918). ' 249 (1918). 32 Emerson Troy Granite Co. v. Pear- 38 Bonds v. State, 16 Ga. App. 401, 8S son, 74 N. H. 22; 64 Atl. S82; Kolankie- S. E. 629 (191S), quoting from this work. DEFINITIONS AND HISTORY 7 fined the term as follows: "The term fmotor vehicle' as used in this act, except where otherwise expressly provided, shall include all vehicles propelled by any power other than muscular power, except motor trucks, motor drays, motor delivery wagons, traction engines, road rollers, fire wagons and engines, police patrol wagons, , ambulances, and such vehicles as run only upon rails or tracks." '* § 6. Automobile as stage coach. For the purpose of fixing the amount of toll to be charged for the use of a turnpike by an automobile, under a statute which prescribed the tolls to be charged for "vehicles," "pleasure carriages or hackney coaches," "stage coaches," and "traction or other engines," out which failed to mention automobiles, it was held that automobiles used by a stage coach line in the place of stage coaches should be classed as stage coaches.'" § 7. 'Motor-cycle defined. The term "motor-cycle" is within the meaning of a statute relating to the driving of automobiles "or other conveyance of a similar type or kind." "These words as used in the statute are not of intricate or doubtful meaning,' biit are of genieral use. A motors-cycle is propelled by the same power as an automobile, the use of which power causes the same loud and rapid explosion. It moves with kindred speed arid when not pro- pelled by human power, has many of the geiieral features of an automobile; the main difference being that it runs on two wheels instead of four."'* A motor-cycle is a "motor vehicle," within the meaning of an ordinance regulating the use of motor vehicles in the city streets.''' "A bicycle driven by an electric or other motor ; an automobile bicycle:" *« "A bicycle having a motor attached so as to be self-propelled." " A motor-cycle is a motor vehicle, within the meaning of a statute requiring motor vehicles to be registered.*" A motor-cycle is a vehicle of "like character" with an automobile, within a statute regulating "the running of automobiles, loco- mobiles, and other vehicles and conveyances of like character pro- 3*1 S. D. Comp. Laws, 1913, c. 276, Auto School Co., — Mo. App. — , 196 §1. S. W. 772 (1917). ,86Bnrtonv.,M. &B. Turnpike Cp., 162 38 Century Diet. & Cyc, tit. "Motor- Ky. 787, 173 S. W. 144 (1915). cycle." 36 Dunkelbarger v. McFerren, 149 111. 39 Webster's New Intern. Diet. > App. 630 (1909). 40 People v. Smith, 1S6 Mich. 173, 120 37 Scott V. Dow, 162 Mich. 636, 127 N. W. S81 (1909). N. W. 712 (1910) ; Hopkins v. Sweeney 8 LAW OF AUTOMOBILES pelled by steam, gas, gasoline, electricity or any power other than muscular power." " "It is a matter of common knowledge that a motor-cycle propelled by gasoline is capable of a rate of speed as high as or higher than may bp attained by a fotlr-wheeled automobile; and it is equally well known that a mbtor-cycle is even more noisy and is a more < alarming object to country-bred domestic animals than* is a larger t3T5e of automobile. * * * It is immaterial , so far as frightening, a horse on the roadway is concerned, whether the self-propelled ma- chine which approaches at an unlawful rate of speed, wrapped in a cloud of smoke, emitting and accompanied by the vile smejl of exploding gasoline, runs on two wheels or four." *^ § 8. Early history of the automobile. Although the automo- bile as we know it today is of recent origin the inception of the steam carriage dates back to the early days of the steam engine itself. As early as 1619 a patent was issued, in England, for; a "horseless carriage" to Ramsey and Wildgoosp, but it seems that nothing ever came of the inyentipn. In 1680 Sir Isaajc Newton proposed a steam carriage to be, propelled by the reaction of a jet of steam issuing from a nozzle at the rear of the carriage. In 1 769- 70, Niciiplas Joseph Cugnot, a Frenchman, built two steam car- riages, one of which was designed for the transportation of artillery and is still preserved in P^ris; the other was a three-wheel vehicle propelled by a small steam engine, and carried twqjpassengers at the rate of two miles an, hour,, Murdpck, in 1784, and, Nathan Read, in 1790, invented steam carriages, andjin 1786 Oliver Evans, of the United States, suggested the use of steam roa,d wagons to the Lancaster Turnpike Co., of Maryland. However, Richard TreviUiick was the pioneer of practical locomotion on common roads. In 1802 Trevithick built a carriage which he exhibited in London, where he had driven it from Camborne, a digtEince of iiinety miles. Burstall and Hill invented a carriage about the year ,1820; but their carriage weighed about eight tons, and was unable to at- tain anything like adequate speed. W. H. James, in 1823, built a carriage in which a tubular boiler was used for the first time. In 1829, James constructed a vehicle which maintained a speed of twelve miles an hour, carrying fifteen passengers. Among the more prominent of the early inventors was Sir Gulde- 41 "Bonds V. State, 16 Ga. App. 401, 85 « Bonds v. State, 16 Ga. App. 401, 85 S. E. 629 (1915); Knight v. Savailnah S. E. 629 (1915). El. Co., 20 Ga. App'. 314, 93 S. E. 17 (1917). DEFINITIONS AND HISTORY 9 worthy Gurney, who (patented a steam carriage in 1825; A few years laterr he established a regular passenger service of steam coaches between Gloucester and Cheltenharn. In form these car- riages much resembled the old stage coach, and weighed three or four tons without a, load. They attained an average speed of ten or twelve miles an hour. Gurney was the first to undertake the con^ struction of a light vehicle to carry two or three people; and weigh about ,500 pounds. Eyen more prominent among the pioneers was Walter Hancock, who carried on his wprk between 1824 and 1836. One of Han- cock's machines was in regular service between Stratford, Padding- ton and Islington for twenty weeks, traveling 4,200 milesj and carry- ing 12,761 passengers during that time. Dr. Church built a double decked omnibus to carry fifty people, but because of the preju- dice against conveyances of this kind in England it was not a suc- cess. In fact, owing to the development of the railroad- a;id. the bpplosition of the turnpike trustees, Hancock's were the only steam carriages operating on the highways of England in 1836, and soon therea:fter these, too, disappeared. During 1832 there vfere fifty- four bills introduced in Parliament seeking to place a special tax on steam carriages. On the Ashburnham and Totnes rbad the toll on mechanically propelled carriages was two pounds, while that for a coach and four horses was : only three shillings .*' § 9, Later inventions and developments. The modern period of invention and improvement of the automobile may be said to have commenced in 1884, although the honor of inventing the first vehicle propelled by an internal combustion engine prob- ably belongs to M. Lenoir, a Frenchman, who, it is believed, con- structed such a vehicle in 1862. Gottlieb Daimler, a German, now known as the "Father of the Automobile," was the first to construct a successful internal combustion engine, which he invented in 1884, following in 1885 with his single-cyclinder, inclosed-crank and fly- wheel engine. In. 1889 Daimler sold the French and Belgian pat- ents of his invention to Messrs Panhard and Levassor, manu- facturers of wood-working machinery. The first of the "Panhard" cars were built in 1891, since; which time they have become univer- sally known. In 1885 Carl Benz invented al single horizontal cylin- ler, water-jacketed engine, which he applied with success to a three-wheel carriage. M. Leon Serpollet, in 1889, invented a water *SEncy. Britannica (New Volumes), Ency., tit. ''Automobiles;" Nelson's Ency., tit. "Motor Vehicles;" New International tit. "Motor Vehicles." 10 LAW OFi AUTOMOBILES ^ tube boiler, which he used with' success in connection with a motor vehicle in 1894. About this time inventions of this kind, and also of the electrically propelled vehicles, became quite numerous in France and America.** ' The development of the automobile in England was long retarded by hostile legislation and public prejudice. The English act re- lating to "Locomotives on Highways" was passed in 1861, and in 1865 the opponents of the "locomotives" achieved' their greatest success in the enactment of a law which, among other things, pre- scribed that the number of persons required to drive the locomotive should be increased to three; that a man should precede with a red flag; that the maximum limit of speed should be reduced to four miles an hour; and that they should be forbidden ever to blow off steam. It was not until 1896 that the chief prohibitory clauses of these laws were repealed.** § 10. Use of the automobile. While the automobile has sup- plied one of the most popukr forms of recreation, its value as an express and drayage vehicle, is also appreciated. It has the ad- vantage of combined strength and speed. For quick delivery it cannot be equaled, find at the same time it is capable of drawing very heavy loads. For use in large cities on paved streets, it is;^ rapidly supplanting horse drawn vehicles. It has been adopted by many cities in fire, service and ambulance work, where speed is most essential. It is being used by police officers pi some cities to regulate automobile traffic and restrict the speed of too reckless chauffeurs. Great world tours are now made in automobiles, and, as their use becomes more common, danger from their operation on country roads is greatly reduced.** :^ They have been employed to great advantage in army service, replacing, to some extent, both the horse and the old style vehicle. In fact, they have served in place of every kind of vehicle, from the dray as one extremity to the express train as the other.*'' § 11. Popularity and success of, the automobile. Much of the early popularity and success of the automobile were due to frequent prize contests, which were the means of acquainting the people with the many advantages of the new machine. The first ** Ency. Britannica (New Volumes), *6Ex parte Berry, 147 Cal. S23, 82 tit. "Motor Vehicles;" New International Pac. 44, 109 Am. St. Rep. 160. Ehcy., tit. "Automobiles;" Nelson's Ency., 47 Nelson's Ency., tit. "Motor Cars.''' tit, "Motor Cars." 4B Ency, Britannica (New Volumes) , tit. "Motor Vehicles." DEFINITIONS AND, HISTORY 11 of these was organized in Fran,ce by the Petit Journal in 1894, and was run from Paris to Rouen. The following year one was run from Paris to Bordeaux and return. This race was won by M. Levassor, who covered the distance of 744 miles witho\it a breakdown, and at a mean speed of fifteen miles an hour. The same year, 1895, the Times-Herald contest was inaugurated in . America, but the results achieved were not satisfactory on ac- count of the unfavorable condition of the weather. After the re- peal of the chief prohibitory cjauses of the "Locomotives Act," in 1896, the inaugurating race in England was run from London to Brighton. " The next few years brought about many wonderful contests and exhibitions of speed which conclusively showed that as a mode of rapid tra,nsit the automobile is, easily firsts It is with respect to the speed attained by the automobile that the most remarkable developments have been made; indeed, our modern express trains have been outdone by this popular road carriage. At Ormond ^each, Florida, January 26, 1906, a distance of one mile was traveled by Marriott on a fifty horse-power Stanley steam car in tweiity-eight and one-fifth seconds.*' § 12. History of the bicycle. The position of the automobile and the bicycle, in the view of the law are so nearly alike that it is well to refer briefly to the history of the bicycle, as the principles of law applicable will necessarily be referred to in this work. How- ever, no new principles of law are involved ; the courts iare merelv applying old principles to a new and novel mode of conveyance.*' • It has ever been man's endeavor to construct a vehicle that would "go by itself;" one whose propulsion would not require the applica- tion of muscular power. While the bicycle did not do away with the use of muscular energy, it did minimize its use to a great degree when the distance that can be traveled in a given time is con- sidered. The earliest use of the bicycle of which we have authentic proof was by Baron von Drais, a German, of Mannheim, about 1818. This machine, which was called a "draisine," after the inventor, was propelled by the rider, who sat on a bar which connected the two wheels, by striking his feet against the ground. It was fitted with a saddle, and with a hand-bar for steering and for rest. The *8 Ency. Britannica (New Volumes) , ** Hannigan v. Wright, 5 Pennew. Del. tit. "Motor Vehicles;" New International Rep. 537, S40, 63 Atl. 234; House v. Ency., tit. "Automobiles;" Nelson's Ency., Cramer, 134 la. 374, 376, 112 N. W. 3, tit. "Motor Cars." 10 L. R. A. (N. S.) 6SS. 1'2 LAW OF AUTOMOBILES inventor biiilt it to assist him in the performance of his duties as chief forester to the Grand Duke of Baden. In I891 a hatldsome rnoriument was erected in memory of Baron von Drais, the "Father of the Bicycle," ovfer his grave at Karlsruhe, the eJcpenseis of which were borne by bipyclists. ■^ ■ In 1840 Kifkpatrick Macmillan, a blatksmith of Dumfriesshire, Scotland, put cranks and pedals oh the bicycle. In iotm Ma'cmU- lan's machine was much like the safety bicycle! of today, and it was not until the year 1867 that the "ordinary," the bicycle with the big front wheel was invented. These early machines were clumsy affairs with rough iron frames and tires and wooden spokes. ' The steelsuspension wheel was in ttbduced about 1870'. The "Safety" V^as probably invented by'Michaux, a Frenchman, but it owes its success to J. K. Starley, of England, who put the bicycle on a practical basis in 1885. In 1888 J. B. Dunlop, a veterinary surgeon of Belfast, Ireland, whb' had never ridden ' a bicycle, invented a practical pneumatic tire, whidh, applied to the "safety," converted it into a luxurious vehicle and insured it per- manent popularity. ■' I ■ The years 1895-96-97 witnessed an extraordinary growth in the bicycle tradg^i And for a time the, trade wfts very prosperous and a vast amount of capital was invested in this branch of rn^n)f^facture in the United States, Great Britain, iFi^ancfi and, .Germany. But the deniand ;for wheelsi soon decreased so rapidly that many bank- ruptcies . ensue;d among the companies who confined theniseives, to the single line of jifldustry. „ , , The bicycle. has been put tp, many important uses; it was, and to an extent still is, popular as a touring vehicle, and for recreation, and its value in war is considerable. Howeyier, cycling has gone put of fa,shion to a great extent, an|d the autornobUe, an inyention which has entirely done away witl; muscular power as a means of locomotion, has taken its place.*" BOEncy. Britannica. (New Vol'umes), Ency., tit. "Automobiles;" Nelson's Ency., tit.'"Motor Vehicles;.'* New InternatiiSiial tit. "Motor Cars!" ' ' , CHAPTER II LEGAL STATUS §13. §,U. §is, §16. §17. §18. §19. §20. §21. Automobile is lawful conveyance. Automobile is not a nuisance. Automobile as dangerous per se. Same'^— Quotations from the courts. Not classed with ferocious animals. Ordinance relating to animals not applicable. Is included in statute relating to / "teains,' carts and carriages." Automobile is a vehicle. Automobile is a carriage. § 22. Decisions that, the automobile is a carriage. § 23. Automobile held not to be a car- riage. § 24. Characteristics of the automobile. § 2S. Tendency to frighten horses. \ §26. Noises incident to operation; § 27. Judicial notice. § 2.8. Status of the bicycle. §29. Same — Is a vehicle or carriage. ' § 30. Same — Held not to be a vehicle or carriage. §13. Automobile is lawful conveyance. While the automo- bile is new in its use arid novel in its construction and opera,tion, there is nothing new in the principles of law that apply to its use on the highways.^ Such use is lawful, and its rights, subject to statutory regulations, are the same as other vehicles.* These rights 1 Hannigan. V. Wright, S Pennew. (Del.) S37, 63 Atl. 234; House v. Cramer, 134 la. 374, 376, 112 N. W. 3, 13 Ann. Cas. 461, 10 L. R. A. (N. S.) 6SS. ^Alabama: Hester v. Hall, — Ala. App. — , 81 So. 361 (1919) ; Arkansas: Butler v. Cabe, 116 Ark. 26, 171 S. W. 1190, L. R. A. 191SC, 702 (1914). Delaware: Hahnigan v. Wright, S Pen- new. (Del.) 537, S40, 63 Atl. 234; Sitne- one V. Lindsay, 6 Pennew. (Del.) 224, 65 Atl; 778. Georgia: Tift v. State, 17 Ga. App. 663, 88 S. E. 41 (1916). Illinois: Chicago v. Banker, 112 111. App. 94, 99; Christy v. Elliott, 216 111. 31, 48, 74 N. E. 1035, 1 L. R. A. (N. S.) 215, 3 Ann. CaS. 487, l08 Am. St. Rep. 196; Moses V. Pittsburgh, etc., R. Co., 21 111. 516; Smith v. Hersh, 161 111. App. 83 (1911), Indiana: ' Indiana Springs Co. v. Brown, 165 Ind. 465, 468, 74 Nl E. 615, 6 Ann.' Cas. 656, 1 L. R. A. (N. S.)'238; Brinkman v. Pacholke, 41 Ind. App. 662, 84 N. E. 762; Bogue v. Bennett, 15^ind. 478, 482, 60 N. E. 143, 83 Am. St. Rep. 212; Wabash, St. L. & P. R. Co. v. Farver, .111 Ind. 195, 198, 60 Am. Rep. 696. ... . . lotiia: House v. Cramer, 134 la. 374, 376, 112 N. W. 3, 13 Ann. Cas. 461, 10 L. R. A. (N. S.) 655; Strand v. Grinneil 13 14 LAW OF AUTOMOBILES are recognized and enforced by the courts.^ As was said by the court in the case of House v. Cramer:* "The right to make use of an automobile as a vehicle of travel along the highways of the state is no longer an open question. The owners thereof have the same rights in the roads and streets as the drivers of horses or those riding a bicycle or traveling by some other vehicle. But they are to use this means of locomotion with due regards for the rights of others having occasion to travel on the highways." "The automobile being a convenient, appropriate and recognized instrument of conveyance and transportation, the public ways are open to its proper use, just as they are open to the proper use of other appropriate and recognized means of conveyance." * Auto. Garage Co., 136 la. 68, 113 N. W. 488; Cresswell v. Wainwright, 154 la. 167, 134 N. W. 594 (1912). Kentucky: Gregory v. Slaughter, 124 Ky. 345, 99 S. W. 247, 30 Ky. L. Rep. SOO, 8 L. R. A. (N. S.> 1228, 1232; Shinkle v. McCullough, 116 Ky, 960, 965, 77 S. W. 196, 25 Ky. L. Rep. 1143, 105 Am. St.. Rep. 249. M(4ne: Towle v. Morse, 103 Me. 250, 68 Atl. 1044. " Maryland: American Ex. Co. v. Terry, 126 Md. 254, 94 Atl. 1026 (1915). Michigaip: Wright v. Crane, 142 Mich. 508, 106 N. W. 71, 12 Detroit Leg. N. 794; Macomber v. Nichols, 34 Mich. 212, 22 Am. Rep. 522; People v. Barnes, 182 Mich. 179, 148'1n. W. 400-(1914). Minnesota: ,: Nelson v. Halland, 127 Minn. J88, l49 N;W. 194 (1914). Missouri: Stajte v. Swagerty, 203 Mo. S17, 102 S. W. 483, 10 L. R. A. (N. S.) 601, 120 Am. St. Rep. 671; O'Donnell v. O'Neil, 130 Mp. App. 360, 109 S. W. 815; Hall y. Compton, 130 Mo. App. 675, 108 S. W. 1122; Sapp v. Hunter, 134 Mo. App. 685, 115 S. W. 463 (1999). New Jersey: Starr v. Caipden & A. R. Co., 24 N. J. L. 592. New York: Corcoran v. New York, 188 N. Y. 131, 139, 80 N. E. 663; Knight v. Lanier, 69 App. Div. 454, 458, 74 N. Y. Supp. 999; Schultz v. Morrison, 91 Misc. 248, 154 N. Y. Supp. 257 (1915). Pennsylvania: Radnor Township v. Bell, 27 Pa. Super. Ct. 1. Rhode Island: Bennett v. Lovell, 12 R. I. 166, 34 Am. Rep. 628. Tennessee: Coca Cola Bot. Wks. v. Brown, 139 Tenn. 640, 202 S. W. 926 (1918). Texas: Carsey v. Hawkins, — Tex. Civ. App. — , 165 S. W. 64 (1914) ; Riley V. Fisher, — f Tex. Civ. App. — , 146 S. W. 581 (1911), ci,ting this work. Wisconsin: Wis. Laws 1905, c. 305, § 5. "The use of a street by an automobile when operated with due care and cau- tion and not in violation of state or municipal police regulations, would be deemed a proper and lawful one." Jenk- ins V. Goodall, 183 111. App. 633 (1913). The use of a street by an automobile is both a lawful and a customary use of such street. Smiley v. East St. Louis & S. R. Co., 256 111. 482, 100 N. E. 157 (1912), aff'g 169 111. App. 29. It is lawful to run a 40-horse pqwer automobile on the highways. Gipe v. Lynch, 155 la. 6?7, 136 N. W. 714 (1912 i. 5 Brinkman v. Pacholke, 41 Ind. App. 662, 84 N. E. 762 ; House v. Cramer, 134 la. 374, 376, 112 N. E. 3, 13 Ann. Cas. 461, 10 L. R. A. (N. S.) 655. *134 la. 374, 376, 112 N. W. 3, 13 Ann. Cas. 461, 10 L. R. A. (N. S.) 65i. 6 Reaves v. Maybank, 193 Ala. 614, 69 So. 137 (1915). LEGAL STATUS IS § 14. Automobile is not a nuisance. The use of the auto- mobile as a mode of conveyance on the public highways is hot a nuisance. In a well considered case the court said: "Any method of travel may be adopted by individual members Of the public which is an ordinary method of locomotion, or even an extraordinary method, if it is not of itself calculated tp prevent a reasonably safe use of the streets by others." "Any usual method of travel along the streets cannot be declared a nuisance." ® Any proper use of the highway may under some circumstances interfere with its use by others, and possibly render it dangerous! The appearance of any unusual object in the highway may have some tendency to add to the dangers of travel by means of horse drawn vehicles. But merely because it may have a tendency to frighten horses and thereby imperil the use of the highv/ay by others, is no ground for declaring the automobile to be a public nuisance, and surrendering the highways to the exclusive use of vehicles drawn by horses.'' § 15. Automobile as dangerous per se. While it is true that the operation of the automobile is attended with some dangers not common to the use of ordinary vehicles,' it is not, on that account, to be classed as a dangerous machine within the meaning of the law requiring the owner of dangerous instrumentalities to exercise a proper degree of care to guard, control, and protect them.^ They are not dangerous per se. Prudently driven, they are safer than the horse-drawn vehicle. But the special training needed for their 6 Chicago V. Banker, 112 HI. App. 94, care" Chicago G. W. R. Co. v. Kenyon, 97 I.Chicago v. Collins, 17S 111. 44S, 456, 70 III. App. 567, 569-570. 51 N. E. 107. See also Gilbert v. Flint & P. M. R. An automobile is not a nuisance in Co., 51 Mich. 488, 47 Am. Rejp. 592; itself, and it is not' negligence per se to Macomber v. Nichols, 34 Mich. 212, 22 use one in traveling on public highways ^^ R^p 532; Com. v. Allen, 148 Pa. and across pubUc -bridges, and the owner g^ 353^ jg l r a 143, 33 Am. St. is liable for damages only when caused _ by his negligence. Gaskins v. Hancock, , ',. \ o j n ,->< a r.- -„„ „ , » Vmcent v. Crandall, 131 App. Div. 1S6 N. C. 56, 72 S. E. 80 (1911). ^^ 7 Holland v. Bartch, 120 Ind. 46, 52, 22 N. E. 83, 16 Am. St. Rep. 307 ; Wa- bash, St. L. & P. R. Co. V. Farver, 111 Ind. 195, 199, 60 Am. Rep. 696. ^Alabama: Karpeles v. City Ice Del. "A street car, a steam threshing ma- Co., 198 Ala. 449, 73 So. 642 (1916),; chine, or a fire engine, might frighten Gardiner v. Solomon, — Ala. — , 75 So. some horses, and yet they are not re- 621 (1917); Parker v. Wilson, 179 Ala. garded as nuisances per se, nor dangerous 361, 60 So. ISO, 43 L. R. A. (N. S.) 87 to have in common use, if handled with (1912). 200, 115 N. Y. Supp. 600 (1909) ; Lainpe V. Jacobson, 46 Wash. 533, 536, 90 Pac. 654. 16 LAW OF AUTOMOBILES operation, though i simple and easily acquired, as well as the tetnpta- tion to speed which they constantly i present, should impose upon owners a special degree of care in the selection qf experienced and jadgma tic drivers for them." Georgia; O'Dowd v. Newnham, 13 Ga. App! 220, 80 S. E.J6 (1913). Illinois: Arkin v. Page, 287 111. 420, 123 N. E. 30, S A. L. R. 2l6 (1919). Indiana: Martin v. Lilly, ,^- Ind. — , 12f.N. E. 443 (1919),., , ,' ■■ Iowa: Landry v. Oyersen, — la. — , 174 N. W. 2SS (1919).' Kentucky: Tyler v. Stephan's Adm'.t, 163 Ky. 770, 174 S. W. 790 (191S) ; Weidner v. 'Otter, 171 Ky. 167, 188 S. W. 33S (1916). ; Maine: Farnham v. Clifford, 118 Me, 145, 106 Atl. 344 (1919). Michigan: Hartley v.. Miller, 165 Mich. 115, 130 N. W. 336, 33 L. R. A. (N, S.) 81 (1911); Stapleton v. Independent Brewing Co., 198 Mich. 170, 164 N. W. 520 (1917) ; Bririkman v. Zuckefman, 192 Mich. 624i 159 N. W. 316 (1916). ,i , Minnesota: Allen v. Johnson, — Minn, — , ,175 N. W. 545 (191?,), ^ . Missouri: Daily v. Maxwell, 152 Mo. App. 415; 133 S. W. 351* (19'11) ; Michael V. Pulliam, — Mo: App. —,215 S. W. 763 (1919). Montana: Lewis v. Steele, 52 Mont. 300, 157 Pac. 575 (1916). New York: Vincent v. Crandall, 131 App. Div. 200, 115 N. Y. Supp. 600 (1909). - , . North Carolina: Linville v. Nissen, 162 N. C. 95, 77 S. E. 1096 (1913). Oklahoma: McNeal v. McKain, 33 Okl. 449,, 126 Pac. 742, 41 L. R. A. (N. S.) 775 (1912).^ Rhode Island: Colwell v. Aetna B. & S. Co., 33 R. L 531, 82 Atl. 388 (1912), citing this work. Tennessee: King v. Smythe, 140 Tenn. 217, 204 S. W. 296 (1918); Goodman v. Wilson, 129 Tenn. 464, 166 S. W. 752, 51 L, R. A. (N. S.) 1116 (1914) ; Leach V. Asman, 130 Terin. 510, 172 S. W. 303 (1914) ; Lynde v. Browning, 2 Tenn. C. C. A. 262, L. R. A. 19,150, 696n. Texas: Allen y. Blandi ^ /Tex. Civ. App. — , 1(58 S. W. 35 (1914)'; Riley v. Fisher, Tex. Civ. App. — , 146 S. W. 581 (1911);,: citing this work. ; Utah: McFarlane v. \Vinters, 47 Utah 598, 155 Pac, 437 (1916). Virginia: Cohen v. Meador, 119 Va. 429, 89 S. E. 876 (1916) ; Blair v. Broad- water, 121 Va. 301, 93 S. E. 632 (1917). Washington: Jones v. Hoge, 47 Wash. 663,, 92 Pac. 433, 125 Am, St ,' Rep^ 915, 14 L. R. A. (N. S.) 2 16;, Moore v. Rod- die, 106 Wash. 548, 180 Pac. 879 '('1919) ; Walters V. Seattle, 97 Wash. 6^7, 167 Pac. 124 (1917;^, citing this work. Wisconsin: Steffen v. McNaughton, 142 Wis. 49, 124 N. W. 1016, 26 L. R. A. (N; S:) 382, 19 Ann. Cas. 1227 (1910). Federal: Johnson v. Cadillac Motor CarCo,,(Cir. Ct.), 194 Fed. 497 (1912).: I Automobiles are not to be regarded in the same category with locomptiyes, fero- cious animals, dynamite, and other dan- gerous contrivances and agencies. Pre- mier Motor Mfg. Co. V. Tilford, 61 Ind. App. 164, 111 N. E. 645 (1916). The contrary was held ha Ingraham v. Stockamore, 63 Misc. 114, 118 N.' V, Supp. 399 (1909). "An automobile is not an inherently dangerous machine, and the rules of law applicable to dangerous instrumentali- ties do not apply." Ford Motor Co. v. Livesay, — Okl. — , 160 Pac. 901 (1916). "Automobiles have not been regarded by the courts as dangerous things in the sense that extraordinary care in their operation is required by the law.'' Coca Cola Bot. Wks. v. Brown, 139 Tenn. 640, 202 S. W. 926 (1918). lOKarpeles v. City Ice Del. Co., 198 Ala. 449, 73 So. 642 (1916) ; Parker v. Wilson, 179 Ala'. 361, 60 So. 150, 43 L. R. A. (N. S.) 87 (1912). LEGAL STATUS 17 "An automobile is not to be classified with what are called 'dan- gerous instrumentalities,' such as ferocious animals, dynamite, guur powder, and other inherently dangerous contrivances or agencies; while more nearly approximating a Iqcomotive, the ordinary auto- mobile differs ftiaterially therefrom." ^^ "An automobile is not an article or a machine of an inherently dangerous nature. Alone and of" itself it will not move, explodfe, or do injury to any one." 12 "There is more or less danger in the use of vehicles of any kind. The motor-cycle, the bicycle, the stagecoach, the ordinary carriage drawn by horses, all have their possibilities of peiril, and there is room for difference of opinion concerning the various de- grees of danger to be apprehended therefrom." ^* An automobile out of repair iS not per se a datigeirous machine, but' the condition of an automobile may be such that it would consti- tute negligence on the part of the owner who, with knowledge of its condition, entrusts it to another to drive upon the highways.^* However, the possession of a powerful vehicle like the automobile, which, if not carefully controlled, may became a source of great danger to others, imposes on the user the duty of observing a de- gree of care proportionate to the danger its use involves.** On ac- count of the danger that may be and is created by its operation, it has been subjected to a great deal of criticism by the courts; and, no doubt rightly so.''® "That the modern motor car, equipped with engines developing from 20 to 80 horse power, capable of reaching a speed of from 20 to 80 miles an hour, and moving with such force that no ordinary 11 Fielder v. Davison, 139 Ga. 509, 77 Misspwi:. McFern v. Gardner, 121 Mo. S! E. 618 '(1'912) ; Walters v. Seattle,' 97 ApiJ. 1, 97 S. W. 972. ' Wash. 657, l67 Pac. 124 (1917), citing Rhode Island: Bennett v. Lovell, 12 this work. ■ R. I. 166, 34 Am. Rep.' 628. 12 Walters V. Seattle, 97 Wash. 657, 167 Washington: Lampe v. Jacobson, 46 Pac. 124 (1917), citing this work; John- Wash. 533, 536, 90 Pac. 654. son v., Cadillac Motor Car Co. (Cir. Ct.) ^^"The automobile has created a new 194 Fed. 497 (1912). peril in the use of our highways — a peril I3]\feubrand v. Kraft, 169 la, 444, 151 that unfortunately has been greatly en- N. W. 455 (1915). hanced by the recklessness of the opera- 1* Texas Co. v. Veloz, — Tex. Civ. App. tors who propel the machines with the — , 162 S. W. 377 (1913). speed of railway trains along crowded '^^ Michigan: Wright v. Crane, 142 thoroughfares.'' Scott v. O'Leary, 157 Mich. 508, 106 N. W. 71, 12 Detroit la. 222, 138 N. W. 512 (1912) ; Lauson Leg. N. 794. v. Fond du Lac, 141 Wis. 57, 123 N. W. Minnesota: Whittaker v. Stangvick, 629,. 2S L. R. A. (N. S.) 40, 135 Am. 100 Minn. 386, 391, 111 N. W. 295, 10 St. Rep. 30 (1909). L. R. A. (N. S.) 921. , B. Autos. — 2 1^ LAW OF AUTOMOBILES obstacle can resist it; is a mechainism, the ojperation of which in the public streets is of a highly dangerous character, is so apparent that the mere statement of the facts is equivalent to proof." " A motorcycle comes within this rule.^* § 16. Same— Quotations from the courts. In a Washington case it was held that, "An automobile i? a dangerous instrumentality and if the owner intrusts it to another or leaves it so that another may use it, that other must be presumed to be the agent of the owner." *' ; "An automobile is a dangerous, if not the most dangerous, vehicle in; use upon the streets and highways, since it is possessed of the power of rapid locomotion! unconfined by rails or tracks to any definite line upon the traveled way." '" "It is conceded on all hands that a motor vehicle is a dangerous instrumentality^ and that its operation upon a public highway must be attended with great caution and prudence." *^ The Supreme Court of IV^issouri has said: "There is another important factor which must be reckoned with in the discussion of this case, and that is an automobile is a highly dangerous piece of machinery. In ,f act, automobiles are more dangerous to travel upon the streets than street, cars; the latter are confined to permanently fixed tracks, while the former are not restricted to any partictilar portions of the streets; they run as fast, and on account of their great weight, collisions with them are just as disastrous to man and property as are collisions with the cars. All that vehicles and pedestrians have to do in order to avoid injury from the latter is to keep off of the car tracks, but not so with automobile's; one can never tell in what part of the street they will appear, nor what course they will take in the presence of apparent or threatened collision. A person in trying to diverge from the course of one may step in front of another, or the same automobile may turn in the same direction the pedestrian takes and run him down, he having no knowledge of the course the former will take." ^* "In view of the accidents and tragedies that are daily occurring in the operation of automobiles, the present case seems an avail- able opportunity for a statement of the familiar rules of law with 17 Savoy V. McLeod, HI Me. 234, 88 20 Windsor v. Bast, — Mo. App. — , Atl. 721, 48 L. R. A. (N. S.) 971 (1913). 199 S. W. 722 (1917). 18 Keek's Adm'r v. Louisville G. & El, 21 Collett v. Standard Oil Co., 186 KV. Co., 179 Ky. 314, 200 S. W. 452 (1918). 142, 216 S. W. 356 (1919). 19 Moore v. Roddie, 103 Wash. 386, 22Meenach v. Crawford, — Mo. — , 174 Pac. 648 (1918). 187 S. W. 879 (1916). LEGAL STATUS , 19 more definite application than has yet been aqnopnc^^ in this state to the duty of persons who undertake to drive upoq, the public highways the engine of power and peril, now repre5eiiitpd,iin the mechanism of the automobile. If not strictly a matter of Jydipial notice, it is matter of common knowledge that death and injury are of daily occurrence due to the inefficiency, negligence, or reck- , less conduct of those who are permitted to engage in the operation of these powerful machines^ A mania for speed seems t,p, hg,ye seized the minds and dominated the action of many of the auto- mobile operators, whether owners or chauffeurs. This class of drivers apparently assume that the foot passenger qx t^an^, will, upon their approach, so hastily change its course as to relieve tJie operator from_any diminution of speed, that he may have his machine under control and avoid accident if the unexpected hap- pens and the passenger or vehicle or child does not, as quickly as anticipated, obey the mandate of his whistle or horn." ^* In the case from which the last quotation was taken ; the cpurt also said: "Prudent drivers neither kill children nor injure men, except at very rare intervals, and then only in cases of unavoidable accident or contributory negligence." , / , , "That the motor vehicle, on account of its size and weight,; of its great power, and of the great speed which it is capable of atta,in- ing, creates, unlesg managed by careful and competent operators,; a most serious danger, both to other, travelers on the highway and to the occupants of the vehicles themselves, is too clearly a matter of common knowledge to justify discussion."^* "The automobile is now the most dangerous vehicle in common use." 25 A judge of one of the appellate courts of Missouri, speaking indi- vidually and not for the court, said: "Speaking for myself,, I differ with many of the courts which hold that an automobile /is, nqt a dangerous instrumentality. 'A dangerous instrumentality' is ordi- narily attached as a name to those agencies which are propelled by some powerful force, or in which some destructive force is storeii up, which force is to be controlled by human hands, ^nd which, when not kept under proper control, is calculated to deal,de^th and destruction to those who come within the danger zone. It irequirps but a glance at the daily newspapers to convince one that death and 2» Savoy V. McLeod, 111 Me. 234, 8S S30, Ann. Cas. 191SA 161, 46 L. R. A. Atl. 721, 48 L. R. A. (N. S,) 971 (1913). (N. S.j 977 (1913), rev'g 146 App., DJ,V- 24 Yellow Taxicab Co. v. Gaynor, 159 875. , ' ■, ' App. Div. 893, 895 (1913);, People v. 26 Xerrill v. Walker, 5 Ala. App, 535, Rosenheimer, 209 N. Y. 115\ 102 N. K. 59 So. 775,(1912). "20 LAW OF AUTOMOBILES destruction are constantly resulting from the operation of autorho- biles. And, recognizing this, I think our General' Assembly has classified the automobile as a dangerous instrumentality by statu- tory enactment.^® This was done^, perhaps, because the Legislature thought it necessary to protect others of the traveling public against the use of a vehicle containing within itself such a power that by the mere shift of a few notches of the throttle it can be made to run from six to sixty miles an hour along the streets and highways which were laid out and designed to safely kild conveniently take care of vehicles drawn by the' ass and the ox. Whterever the Legis- lature or the courts have said that the care required to be used is greater than what is known as ordinary care and amounts to the highest ' degree of care, the reason given iS that th& instrumentality being used is a dangerous and subtle agency. Witness the decisions 6f the courts of this state in Cases involving electricity, dynamite, street cars, passenger trains, etc. The General Assenibly has by the statute referred to placed the highest degree of care to be exercised Upon dne Controlling and operating an automobile and I believe that by so doing the' classification has been stamped Upon these vehicles which the courts must adhere to. I believe' that the iecisions of the courts of other states that an automobile is not a dangerous instrumentality were perhaps influenced by the fact' that those states do not have a statute similar to ours." *'' Aside from the intention of the Legislature as evidenced by the statute referred to by the learned judge, the distinction between an instrumentality that is inherently dangerous and one' that is not, seems to be that thfe former is one that is capable of inflicting ihjury_ without the intervention of man and is likely to do so unless posi- tively restrained; whilie the latter is rendered dangerous only by a positive act of man, and even theii onlyby the manner in which it is used. In one the danger lurks within the thing itself; in the other the danger is created by the user. There cannot be said to be a danger zone about a standing automobile with its machi-nery still, as 'there is about a few pounds of dynamite, which hiay explode by the action of sonle natural element upon it; or about a wild arii- mal; or about a heavily charged electric wire that may be broken by a gust of wind, or fall from the corroding effects of exposure to the weather. One must be actively restrained to prevent the escape 26 Mo. Law 1911, p. 330, which re- . ZT Hays v. Hogan, 180 Mo. App. 537, quired operators of automobiles to use 2S7-2S8, 16S S. W. 1125 (1914). TKis the highest degree of care which a very decision was over'ruled in 273 Mo. 1, prudent person would exercise in'' the 200 S. W. 286, E. R. A. 1918C 715, Ann. same or sim'ilar circumstances. Cas. 1918E 1127 (1917J. LEGAL STATUS 21 of the dangerous element contained within it, while the other need pot be. In a prosecution for manslaughter arising out of the killing of a pedestrian by the ajleged negligent operation of an automobile, the < following instruction was upheld: "Wherever any man uses a dangerous machine, he must guard the exercise of that right with a proper care and due regard for the lives and safety of people who have an equal right to be upon the highways." The court recog- nized the rule that an automobile is not to be classed with such dangerous agencies as dynamite or savage animals, and cannot be regarded as, dangerous per se, but remarked that "the use of an automobile is fraught with more danger than the ilse of some other vehicles and we can see no harm in calling, attention to that fact." *' § 17. Not classed with ferocious animals. The law that makes the owner of a vicious animal, who has knowledge of its vicious propensities, prima facie liable to any one injured by such animal which the owner has allowed to get beyond his control,*^ does not apf>ly to injuries caused by automobiles.'" In a Georgia case it was aptly said: "It is riot the ferocity of automobiles that is to be feared, but the ferocity of those who drive them. They are not to be cla,ssed with bad dogs, vicious bulls, and evil disposed mules and the like." '^ § 18. Ordinance relating to ani^lals not aipplicable. An or- dinance providing that, "Whoever shall in this city, ride or drive any horse, mule or other beast faster than an ordinary traveling gait, or who shall recklessly ride or drive so as to endanger the safety of others, shall be deemed guilty of a misdemeanor," was 28 state V. Goldstone, — Minft. — , liS New York: MuUer v, McKesson, 73 N. W. 892 (1920). N. Y. 195, 199. 29 California : Laverbne ' v! Mangianti, Vermont : Oakes v. Spalding, 40 Vt. 41 Cal. 138, 141, 10 Am. Rep. 269. 3'47, 351. Illinois: Knightlinger v; Egan, 75 111. Washington: Harris v. Carstens Pack- 141; Ahlstrand v. Bishop, 88 III. App. ing Co., 43 Wash. 647, 651, 6 L. R. A. •424, 427. ' (N. S.) 1164; Lynch v. Kineth, 36 Wash. Indiana: Partlow v. Haggarty, 35 Ind. 368, 370, 104 Am. St. Rep'. 958. 178, 180. Federal: Spring Co. v. Edgar, 99 U. S, Iowa: Parsons v. l^anser, 119 la^ 88, 645, 651, 25 L. ed. 487. 62 L. R. A. 132, 97 Am. St. Rep. 283. 30 Lewis v. Amorous, 3 Ga. App. 50, Massachusetts: Marble v. Ross, 124 59 S. E. 338. Mass. 44, 47, 6 Cent. L. J. 157. 31 Lewis v. Amorous, 3 Ga. App. 50,* Michigan: Snow v. McCracken, 107 59 S. E. 338. Mich. 49. J^ew Jersey: State v. Remhoff, 55 N. J. L. 475, 479. i22 LAW OF AUTOMOBILES clearly, intended to regplate the riding and driving of hordes, i^ul|es, and other beasts, and does not include automobiles.'^ A statute of like import wa^ held not to apply to automobiles." §19. Is included in statute relating to "teams, carts and carriages." A statute imposihig on towns the duty to keep their bridges and highways in repair, and rendering them liable for injury to persons using them with "teams, carts, and carriages," makes a town liable for damage to an automobile resulting from a defective bridge.** § 20. Automobile is a vehicle. The word '^vehicle" means any carriage moving on wheds or runners used, or capable of being used, as a means of transportation on land.*® The automobile comes within this definition; in fact, the courts have, unhesitatingly declared the automobile to be a vehicle.*® : S8 Shawnee v. Landon, 3 Okl. Cr^ 440,' 106 Pac. 662 (1910). 38Baraboo.v. Dwyer, 166 Wfe.;372, 16S ,N. W. 297 (1917).,, , ' .■., ,, 3* Smith V. Howard, — R. I. — , 105 Atl. 649X,i919).' 36 Vehicle defined: "The word 've- hicle' includes evei'y' description of car- riage or other artificial contrivance used, or capable of being used, as a means of transportation on land." U. S. Comp. St. 1901, p. 4; Anderson's Law Diet., tit. "Vehicle;" Black's Law Diet.,, tit. "Ve- hi,cle;" Bouvier's ,La\ir Diet., tit. "Ve- hicle."^ , , .,/i A vehicle is "any carriage moving on land, eitfier on wheels or on runners.'' Cent. Diet., tit. "Vehicle." "Vehicle: That in which anything is or may be carried, as a coach, wagon, cart, carriage, or the like." Webster's Diet., tit. "Vehicle." "A vehicle is any carriage moving on land, either on wheels or runners; a con- veyfince; that which i? used as an in- strument of conveyance, transportation or communication," Davis v. Petrinovich, 112 Ala. 654, 21 So. 354, 36 L, R. A. 615. A sprinkling cart is a vehicle. St. Louis V. Woodruff, 71 Mo. 92. An electric street car is a vehicle. Fos- ter V. Curtis, 213 Mass. 79, 99 N. E. 961, Ann. Cas. 1913E-1116 (1912). 36 Alabama: Mills' v. Court Of Com'rs., — Ala. — ,, 8l So. 564 (1920). . ' Delaware: . Simeone v. Lindsay, 6 Pennew.,(Del.) 224, 65 Atl. 778. , District of Columbia: Gassenheimer v. District of Columbia, 26 App. Cas. (D. C.) 557; Washington Electric Vehicle Transp. Co.- v'. District of Columbia, 19 App. Cas. (D. C.) 462. Illinois: Christy v. Elliott^ 216,111. 31, '40, 74 N. E. 1035, 3 Ann. Cas. 487, 1 L. R. A. (N. S.) 215, 108 Am. St. Rep. 196; Chicago v. Banker, 112 111. App. 94. Indiana:^ Mclntyre.v, Orner, 166 Ind. 57, 63, 76 N. E. -750, 8 Ann. Cas. 1087, 4 t. R^ A. (N.' S.) 1136', 117 Am. St. Rep. >359 ;j Indiana Springs Co. v. Brown, 165 Ind. 465, 468, 74 N. E. 615, 6 Ann. Cas. 656; 1 L. R. A. (N. S.) 238. Iowa: House v. Cranjer, 134 la. 374, 376, 112 N. W. 3, 13 Ann. Cas., 461, 10 L. R. A. (N. S.) 6S5. Massachusetts: Brown v. Thayer, 212 Mass. 392, 99 N. E. 237 (1912); Foster v. Curtis, 213 Mass. 79, 99 N. E. 961, Ann. Cas. 1913E 1116 ',1912). Missouri: State v. Swagerty, 203 Mo. 517, 523, 102 S. W. 483, 10 L. R. A. (N. S.) 601, 12 ) Am. St. Rep. 671. New Hampshire: Emerson Troy Gran- ite Co. .V. Pearson, 74 N. H. 22, 64 All. 582. New York: Cunningham v. Castle, LEGAL STATUS 23 Thus an automobile used for hire in the District of Columbia, for which the owner has a public hack license, is a vehicle' within the meaning of a police regulation which provides that vehicles for hire, seeking employment, shall not loiter on the streets, except at the regular public stands.*'' But it was decided in another case in the District of Columbia, that an electric automobile,' though a carriage, does not belong to the classes of vehicles made the sub- jects of license tax by an act imposing a tax on the proprietors of hacks, cabs, omnibuses, and other vehicles for the transportation of passengers for hire, not having been known and in use at the time of the passage of the act.'* However, the better law and the weight of opinion is that they are included in the meaning of stch terms, and the fact that they were unkndwn at the time the law was passed is not material." Thus, because automobiles were not known at the time of th^ dedication of a public highway is no reason for excluding them from the use of such highway on equal; terms with vehicles known and in common use at the time.*" An automobile has been held to be a vehicle within the mean- ing of a statute exempting from execution to the head of a family a wagon "or other vehicle, with the proper harness or tackle." *^ It is a vehicle within a statute authorizing cities to regulate the use of vehicles in the public streets, and the fact that they were unknown at the time of the enactment of such statute is of no consequence. *^ 127 App. Div. 580, 111 N, Y. Supp. 10S7; 39 Com. v. Hawkins, 14 Pa. Dist. 592, Mallory; v. Saratoga Lake Bridge Co., 53 593. Misc. 446, 104 N. Y. Supp. 1025; Nason ^Illinois: Moses v. Pittsburgh, F. W. V. West, 31 Misc. 583, 65 N. Y. Supp. & C. R. Co., 21 111. 516, 523. gjl /nrfiand; Indiana Springs Co. V. Brown, Pennsylvania: Com. v. Hawkins, 14 16S Ind. 465, 74 N. E. 615, 6 Ann. Cas. Pa. Dist. 592, 594. ^^^' 1 L. R. A. (N. S.) 238; Wabash, An automobile is a vehicle of quite St. L. & P. R. Co. v. Farver, 111 Ind. recent times, carrying its motive power 1^5, 198; Bogue v. Bennett, 156 Ind. within itself. Thies v. Thomas, 77 N. Y. ^78, 482, 60 N. E. 143, 83 Am. St. Rep. Supp. 276, 279. ^'^' _, ^ 1..I ■ 7- , ■ Kentucky: Shinkle v. McCuUough, 116 The automobile is a vehicle m com- ,.»„„, „ mon use for transporting both persons Ky. 960, 965, 77 S. W. 196, 25 Kyi L. Rep. 1143, 105 Am. St. Rep. 249. and merchandise upon pubhc highways. i^i^g^^. Macomber v. Nichols, 34 Baker v. Fall River, 187 Mass. S3, 57, j^j^^ 212, 217, 22 Am. Rep. 522. 72 N. E. 1336. jy^jj, York: Knight v. Lanier, 69 App. 3T Gassenheimer v. District of Colum- jj^^ 454^ 453^ 74 ^ y.Supp. 999. bia, 26 App. D. C. 557. « Lames v. Armstrong, 162 la. 327 38 Washington Electric Vehicle Trans- 144 n. W. 1 (1913). portation Co. v. District of Columbia, 19 42 Henderson v. Lockett, 157 Ky. 366, App. D. C. 462. 163 S. W. 199 (1914). 24 LAW OF AUTOMOBILES § 21. Automobile is a carriage. The automobile isi a carriage in both the broad and restricted sense in which the word is used.*' In its broadest sense the word "carriage" means anything that car- ries a load.** When used to describe a vehicle, it is not always con- fined to one class of vehicles, but is often used as a generic term for that which carries.** ' In a New Hampshire case it was held that the word "carriage" was intended to include whatever carried a load, whether upon wheels or runners.*® But, by the more common use of the word, its meaning is restricted to vehicles for the transportation of persons, like the carriage which may be seen in daily use on our city streets.*'' It has been declared that the word is intended to convey the idea of a vehicle used for the transportation of persons either for pleasure or business, drawn by horses over the streets and highways, and not cars used only on railroads constructed for their use.** § 22. Decisions that the automobile is a carriage. A vehicle described in a criminal charge as "A wagon drawn by four horses and used in the transportation of property," was held not to be included in an ordinance requiring owners of a "hackney coach, carriage, omnibus, or dray" to pay a license for the privilege of using the same on the city streets.*® A nisi prius court in Pennsylvania decided that the automobile is a carriage within a statute empowering cities to regulate and ' license certain enumerated vehicles, "and every description of carriage," *" and the fact that such a conveyance was not known at the time that tbe law was passed, is immaterial.®^ So by the *3 Washington Electric Vehicle Transp. R. Cas. 70; Anderson's Law Diet.,, tit. Co. V. District of Columbid, 19 App. Cas. "Carriage;" Black's Law Diet., tit. "Car- CD. C. 462; Baker v. Fall River, 187 riage." , Mass. 53, 57, 72 N. E.,336; Nason v. « Cream City R. Co. v. Chicago etc.. West, 31 Misc. 583, 65 N. Y. Supp. 651; R. Co., 63 Wis. 93, 21 Am. & Eng. R. N.Y. Gen. Laws, vol. 2, p. 1629, § 162; Cas. 70. Com. V. Hawkins, 14 Pa. Dist. 592, 593; *9 Snyder v. North La ce, 8 Kan. 82.' Smith V. Howard, — R. I. — , 105 Atl. so Com. v. Hawkins, W Pa. Dist. 592, 649 (1919); State v. Jarvis, 89 Vt. 239, 593. 95 Atl. 541 (1915). Bl Indiana Springs Co. v. Brown, 165 "Conway v. Jefferson, 46 N. H. 521, Ind. 465, '74 N. E. 615, 6 Ann. Cas. 656, 523; Abbott's Law, Diet., tit. "Carriage;" 1 "L. R. A. (N. S.) 238; Baker v. Fall Cent. Diet., tit; "Carriage." River, 187 Mass. 53, 56, 72 N. E. 336; 46 Abbott's Law Diet., tit. "Carriage." Richardson v, Danvers, 176 Mass. 413, 46 Conway v. Jefferson, 46 N. H. 521, 57 N. E. 688, 50 L. R. A.' 127, 79 Am. 523. St. Rep. 330; Com. v. Hawkins; 14 Pa. 4'? Snyder v. North Lawrence; 8 Kan. Dist. 592. But see Washington Electric 82, 84; Cream City R. Co. v. Chicago Vehicle Transp. Co. v. District of Colum- etc. R. Co., 63 Wis. 93, 21 Am. & Eng. bia, 19 App. D. C. 462. LEGAL STATUS 25 Supreme Judicial court of Massachusetts, one injured while riding in an automobile, due to a defective public highway, was held not to be precluded from recovery because of the nature of the vehicle in which he was riding.*^ And in a New Jersey case it was declared that the automobile is a carriage within the meaning of a covenant in a deed reserving a strip of land for a carriage way.®* It has been declared to be a carriage within the meaning of a statute exempting to every family "one carriage or buggy." ** § 23. Automobile held not to be a carriage. In an action against a, town for an injury to an automobile caused by a defective highway, the supreme judicial court Of Massachusetts held that an automobile is not a carriage within the meaning of a statute requir- ing cities and towns to keep their highways, in repair so that they may be reasonably safe and convenient for travelers with their horses, teams and carriages, since the carriages referred to are those drawn by animal power.*® In this case it was said, "When tQ\yns were fiirst required by law to keep their highways and town ways reasonably safe and convenient for travelers, with their horses, teams and carriages at all seasons of the year, there was no thought of putting upon them such a burden as would be imposed if they were compelled to keep all these ways in such a condition that automobiles could pass over them safely and conveniently at all seasons. A statute providing that "whoever with intent to cheat or defraud the owner thereof refuses to pay for the use of a horse or carriage the lawful hack or carriage fare established therefor by any city or town, shall be punished," etc., was held not to apply to automobiles or their use.®® , 62 Baker v. Fall River, 187 Mass. S3, sense of the word. Doherty v. Ayer, 56, 72 N. E. 336. 197 Mass. 241, 83 N. E. 677, 14 L. R. A. A statute providiiig that highways be (N. S.) 816. kept in Wpair so that they may be rea- 8* Diocese of Trenton v. Toman, ' 74 sonably safe for travelers and their horses >?. J. Eq. 702, 70 Atl. 6061 and carriages, is not to be confined to 64patten v. Sturgeon, 214 Fed. 65, 130 the same kind of vehicles in use at C. C. A. SOS (1914); Peevehouse v. the time of the passage of the statute. Smith, — Tex. Civ. App. — , 152 S. W. Richardson v. Danvers, 176 Mass. 413, 1196 (1913) ; Parker v. Sweet,, — Tex. 57 N. E. 688, SO L. R. A. 127, 79 Am. Civ. App. — , 127 S. W. 881 (1910). St. Rep. 330. 66 Doherty v. Ayer, 197 Mass. 241, S3 The term "carriage" includes auto- N. E. 677, 14 L. R. A. (N. S.) 816. mobiles. N. Y. Gen. Laws, vol. 2, p. 66 Com. v. Goldman, 20S Mass. 400, 91 1629, §162. N. E. 392 (1910). The automobile is a carriage in a broad 26 LAW OF AUTOMOBILES " § 24. Oharaqteristics of the automobile. In itself i the .auto- mobile: is harmless and characterless. It! is only when human agency intervenes that it assumes characteristics peculiarly- its own.*'' It is capable of being driven at a high rate of speed;" it is heavy, powerful, fast, and generally noisy;*® its shape, is unusual; it is propelled by a power within itself < and. produces a, puffing noise when in motion,^" and, if carelessly handled,, may become as terrifying as it is dangerous.®^ On account of its great weight and strength, it is capable, in a collision with an ordinary vehicle, of smashing it without serious injury to itself.^'' , "Automobiles are ponderous and dangerous jnachmes, possessing great power and speed, and therefore threaten imminent hiirt in £i highway if not properly controlled and conducted." *' , § 25. Tendency to frighten horses. The mere fact that the use of autompbiles on the public highways is apt to frighten horses is no reason for adjudging them nuisances.** Horses would as Hkely bepome frightened at the primitive ox team and wagon of the prairie-schooner variety as at automobiles, arid certainly no one will deny the right of the oxen and wagon to use the public highways.®* . Bicycles formerly frightened horses, but no liability arose on that account.®* So, automobiles running at moderate speed and operated in a careful manner, may cause fright to hor;ses unused to . theip, but BT Lewis V. Amorous, 3 Ga, App. SO, BSBongner v. Ziegenhekj, 16S Mo. S9 S. E. 338. ' App. 328, 147 S. W. 182 (1912). 68 Ex parte Berry, 147 Cal. S23, S24, ei Illinois: Moses v. Pittsburgh etc. R. 82 Pac. 44, 109 Am. St. Rep. 160; Brink- Co., 21 III. S16. - ., man v. Pacholke, 41 Ind. App. 662, 84 Maine: Towle v. Morse, 103 Me. 2S0, N. E. 762; Com. v. Boyd, 188 Mass., 79, 68 Atl. 1044. ; 74 N. E. 255; McFern v. Gardner, 121 Michigan: Macomber v. Nichols, 34 Mo. App. 1, 10, 97 S. W. 972. , Mich. 212, 22 Am. Rep. 522. 59 Ex parte Berry, 147 Cal. 523, 524, Minnesota: ,Thon:)pson v. Dodge, 5S 82 Pac. 44, 109 Am. St. Rep. 160; Hall Minn. SSS* 60 N. W. 545, 28 L. R. A. V. Compton,, 130 Mo. App. 675, 108 608. S. W. 1122. New York: Na^on v. West, 31 Misc. 60 Christy v. Elliott, 216 111. 31, 40, 583, 586, 65 N. Y. Supp. 651. 74 N. E. 1035, 3 Ann! Cas, 487 1 L. R. A. 66Nason v. West, 31 : Misc. 583, 586, (N. S.) ?15, 108 Am. St. Rep. 196. 65 N. Y. Supp. 651. ' 61 Ex parte Berry, 147 Cal. 523, 524, 66 Holland v. Bartch, 120 Ind. 46, 22 82 Pac. 44, 109 Am. St. Rep. 160; Com. N. E. 83, 16 Am. St. Rep. 307; Thomp- V. Boyd, 188 Mass. 79, 74 N. E. ,25,5. son v. Dodge, 58 Minn. 555, 60 N. W. 62 McFern v. Gardner, 121 Mo. App. 545, 28 L. R. A. 608. 1, 10, 97 S. W. 972. , . , 1 LEGAL STATUS 27 the horses must get used to them or the driver take his chances.*'' The operator of an automobile i^ charged with the knowledge that his vehicle may frighten horses,** and the fact that horses are likely to become frijghtened at the automobile is a material element in the question of due care on the part of the drivers of both horses and automobiles.*® §^26. Noises incident to operation. The ordinary noises inci- dent to the operation of, the automobile are not, of themselves^ riegli- gent,™' ' \ Eyen when standing still, if the machinery is yet in motion, some automobiles njake a whirring, grinding sound, but if one is stopping but briefly, it is not negligence as matter of law to allow the explo- sions of the engine to continue.''^ But noises may be emitted from an automobile under such cir- curastancesi as to render the owner liable.''^ ■ B' Towle V. "Morse, 103 Me. 250, 68 •Atl. 1044; Nason vi West, 31 Misc. 583,' 586, 65 N. Y. Supp. 651. ' ' ' 68 House V. Cramer, 134 la. 374, 377, 112 N. W. 3, 13 Ann. Cas. 461, 10 L. R. A. (N. S.) 655., ■ : : , 69 Towle V. : Morse, 103 Me. 25,0, 68 , Atl. 1044; Wright v. Crane, 142 Mich. 508, 106 N. W: 71, 12 Detroit Leg. N. 794. "■• y ''^Alabama: Stanton v. Louisville & N. R. Co., 91 Ala. 382. i ; Indiana: Indiana .Springs Co; y. Brown, 165 M. 465, 468, 74 N. E. 615, 6 Ann. Cas. 6^6, 1 L. R. A. (l>j. S.) 238. Iois!d: House v. Cramer, 134 la. 374, 377, 112 N. W. 3, 13 Ann. Cas. 461, 10 = L. R. a: (N. S.) 655; Wolf v. Des Moines Elevator Co., 126 la. 659. Maryland: Duval v. Baltimore & O. R. Co., 73 Md. 516. Massachusetts: Favor v. Boston & L. R. Corp., 114 Mass. 350.' Mississippi: Mcderrin v. Alabama & V. R. Co., 72 Miss. 1013. Nebraska: Omaha & R. V. R. Co. v. Clarke, 39 Neb. '65. New York: Nason v. West, 31 Misc. 583, 586, 65 N: Y. Supp. 651. North Carolina: Brendle v. Spencer, 125 N. C. 474; Doster v. Charlotte St. R. Co., 117 N. C. 651, 661. Wisconsin: Cahoon v. Chica.go 8t N., W. R. Co., 85 Wis. 570. The mere fact that a horse becomes frightened at an electric car and the sounding of its gong, and runs away, does not make the car company liable. There, must t^e, some injs,conduct ,on the part of the company's seryant having control of the car. Galesburg Electric & P^ Co. V,' Jilanviile, 61 III. App. 490, 492.' The ordinary use of a railroad engine, and the ordinary sounding of the whittle : and, allowing the .stealn, to iescape ,is,nqt, negligence. Indianapolis Uijion R. Co.v. Boe'ttcher, 131 Ind, 8i2^ 84. ' There can be no liability for injury re- stilting' from the ordinary noises of ah' automobile. Eichman v. Buchheit, 128 Wis. 385, 391, 107 N. W. 325, 8' Ann. Cas, 435. , ' ^''l House V. Cramer, 134 la. 374, 377, 112 N. W. 3, 13 Ann. Cas. '461, 10 L. R. A. (n!'s.) 655.- '" ; ''^Alabama: Stanton v. Louisville & N. R. Co., 91 Ala. 382, 386. Georgia: Georgia R. Co. v. Thomas, 73 Ga. 350, 355. ' ' s; -. -, . \ Illinois: Toledo, W. & W.' R. Co. v. Harmon, 47 111. 298, 95 Am. Dec. 489. Indiana: Indianapolis Union R. Co. v. Boettcher, 131 Ind. 82. Iowa: Andrews v. Mason City & F. 28 LAW OF AUTOMOBILES i Thus, yvhere a railroad engineer blew off steam in^.£)rc}^r to frighten children, and a child was frightened so that it ipll and sus- tained a broken leg, the company was held liable, the negligence consisting in the manner and place, of blowing off the steamJ^ And, , as was said in the case of Naspny. West''* with reference to ?LUjto-: mobiles: "It will not do to say that it is proper to run any kind of a contrivance on the street in lyhjch persons may be carried. A machine that would go puffing and snorting through the streets might be a nuisance." But such is not the ordinary and usual conduct of the automobile. What noises are negligent depend upon ail the circumstances at the time; noises that woiild not be negli- gent if no one were in sight might amount to gross negligence if one were in the act of passing a team of horses on the highway.''* §27. Judicial notice. Under a statute which provides that courts will take judicial notice "of the true significance of all^ English words and phrases," it has been held that courts will t,ake judicial notice of an automobile and its characteristics and the consequences of its use. > Thus a court may take judicial notice that an automobile makes an unusual noise; that it can be driven at a great velocity — at a speed many times greater thaii that of ordinary vehicles, hauled by animals, and that it is highly dangerous when used on country roads.''® This does not mean that they should be excluded from the highways, but merely that they are a source of danger to users of ordinary modes of conveyance; and the courts will take notice of this fact without requiring proof.''"' It has been said that courts will take judicial notice, not only of the usefulness of the automobile, but of the fact that "as a vehicle in its possibilities so destructive when in the hands of care- legs and reckless drivers as to spread over the land the maimed and dead until it has belittled the cruelties of the car of Juggernaut." ''' D, R. Co., 77 la. 669; ^Iseyer y. Miu- 'B// an engineer, where teams are cpn- neapolis & St. L. R. Co., US la. 338. stantly passing unnecessarily opens the Kansas: Culp v. Atchison & N. R. Co., valves of his engine and frightens such 17 Kan. 47S. ■ , i ,, horses and causes them to run away and Nebraska: Omaha & R. V. R. Co. v. commit injury, his employer will be Clark, 39 Neb. 65,^68. ' liable. Omaha & R. V. R. Co, v. Clarke, North Carolina: ;Brendle v. Spencer, 39 Neb. 65, 68. 12S N. C. 474. 76 Ex parte Berry, 147 Cal. S23, S24, Pennsylvania: Pennsylvania R. Co. v. 82 Pac. 44, 109 Am. St. Rep. 160. Barnett, 59 Pa. St. 259, 265. ''' Brazier v. Philadelphia, IS Pa. Dfet. 'SAlsever v. Minneapolis; & St., L. R. 14, 16, aff'd 215 Pa. St. 297,, 64 Atl. 508. Co., 115 la. 338. 78 Colborne v. Detroit United Ry„ 177 7431 Misc. 583, 586,, 65 N, Y. Supp. Mich, 139, 143 N. W. 32 (1913). 651. LEGAL, STATES 29 "In the light of common, kinQ\!irledge courts can well take judicial nqtiqe ,pf the automobile, not only ; as a jmqst useful and pleasing means, of swiftly transporting persons and property for pleasure or business, when properly controlled and cautiously driven, but as a vehicle in its possibilities so destructive when in the hands of careless and reckless drivers as to spread oyer the land the maimed and dtead until it has belittled the cruelties' ^of the ca;r of Jugger- naut." ''9 ' ' '' Courts may take judicial knowledge that motor' trucks are more destructive to the surface of streets than horse-drawn vehicles." Courts will take judicial notice that automobiles are generally tested by an actual run;*^ that' a blow-out of a front tire of an automobile running 15 miles an hour could not cause the auto- mobile to run into a ditch at the side of the road;*^ that the over- whelming majority of vehicles ' that occupy the streets of our cities af the present time ate' motor vehicles ; *' that motor-trucks are operated or propelled by gasoline engines or inotors', which by the use of gasoline produce their own energy or motive power.** The court will taie notice of the fact, of common knowledge, that within the space of a mile and a half a competent operator of an automobile is able to control and change the speed of an auto- mobile at various points.*^ - •' ! , I ; It has been said to be a matter of common knowledge that when a collision occurs between a railroad train and an automobile, the result is the same as when the train strikes a wagon, buggy, or other ordinary vehicle-— the occupants of the automobile or vehicle; are the pnes who are crippled or killed.?® "It isia matter of common knowledge that economy in the con- sumption of gasoline in driving motor cars is largely influeilced by the ability and experience of the chauffeur, by the character of the rbad traveled, by the number of stops, and by the length of the times in which the engine is permitted to run without progress sipji."*^ "/';, .. ■ > 79Colborne v. Detroit United Ry., 177 84Haddad v. Commercial M. T. Co., Mich. 139, 143 N. W. 32 (1913). 146 La. 897, 84 So. 197, (1920). ^ SOWestfall's S., V. & E. Co. v. Chi- 8B People v. Barnes, 182 Mich. 179, 148 cago, 280 111. 318, 117 N. E-. 439 (1917). N,; W, 4P0 (1914). , ii,.i SlHartnet v. Hudson, 165 N. Y. Supp. 86 Louisville, & N, R. Co. v. Xreanor's, 1034 (1917). Adro'r, 179 Ky. 337, 200 S.. W. 634 SZKlien V. Beeten, 169 Wis. 38S, 172: (1918).-. N. W. 736 (1919). -.,. 87 Fleming v. fierlinger Motorcar Co., 83Dice V. Jol^nson, — la, — , 17S 86 Oreg. 195, 168 Pac. 289 (1917). N. W.,38 (1919). ,: ;/ .| 30 LAW OF AUTOMOBILES § 28. Status of the bicycle. The bicycle is a Ught carriage or vehicle for the conveyance of persons and property. Its positiofl on the public highways is much the same as that of the automobile, and the principles of law applied to it in the cases cited will be found useful when applied to the automobile. §29, Same— Is a vehicle or carriage. That the bicycle is a vehicle or carriage, generally speaking, is sustained by a long line of diBcisions. Thus imder a statute exempting to the head of a family, among other things, "a wagon or other vehicle," a bicycle was held to be such vehicle and exempt.'* A city ordinance provid- ing that no person shall place or draw any wagon, cart or other Vphi|Cle on any sicjewalk was held to include a bicycle;" and a bicyple was held to be "a two-wheeled carriage" ,within the meaning of an act empowering a turnpike company to collect toll for the passage of carriages." While it has, equal rights on the highways with other: vehicles, it is, subject to the same obligations, and one using it as a, mo4e, of conveyance is bound to exercise a reasonable degree of care to avoid int,erfering with others in the exercise: of similaf rights.®^ 8»-Roberts v. Parked, 117 la. 389, 90 N. W. 744, 57 L. R. A. 764, 94 Am. St. Rep. 316. ■' . : 89 Gagnier v. Fargo, 11 N. D. 73, 88 N. W. 1930, PS.Am. St. Rep. 70S. '"Geiger v. Perkiomen & R. Turnpike Road, 167 Pa. St. SS2. ^^ Alabama: Davis v. Petrinovicli, 112 Ala..,6S4j 21 So. 344, 36 L. R. A. 61S. Illinois: North,. Chicago St. R. Co, v. Cossar, 203 111. 608, 68 N. E. 88. Indiana: Holland v. Bartch, 120 Ind. 46, 2^ 'i^l E. 83, 16 Am. St. Rep. 307; Mercer V. Corbin, 117 Ind. 450, 20 N. E. 132, 10 Am. St. Rep. 76, 3 L. R. A. 221. Iowa: Roberts v. Parker, 117 la. 389, 90 N. W. 744, 57 L. R. A. 764, 94 Am. St. Rep. 316. Kansas: Swift v. Topeka, 43 Kan. 671, 23 Pac. 1075. Michigan: Myers v. Hinds, 110 Mich. 300, 68 N. W. 156, 33 L. R. A. 356. Missouri: State ex rel. v. Missouri Pacific R. Co., 71 Mo. App. 385. North Dakota: Gagnier v. Fargo; 11 N. D. 73, 88 N. W. 1030, 95 Am. St. Rep. 705. Pennsylvania: Lacy v. Winn, 4 Pa. Dist. 409, 412 ; Taylor v. Union Traction Co., 184 Pa. St. 465, 40 Atl. 159; Com. V. Forrest, 170 Pa. St. 40; Geiger v. Perkiomen & R. Turnpike Road, 167 Pa. St. 582. Rhode Island: State v. Collins, 16 R. I. 371, 17 Atl. 131, 3 L. R. A. 394. Texas: Laredo Electric & R. Co. v. Hamilton, 23 Tex. Civ. App. 480, 484. Virginia: Jones v. Williamsburg, 97 Va,7,22, 34 S. E. 883, 47 L. R. A. 294. Canada: Reg. v. Justin, 24 Ont. 327. England: Taylor v. Goodwin, L. R. 4 Q. B. Div. 228, 27 Weekly Rep. 489; Ellis v. Nott-Bower, 60 J. P. 760. Andersons's Law Diet., tit. "Bicycle." Bouvier's Law Diet., tit. "Bicycle." Standard Diet., tit. "Bicycle." A bicycle is a vehicle and its proper place is upon the highway, or the street proper, and not upon the sidewalk. Fielder v. Tipton, 149 Ala. 608, 42 So. 985, 8 L. R. A. (N. S.) 1268. The bicycle is a carriage under 14 and IS Vict., c. 92. McGee v. McGrath, 30 \ LEGAL STATUS 31 § 30. Same— Held not to be a vehicle or carriage. In cer- tain instances it has been held that the bicycle could not be classed as a vehicle or carriage. Thus, where a turnpike company was authorized to charge a certain toll "for every carriage of whatever description, and for whatever purpose, which shall be drawn or impelled, or set or kept in motion by steam or other power or agency than being drawn by any horse or horsey, or other beast of draught," it was held that the bicycle was not a carriage liable to toll under such act.®^ * A person riding a bicycle is not traveling as an ordinary passen- ger in a vehicle.®* LTnder a statute providing thati highways shall be kept in rbpair so that the same may be reasonably safe and convenient for trav- elers; with their horses, teams and carriages at all seasons of the year, it was declared-that a bicycle is hot a carriage within the meaning of the statute, so as to entitle one injured by being thrown from his bicycle by a defect in the highway to recover for the injury.®* A bicycle is not included in a statute which exempts from execu- tion to the head of a family, among other things^ "one wagon, cart or dray.'"* L. R. Ir. 41; Ency. ,of the Laws of A bicycle does not come within the Eng., vol. 4, p. 90. description "sledge, drag, or such like The bicycle is a vehicle or carriage and carriage," occurring in a statute impos- its use on the public highway is lawful. ihg a toll upon such vehicles. Smith v. Thompson v. Dodge, 58 Minn. SSS, 60 Kynnersley, 66 J. P. 679. N. W. S4S, 28 L. R. A. 608. A statute giving turnpike companies "Bicycle" and "velocipede" are con- the right to collect toll from persons vertible terms. State ex rel. v. Missouri riding over their roads in vehicles drawn Pacific R. Co., 71 Mo. App. 38S, 391; by horses, does not include the bicycle. Cent. Diet. Murfin v. Detroit & E. Plank Road Co., 92 Williams v. Ellis, 1880, S Q. B. Div. 113 Mich. 67S, 71 N. W. 1108, 38 L. 17S. R. A. 198, 67 Am. St. Rep. 489. 98 McMillan v. Sun Life Assur. Co., 4 Bicycles are not embraced in the class Scots L. T. 98. of things denoted by the words "per- 94 Richardson v. Danvers, 176 Mass. sonal or ordinary baggage." State ex rel. 413, 57 N. E. 688, 50 L. R. A. 127, 79 v. Missouri Pacific R. Co., 71 Mo. App. Am. S{. Rep. 320. ' 385. 96 Shadewald v. Phillips, 72 Miivn, 520, 75 N. W. 717. CHAPTER Hi STATE POLICE REGULATIONS §31. Police power described.' §32. Power of the state to regulate use of property. § 33. Limitation of police power. §34. Power of state to regulate use of , , automobiles. ! §3S. Power to exclude automobiles from highways. § 36. Repeal of law by implication in regulation of automobiles.' ' § 37. Necessity for regulation. ■§'38. Necessity for uniform regulation. § 39. Regulation of speed; § 40. <:onstructionv of penal statutes reg- ulating automobiles. § 41. Effect of partial invalidity of stat- ute regulating automobiles. § 42. One subject to be expressed in the title. § 43. Automobile regulations as class leg- islation. § 44. Exempting automobiles kept in stock. , § 4S. Registtation and display of number —rPurpose. § 46. Same — Constitutionality of the law. §47. Same — ^Taking of property. §48. Same — Personal liberty. § 49. Same — Meaning of "d^e process of law" or "law of the land." § 31. Police power described. is not capable of exact definition,^ ^Colorado: In re Morgan, 26 Colo. 41S, 422, 77 Am. St. Rep. 269. Indiana: Indianapolis v. Consumers Gas Trust Co., 140 Ind. 107, 118, 49 § SO. Same — Privileges and immunities of citizens. ■•!-i;.;T ,i ,, § SI. Discrimination betjvpen resdents and nonresidents. §^2. Discrimination against nonresi- ' dents. § S3. Discrimination between nonresi- dents. §,S4. Requiring motpris^ -to stop on sigp nal from driver of jhorse. §SS. Crime to have possession , of auto- mobile with manufacturer's'nuiri- ber removed: § S6. Taxing automobile agents and deal- ers. , : S 11 § S7. Requiring driver or owner to give name, address, and . assistance in case of accident. § S8. Making owner liable for all in- ' juries done by automobile ex- cept when stolen. § S9. Making claim for damages caused by automobile lien thereon. § 60. Making owner liable when auto- mobile operated with his consent. §61. Taking automobile without owner's consent made a crime. §'62. Providing- for service of process on owner iij any country. §63. Requiring iionresident owner to ap- point agent on whom process may be served. ^ Whilie the term "police power" it may be said to be that power, Am. St. Rep. 183, Mississippi: Macon v. Patty, S7 Miss. 378, 407, 34 Am. Rep. 4S1. New York: People v. King, 110 N. 32 STATE POLICE REGULATIONS 33 inherent in the state, whereby it may enatt and enforce all laws for the protection, maintenance or advancement of the health, safety, morals, comfort, quiet, convenience, welfare and prosperity of the people.^ Blackstone says that the police power consists of "The due regu- lation and domestic order of the kingdom, whereby the individuals of the state, like members of a well-governed family, are bound to Y. 418, 423, 18 N. E. 245, 1 L. R. A. 2Q3, 6 Am. St. Rep. 389. ■ Rhode Island: State v. Dalton, 22 R. I. 77, 80, 46 Atl. 234, 48 L. R. A. 775, 84 Am. St. Rep. 818. Washington: Karasek v. Peier, 22 Wash. 419, 426, 61 Pac. 33, SO L. R. A. 345. Federal: NAw Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 650, 661, 6 Sup. Ct. 252, 29 L. ed. 516; Beer Co. V. Massachusetts, 97 U. S. 25, 33, 24 L. ed. 989; Slaughter-House Cases, 83 U. S. (16 Wall.) 36, 62, 21 L. ed. 394. ^Arkansas: McLean v. State, 81 Ark. 304, 98 S. W. 729. California: Plumas Co. v. Wheeler, 149 Cal. 758, 762, 87 Pac. 909. Idaho: Walker v. Bacon, 11 Idaho 127, 81 Pac. 155, aff'd 204 "U. S. 311, 27 Sup. Ct. 289, 51 L. ed. 499. Illinois: Belleville v. Turnpike Co., 234 111. 428, 437, 84 N. E. 1049. Iowa: Brady v. Mattern, 125 la. 158, 162, 100 N. W. 358. Kansas: Meffert v. Medical Board, 66 Kan. 710, 72 Pac. 247, 1 L. R. A. (N. S.) 811. Kentucky: Sanders v. Com., 117 Ky. 1, 77 S. W. 358, 1 L. R, A. (N. S.) 932. Missouri: St. Louis v. Grafeman Dairy Co., 190 Mo. 492, 503, 89 S. W. 617, 1 L. R. A, (N. S.) 936; State v. Whitaker, 160 Mo. 59, 60 S. W. 1068. Nevada: Ex parte Boyce, 27 Nev. M9, 75 Pac. 1. New Jersey: Hopper v. Stack, 69 N. J. L. 562, 56 Atl. 1. New York: People v. King, 110 N. V. 418, 423, 18 N. E. 245, 1 L. R. A. 293, 6 Am. St. Rep. 389, B. Autos. — 3 Pennsylvania: Radnor Township v. Bell, 27 Pa. Super. Ct. 1, 6; Com. v. Vrooman, 164 Pa. St. 306,30 Atl. 217, 25 L. R. A. 250, 44 Am. St. Rep. 603. Rhode Island: Harrington v. Board of Aldermen, 20 R. I. 233, 237.' Vermont: Thorpe v. Rutland & B. R. Co., 27 Vt. 140, 149. Virginia: Young y. Com., 101 Va. 853, 863, 45 S. E. 327. Washington: State v. Walker, 48 Wash.' 8, 92 Pac. 775. United States: Reynolds v. United States, 98 U. S. 145; Lawton v. Steele, 152 U. S. 133, 14 Sup. Ct. 499; Chicago, B. & Q. R. Co. V. People, 200 U. S. 561, 592, 26 Sup. Ct. 341, 50 L. ed. 596. McQuillin, Mun. Ord., § 429. Freund, Pol. Pow., § 2, et seq. The police power is not limited to reg- ulations to promote the public health, morals, or safety, but may be extended to such Regulations as will promote the public convenience and general prosperity. Williams v. State, 85 Ark. 464, 108 S. W. 838. The state inherently possesses such power of restraint upon private rights as may be found necessary' and appro- priate to promote the health, comfort, safety, and welfare of society., Christy V. Elliott, 216 111. 31, 74 N. E. 1035, 3 Ann. Cas. 487, 40, 1 L. R. A. (N. S.) 215, 108 Am. St. Rep. 196. "All laws for the protection of the lives, limbs, health, and quiet of per- sons, and the security of all property within the state, fall within this general power of the government." State v. Noyes, 47 Me. 189, 212. 34 LAW OF AUTOMOBILES conform their general 'behavior to the rules of propriety, good neighborhood and good manners, and to be decent, industrious and inoffensive in their respective stations." ' Upon this power depends the existence and security of social order, the life and health of the citizens, the beneficial use of prop- erty; in fact, it forms the very foundation of our social system* It is founded on the legal maxim that "every man should so use his own property as not to injure that of another," * and upon the right and duty of the state to protect its citizens and provide for the safety and good order of society.® It is so necessary to the security of the state and the welfare of its citizens that the state cannot, by contract "or otherwise, divest itself of such power; nor can a municipal corporation to which the power has been delegated by the state.'' § 32. Power of the state to regulate use of property. Un- der the police power of the state the Legislature may enact all man- ner of wholesome and reasonable laws, not repugnant to the consti- tution, which it may deem for the good and welfare of the people.* The state may pass laws regulating the conduct of business, profes- sions, trades and pleasures,' and if a particular business is essen- 34 Bl. Cpm. 162. 4 Radnor Township v. Bell, 27 Pa. Super. Ct. ,1,6; Philadelphia v. Bra- bender, 17 Pa. Super. Ct. 331, 201 Pa. St. S74; Wilkes-Barre v. Garabed, 11 Pa., Super. Ct. 3SS. 8 Com. V. Bearse, 132 Mass. S42, S46, 42 Am. St. Rep. 450; State v. Yopp, 97 N. C. 477, 478, 2 Am. St. Rep. 305; Karasek v. Peier,, 22 Wash. 419, 426, 61 Pac. 33, SO L. R. A. 345. 6 Deems v. Mayor of Baltimore, 80 Ind. 164, 173, 45 Am, St. Rep. 339; State V. Lee, 137 Mo. 143, 146. "f Colorado: White v. Farmers High- line Canal Co., 22 Colo. 191, 200. Kentucky: Com. v. Douglass, 100 Ky. 116, 126, 66 Am. St. Rep. 328. Minnesota: State ex rel. v. St. Paul, M. & M. R. Co., 98 Minn. 380, 403, 108 N. W. 261. Missouri: Westport v. MulhoUand, 159 Mo. 86, 95, 60 S. W. 77, 53 L. R. A. 442; State ex rel. v. Laclede Gas Light Co., 102 Mo. 472, 486, 22 Am. St. Rep. 789. Wisconsin: Chicago, M. & St. P. R. Co. V. Milwaukee, 97 Wis. 418, 422. Federal: Powell v. Pennsylvania, 127 U. ^. 678, 683; Stone v. Mississippi, 101 U. S. 814, 820. ^Arkansas: Williams v. State, 85 Ark. 464, 108 S. W. 838. Illinois: Lake View v. Rose Hill Ce^m. Co., 70 111. 191, 194, 22 Am, Rep. 71. Indiana: Hockett v. State, 105 Ind. 250, 255, SS Am. Rep. 201. New York: People v. King, 110 N. Y. 418, 423, 18 N. E. 245, 1 L. R. A. 293, 6 Am. St. Rep. 389. Rhode Island: Harrington v. Board of Aldermen, 20 R. I. 233, 237. Wisconsin: State ex rel. v. Gary, 126 Wis. 135, 141, 105 N. W. 792. ^California: Sierra Co. v. Flanigan, 149 Cal. 769, 87 Pac. 913. Idaho: Mullen & Co. v. Moseley, 13 Idaho 457, 90 Pac. 986. Illiriois: Chicago, B. & Q. R. Co. v. People, 212 111. 103, 72 N. E. 219, aff'd 200 U. S. 561, 592, 26 Sup. Ct. 341, 50 L. ed. 596. STATE POLICE REGULATIONS 35 tially injurious to the public it may be entirely prohibited.^" The power to regulate invests the Legislature with a large discre- tion to determine what measures are necessary to preserve the public interests and protect private rights.^^ The word "regulate," when used in this respect, means to govern, direct or control by rule or restriction; to subject to governing principles of law.^^ It is synonymous with "govern." ^* If the public interests or' public welfare clearly require thgit the use of certain property be regulated, the state may lawfully restrict and control its use.^* And this power extends to the enactment of laws, not only for the protection of the public health, safety and morals. Missouri: State v. Whitaker, 160 Mo. 59, 60 S. W. 1068. Nevada: Ex parte Boyce, 27 Nev. 299, 7S Pac. 1. New York: People v. Formosa, 131* N. Y. 478, 482, 30 N. E. 492, 27 Am. St. Rep. 612, aff'd 61 Hun. 272, 16 N. Y. Supp. 753 ; Bertholf y. O'ReUly, 74 N. Y. 509, 521. Pennsylvania: McCann v. Com., 198 Pa. St. 509, 511, 48 Atl. 470. Washington: State' v. Walker, 48 Wash. 8, 92 Pac. 775. Wisconsin: State ex rel. v. Cary, 126 Wis. 135, 139, 105 N. W. 792. Fed^al: Gundling v. Chicago, 177 U. S. 183, 188; Crowley v. Christensen, 137 U. S. 86, 11 Sup. Ct. 13, 34 L. ed. 620. 10 Brady v. Mattern, 125 la. 158, 162, 100 N. W. 358. 11 Harrington v. Board of Aldermen; 20 R. I. 233, 237; Lawton v. Steele, 152 U. S. 133, 14 Sup. Ct. 499; State ex rel. V. Cary, 126 Wis. 135, 141, 105 N. W. 792. ' ; ^^ Alabama: Miller v. Jones, 80 Ala. 89, 96. Illinois: Chicago Dock & Canal Co. V. Garrity, 115 111. 155, 163, 3 N. E. 448, Indiana: Fisher v. Brower, 159 Ind. 139, 148, 64 N. E. 614; Duckwall v. New Albany, 25 Ind. 283. Kansas: Higgins v. Mitchell Co., 6 Kan. App. 314, 316, 51 Pac. 72. Nebraska: State v. Ream, 16 Neb. 681, 683, 21 N. W. 398. New York: Rochester v. West, 29 App. Div. 125, 51 N. Y. Supp. 482. The power to regulate the use, means the power to fix the terms upon which it may be used. Hill v. St. I^ouis, 159 Mo. 159, 171, 60 S. W. 116. The word implies the lawfulness of the thing regulated. Anderson v. Well- ington, 40 Kan. 173, 19 Pac. 719, 2 L. R. A. 110, 10 Am. St. Rep. 175. The word "regulate" implies the con- tinued existence of the subject matter to be regulated. State v. Clark, 54 Mo. 17; State V. McCann, 72 Tenn. 1, 13. The power to regulate commerce means the power to. prescribe rulep by which commerce is to be governed. Gibbons v. Ogden, 22 U. S. (9 Wheat.) 1, 196. 18 Fisher v. Brower, 159 Ind. 139, 148, 64 N. E. 614; Otto Gas Engine Works v. Hare, 64 Kan. 78, 67 Pac. 44, ^i California: Ex parte Lorenzen, 128 Cal. 431, 437, 61 Pac. 68, 50 L. R. A. 55, 79 Am. St. Rep. 47. Illinois: Burdick v. People, 149 111. 600, 41 Am. St. Rep. 329. Kansas: Blaker v. Hood, 53 Kan. 499, 507, 36 Pac. 1115* 24 L. R. A. 854. Maine: Preston v. Drew, 33 Me. 558, 560, 54 Am. Dec. 639. Massachusetts: Com. v. Gilbert, 160 Mass. 157, 160, 35 N. E. 454. Missouri: St. Louis v. Grafeman Dairy Co., 190 Mo. 492, 504, 89 S. W. 617, 1 L. R. A. (N. S.) 936. New Hampshire: State v. Roberts, 74 N. H. 476, 69 Atl. 722, 36 LAW OF AUTOMOBILES but for the pxiblic convenience and expediency as well." Thus, railroad companies may be compelled to construct switches and sidetracks where their roads cross or meet, for the convenience of the public;^® a ferry company may be compelled to land its boats at certain intervals;^'' and a railroad company to operate its entire road.** The fact that a business or trade is lawful does not exempt it from reasonable regulation," nor does the right to exercise the power of regulation depend upon the morality of the action or con- duct to be regulated.^" § 33. Limitation of police power.. By virtue of the consti- tution of our government the police power is limited by the organic law of the state and nation.** Therefore, to justify the state in- interposing its authority in behalf of the public, it must appear New York: People v. Formosa, 131 N. Y. 478, 482, 30 N. E. 492, 27 Am. St. R?p. 612, affirming 61 Hun 272, 16 N. Y. Supp. 753. Pennsylvania: McCann v. Com., 198 Pa. St. S09, Sll, 48 Atl. 470. Rhode Island: Harrington v. Board of Aldermen, 20 R. I. 233, 237. Federal: Gundling v. Chicago, 177 U. S. 183, 188. ^^ Arkansas: Williams v. State, 85 Ark. 464, 108 S. W. 838; McLean v. State, 81 Ark. 304, 98 S. W. 729. Florida: State ex rel. v. Jacksonville Terminal R. Co., 41 Fla. 377," 27 So. 225. Idaho: Walker v. , Bacon, 11 Idaho 127, 81 Pac. 155, aff'd 204 U. S. 311, 27 Sup. Ct. 289, 51 L. ed. 499. Illinois: Chicago, B. & Q. R. Co. v. People, 212 III. 103, 72 N. E. 219, aff'd 200 U. S. 561, 592, 26 Sup. Ct. 341, 50 L. ed. 596. Indiana: Hockett v.. State, 105 Ind. 250, 255, 5^ Am. Rep. 201. Minnesota: Jacobson v. Wisconsin, M. & P. R. Co., 71 Minn. 519, 74 N. W. 893, 40 L. R. A. 389. Missouri: State v. Wabash, St. L. Si P. R. Co., 83 Mo. 144. Federal: Glouster Ferry Co. v. Penn- sylvania, 114 U. S. 196, 206; Lake Shore & M. S: R. Co. V. Ohio, 173 U. S. 285, 292. 16 Atlantic, S. R. & G. R. Co. v. State, 42 Fla. 358, 29 So. 319, 89 Am. St. Rep; 233. "Madison v. Abbott, 118 .Ind. 337, 21 N. E. 28. 18 People V. Louisville & N. R.'Co., 120 111. 48, Brownell v. Old Colony R. Co., 164 Mass. 29, 41 N. E. 107, 29 L. R. A. 169, 49 Am. St. Rep. 442. 19 St. Louis V. Grafeman Dairy Co., 190 Mo. 492, 504, 89 S. W. 617, 1 L. R. A. {^. S.) 936; Gundling v. Chicago, 177 U. S. 183, 188; Hopper v. Stack, 69 N. J. L. 562, 56 Atl. 1. 20 Ex parte Meyers, 7 Cal. App. 528, 94 Pac. 870. 21 Missouri: State v. Layton, 160 Mo. 474, 488. New York: Colon v. Lisk, 153 N. Y. 188, 60 Am. St. Rep. 609; In re Jacobs, 98 N. Y. 98, 108. North Carolina: State v. Moore, 113 N.'C. 697, 702. Pennsylvania: Com. v. Vroomari, 164 Pa. St. 306, 44 Am. St. Rep. 603. Wisconsin: State ex rel. v. Chitten- den, 127 Wis. 468, 519, 107 N. W. 500. Federal: Lake Shore & M. S. R. Co. V. Smith, 173 U. S. 684, 689, 43 L. ed. 858. STATE POLICE REGULATIONS 37 thait the interests of the public generally, as distinguished from a particular class, require such interference, and that the means are reasonably necessary for the accomplishment of the desired pur-' pose, and not unduly oppressive upon individuals.** Thus, the Legislature cannot, under the guise of protecting public interests, impose unusual and unnecessary restrictions upon individual liberty, lawful occupation, or the use of property,** nor overthrow vested rights.** Its power is limited by the organic laws, and to enact- ments relating to the. interests or welfare of the public,** and, hence, the state will not be allowed to encroach or trample upOn any of the just rights of the citizen, which the constitution intended to secure against diminution or abridgement.*^ Thus, property rights will not be permitted to be invaded under the guise of a police regulation for the preservation of health when such is clearly not the object and purpose of the regulation.*'' § 34. Power of state to regulate use of automobiles. Under the police power, within the limitations outlined, it has long been recognized that the state may regulate travel on the public high- 22 Lawton v. Steele, 1S2 U. S. 133, 137, 38 L. ed. 38S. ^^ Alabama: Joseph v. Randolph, 71 Ala. 499, 507. Illinois: Bailey v. People, 199 111. 28, 38, 60 N. E. 98; Ritchie v. People, ISS 111. 98, 110, 40 N. E. 454, 29 L. R. A. 79, 46 Am. St. Rep. 315. Indiana: State v. Richcreek, 167 Ind. 217, 230, 77 N. E. 1085. New York: People v. Gilson, 109 N. Y. 389, 398, 17 N. E. 343, 4 Am. St. Rep. 465 ; People v. Zimmerman, 102 App. Div. 103, 92 N. Y. Supp. 497. Virginia: Young v. Com. 101 Va. 853, 863, 45 S. E. 327. Wisconsin: State ex rel. v. Gary, 126 Wis. 13S, 141, 105 N. VV. 792. Federal: New Orleans Ga» Co. v. Louisiana Light Co., 115 U. S. 650, i29 L. ed. 516; Ex parte Drayton, 153 Fed. 986,989. 2* State ex rel. v. Laclede Gas Light Co., 102 Mo. 472, 486, 22 Am. St. Rep. 789. ^^Arl^ansas: Helena v. Dwyer, 64 Ark. 424, 42 S. W. 1071, 39 L. R. A. 266, 62 Am. St. Rep. 206. New York: People v. Ringe, 125 App. Div. 592, 110 N. Y. Siipp. 74. ' Pennsylvania: Godcharles y. Wige- man, 113 Pa. St. 431, 437. Washington: In re Aubrey, 36 Wash. 308, 78 Pac. 900. ' , Federal: Lochner v. New York, 198 U. S. 45,' 63, 25 Sup. Ct.'^^9,, 49 L. ed. 937. 26Watertown v. Mayo, 109 Mass. 315, 319; State v. Julow, 129 Mo. 163, 177; In re Jacobs, 98 N. Y. 98, 108; Slaugh- ter-House Cases, 83 U. S. (16 Wall.) 36, 87, 21 L. ed. 394. 2'? Bailey v. People, 190 111. 28, 60 N. E. 98; Ritchie v. People, 155 111. 98, 110, 40 N. E. 454, 29 L.' R. A. 79, 46 Am. St. Rep. 315. "A police regulation must, not extend beyond that reasonable interference which tends to preserve and promote en- joyment, generally, of those inalienable rights with which all men are endowed, and to secure which governments are in- stituted among men." Bonnett v. Vallier, 136 Wis. 193, 116 N. W. 885, 888. 38 LAW OF AUTOMOBILES ways,^* which embraces the power to regulate the use of, auto- mobiles thereon,^® Tvhether pperated as private vehicles or for hire,'" and whether operated by residents or nonresidents.*^ "The regulation of the speed of motor vehicles to safeguard pedes-; trians and others using the streets and highways is a salutary exercise of the police power." '^ The general rule is tlftis tersely expressed in a Maryland case: "The owner of an automobile has the right to use the public high- way, yet, inasmuch as such use may be productive of injury to others, unless carefully run and managed, the Legislature has the 28TwiIIey v. Perkins, IT Md. 2S2, 19 L. R. A. 632 ; State v. Yopp, 97 N. C. 477, 2 Am. St. Rep. 30S; Jones v. Brim, 16S U. S. 180, 182, 41 L. ed. 677; Henry V. Roberts, SO Fed. 902, 904. ^^ Alabama: Bozeman v. Statei 7 Ala. App. ISl, 61 So. 604, 63 So. 201 (1913). Florida,: Zachary v. Morris, — Fla. — , 82 So. 830 (1919). Illinois: Christy v. Elliott, 216 111. 31, 42, 74 N. E. 103S, 3 Ann. Cas. 487, 1 L. R. A. (N. S.) 2 IS, 108 Am. St. Rep. 196; People v. Beak, 291 HI. 449, 126 N. E. 201 (1920); Kentucky: Smith v. Com., 17S Ky. 286, 194 S. W. 367 (1917). Maine: State: v. Phillips, 107 Me. 249, 78 Atl. 283 (1910); St^te v. Mayo, 106 Me. 62, 7S Atl. 295, 20 Ann. Cas. S12 (1909). Maryland: Fletcher v. Dixon, 107 Md. 420, 68 AtJ. 87S. Massachusetts: Com. v. Boyd, 188 Mass. 79, 74 N. E. 2SS ; Com. v. Stodder, 2 Cush. S62, S70. Michigan: Johnson v. Sergeant, 168 Mich. 444, 134 N. W. 468 (1912), citing this work. ' Mississippi: State v. Lawrence, lOS Miss. S8, 61 So. 97S ,(1913). Missouri: State v. Swagerty, 203 Mo. S17, 102 S. W. 483, 10 L. R. A. (N. S.) 601, 120 Am. St. Rep. 671; Hall v. Compton, 130 Mo. App. 675, 108 S. W. 1122. New Jersey: West v. Asbury Park, 89 N. J. L. 402, 99 Atl. 190 (1916). Pennsylvania: Radnor Township v. Bell, 27 Pa. Super. Ct. 1. Tennessee: Sumner County v. Inter- urban Tr. Co., 141 Tenn. 493, 213 S. W. 412 (1919). "The automobile has created a new peril in the use of our public highways^^' a peril that unfortunately has been greatly enhanced by the recklessness of the operators, who propel the machines with the speed of railway trains along crowded thoroughfares. Some rule, commensu- rate with the public safety and not un- duly harsh or restrictive upon the users of motor cars, must be evolved to meet a situation which has recently arisen." Scott V. O'Leary, 1S7 la. 222, 138 N. W. S12 (1912); Lauson v. Fond du Lac, 141 Wis. 57, 123 N. W. 629, 25 L. R. A. (N. S.) 40, 135 Am. St. Rep. 30 (1909). "It is firmiy established that the Legis- lature has the right to limit and control the use of the highways of the state, whenever necessary to provide for and promote the safety, peace, health, and general welfare of the people." Mc- Carthy v. Leeds, 115 Me. 134, 98 Atl. 72 (1916). 30 Mobile v. Gentry, 170 Ala. 234, 54 So. 488 (1911). 81 Kane v. New Jersey, 242 U. S. 160, 37 Sup. Ct. 30, 61 L. ed. 222 (1916), aff'g 81 N. J. L.' S94, 80 Atl. 453, Ann. Cas. 1912D 237. 32 People V. Beak, 291 111. 449, 126 N. E. 201 (1920). STATE POLICE REGULATIONS 39 undoubted right to regulate the speed and provide other reasonable regulations as to its use." '* And in a leading Massachusetts case the court observed: "There can be no question of the right of the Legislature, in the exercise of the police power, to regulate the driving of automobiles on the public ways." ^* "Automobiles are vehicles of great speed and power, whose appearance is frightful to most horses that are unaccustomed to them. The use of them introduces a new element of danger to ordinary travelers on the highways, as well as to those riding in the automobiles. In order to protect the public great care shbuld be exercised in the use of them. Statutory regulation of their speed while running on the highways is reasonable and proper for the promotion of the safety of the public." '* "The right of regulation rests upori its own peculiar ground, and is free from constitutional objection. As a means of such regu- lation, there may be imposed upon the owner reasonable duties which shall be performed by him as a condition precedent to his use of the vehicle." '* Thus statutes have been adjudged valid police regulations which require automobiles to be equipped with suitable brakes, a horn or other device for sounding alarm, with lights at night, and that reasonable precaution be taken when the machine is left unattended in the highway to prevent its being started by meddlesome persons, notwithstanding such restrictions may invade the right of liberty or property of the individual.''' §35. Power to exclude automobiles from highways. The right to use the public highways is not an absolute and unqualified right, but is subject to limitation and control by the Legislature whenever necessary to provide for and promote the safety, peace, health, morals and general welfare of the people, and no constitu- tional guaranty is violated by such an exercise of the police power of the state.'* "Common observation and experience show that unrestricted use S8 Fletcher v. Dixon, 107 Md. 420, 68 «7 Christy v. Elliott, 216 111. 31, 40, Atl. 87S. 74 N. E. 1035, 3 Ann. Cas. 487, 1 L. R. 34 Com. V. Boyd, 188 Mass. 79, 74 A. (N. S.) 21S, 108 Am. St. Rep. 196; N. E. 2SS. Bailey v. People, 190 111. 28, 60 N. E. SB Com. V. Kingsbury, 199 Mass 542, 98; Ruhstrat v. People, 185 111. 133. 85 N. E. 848, 127 Am. St. Rep. 513. 8* Zackary v. Morris, — Fla. — , 82 36 State V. Gish, 168 la. 70, ISO N. W. So. 830 (1919) ; State v. Phillips, 107 Me. 37 (1914). 249, 78 Atl. 283 (1910). 40 LAW OF AUTOMOBILES of motor vehicles on the public streets would be extremely danger- ous to life and limb, and the property of the public. Their use thus becomes a lit subject for state regulation. Every person who oper- ates or uses a motor vehicle must be regarded as exercising -a privi- lege, and not an unrestricted right. It being a privilege granted by the Legislature, a person enjoying such privilege must take it subject to all proper restrictions."^* Jt has even been said that the fatalities caused by automobiles are so numerous as to permit the Legislature, if it deemed it wise, to wholly forbid, their use.*" It has been decided that the regulation of the use .of automobiles on, the, public highways, even to their exclusion from particular roads and places, is a proper exercise of the police power for the safety of the public." In a case in which a provision excluding bicycles and motor vpbicles from the main portion of a driveway was upheld as valid, the court in part said: "The .Legislature could say that vehicular traffic on this bpulevard might be of such a character as to require, in the interests of public safety, a limitation of the use of a portion of it for horses and light carriages and the exclusion of bicycles and motor vehicles from that particular portion, especially so when other portions of the same boulevard, namely, those parts adjacent to but, w;hich are not of the main driveway itself, furnish means of travel to the excluded vehicles." *^ On the other hand, it has been judicially declared that, while the state may regulate the use of automobiles upon its highways, it can no more prohibit their use thereon than it can prohibit the use of lumber, wagons.** § 36. Repeal of law by implication: in regulation of auto- 39 Ex parte Kneedler, 243 Me. 632, 147 Mass. S42, 85 N. E. 848, 127 Am. St. S. W. 983, Ann. Cas. 1913C 923 (912,. Rep. S13; West v. Asbury Park, 89 N. J. The use of, automobiles on the high- L. 402, 99 Atl. 190 (W16). ways is a privilege, subject to regulation Where highways were constructed along or withdrawal. People v. Diller, 24 Cal. precipitous mountain sides and across App. 799 (1914) ; People v: Rosenheimer, deep ravines, automobiles could be ex- 209 N. Y. US, 102 N. E. 530, Ann. Cas. eluded therefrom for the safety of the 191SA 161, 46 L. R. A, (N. S.) 977 traveling public. State v. Mayo, 106 (1913)_, rev'g' 146 App. Div. 875, 70 Me. 62, 75 Atl. 295, 20 Ann. Cas. S12, 26 Misc.' 433; State v, Sterrin, 78 N. H. L. R. A. (N. S.) S02n (1909). 220, 98 Atl. 482 (1916). « People ex rel v. Waldo, 72 Misc. 40 Yellow Taxicab Co. v. Gaynor, 159 416, 131 N. Y. Supp. 307 (1911), affd App. Div. 893 (1913). 149 App. Div. 927, 205 N. Y. 589 (1912 i. "State V. Phillips, 107 Me. 249, 78 *» State v. Gish,il68 la. 70, ISO N. W. Atl. 283 (1910); Com. y. Kingsbury, 199 37 (1914). STATE POLICE REGULATIONS 41 mobiles. While the repeal of a law by implication is not favored,'** it is well settled that where a later act covers the whole subject of earlier acts, and embraces new provisions, and plainly shows that it ^as intended to cover the whole subject then considered by the Legislature, and to prescribe the only rules in respect thereto, it will operate as a repeal of all former statutes relating to such subject matter, even if such former acts are not in all respects repugnant to the new act.*' Thus, where a municipal charter con- ferred the power to impose a tax on the owners of motor vehicles for the privilege of using the public highways, a subsequent state law forbidding local authorities from requiring by ordinance any permit or license of owners or operators of a motor vehicle for the privilege of using the public ways or from excluding any motor vehicle whose owner has complied with the state act from the use of such highways, repeals by implication the charter provisions on the same subject; and hence an ordinance imposing an annual tax on owners of motor vehicles was construed to be an ordinance requiring a license or permit, and not a revenue measure, and therefore violative of the state law.*^ Where a motor vehicle law was clearly designed as a new, com- plete, and general enactment to take^the place of all previous stat- utes, ' ordinances, or rules relating to the use of motor yehicles on the, public streets and highways of the state, it will be held to have repealed all former statutes relating to such subject matter, ** Alabama: Mills v. Court of Com'rs, 1, 18, lOS N. W. 6S4, 3 L. R. A. (N. S.) — Ala. — , 85 So. S64 (1920). 84. - , ■ . Arkansas: Benton v. Willis, 76 Ark. *^ Alabama: Prowell v. State, 142 Ala. 443, 446, 88 S. W. 1000. 80, 87, ^9 So. 164. Illinois: Schafer v. Gerbers, 234 111. Georgia: -Jones v. , St.ok.es,. 145 Qa. 468, 84 N. E. 1064. > '^5, 89 S. E. 1078 (1916); Hardy v. Minnesota: Clark v. Baxter, 98 State, - Ga. App. -, 103 S. E, 267 Minn. 256, 258, 108 N. W. 838. (1920). ,,, . fi » 1 iir-u in., Indiana: Thomas v. Butler, 139 Ind. : Missouri: State ex rel. v. Wilder, 197 245, 248, 38 N. E. 808; Hadley v. Mus- selman, 104 Ind. 459, 3 N. E. 122. Minnesota: Nicol v. St. Paul, 80 Minn. 415, 417, 83 N. W. 375. Tennessee: Memphis & S. L. R. Co. Nebraska: State v. Omaha Elevator V. Union R. Co., 116 Tenn. 500, 515, 95 ^o., 75 Neb. 637, 649, 106 N. W. 979. S. W. 1019. Pennsylvania: In re Knoblauch's Li- Washington: Griggs Land Co. v. cense, 28 Pa. Super. Ct.' 323, 326; Penn- Smith, 46 Wash. 185, 188, 89 Pac. 477; sylyania R. Co. v. Bogert, 209 Pa. St. Bruner v. Little, 97 Wash. 319, 166 Pac. 589, 595, 59 Atl. 100. 1166 (1917). 46 Buffalo v. Lewis, 192 N,' y. 193, 84 Wisconsin: Hay v. Baraboo, 127 Wis. N. E. 809. Mo. 27, 35, 94 S. W. 499. North Carolina: State v. Perkins, 141 N. C. 797, 799, 53 S. E. 735. 42 LAW OF AUTOMOBILES even if such former acts are not in all respects repugnant to its provisions.*'' Where some parts of the revised statute are omitted in the new law, they are not, in general, to be regarded as left in operation if it clearly appears to have been the intention of the Legislature to cover the whole subject by the revision.** §37. Necessity for regulation. Automobiles present an un- usual appearance. They are decidedly noisy. They are of great weight and are frequently driven at a high, and oftentimes reckless, rate of speed. This being a source of great danger to other users of the highways, it became necessary to impose restrictions touch- ing their use.** As horses and other animals become accustomed to their sight, necessity for regulation will become less. But this necessity will probably never be entirely eliminated on account of the inclination of some few to operate their machines in. disregard of the duty they owe to others.^" § 38. Necessity for uniform legislation. Opposition to the use of public highways by automobiles has arisen from two chief sources: First, because of the reckless operation of them in utter disregard of the rights of oth'fer vehicles and persons on the high- ways, or the lack of good judgment in driving them, and, second, because of envy and jealousy of those who cannot afford to own or ride in them. Such opposition quickly found expression in local restrictive ordinances which were not only dissimilar and conflict- ing, but sometimes difficult to understand. The local communities, possessing power to legislate, presented patchworks of incongruous legislation. Each municipality had its own code of regulations, and the operator of an automobile could form no idea from reading the rules of one municipality what new or different regulations he might have to observe when he crossed the line into the jurisdiction of some municipal neighbor. Then it was that the necessity for uniform state regulation became manifest, and as a result so-called motor vehicle laws were enacted in many states.*^ « Helena v. Dunlap, 102 Ark. 131, 143 Pac. ^, 109 Am. St. Rep. 160. S. W. 138 (1912). Bl State v. Scheidler, 91 Conn. 234, 99 48 Hardy v. State,— Ga. App.— , 103 Atl. 492 (1916) ; Buffalo v. Lewis, 192 N. S. E. 267 (1920). Y. 193, 84 N. E. 809; Applewold Bor- 49 Radnor Township v. Bell, 27 Pa. ough v. Dosch, SI Pa. Super. Ct. 1S2 Super. Ct. 1; Com. v. Boyd, 188 Mass. (1912); Garrett v. Turner, 23S Pa. St. 79, 74 N. E. 2SS. 383, 84 Atl. 3S4 (1912), aff'g 47 Pa. 60 Ex parte Berry, 147 Cal. S23, 82 Super. Ct. 128. STATE POLICE REGULATIONS 43 § 39. Regulation of speed. It is clearly, within the police power of the state to fix the maximum rate of speed at which auto- mobiles may be driven on the public highways.®^ Courts have long recognized the validity of ordinances and statutes regulating the speed of trains and requiring them to be brought to a stop at certain places. The safety of the traveling community demands that these police regulations be enforced,^' because they reduce the probability of accidents.^* Courts may inquire into the con- stitutionality of such statutes, but with their reasonableness or necessity they have nothing to do.^* A statute limiting the rate of speed of an automobile to four miles an hour when passing an animal-drawn vehicle in charge of a woman, child, or aged person, was held not to be unconstitutional as class legislation.*® A statute containing the following speed regulations was held to be reasonable and valid : "No person shall operate a motor vehicle on a public highway at a rate of speed greater than is reasonable and proper, having regard to the traffic and use of the highway or so as to endanger the life or limb of any person, or in any event in the close built up portions of a city, town, or village, at a greater rate than one mile in six minutes, or elsewhere in a city, town, or village, at a greater rate than one mile in four minutes, or elsewhere outside of the city, town, or village, at a greater rate than twenty miles per hour; . . . and in no event greater than is reasonable and proper, having regard to the traffic then on such highways and the safety of the .public." *'' A statute providing that persons operating motor vehicles shall not run the same at a rate of speed exceeding four miles an hour upoh approaching any sharp curve, bridges, fills, and intersec- B2 Christy v. EUiott, 216 111. 31, 39, 74 Reldy, 66 111. 43; Cairo & St. L. R. Co. N. E.' 103S, 3 Ann. Cas. 487, 1 L. R. A. v. Peoples, 92 111. 97. (N. S.) 215, 108 Am. St. Rep. 196; State B* Chicago v. Banker, 112 111. App. 94, V. Mayo, 106 Me. 62, 7S Atl. 29S, 20 97; Chittenden v. Columbus, 26 Ohio C/ Ann. Cas. S12 (1909) ; Burgess v. Brock- C. 531, 533. ton,— Mass.— , 126 N. E. 456 (1920) ; St. BB State v. Swagerty, 203 Mo. 517, 102 Louis V. Hammond, — Mo. — , 199 S. S. W. 483, 10 L. R. A. (N. S.) 601, 120 W. 411 (1917). Am. St. Rep. 671; Flint River Steamboat BS Christy v. ElUott, 216 111. 31, 43, 74 Co. v.' Foster, 5 Ga. 194. N. E. 1035, 3 Ann. Cas. 487, 1 L. R. A. B6 Schaar v. Conforth, 128 Minn. 460, (N. S.) 215, 108 Am. St. Rep. 196; Indi- 151 N. W. 275 (1915). anapolis & St. L. R. Co. v. People, 91 B7 Schultz v. State, 89 Neb. 34, 130 N. 111. 452; Chicago,, R. I. & P. R. Co. v. W. 972, 33 L. R. A. (N. S.) 403 (19ll). 44 LAW OF. AUTOMOBILES tions, or crossings of railroads, was held not to be invalid on the grpund that it was unreasonable.** An ordinance iixing 8 miles an hour in the business portion of the city and 10 miles an hour elsewhere within the city as the maximum speed at which automobiles ;may travel, was held valid.** § 40. Construction of penal statutes regulating automobiles. A statute regulating the operatiori of automobiles on the highways arid prescribing a penalty for the violation thereof is a penal stat- iite.^" It is a rule of construction, little less old than construction itself,®* that penal statutes, that is, statutes which impose a pen- alty for their violation, must be strictly construed as against the state and in favor of the accused.®^ Matters not clearly included cannot be brought within the operation of such statutes by mere construction.*^ This rule does not mean the narrowest interpre- 58McNeil V. Webeking, 66 Fla. 407, 63 So. i, 728 (1913). _ 59 St. Louis :v. Hammond, --i Mo. — , 199 S'. W. 411 (1917)., SOCom. V. D^rismore, 29 Pa. Co. Ct. 217, 219. '61 State V. Woodruif, 68 N. J. L. 89, 93,,S,2,Atl. 294. ^ providing that the act shall not apply to any passenger railway or steam railroad confined to tracks, nor to steam or other street-rollers, is not uncon- stitutional as discriminating between persons.* Likewise, a similar statute which provided that the act should not apply "to any of the motor vehicles which any manufacturer or vendor of automobiles, may have in stock for sale and not for his private use or for hire," was held to be uniform and constitu- tional.® "Motor vehicles have been classified separately from hotse- drawn vehicles and have been the subject of separate legislation ever since they came into general use. Their departure in charac- ter, use, and- speed from hdrse-drawn vehicles has been so great as to justify such classification, even though there is some similarity in weight, length, and use between the motor trucks and the kind of horse-drawn vehicles employed by public cartmen for commer- cial purposes. Motor trucks, traveling for longer distances in shorter time, are more dangerous because of greater speed and the heavier loads carried, and courts can take judicial knowledge that they do more damage to the surface of the streets and therefore might very reasonably be required to pay a greater tax than a horse-drawn vehicle." ^^ It is proper for a statute regulating automobiles to exempt from its provisions machines used for municipal purposes or as ambu- lances.''^ So, traction engines employed in hauling agricultural machinery, SWestfall's S., V. & E. Co. v. Chi- more, 29 Pa. Co. Ct. 217, 218; Com. v. cage, 280 111. 318, 117 N. E. 439 (19W). Templeton, 16 Pa. pist. 793, 794. 'Christy v. Elliott, 216 111. 31, 40, « State v. Swagerty, 203 Mo. 517, 102 74 N. E. 103S, 3 Ann. Cas. 487, 1 L. S. W. 483, 10 L. R. A. (N. S.) 601, 120 R. A. (N. S.) 21S, 108 Am. St. Rep. 196; Am. St. Rep. 671; Com. v. Templeton, Smith V. Com., 17S Ky. 286, 194 S. 16 Pa. Dist. 793. W. .367 (1917); State v. Phillips, 107 » Com. v. Densmore, 29 Pa. Co. Ct. Me. 249, 78 Atl. 283 (1910); State v. 217. Swagerty, 203 Mo. S17, 102 S. W. 483, lOWestfall's S., V. & E. Co. v. Chi- 10 L. R. A. (N. S.) 601, 120 Am. St. cago, 280 111. 318, 117 N. E. 439 (1917). Rep. 671; State v. Ingalls, 18 N. M. 211, " Ruggles v. State, 120 Md. SS3, 87 13S Pac. 1177 (1913); Com. v. Dens- Atl. 1080 (1913). 52 LAW OF AUTOMOBILES are properly exempted from the provisions of a statute regulating the^use^of automobiles.^* A statute providing for the registration and licensing of motor vehicles is not discriminatory because it applies to motor vehicles and to no other kind of vehicles; nor because it places dealers in a, class by exacting fees from them on a different basis than from other owners.^* , , A statute providing that, in actions for damages caused by auto- mobiles, service may be had in another county than where the accident occurred and the suit is brought, has been held to be con- stitutional.^* In upholding the validity of a statute relating to motor vehicles as a class, the Arkansas Supreme Court said: "Motor cars are large, powerful, and capable of great speed; and, if carelessly handled, are very dangerous to the traveling public. They can be run at a great distance in one day, and it is well known that the owners of automobiles do not confine the use and operation of their cars to the limits of the city or town in which they reside, but frequently drive long distances in the surrounding country and to other cities and towns; On the other hand, it is well known that vehicles drawn by horses or other animals are chiefly used in the city where their owners reside. Therefore the Legislature saw fit to leave to cities of the first class the authority to tax resident owners on the privilege of using vehicles drawn by mus- cular power, and to provide new and exclusive rules and regula- tions as to the use and operation of motor, vehicles." ^* In speaking of a statute regulating "motor vehicles and motor- cycles," and imposing a tax on the privilege of using them on the public highways,! the Mississippi Supreme Court said: "We deem the classification of the vehicles in the act as reasonable and proper. It includes all those devoted to the same use. There is no im- proper discrimination in the class. . . . In the very nature of the case, and resulting from their introduction into the life and .commerce of society and the remarkable development of their use, they have become a class of vehicles of their own peculiar kind. The Legislature could properly have decided that by reason of the weight and speed of motor vehicles there would be a greater wear 12Ruggles V. State, 120 Md. SS3, 87 84 Atl. 354 (1912), aff'g 47 Pa. Super. Atl. 1080, (1913). Ct. 128. 13 In re Schuler, .167 Cal. 282, 139 IB Helena v. Dunlap, 102 Ark. 131, Pac. 685 (1914). 143 S. W. 138 (1912). 14 Garrett v. Turner, 235 Pa. St. 383, STATE POLICE REGULATIONS 53 and tear on the highway from their use, and that this justified their classification to bear burdens in the way of tax to raise fluids to be used on the roads, not imposed upon other vehicles." ^* "The people ,who own, use or operate automdfeiles may very properly be classied' together, and made subject to_legislation which, though distinctive, is appropriate to them, provided the legislation applies to all within the class and iaffects them all alike." ^^ An ordinance limiting the speed of automobiles at street inter- sections to eight miles an hour, is not discriminative; automobiles, being dangerous vehicles, forming a class for the purposes of stich legislation.^' r, A statute which provides that, in an action for injury caused by running an automobile at a greater rate of speed than designated in the act, the plaintiff makes, out a prima facie case of negligence by proving the injury and excessive speed, is not unconstitutional as special legislation for the reason that it confers upon persons who claim to have been injured by a moving automobile a peculiar advantage in the trial of a case to recover damages resulting from the injury by the application of a rule of evidence not applicable where the injury results from negligently moving any other kind of vehicle. The classificatipn is made primarily to govern those operating automobiles and to prevent injuries to persons and prop- erty consequent upon their negligent use. fhe vehicles covered by the act are of such a character that they properly form a class to which, alone, legislation may apply.^® * § 44. Exempting automobiles kept in stock. The statutes of some of the states provide that the requirement as to the regis- tration of automobiles and display of the registered number shall "not apply to a person manufacturing or dealing in automobiles, except those for his own-private use, and except those hired out." It was held that this is not class legislation because it does not exempt any automobile used on the highway, where it was the in- tention of the law to regulate their use.. As was said in a recent case: "If he (the manufacturer or dealer) operates an automobile upon the streets for the purpose of exhibiting for sale, this would, strictly speaking, be operating it for his private use and he would not be exempted from a "compliance with the provisions of the Instate V. Lawrence, 108 Miss. 291, 18 Windsor v. Bast, — Mo. App. — < 66 So. 74S (1914). 199 S. W. 722 (1917). 17 Garrett v. Turner, 2*35 Pa. St. 383, 19 Hart je v. Moxley, 23S 111. 164, S5 84 Atl. 354 (1912), aff'g 47 Pa. Super, N. E. 216. Ct, 128. ' 54 LAW OF AUTOMOBILES law with respect to the registration of the vehicle because the vehiclewould not be within the exception therein." ^^ § 45. Registration and display of number— Purpose. The statutory requirement that automobiles be registered with some state official, and a number corresponding to the number of the certificate of registration be displayed on the automobile, is for the purpose of identifying the automobile, and consequently the owner, in case of. accident or a violation of the law. It provides a way of enforcing the law regulating the speed of automobiles, and for holding the operators responsible for their acts. It has a deterring effect upon operators who would violate the law ?ind the rights of others.*^ "The manifest purpose of requiring registration and the displa,y of official number plates is, ( 1 ) to accomplish in advance the collec- tion of the license or registration fee, and (2) to furnish a means of identification of the vehicle. The pre-eminent purpose, how- ever, of requiring annual re-registration and annual number plates is to accomplish the collection of the annual fee. Identification is not aided by mere re-registration or by a change of number or plates." 22 § 46. Same— Constitutionality of the law. The law requir- ing the? registration of automobiles and the display of the registered number is a valid police regulation. It does not violate the four- teenth amendment of the United States constitution.*' The four- teenth amendment, comprehensive as it is, was not designed to interfere with the exercise by the state of its police power for the protection of the people.** , 20 People v. MacWiBiams, 91 App. Mo. 6S4, 664, 67 S. W. 872,' aff'd 194 Div. 176, 86 N. Y. Supp. 357. U. S. 361. 21Holden v. McGillicuddy, 21S Mass. ' Nebraska:' Halter v. State, 74 Neb. S63, 102 N. E. 923 (1913); People v. 757, lOS N. W. 298. MacWilliams, 91 App. Div. 176, 179, 86 New Jersey: Unwen v. State, 73 N. N. Y. Supp. 357; Com. v. Densmore, 29 J. L. 529, 64Atl. 163, 68 Atl. 110. Pa. Co. Ct. 217, 218; King v. Brenham New York: People v. King, 110 N. Auto. Co., — Tex. Civ. App. — , 145 S. Y. 418, 18 N. E. 245, 1 L. R. A. 293, W. 278 (1912). 6 Am. St. Rep. 389. 22 State V. Gish, 168 la. 70, ISO N. Ohio: Cincinnati v. Steinkamp, 54 W. 37 (1914). Ohio St. 284, 291. 23 Unwen v. State, 73 N. J. L. 529, 64 Pennsylvania: ' Wilkes-Barre v. Gara- Atl. 163, 68 Atl. 110. bed, 11 Pa. Super. Ct. 355, 358. ^^ Kansas: Meifert v. Medical Board, Federal: Powell v. Pennsylvania, 127 66 Kan. 710, 718, 72 Pac. 247, 1 L. R. A. U. S. 678, 683; Yick Wo v. Hopkins, (N. S.) 811. 118 U. S. 356, 367. Missouri: St. Louis v. Fischer, 167 STATE POLICE REGULATIONS 55 §47. Same— TaMng of property. It is not necessary that there be. an actual taking of the property itself to constitute a deprivation of property ^ithin the meaning of the fourteenth amendment to the Federal constitution. Anything that affects or limits the free use and enjoyment of one's property, or of the ease- ments or appurtenances thereto, amounts to such a deprivation or taking of property .^^ It has been contended that to require owners of, automobiles to register them with a state officer, and display the registered num- ber on their machines and pay ^ registration fee, amounts to a taking of property without due process of law. But such a con- tention is clearly erroneous.''® All property is held subject to the power of the state to regulate- or control its use to secure the general safety and welfare of the public, and the automobile is no exception to the rule.^'' §48. Same— Personal liberty. Laws regulating the use of automobiles on the public highways have been declared constitu- tional as against the contention that they deprive the operator of an automobile of his liberty without due process of law.^' "Personal liberty," as used in the fourteenth amendment to the Federal constitution, means the right of the citizen to be free from physical restraint; to be free in the employment of all his facul- ties; to live and work where he will; to be free to acquire property, and use it in any lawful manner, and to earn his livelihood by any lawful calling.®® 25 Connecticut : Hooker v. New Haven Depriving an owner of property of & N. R. Co., 14 Conn. 146. one of its essential attributes is depriv- lUinois: Belleville v. Turnpike Co., ing him of his property within, the 234 III. 428, 434, 84 N. E. 1049; Ritchie meaning of the constitution. State v. V. People, ISS III. 98, 104, 40 N. E. Julow, 129 Mo. 163, 31 S. W. 781, 29 454, 29 L. R. A. 79,, 46 Am. St. Rep. L. R. A. 2S7, SO Am. St. Rep. 443. 31S. 26Unwen v. State, 73 N. J. L. S29, Indiana: First National Bank v. Sar- 64 Atl. 163, 68 Atl. 110. lis, 129 Ind. 201, 210, 28 N. E. 434, 13 27Bertholf v. O'Reilly, 74 N. Y. 509, L. R. A. 481, 28 Am. St. Rep. 185. 521; Com. v. Alger, 7 Cush. (Mass.) Minnesota: Adams v. Chicago, B. & 53. N. R. Co., 39 Minn. 286, 39 N. W. 629, 28 Unwen v. State, 73 N. J. L. 529, 64 1 L. R. A. 493, 12 Am. St. Rep. 644. Atl. 163, 68 Atl. 110. ,New Jersey: "Bloora v. Koch, 63 N. ^^ Arkansas: Helena v. Dwyer, 64 J. Eq. 10, 20, 50 Atl. 621; Sinnickson Ark'. ,424, 426, 42 S. W. 1071, 39 L. R. v. Johnson, 17 N. J. L. (2 Harr.) 129. A. 266, 62 Am. St. Rep. 206. New, York: People v. Otis, 90 N. Y. Colorado-: In re Morgan, 26 Colo. 48, 52. 415, 420, 77 Am. St. Rep. 269. Federal: Pumpelly v. Green Bay Co., Illinois: Ritchie v. People, 155 111. 80 U. S. (13 Wall.) 166, 179. 56 LAW OF AUTOMOBILES Laws which interfere with the personal liberty of the citizen canndt be constitutionally enacted, unless the interests or welfare of the public clearly require them.'" But liberty is not an unre- stricted license to act according to one's oWn will.'^ Every man surrenders a part of his natural liberty, that fs, his right to follow the inclinations of an ungoverned will, in return for the advan- tages and protection which society affords him.'^ And the phrase, "without due process of law," as it appears in the constitution, constitutes a qualification which implies that the right of personal liberty may be restricted or entirely taken away.'^ In a word, whenever the public interests or welfare so require, the inferior rights of the individual must give way.'* §49. Same— Meaning of "due process of law" or "law of the land." "Due process of law" and "the law of the land," as used in the constitution relative to the rights of liberty and prop- erty, are interchangeable phrases.'^ 98, 104, 40 N. E. 454, 29 L. R. A. 79, 46 Am. St. Rep. 31S. Indiana: Townsend v. State, 147 Ind. 624, 627, 47 N. E. 19, 37 L. R. A. 294, 62 Am. St. Rep. 477. Michigan: Pinkerton v. Verberg, 78 Mich. 573, 584. Missouri: Ex parte Smith, 135 Mo. 223, 226, 36 S. W. 628, 33 L. R. A. 606, 58 Am. St. Rep. 576; St. Louis v. Roche, 128 Mo. 541, 547, 31 S. W. 915. Nebraska: Low v. Rees Printing Co., 41 Neb. 127, 59 N. W. 362, 24 L. R. A. 702, 43 Am. St. Rep. 670.' New York: People v. Warden of Prison, 157 N. Y. 116, 126, 51 N. E. 1006, 43 L. R. A. 264, 68 Am. St. Rep. 763. Federal: Booth v, Illinois, 184 U. S. 425, 428, 22 Sup. Ct. 425, 46 L. ed. 623; Butchers Union Co. v. Crescent City Co., Ill U. S. 746. 1 Bl. Com. 134. "Civic liberty is natural liberty so far restrained by human laws (and no farther) as is necessary and expedient for the general advantage of the pub- lic." 1 BI. Com. 125. 30 Chicago V. Banker, 112 111. App. 94, 99 ; Bassette v. People, 193 III. 334, 344, 62 N. E. 215. 31 Crowley v. Christensen, 137 U. S. 86, 89, 11 Sup; Ct. 13, 34 L. ed. 620. 32 1 BI. Com. 125. SSBerthoIf v. O'Reilly, 74 N. Y. 509, 519, 521; Com. v. Alger, 7 Cush. (Mass.) S3. ^* California: Ex parte Lorenzen, 128 Cal. 431, 437, 61 Pac. 68, 50 L. R. A. 55, 79 Am. St. Rep. 47. Kansas: Blaker v. Hood, S3 Kan. 499, 507, 36 Pac. I'uS, 24 L. R. A. 854. Massachusetts: Com. v. Gilbert, 160 Mass. 1-S7, 160, 35 N. E. 454. Missouri: St. Louis v. Grafeman Dairy Co., 190 Mo. 492, 504, 89 S. W. 617, 1 L. R. A. (N. S.) 936. New York: People -v. Formosa, 131 N. Y. 478, 482, 30 N. E. 492, 27 Am. St. Rep. 612, aff'g 61 Hun 272. Pennsylvania: McCann v. Com., 198 ,Pa. St. 509, 511, 48 Atl. 470. ^^ Arkansas: Rison v. Farr, 24 Ark. 161, 175, 87 Am. Dec. 52. Illinois: Harding v. People, 160 111. 459, 464, 43 N. E. 624, 32 L. R. A. 445, 52 Am. St. Rep. 344. Missouri: Hulett v. Missouri, K. & T. R. Co., 145 Mo. 35. New York: People v. Board of Su- pervisors, 70 N. Y. 228, 234. STATE POLICE REGULATIONS 57 They mean a law which transgresses no constitutional right; which is in accord with American institutions, and th^ policies of a republican form of government, and which grants to every man his day in court. Daniel Webster, in the famous Dartmouth Cbllege case, defined the law of the land to be, "The general law; a law which hears be- fore it condemns ; which proceeds upon inquiry, and renders, judg- ment only after trial." *^ "The principle that no man shall be deprived of his life, liberty or property except by the 'law of the land,' or its synonym, 'due process of law,' is older than written constitutions, and breathes so palpably the spirit of exact justice that it needs no formulation in the organic law." *'' ' Laws regulating the use of automobiles on the highways have: generally been upheld as against the contention that they deny to the motorist due process of law.'* I §50. Same— Privileges and immunities of citizens. That part of the United States constitution*® which provides that "the citizens of each state shall be entitled to all .privileges and immuni- ties of citizens of the several states," merely requires that the laws of a state shall be equally applicable to residents and nonresidents;*" Thus, the defendant, a citizen of the state of Ne^ York, in which state he had registered his automobile and was displaying the reg- istered number on his machine, was convicted in New Jersey for violating the law of that state requiring owners of automobiles to register them with the Secretary of State and to display the regis- tered number on the automobile. He contended that the law de- nied him the privileges and immunities of citizens of the state. But the court held that, as the law applies to all who drive auto- mobiles in the state, whether resident or nonresident, the conten- tion was erroneous.*^ § 51. Discrimination between residents and nonresidents. Ohio: Adier v. Whitbeck, 44 Ohio St. S9Art. 4, § 2. S39, S69, 9 N. e! 672. "Joseph v. Randolph, 71 Ala. 499; Federal: Missouri Pacific R. Co. v. Williams v. Fears, 110 Ga. S84, 593, 35 Humes, 115 U. S. 512, 519, 29 L. ed. S. E. 699, 50 L. R. A. 685; State v. 463, 6 Sup. Ct. 110. North, 27 Mo. 464; Ward v. Maryland, 36 Dartmouth College v. Woodward, 17 79 U. S. (12 Wall.) 418. U. S. (4 Wheat.) 518, 581, 4 L. ed. 629. 41 Unwen v. State, 73 N. J. L, 529, STQuimby v. Hazen, 54 Vt. 132, 139. 64 Atl. 163, 68 Atl. 110, 38 St. Louis V. 'Hammond, — Mo. — , 199 S. W. 411 (1917). 58 LAW OF AUTOMOBILES The objection that there is an unjust discrimination in the pro- vision which imposes upon resident vehicles a license, while those of other states may temporarily use the highways without incurring liability for the payment thereof, is wholly without merit. The right to tax the residents of a municipality for the maintenance of roads and streets, without the imposition of such a tax upon non- residents who use such highways temporarily, has never been ques- tioned or denied. On the contrary, the right to impose such a license or tax is generally recognized.** A statute regulating the use of motor vehicles and imposing a tax for the privilege of using them on the public highways, and which provided that residents of other states, who had complied with the laws of their home states relating to the -registration of automobiles, might operate their machines on the highways for a period of 60 days without registering the same or paying the privi- lege tax, did not tmlawfully discriminate between residents and nonresidents. Similar provisions are quite commonly included in statutes of this character, and probably without exception their validity has been upheld.*' So, a statute providing for the registration and liceiising of motor vehicles, and exempting nonresidents from paying the tax for a period of three months, has Iseen upheld.** A statute which exacts from residents and nonresidents alike, a reasonable registration fee, as a condition to the use of the high- ways by automobiles, is held to be valid. It is not an illegal dis- crimination against citizens of other states because the amount of the fee is fixed for each calendar year without reference to the extent to which use of the highways is made, nor because the lia- bility of nonresidents to pay is not tempered by the allowance of; any period of free use in reciprocation for like privileges allowed by the states in which they reside. "It is clearly within the dis- cretion of the state to determine whether the compensation for the use of its highways by automobiles shall be determined by way of a fee, payable annually or semi-annually, or by a toll based on mileage or otherwise." ** § 52. Discrimination against nonresidents. The fact that 48 Newport v. Merkel Bros. Co., 156 4* Re Schuler, 167 Cal. 282, 139 Pac. Ky. S80, 161 S. W. 549 (1913); Lillard 685 (1914). V. Melton, 103 S. C. 10, 87 S. E. 421 4B Kane v. New Jersey, 242 U. S. 160, (1915). 37 Sup. Ct. 30, 61 L. ed. 222 (1916), 48 State V. Lawrence, 108 Miss. 291, aff'g 81 N. J. L. 594, 80 Atl. 453, Ann. 66 So. 745 (1914), citing this work. Cas. 1912D 237. STATE POLICE REGULATIONS 59 manydf the states have provisions in their autombbile laws per- mitting nonresidents who have registered their machines in the state of their residence to operate them upon the highways for a limited period of time without being required to register, does not make the failure to enact such a provision an unlawful discrim- ination against nonresidents. "Such a provision promotes the convenience of owners and pre- vents the relative hardship of having to pay the full registration fee for a brief use of the highways. It has become common in state legislation; and New Jersey has embodied it in her law since the trial of this case in the lower court. But it is not an essential of valid regulation. Absence of it does not involve discrimination against nonresidents; for any resident similarly situated would be subjected to the same imposition. A resident desiring to use the highways only a single day would also have to pay the full annual fee. The amount of the fee is not so large as to be unreasonable; and it is clearly within the discretion of the state to determine whether the compensation for the use of its highways by automo- biles shall be determined by way of a fee, payable annually or semi-annually, or by a toll based on mileage or otherwise." *® § 53. Discrimination between nonresidents. There is a pro- vision in the Maryland^ statute *' which provides that any owner or operator not a resident of Maryland who has complied with the laws of the state where he resides, relating to registration of auto- mobiles and the display of numbers thereon, may use the highways of that state for not exceeding two periods of seven consecutive days in each calendar year, without registering, if he obtains from the commissioner of motor vehicles and displays on the rear of his machine a tag or marker, etc. The statute in this respect applies to all nonresidents except residents of the District of Columbia, who are expressly excepted. It has been held that an automobile owner, resident of the District of Columbia, who was not shown to have complied with the laws in force in the district in respect to registering motor vehicles, or to have applied to the Maryland commissioner for an identifying tag or marker — ^prerequisites to a limited use of the highways of that state without cost by residents of other states under the terms of the statute, — could not set up a claim that the statute discriminated against residents of the Dis- 46 Kane v. New Jersey, 242 U. S. 160, « Md. Laws 1910, c. 207, p. 168, § 37 Sup. Ct. 30, 61 L. ed. 222 (1916), 140a. aff'g. 81 N. J. L. S94, 80 Atl. 4S3, Ann. Cas. 1912D 237. 60 LAW OF AUTOMOBILES trict of Columbia, because only those whose rights are directly affected can properly question the constitutionality of a state stat- ute." § 54. Requiring motorist to stop on signal from driver of horses. A statute requiring the operator of an automobile upon a public highway to stop the same when signaled to so do, by a driver of a team of horses, etc., and to exercise the highest degree of care, etc., has been held to be constitutional.*' § 55. Crime to have possession of automobile with manu- facturer's number removed. A statute making it a crime for any person to have in his possession any motor vehicle from which the manufacturer's serial number, or any other manufacturer's trade or distinguishing number or identification mark, has been removed, defaced, covered or destroyed for the purpose of concealing or destroying the identity of such motor vehicle, has been held to be constitutional as a valid exercise of the police power.*" § 56. Taxing automobile agents and dealers. A statute im- posing a tax upon automobile dealers and agents and fixing the amount of the tax according to the population of the county in which. such business is carried on, is held not to be an arbitrary, discrirtiinating, or unreasonable classification, and not to be invalid because it provides that any person who has paid the tax may re- sell any automobile or vehicle taken in exchange for an automobile without the payment of an additional tax. Such tax is not a tax on property, but upon business.®^ § 57. Requiring driver or owner to give name, address, and assistance in case of accident. Statutes have been held valid which require the driver or owner of an automobile, in case its oper- ation causes injury to person or property, to stop and give his name and address, and other information, to the person injured, in person or property, or to some other suitable person, and to render assistance to tiie injured.*^ **Hendrick v. Maryland, 23S U. S. 51 Adams Motor Co. v. Cler, — Ga. 610, 35 Sup. Ct. 140, S9 L. ed. 385 —, 102 S. E. 440 (1920). (1915). M Woods V. State, 15 Ala. App. 251, *9Hays V. Hogan, 273 Mo. 1, 200 S. 73 So. 129 (1916); People v. Fodera, 33 W. 286, L. R. A. 1918C 715, Ann. Cas. Cal. App. 8, 164 Pac. 22 (1917), rehear- 1918E 1127 (1917). ing denied by Supreme Cojurt; People 60 People V. Johnson, 288 III. 442, 123 v. Finley, 27 Cal. App. 291, 149 Pac. N. E. 543 (1919); People v. Fernow, 779 (1915); State v. Sterrin, 78 ' N. H. 286 111. 627, 122 N. E. 155 (1919). 220, 98 Atl. 482 (1916). STATE POLICE REGULATIONS 61 A statute which makes it a crime for the driver of a motor ve- hicle, or of any other vehicle, and the person, if any, therein hav- ing control over the driver, in case of a collision with any person or vehicle, to refuse to stop and render to the person struck, or to the occupants of the vehicle collided with, all necessary a,ssist- ance, and to give such injured person or persons ' the number of his vehicle, his name and address, and the name of the owner of such vehicle, is not violative of the constitutional provision that "no person shall be compelled, in any criminal case, to be a wit- ness against himself." *' This position is based upon the theory that the driver of ah ai^to- mobile in the operation thereof exercises a privilege and not a right, and as to such privilege it is competent for the Legislature to pre- scribe the conditions upon which it shall be exercised, or deny it altogether.** The New York statute provides as follows: "Any person oper- ating a motor (Vehicle who, knowing that injury has been caused to a person or property, due to the culpability of the said operator, or to accident, leaves the place of said injury or accident, without stopping and giving his name, residence, including street and street number, and operator's license number to the injured party, or to a police officer, or in case no police officer is in the vicinity of the place of said injury or accident, then reporting the same to the near- est police station, or judicial officer, shall be guilty oif a felony pun- ishable by a fine of not more than $500 or by imprisonment for a term not exceeding two years, or by both such fine and imprison- ment." *® 63 Woods V. State, IS Ala. App. 2S1, state may grant or withhold at pleasure, 73 So. 129 (1916) ; People v. Diller, 24 and that what the state may withhold Cal. App. 799, 142 Pac. 797 (1914); Ex it may grant upon condition. One con- parte Kneedler, 243 Mo. 632, 147 S. W. dition imposed is that the operator must, 983, Ann. Cas. 1913C 923 (1912). in case of accident, furnish the demanded 5* People V. Fodera, 33 Cal. App. 8, information. This condition is binding 164 Pac. 22 (1917), rehearing denied upon all: who accept the privilege. The by Supreme Court; People v. Diller, 24 defendant , also claims that the statute is Cal. App. 799, 142 Pac. 797 (1914) ; unconstitutional, in that it requires him_ People V. Rosenheimer, 209 N. Y. US, to furnish evidence which might -be used 102 N. E. S30, Ann. Cas. 1915A 161, 46 against him in a criminal proceeding. L. R. A. (N. S.) 977 (1913), rev'g 146 Bill of Rights, art. IS. The same ques- App. Div. 875, 70 Misc. 433. tion has been raised in other states, and "In each of these cases it is pointed in each the conclusion has been reached out that the operation of an automo- that the 'statute is valid." State v. Ster- bile upon the public highways is not a rin, 78 N. H. 220, 98 Atl. 482 (1916.). right, but only a privilege which the 55 n. Y. Laws 1910, c. 374. 62 LAW OF AUTOMOBILES Similar statutes have been passed in other states, and this one has been literally reproduced in the laws of the State of Missouri. It has been held to violate no constitutional provision, and not to be in violation of public policy or of the principles of personal liberty ."« "The statute is a simple police regulation. It does not make the accident a crime. If a crime is involved, it arises from some other statute. It does not attempt in terms to authorize the ad- mission of the information as evidence in a criminal proceeding. The mere fact that the driver discloses his identity is no evidence of guilt, but rather of innocence. On the contrary, flight is re- garded as evidence of guilt. ... If, in this particular case, the constitutional privilege justified the refusal to give the information exacted by the statute, that question can be raised in the defense to the pending prosecution." ^^ Further, in the case last cited, the court said: "We have several statutes which require persons to give information which would tend to support possible subsequent criminal charges, if introduced in evidence. Persons in charge are required to report accidents in mines and factories. Physicians must report deaths and thdr causes, giving their own names and addresses. Druggists must show their prescription lists. Dealers must deliver for inspection foods carried in stock. We held a law valid which required a pawn- broker to exhibit to an officer his book, wherein were registered articles received by him, against his objection based on this same constitutional provision. We held this to be a mere police regula- tion, not invalid because there might be a possible criminal pros- ecution in which it might be attempted to use this evid^ence to show him to be a receiver of stolen goods." The court distinguished between this case and one in which a statute was declared invalid which required an officer of a corporation to answer, under oath, whether the corporation had violated the statute concerning trusts and combinations, and which further made a violation of such trust statute a crime. There the information related directly to a crime -created by the same statute, and was necessarily incriminatory, if the answer was in the affirmative. , In such a statute the word "knowing", as used in the sense of knowing that an injury has been caused, does not, mean positive 68'Ex parte Kneedler, 243 Mo. 632, 161, 46 L. R. A. (N. S.) US (1913), 147 S. W. 983, Ann. Cas. 1913C 923 rev'g 146 App. Div. 87S, 70 Misc, 433. (1912); People v. Rosenheimer, 209 N. BT Ex parte Kneedler, 243 Mo. 632, 147 Y. lis, 102 N. E. S30, Ann. Cas. 191SA S. W. 983, Ann. Cas. 1913C 923 (1921). STATE POLICE REGULATIONS 63 knowledge, but if injury is inflicted iij such circumstances as would ordinarily cause a reasonable person to believe that injury would flow from the accident, it is the duty of the motorist to stop and comply with the statute.** Failure to comply with such statute cannot be shown in an action to recover for injuries by being struck by defendant's automobile, so it has been held.*' § 58. Making o-virner liable for all injuries done by automo- bile except when stolen. A statute making the owner of a motor vehicle liable for any injury occasioned by its negligent operation by any person, excepting when "such motor vehicle shall have been stolen," has been held invalid, as it imposed liability upon the owner for the acts of a trespasser, or of a person between whom and the owner existed no relation, such as master and servant, or principal and agent, and this without regard to the degree of care exercised by the owner over his property. Said the court: "To hold this section constitutional is to hold a party absolutely liable for the negligent conduct of another, a mere stranger or a wilful trespasser, no matter how careful or free fro'm negligence he himself has been. We think that the result of such holding would be to take the property of defendant to pay for the wrongful and negligent act of another person not sustaining to him the relation of servant, agent, or employe. Such a doctrine seems unnatural and repugnant to the provisions of the constitu- tion here invoked. We are forced to the conclusion that the pro- visions of this section are hot a necessary regulation in the exercise of the police power; that in and by its terms the plain provisions of the constitution are violated ; and the section must be held uncon- stitutional." *» 58 Woods V. State, IS Ala. App; 2S1, The constitutional provisions referred 73 So. 129 (1916) . / to in this case were the due process 69 Henderson V. Northam, 176 Cal. 493, and equal protection clauses. Under a 168 Pac. 1044 (1917). statute attempting to impose liability 6O0augherty v. Thomas, 174 Mich. on the "owner" of a motor vehicle 371, 140 N. W. 61S, Ann. ,Cas, 191SA for its negligent operation by every 1163, 4 N. C. C. A. 27n, 4S L. R. A. person, except a thief, the word "owner" (N. S.) 699 (1913) ; Loehr v. Abell, 174 was held to mean the proprietor only, Mich. S90, HON. W. 926 (1913) ; Mitchell and not to include a person in charge V. Van Keulen k W. Lbr. Co., 17S Mich. or control thereof. Daugherty v. 75, 140 N. W. 973 (1913); Barry v. Thomas, 174 Mich. 371, 140 N. W. 615, Metzger Motor Car Co., 175 Mich. 466, Ann. Cas. 1915A 1163, 4 N. C. C. A. 141 N. W. 529 (1913). But see John- 27n, 45 L. R. A. (N. S.) 699 (1913); son V. Sergeant, 168 Mich. 444, 134 N. Mitchell v. Van Keulen & W. Lbr. Co., W. 468 (1912). 175 Mich. 75, 140 N. W. 973 (1913),. ■ 64 LAW OF AUTOMOBILES A Michigan statute on this subject provides that, "The temi 'owner' shall also include any person, firm, association or corpora- tion renting a motor vehicle or having the exclusive use thereof, under a lease or otherwise, for a period greater than thirty days." *^ § 59. Making claim for damages caused by automobile lien thereon. A statute providing that, "When a motor vehicle is oper- ated in violation of the provisions of law, or negligently and care- lessly, and when any person receives personal injury thereby, or when a buggy or wagon or other property is damaged thereby, the damages done to such person or property shall be and constitute ,a lien next in priority to the lien for state and county taxes upon such motor vehicle, recoverable in any court of competent jurisdic- tion, and the person sustaining such damages shall have a right to attach said motor vehicle in the manner provided by law for attach- ments in this state: Provided, that this act shall not be effective in case the motor vehicle shall have been stolen by the breaking of a building under a secure lock, or when the vehicle is securely locked," was held to be a proper exercise of the police power .^ § 60. Making owner liable when automobile operated with his consent. A statute df Michigan has been upheld which ren- ders the owner of an automobile liable for any injury occasioned by its negligent operation, if it was beijng operated by his express or implied consent or knowledge.*^ § 61. Taking automobile without owner's consent made a crime. A statute providing that, "Any person who shall unlaw- fully take, drive or operate a motor vehicle without the knowledge and consent of the owner shall be guilty of the offense of grand larceny, and upon conviction shall be punished by confinement in the penitentiary for a period of not less than twa nor more than five years," has been upheld as valid. It was declared not to be invalid as being a local or special act, or because it uses the words "grand larceny," when in fact the offense described is not grand larceny, or because it imposes a cruel punishment for its violation, or because it does not describe with sufficient certainty what con- stitutes the offense; it not being subject to any of these objections.** 61 Johnson V. Sergeant, 168 Mich. 444, «3 Stapleton v. Independent Brewing 134 N. W. 468 (1912). Co., 198 Mich. 170, 164 N. W. 520 62 Merchants Bank v. Brigman, 106 S. (1917).. C. 362, 91 S. E. 332 (1917); Stewart v. 64Singleton v. Com., 164 Ky. 243, Collier, — S. C. — , 99 S. E. 838 (1919). 17S S. W. 372 (191S). STATE) POLICE REGULATIONS 65 §62, Providing for service of process on owner in any county. A statute providing that actions for damages arising from the use and operation of any motor vehicle may be brought in the city or county in which the alleged damages werfe- sustained, and service be had in the county wher,e the defendant or his registered agent resides, or where service may be had upon him, was declared to be constitutional, the court in part saying : "The owner or operator pf a motor vehicle enjoys the benefit of this section of the statute with all other citizens, upon equal terms'; if his motor vehicle is injured or he suffers personalhurt through the negligence, reckless- ness or intentional misconduct of one operating another motor vehicle, this section of the statute puts it in his power to have his right to damages determined within the jurisdiction where the injury was suffered. . . .In former times vehicles drawn by horses or oxen rnpved at a comparatively low rate of speed. When vehicles so draiwn were negligently managed and injured the person or prop- erty of others there was usually but little difficulty in locating the person, responsible for the injury. Such vehicles did not usually travel long distances, arid the person responsible for the injury inflicted could usually be found somewhere within the region where the cause of action arose. The modern vehicle, driven by an engine, is capable of traversing the state from one end to the other within a single day. Such vehicles make journeys far distant from the resi- dence of the person responsible for negligence in their operation, thus making it difficult for the person injured, in person or property, to even ascertain the identity of the person responsible for his injuriies, and still more difficult for him to obtain redress, in case he has to follow the negligent operator of the engine to some distant part of the state." ®* ,/, , So, a statute providing that such actions may be brought in the county where the injured persdn resides, and that summons may issue to any county in the state wherein the defendant resides,- is a valid enactment.^* One has no constitutional right to be sued, if sued at all, in the county of his residence, and the fact that some provisions of statutes aim to secure this result by no means establishes that it is based on a constitutional right. It is not, intrinsically, more unfair to permit a suit of this character to be tried in the county where the victim of the alleged wrong resides than in the county 65 Garrett v. Turner, 47 Pa. Super. 66 Allen v. Smith, 84 Ohio St. 283, 95 Ct. 128 (1911), aff'd 23S Pa. St 383, N. E. 829, Ann. Cas. 1912C 611 (1911). 84 Atl. 354 (1912). B. Autos. — 5 66 LAW OF AUTOMOBILES where the alleged wrong-doer resides. The plaintiff would have just as dear a natural right to ask that the law permit a trial iri his county as the defendant could have to demand that the trial shall be in his county.^'' § 63. Requiring nonresident owner to appoint agent on whom process may be served. A statute providing th9,t non- resident owners of automobiles shall file with the Secretary of ,State a duly executed instrument constituting the Secretary of State and his successors in office, the true and lawful attorney upon whom all original processes in any action or legal prpceedirig caused by the operation of his registered motor vehicle, within that state against such owner may be served, and therein shall agree that any original process against such owner shall be of the same force and effect as if served upon the owner, etc., was held to be a valid law.®* "We know that ability to enforce criminal and civil penalties for transgression is aii aid to securing observance of laws. And in view of the speed of the automobile and the habits of men, we cannot say that the Legislature of New Jersey was unreasonable in believing that ability to establish, by legal proceedings within the Stg,te, any finahcial liability of nonresident owners, was essential to public safety. There is nothing to show that the requirement is unduly burdensome in practice. It is hot' a discrimination against non- residents, denying them equal protection of the law. On the con- trary, it puts nonresident owners upon an equality with resident ownersl" ®® > STAJlen V. Smith, 84 Ohio St. 283, Cas.: 1912D 237; Cleary v, Johnston, 9S N. E, 829, Ann. Cas. 1912C 611 79 N. J. L, 49, 74 Atl. S38 (1909). , (i911). 69 Kane v. New Jersey, 242 U. S. 68 Kane v. New Jersey, 242 U. S. 160, 160, 37 Sup. Ct. 30, 61 L. ed. 2'22 37 Sup. Ct. 30, 61 L. ed: 222 (1916) (1916), aff'g 81 N. J. L. S94, 80 Atl. aff'g 81 N. J. L. 594, 80 Atl. 4.')3, Ann. 453, Ann. Cas. 1912D 237. CHAPTER IV MUNICIPAL OR LOCAL POLICE REGULATIONS § 64. Police power of municipal corpo- rations. § 65. Power to regulate the use of streets. § 66. Ordinance regulating automobiles "witliin the city limits." § 67. Power to regulate the speed of au- tomobiles. §68. Giving right of way to certain ve- hicles. § 69. Failure to place signs as required. § 70. Ordinance forbidding crossing of streets except at designated cross- ings, inoperative until designation made. §71. Power to require lights on auto- mobiles. § 72. Forbiddiiig escape of smoke; gas, etc. , § 73. Requiring automobiles to pass to right of street cars. § 74. Requiring motorist to stop at rear of street cars. § 75. Requiring fenders on motor trucks. §76. Ordinance requiring obedience to police officers invalid. § 77. Forbidding riding on motorcycle in front of driver. § 78. Regulating parking of automobiles. § 79. Registration of automobiles and dis- play of number. § 80. Enjoining enforcement of ordinance requiring registration. § 81. Construction of charter powers. § 82. Police ordinances. §83. Construction of ordinances.. § 84. Construction of ordinances passeii under express power. §85. Construction < of ordinances passed under implied power. § 8,6. Qonstruction of penal ordinances. § 87. Discrimination — Class legislation. §88. Distinction between "regulate"' and "prohibit." §89. Title of ordinances. § 90. Ordinance void in part. §91. Conflict of ordinance With state statute. § 92. Same — Illustrations. § 93. Same — Forbidding municipalities to deny free use of streets. § 94. Same act may be offense against state law and ordinance. § 64. Police power of municipal corporations. A municipal corpofation may exercise, first, all powers granted in express terms, consistent with the Federal constitution and laws, and the state constitution; second, certain implied or incidental powers, in har- mony with the Federal and state constitutions and laws, and the municipal charter, (a) growing out of those expressly granted, or 67 68 LAW OF AUTOMOBILES (b) those which belong to it because it is a municipal corporation, or (c) those which are essential or reasonably proper, to give effect to powers I expressly granted or recognized as pertaining to munici- pal existence.^ It thus appears that a municipal corporation is not limited to the exercise of express powers,* but may pass all laws necessary or proper to carry into effect a given power.* And it is held in the state of Maryland that it is the duty of municipal corporajtipjis ,to exercise their express powers for the public good; the exercise of such powers there being not discre,t;ionary, but imperative;* and they cannot be delegated or bartered away.® , ,. The powers of a municipal corporation necessarily depend upon its charter or acts of the Legislature applicable thereito, Under the general grant of power, commonly called the "general, welfare" clause, "to ordain and publish such acts, laws and regulations, not inconsistent with the constitution and laws of the state, aS shall be needful to the good order of the city" the local corporation may enact and enforce all reasonable ordinances for the administration of the municipal government, and for the protection of the interests and welfare of its inhabitants.® § 65. Power to regulate the use of streets. ,,,The, use of the public hijghways is a right inherent in the people and a municipal 'ordinafice restricting this right is void. B^t the Legislature has power to reduce such right to a privilege, and to authorize a municipal cor- IMcQuilUn, Mun. Ord!, §46. ' 35 S. E. 994, 50 L, R. A. 142. ' Alaska: Ketchikan Co. v. Citizens "New York v. Dry 'Dock,' etc., R. Co., 2 Alaska 120, ,129,,, Co., 133 N. Y. 104, 30 N. E., S>63, 28 District of Columbia: United States Am. St. Rep. 609 ; Le Couteulx v. Buffalo, ex rel. v. MacFarland, 28 App. D. C. 33 N. Y. 333. SS2, S58. 3 Ex parte Burnett, 30 Ala. 46l| 465. Iowa: Burroughs v. Cherokee, 134 4 Board of Commissioner v. County la. 429, 431, 109 N: W. 876. Commissioners, 20 Md. 449, 458; County MissouH: ■ St. Loviis v. Kairoe, 180 Commissioners y. Duckett, 20 Md. 468, Mo. 309, 322, 79 S, W. 140; State v. 477, 83 Am. Dec. 557. ,, ,,, Butler, 178 Mo. 272, 313, 77 S. W. 560. 6 Louisville City R. Co. v. Louisville, New Jersey: Carron v. Martin, 26 8 Bush. (Ky.) 415; Coatesville Borough N. J. L. 594, 69 Am. Dec. 584. ' ' ' ' ' v. Coatesville E. L. H. & P. Co., 32 Pa. North Carolina: Smith v. Newbern, Super. Ctj 513, 516; State v. Eiskej 9 7Ci N, C. ,14,18, 16, Am. Rep. 766., , , , R. I.. 94. .,, ,,,; ,;=,,, ,,,;,,. ,-,,.. Virginia:. Donable v. Harrisonburg, 6 state v. Merrill, 37 Me. 32p,; Pliila- lb4 Va: 533," 535, 52 S. E.' l'74. delphia v.' Brabeiider,' 17 Pa3uP^''-"^t. 'Washington: Farwell v. Seattle, '43 '331, 2blPa. St. i74. '' "''• ',■'"•' Wash; 141, 144, 86 Pac. 217.' '■' ■ " ' '' ''■ 'i'. West Virginia: Clarksburg Electric^ Light Co. V. Clarksburg, 47 W. Va. 739, MUNICIPAL OR LOCAL POLICE REGULATIONS 69 poration to impose a license fee on vehicles for the p^'ivilege of using the streets.'' A county court has no power, without express authority, to levy conditions on members of the public for their use of the public roads.* ' A grant of power by the Legislature to boards of aldermen and selectmen to make regulations governing the use of automobiles on particular roads is a proper delegation of the police power.' The power of a municipal corporation to regulate the use of its streets is 'conferred for the purpose of keeping them in condition for public use and travel.^" Under general charter power giving cities control over their streets, they may regulate their use by all kinds of vehicles. They may fix the maximum rate of speed at which vehicles and animals may be driven through the streets^ and may control the use of the streets generally to any reasonable extent for the safety of the people.^^ Thus, it has been held that cities may regulate the use of omni- 1 buses and stage coaches in the streets;^* prohibit driving in the streets in a trot or gallop,^' or faster than an "ordinary trot;" ^* or faster than a walk in turning street corners;^^ regulate: the use of bicycles in the streets;^® specify the time of day in which the streets may be used for certain purposes, and exclude vehicles of all kinds from entering upon or passing over the sidewalks; ^"^ require certain vehicles to display lights at night,^* and give certain vehicles the right of way over other vehicles.^' . 'Harders Storage Co, v. Chicago,, 233 North Carolina: State v. Summerfield, III. .58, 85 N. E. 245. ' '' ' 107' N. C 895, 12 S. E. Il4. 8 Suhiner County v. Interurban Tr. i* Com. v. Stodder. 2 Cush. (Mass.) Co., 141 Tenn. 493, 213 S. W. 412 (1919). 562; Crocker v. Knickerbocker Ice Co., 9 Com. V. Kingsbury, 199 Mass. 542, 92 N. Y. 652. 85 N. E. 848, 127 Am. St. Rep. 513.: 18 Com. v; Worcester, 3 Pick. (Mass.) 10 Chicago V. Banker, 112 111. App. 94, 462, 474. 96, 97. 14Nealis v. Hayward, 48 Ind. 19. ^^ Alabima: Montgomery v. Parker, 15 Council v. Dunn, 1 McCord (S. C.) 114 Ala. 118, 21 So. 452, 62 Am. St. 333. Rep. 95. 16 Fuller v. Redding, 13 App. Div. Louisiana: Shreveport v. Dantes, 118 61, 43 N. Y. Supp. 96; Moore v. District La. 113, 42 So. 716. ' of Columbia, 12 App. D. C. 537, 41 L. Massachusetts: Com. v. Rowe, 141 R. A. 208. Mass. 76, 6 N. E; 545; Com. v. Fenton, IT Moore v. District of Columbia, 12 139 Mass. 195, 29 N. E. 653. App. D. C. 537, 541, 41 L. R. A. 208. Michigan: People v. Keir, 78 Mich. , 18 Des Moines v. Keller, 116 la. 648, 98, 43^N. W. 1039. 88 N. W. 827. Minnesota: Duluth v. Mallett, 43 19 People v. LitUe, 86 Mich. 125, 48 Minn. 204, 45 N. W. 154. N. W. 693. 70 LAW OF AUTOMOBILES' Regulation of occupations^ such as hackmen and. others keeping vehicles for hire is a proper exercise of the police power.*" i > ' An ordinance forbidding trains to stand at street crossings more than ten minutes, except in Ccise of accident, has been held to be a reasonable and valid exercise of the police power .^^ The validity of an ordinance prohibiting the stopping of a vehicle in the streets for more than twenty minutes was sustained.** Like- wise, the power of a municipal corporation to require a ra!ilroad company to use certain kinds of rails has been upheld.** Under power to "regulate and license all cars, wagons, drays, coaches, omnibuses and every description of carriages," it was held that a municipal- corporation was authorized to regulate the use of automobiles in its streets.** However, this power does not justify a city in declaring any usual method of travel along the streets a nuisance, and prohibiting its use as such.*^ Under a grant of power to regulate the use of vehicles in the streets, a city may regulate the use of automobiles therein, althdugh the statute granting such power was enacted before automobiles came into use.*® ,-- A city council has power to pass an ordinance for the protection of persons lawfully on the streets from the risk of injury or death from motor trucks being operated on the streets.*'' An ordinance has been held to be reasonable and valid which required drivers of vehicles "iri turning while in motion or in start- ing to turn from a standstill, a signal shall be given by indicating with the whip or hand, the direction in which the turn is to be made," and providing that "traffic on the east and. west streets shall have the right of way over traffic on the north and south streets." ** 20 Chicago V. Banker, 112 111. App. v. Missouri Pacific R. Co., 112 Mo. 238, 94, 97. 2S0, 20 S. W. 439. 21 McCoy V. Philadelphia) W. & B. R. A municipal corporation may limit the Co., S Houst. (Del.) S99, 60S. speed of Street cars. Schmidt v.- St. 22 Com. V. Fenton, 139 Mass. 19S, 29 Louis R. Co., 149 Mo. 269, SO S. W. N. E. 6S3. 921. ' 28 Louisville City R. Co. v. Louisville, ^a"" "* Wright, 29 Hun (N. Y.; 8 Bush. (Ky.) 41S. An ordinance limiting the speed 6t trains throughout the city to four miles 3S7. 24 Com. V. Hawkins, i4 Pa. Dist. S92. 26 Chicago V. Banker, 112 lU. App. 94, 97. an hour, held unreasonable and void. 86 Henderson v. Lockett, IS 7 Ky. 366, Evison v. Chicago, St. P. M. & O. R. 153 s. W. 199 (1914). Co., 4S Minn. 370,-46 N. W. 6, 11 L. R. 27 Consumers Co. v. Chicago, 208 111. A. 434. App. 203 (1917). A city has power to limit the time 28 Johnson Oil Ref. Co. v. Galesburg a railroad may block a street. Burger R., L. & P. Co., 200 111. App. 392 (1916). MUNICIPAL OR LOCAL POLICE REGULATIONS 71 An act to authorize a board of chosen free holders "to lay out, construct,, improve and maintain a public road," invested the board "with all the rights and powers necessary and expedient to lay out, open, construct, improve and maintain such public road." It was also provided that such road should be a pubUc highway and should always remain open as such, and that "the travel thereon shall be subject to such rules and regulations in relation thereto, and to limit and prevent the driving or travel thereon of loaded or heavy trucks, wagons or carts, as the said board may have adopted or shall adopt," etc. The board enacted the following rule: "No automo- bile, truck, cart, or other vehicle used for business purposes will be allowed upon the road, except to deliver and receive its loading. Neither will a steam roller be allowed upon the road at any time unless a permit has first been obtained. Penalty for each offense $5.- Provided, nothing herein shall prevent the use of said road to business wagons weighing, loaded, not more than 500 pounds on each wheel, at all time5 when used solely for pleasure driving." It was held that the rule was beyond the power of the board to enact, as the test for exclusion required by the rule was the use in which the vehicle was employed; while the test prescribed by the statute was weight.^' Where a state* constitution provided that "the right of all cities, villages and townships to > the reasonable control of their streets, alleys and public places is hereby reserved to such cities, villages and townships," and a statute of the state prohibited local authori- ties from passing any ordinance or regulation requiring from any owner of an automobile or chauffeur any license for the use of the public highways, or excluding them from the free use of such high- ways, "or in any other way respecting motor vehicles or their speed upon or use of the public highways," it was held that this statute, in so far as it prdhibited the enactment by a city of an ordinance regulating the driving of automobiles on the city streets to a rea- sonable extent, was in conflict with the constitutional provision and void; and an ordinance of the kind was upheld.'" "In other words," said the court, "the municipality retains rea- sonable control of its highway, which is such control as cannot be said to be unreasonable and inconsistent with regulations which have been established, or may be established, by the state itself with reference thereto. This construction allows a municipality to recog- 29 Clausen v. De Medina, 82 N. J. 30 People v. McGraw, 184 Mich. 233, L. 491, 81 Atl. 924 (1911) rev'g 80 N. ISO N. W. 836 (1915). J. L. 634. 72 LAW OF AUTOMOBILES nize local and peculiar conditions, and to pass ordinances, regulat- ing traffic on its streets, which do not contravene the state laws. The congested condition of traffic on many of the streets of the city of Detroit (by which the ordinance was passed) is a matter of com- mon knowledge, and these conditions make it absolutely necessary, for the protection of pedestrians and the drivers of vehicles, to enact Tules and regulations peculiarly adapted to the ' conditions there found and to enact ordinances to diminish the dangei', and the words 'reasonable control' give the power to meet just such conditions." Under a proper delegation of power a municipality may exclude motor, vehicles from certain streets, and reserve the same for use by. horses and light carriages.'^ A city having control of its streets will not be enjoined from plac- ing signs therein as warnings to automobile drivers, even although disregard of such signs may result in prosecution.'^ § 66. Ordinance regulating automobiles ' 'within the city limits" is void. A city ordinance which attempted to regulate the driving pf automobiles "within the city limits," instead of con- fining its operation to the public highways and places of the city, was declared to be void for unreasonableness. The ordinance provided as follows: "No person shall drive or conduct any vehicle required by law or ordinance to be licensed' or numbered, when such person is under eighteen; years of age. It shall be unlawful for any person under eighteen years of age to oper- ate or run an automobile within the city limits." It was held that the invalid portion of the ordinance was so inseparably connected with the whole ordinance as to render the entire ordinance void as an unreasonable and unwarranted invasion of personal liberty. In part the court said: "It will be noted that the ordinances quoted do not limit the places where an automobile may be oper- ated to the streets, alleys, and public grounds, over which alone it has control for such purposes, but prohibits or makes it a penal offense to operate an automobile within the city limits which in- cludes upon private property." '* A village ordinance regulating the speed of automobiles "within the corporate limits of the village" is void, because not confined to 31 People ex rel. v. Waldo, 72 Misc. ** Royal Indemnity Co. v. Schwartz, 416, 131 N. Y. Supp. 307 (1911), aff'd — Tex. Civ. App. — , 172 S. W. S81 149 App. Div. 927 (1912). (1914). 32 Automobile Club v. East McKees- port, 24 Pa. Dist. 81S (1915). ^ MUNICIPAL OR LOCAL POLICE REGULATIONS 73 the public highways, over which the village had jurisdiction alone for such purpose.'* §67. Power to regulate the speed of automobiles. Under a general grant of police power, a municipal corporation may, in the interest of the public safety, regulate the speed of automobiles in its streets and ways.'* It may prescribe different rates of speed for different portions of the city, according to the width of the streets, their use, and the density of the population.'* The maximum rate- of speed at which automobiles should be allowed to run is a question for determination by the municipal authorities, and, it has been said, unless it should appear that the rate of speed prescribed is such as to render it impossible for the machine to be propelled, the limitation will not be held to be so unreasonable as to make the ordinance void.''' A regulation fixing the rate of speed of automobiles ' on the city streets at six miles an hour between crossing and four miles an hour at, crossings was declared reasonable. And it was held that the use of the word "crossing" in the regulation plainly referred to street crossing." Under authority to "lay out, improve, govern and regulate parks and park-ways, and to make rules, for the use and government thereof," a board of park commissioners was held to have power to regulate the speed of automobiles ip, parks and park- ways." And an ordinarice limiting the speed of automobiles within a radius of half a mile from a certain bridge was declared not to be invalid because it failed to provide for marking with signs or otherwise the limits of such speed radius so that a driver would know when he reached it.*" An ordinance was held not to be unreasonable nor invalid which imposed fines for the operation of vehicles in excess of a certain rate of speed, and a jail sentence when the speed exceeded a much higher 34 People V. Bell, 148 N. Y. Supp. 753 3'' Columbus R. Co. v. Waller, 12 Ga. (1914).' App. 674, 78 S. E. 52 (1913). 8SEx parte Snowden, 12 Cal. App. *8Eichman v. Buchheit, 128 Wis. 385, 521, 107 Pac. 724 (1910); Chicago v. 387, 107 N. W. 325, 8 Ann. Cas. 435. Banker, 112 IJl. App. 94, 97; Young v. S^Com. of Crowinshield, 187 Mass. Dunlap, 195 Mo. App. 119, 190 S. W. 221, 224, 72 N. E. 963, 68 L. R. A. 245; 1041 (1916); Chittenden v. Columbus, Com. v. Tyler, 199 Mass. '490, 85 N. E. 26. Ohio Cir. Ct. 531, 534. 569. 3«St. Louis V. Hammond,;.— Mo. — , MEichman v. Buchheit, 128 Wis. 385, 199 S. W. 411 (1917); Chittenden v. 387, 107 N.W. 325, 8 Ann: Cas, 435. Columbus, 26 Ohio Cir. Ct. 531, 534. 74 LAW OF AUTOMOBILES rate; such latter rate being much in excess of the rate prohibited by statute.*^ In the state of Oregon municipalities are given quite a full meas- ure, of home rule by the constitiftion, which has placed beyond the capacity of the Legislature the power to make any change in their systems of government; an exception being made in respect to the Criminal laws. The constitution of that state** granted power to enact and amend their municipal charter, subject to the consti- tution and criminal laws of the state of Oregon. Under this provision, it has been held that a statute *' regulating the speed of motor vehicles throughout the state, including those operated within cities and towns, and which provided that local authorities should have no power to prescribe a lower rate of speed than therein provided, was an attempted amendment of the char- ters of the cities and towns of the state, and therefore in conflict with the constitutional provision mentioned. The fact that the statute provided a penalty for its violation, did not take it without the competency of municipal legislation by impressing upon it the character of a criminal law.** § 68. Giving right of way to certain vehicles. An, ordi- nance giving the vehicles of a board of fire underwriters right of way over other vehicles in the city streets wlien going to or returning . froni a fire, was held to be valid. A general law giving the owners of motor vehicles the same rights in the public streets as all other users of the streets, did not interfere with the power of the city to make such a regulation.** *1 Ex parte Snowden, 12 Gal. App. S21, discharge of its public duty. It is sub- 107 Pac. 724 (1910). ject to the control of the head of the *2Sec. 2, art. 11, as amended, pro- city fire department while it is discharg- vides: "The legislative assembly shall ing that.dut;^. So far as the commuiiity, not enact, amend or repeal any charter is concerned, it is practically a public or act of incorporation for any munici- agehcy doing a public work under public pality, city or town. The legal voters of control. The city cannot clothe that every city and town are hereby granted agency with immunity from its own neg- power to enact and amend their munici- ligence, but no reason is perceived, either pal charter, subject to the constitutibn in law or morals, why it may not, in the and criminal laws of the state of Oregon." interest of public welfare, endbw it with 43 0reg. Laws 1911, p. 275. the same privileges on the public streets 44 Kalich V. Knapp, 73 Oreg. SS8, 142 while engaged in public work as it gives Pac. 594, 145 Pac. 22, (1914). to its own apparatus and employees en- 45 "In the present case a private cor- gaged in the same work."' Sutter v. Mil- poration not organized for gain is, at its waukee Board of F. U., 164 Wis. 532, own expense, and in pursuance of legis- 160 N. W. 57 (1916). lative authority, assisting the city in the MUNICIPAL OR LOCAL POLICE REGULATIONS 75 § 69. Failure to place signs as required. A statute granted to cities and towns authority to regulate the speed of motor vehicles, within certain limitations, on condition "that each city and town shall have placed conspicuously on each main public highway where the city or town line crosses the same, and on every main highway where the rate of speed changes, signs of sufficient size to be easily readable by a person using the highway, bearing the words, 'City of —, Slow down to -^ — - miles.' " It was held that the misplace- ment of one such sign 503 feet from its proper place would not render an ordinance enacted under such statute invalid. In this respect the court in part said: "It cannot be supposed that there was any legislative intent to make the validity of a municipal regulation of this character depend on the question whether a nice or accurate survey shall find all the several sign posts surrounding the city placed squarely upon the boundary line. Conditions — topographical or otherwise — may be such that a sign displayed at a point on the highway a little inside the boundairy will serve its intended purpose much more effectively than one standing on the extreme border. Again, we may suppose a case ^here a road enters a city at a point, say, for example, a few feet or rods south of the northwest corner of the municipal terri- tory and another enters at a point a few feet or rods east of such corner, the two coming together at a short distance inside the city limits and continuing thence as one main highway; will not a sign of the prescribed character placed a:t. the junction of these ways be a fair and substantial compliance with the statutory direction? Still again there is nothing in the statute to prevent a city, if it shall so' elect, from limiting its speed regulations to some defined part of its territory and leave the rest open and unregulated by anything but the general laws of the State." *® ' An ordinance enacted under such a statute which did not require the signs po'sted to display an arrow pointing in the direction where speed is to be changed, as required by the statute, was invalid for that reason.*'' § 70. Ordinance forbidding crossing of streets except at des- ignated crossings, inoperative until designation made. A city ordinance, prohibiting the crossing of streets by pedestrians at other than designated crossings, and providing that the director of public « Pilgrim v. Brown, 168 la. 177j 150 ^ Decatur v. Gould, — la. — , 170 N. W. 1 (1914). N. W. 44 "The cart or wagon may be unloaded at the gateway, but this must be done with promptness. So as to the repairing of a. house. The public must submit to the inconvenience occalsioned necessarily in repairing the house, but, if this incon- venience is prolonged for an unreasonable time;, the public have a right to complain, and the party may be indicted for a nui- sance. The rule of law upon this subject is much neglected, and great advantages would arise from \ strict and steady ap- pUcation of it." Rex. v. Jones, 3 Camp.' Rep. 230. 57 Sanders v. Atlanta, 147 Ga. 819, 95 S. E. 695 (1918), citing this work. 80 LAW OF AUTOMOBILES : / to use the street for passing andt repassing thereon may > become a nuisance.** Parking an automobile for more than an hour at a place in a street where, by ordinance^i automobiles were allowed to be parked, did not constitute a "wilful" obstruction of traffic.*' §79. Registration of automobiles and display pf number. Requiring owners of automobiles to register their machines with a municipal officer, and to display a number, furnished by such officer, on some paift of the automobile for the purpose 'of" identi- fication, isia valid police regulation. Such requirements are not unconstitutional as amounting to an unreasonable Search, nor' as compelling the operator to testify against, himself 'in a ci'imihal case, nor as depriving him of property without due process of law.^" Under a grant of power to regulate the use of its streets, a municipal corporation has authority to provide for the registirafion and numbering of automobiles.®' § 80. Enjoining enforcement of ordinance requiring regis- tration. The general rule is that a court having equitable juris- diction will riot' enjoin criminal prosecutions; and this rule is a,ppli- cable to proceedings to punish for violations pf municipal ordinances' which are quasi criminal in their nature. The cases in which pro- ceedings to enforce such ordinances will be enjoined are exceptional in character; and in order to successfully invoke that relief, a plaintiff must show sufficient grounds for equitable interference with the ordinairy metWd of procedure for the. enfprcenient, of such an ordinance. "In this case no reason was shown which would authorize a court of equitable jurisdiction to interfere by injunction to restrain the municipal authorities of the city of Savannah from proceeding to enforce its ordinance requiring a registration of automobiles using the public streets, and providing a fine or imprisonment for its violation. Nor is any reason shown why, if a proceeding: should be begun to enforce such ordinance, the defendant could not' obtain' full relief, if entitled thereto, by setting up as a defense any con- tention that the ordinance and the actsi of the Legislature authoriz- es Sanders V. Atlanta, 147 Ga. 819, 95 A city may require the display of a S. E. 69S (1918), citing' this work. license number for the purpose of iden- 69 People V. Harden, 110 Misc. 72, 179 tification. Frankfbrd etc. R. Co. V. N. Y. Supp. 732 (1920). Philadelphia, 58 Pa. St.- 119. 60 People V. Schneider, 139 Mich. 673, 61 People v. Schneider, 139 Mich: 673, 103 N. W. 172, 69 L. R, A. 345, 12 fie- 679, 103 N. W. 172, 69 L. R. A. 3'4S, 12 troit Leg. N. 32. ' ' Detroit Leg. N. 32. MUNICIPAL OR LOCAL POLICE REGULATIONS 81 ing municipalities to pass such ordinances are unconstitutional." . Judgment in favor of complainants was reversed.®^ ' §81. Construction of charter powers. Charters of munici^ pal corporations being special grants of power, are to be strictly construed; and whatever is not given expressly, or as a necessary means toithe execution of expressly given powers, is withheld.®* The local corporation cannot go beyond the powers conferred by its charter, expressly or by implication,®* and any ambiguity or doiibt arising put of the terms of the grant of power must be re- solve^l against the corporation and in favor of the public.®* The specific enumeration of certain powers impliedly exclude;s those not mentioned.®® But the construction pt power should not be unreasonable, nor so strict as to defeat the evident objects aijd purposes of its creation.®'' , . ' r . It should be in accordance with the intent of the charter fr^mers, to be gathered from the language and object of the charter pro- visions.®' Thus under an authorization to regulate and license, cartmen, hacks., cars, omnibuses, stages and 9,11 other carriages ^nd vehicles used for the transportation of passengers, baggage or merchandise,, it was held to be within the power of a municipal corporation to regulate the pperatiori of automobiles for hire, and , to. fix the fare to'bie charged.®' And it was declared that, under authority to 62 Savannah v. Granger, 145 Ga. 578, Missouri: St. Louis v. Weber, 44 Mo. 89 S.E. 690 (1916).' i' ' 547. ■"'■ ' - •''■ '■ B3 California: Douglass v. ' Pl'acerville', New York: Parker v. Baker, 1 Clark's 18 Cal. 643, 647. Ch. Cas. 223, 225. Connecticut: Crofut v. Danbury, 55 66 Clark; Dodge & Co: v. Davenport, Conn. 294, 300, 32 All. 36S. 14 la. 494, 500; Meday v. Rutherford, Iowa: Logan v. Pyne, 43 la. 524, 525, 65 N. J[ L. 645, 648, 48 Atl. 529; Cor- 22 Am. Rep. 261. - vallis v. Carlile, 10 Oreg. 139, 141, 45 Kansas: Leavenworth v. Norton, 1 Am. Rep. 134; Minturn v. Larue, 64 Kan. 432, 436. ' If: S. (23 How.) 435, 436, 16 L. ed. 5V4. Missouri: Trenton v. Clayton, 50 Mo. 66 New Orleans v. Phillippi, 9 La. Ann. App. 535, 539. ■ 44, 46; Grand Rapids v. Hughes, IS Oregon: Corvallis v; Carlile, 10 Oreg. Mich. 54, 58; State v. Ferguson; 33 N. H. 139, 141, 45 Am. Rep. 134. > ■ 424, 430. , ' ' ■Pennsylvania: Lesley v. Kite, 192 Pa. 67 Smith v. Madison, 7' Ind. 86; State St. 268, 274, 43 Atl. 959. ex rel. v. Allen, 183 Mo. 283, 291, '82 , McQuiflih,iMun. Ord. §48. S. W. 103; Missouri Loan Bank v. How, ^^ Alabama: Bessemer v. Bessemer 56 Mo. 53, 59. Water Works, 152 Ala. 391, 44 So. 663. 68 St. Louis v. Herthel, 88 Mo. 128, Connecticut: New London v. Brai- 130. nard, 22 Conn. 552. 69 Fonsler v. Atlantic City, 70 N. J. L. Illinois^ Petersburg v, Metzker, 21 111. 125; 127, 56 Atl. 119. 205, 206. B. Autos. — 6 82 / i ,.LAW OF AUTOMOBILES regulate the storage of highly inflammable substances in the thickly populated portidns of the District of Columbia, the commissioners of the district were authorized to make and enforce a regulation requiring a license for the storage of gasoline in the city of Wash- ington,''?, : r Since an ordinance without a penalty would be nugatory, a municipal corporation which has the power to pass an ordinance has the implied power to provide for its enforcement by proper and ifeasonahle.fiiies against those who violate its provisions.*"^ §82. Police ordinances. Local police regulations of automo- biles must be in the manner authorized by law. The municipal charter and legislative acts applicable usually prescribe the method by which the municipal authorities may regulate those things which concern particularly the municipality and the inhabitants thei-eof. The legislative or governing body acts either by resolu- tion or ordinance. The word "ordinance" means a local law, prescribing a general and .permanent rule .''^ The terriis "ordinance" and "by-laws" are used interchange- ably to signify a local law, or law applicable to a particular com- munity, or jtnunicipal corporation." It differs from a resolutioii or order, in, that it prescribes a permanent rule of government, whOe a resolution is only temporary in its nature.'* An ordinance is ''"District of Columbia v. Weston, 23 "^^ Colorado: Tracey v. People, 6 App. D. C. 363; Colo. 151, 153, 4 Am. & Eng. Corp. Gas. Tl Winooski v. Cokey, 49 Vt. 282, 286. 373. '''^Indiana: Kersey v. Terre Haute, Indiana: State v. Swindell, 146 Ind. 161,,Ind. 471, 476,, 68 N. E. 1027. S27, 532, 45 N. E. 700, 58 Am. St. Rep. ,Iflwa:r State v. Omaha & C. B. R. & 375. B. Co., 113 la. 30, 33, 84 N. W. 983, 52 Iowa: State v. Omaha & C. B. R. & L. R. A. 315,. 86 Am. St. Rep. 357. B. Co., 113 la. 30, 33, 84 N. W. 983, 52 Minnesota:: Evison v. Chicago, St. P. L. R. A. 315, 86 Am. St. Rep. 357. M. .& O. R. Co., 45 Minn. 370, 375, 48 Minnesota: State v. Lee, 29 Minn. N. W. 6, U L. R. A. 434. 445, 451, 13 N. W. 913. }New York:, Armatage v. Fisher, 7+ New Jersey: Taylor v. Lambertsvilie, Hun 167, 172, 26 N. Y. Supp. 364.- 43 N. J. Eq. 107, 112, 10 Atl. 809. North. Dakota: Shuttuck v. Smith, 6 Tennessee: Rutherford v. Swink, 96 N. D.r 56, 72, 69 N. W. 5. Tenn. (12 Pickle) 564, 567, 35 S. W. 554. Ohio: Blanchard-v. Bissell,' 11 Ohio Federal: National Bank of Commerce St. 96, 103. V. Grenada, 44 Fed. 262, 263. Black's Law Diet,, tit. "Ordinance." ''*Altamont v. Baltimore & O. R. Co., 2 Bouvier'sLaw Diet., tit. "Ordinancei"^ 184 111. 47, 51, 56 N. E. 340; McQuillin, An\ ordinance must of necessity be in Mun. Ord., § 2. writing. Stevenson v. Bay City, 26 Mich. 44, 47. MUNICIPAL OR LOCAL POLICE REGULATIONS 83 generally necessary when the municipal assembly is acting in a legislative capacity, while acts that are done in a ministerial ca- pacity and for a temporary purpose, may be in the form of a resolution.''^ ■ | § 83. Construction of ordinances. A few suggestiqns respect- ing the construction of ordinances designed to regulate autpflaQbilps will add greatly to the va;lue of this chapter. Like statutes, ordinances are presumed- to be valid,,''',® and must: be reasonably construed, in a manner consistent with the intent^ of the authority enacting them. They should be construed, if possible, so as to give full force and effect to their provisions, that they may accomplish the desired objects.'''' Where an ordinance is open to two constructions, one legal, the' other illegal, that construction must prevail that will preserve, its validity.^" ' '' ^"-'-^--'-^^ '^ A valid ordinance stands on the same footing as a statute,''*' arid' its construction is for the court, and should never be left to the jury.*" ' ''^Illinois: Chicago & N. P. R. Co. v. Chicago, 174 111. 439, 44S, 51 N. E. S69. Iowa: Grimmell v. Des Moines, 57 la. 144, 147. New -Jersey: Paterson v. Barnet, 46 N. J. L. 62,. 66; State v. Bayonne, 35 N. J. L. 335, 337. Ohio: Blanchard v. Bissell, 11 Ohio St. 96, 103. ' Federal: Alma v. Guaranty Savings Bank, 19 U. S. App. 622, 627. "Acts of legislation by a municipal cor- poration, which prescribe a permanent rule of ' conduct or government, and which are to. have a continuing force and effect, must be established by ordinance." People v. Mount, 186 111. 560, 571, 53 N. E. 360. ''S Illinois: Hawthorn v. People, 109 111. 302, 307, 50 Am. Rep. 610. Indiana: Citizens Gas & Min. Co. v. Elwood, 114 Ind. 332, 334. Missouri: Dollar . Savings Bank v. Ridge, 183 Mo. 506, 518, 82 S. W. 56. New York: People v. Gilson, 109 N. Y. 389, 397, 17 N. E. 343, 4 Am. St. Rep. 465. Texas: Austin v. Austin City Cem'. Assn., 87 Tex. 330, 338, 28' S. W. '528, 47 A;n. St. Rep. 114. ^ 77 Whitlock v: West, 26 Cbnn. 406, 414; Merriam v. New Orleans, 14 La: Ann; 318. But see, Houlton v. Titcomb, 102 Me. 272, 284, 66 Atl. 733, 10 L. R. A. (N. S.) '580. '' ■ •' " ■ ' 1i Illinois: Blanchard vl Bfentoii, 109 111. App. 569, 576. '" " ■ Kansas: Swift' v. Topeka, 43' Kan 671, 675, 23 Pac. 1075. " Kentucky: ' Lowry v. Lexington, 24 Ky. L. Rep. Sl6, 522, 68 S. W.J.i69. '' ' Missouri: State v. Butler, 'l7^ Mo. 212, 'in, 77 S. W. 560. "' , , Pennsylvania: Johnstown y. .fejitifal District & P. T. Co., 23 Pa. Super. Ct. 381, 384;, Com. ex rel. v, Butler, 99 Pa. St. 535, 540^' , .'^a^hington: Bellii^gha^m ,y. Cifsna, ^4 Wash. 397, 402,,87 'Pac..,481., 79 Pennsylvania Co. v. Frana,,, 13 III. App. 91, 97. , , . ,, i^ Illinois:: Pennsylvania Co, v. Frana, 13 111. App. 91, 97, 84 LAW OF AUTOMOBILES . ;: Words are to be taken in their plaiUfand ordinary sense. Thus the phrase "duly established," used in reference to the passage ofi an oi:dinance, means that the ordinance was passed accordirig to.lg.w and became of legal effect.*^ Resort may be had to the context and the reason and the spirit of the ordinance.*^ Where an ordinance provided that oh and after a certain date all automobiles "shall be propelled Upon the public highways at a speed not exceeding ten miles an hour," it was held that, following the accepted rules of construction,** it is manifest that it declares it to be unlawful to propel an automobile upon the highways at a speed exceeding; ten imiles an hour.** The question of the reasonableness of an ordinance regulating the use of automobiles in city streets is for the court, and not the jury, to determine.*® § 84. Construction of ordinances passed under express power. , Where an ordinance is. passed by virtue of express; power, not incoiisistent with the federal constitution or laws p|- the state constitution, and such power is substantially followed, or isj exer- cised in a reasonable manner, the ordinance will be sustained, regard- less of the opinion of the court respecting.it? reasonableness.** ., ,,- Whether or not an ordinance i^ reasonably necessary is committed, Missoiiri: Barton v. Odessa, ,109 Mo. Colorado: Phillips v. Denver,: 19 GoloJ App. 76, 82 S. W. 1119; Eruin-Bamhrick 179, 183, 34 Pac. 902, 41 Am. St. Rep. Const. Co. V. Geist, 37 Mo, App. S09, 230. - . . i S16. • , Georgia: Poulan v. Atlantic Coast ■ L. New Jersey: State v. Jersey Cjty, 37 R. Co.,:123 Ga. 60S, 610, SI S. E. 6S7. • N. J. L. 348, 3S1. Illinois: Peoria v. Calhoun," 29 III. Jihode Island: Wilson v. New York, 317,320. .< .' ■, N. H. & H. R. Co., 18 R. I. S98, 603, 29 Louisiana: State v. - Payssain, 47 La. Ati. 300. Ann. 1029, 1031, 17 So. 481, 49 Am.: St. Texas: Austin v. Austin City Ceni. Rep. 390. Assn., 87 Tex. 330, 338, 28 S. W. S28, 47 Missouri: Prior v. Construction Co., Am, St. Rep. 114. 170 Mo. 439, '4SI, 71 S, W. 20S ; St. 81 Com. V. Sherman, 191 Mass. 439, Louis v. Green, 6 Mo. App. 591. 1 441, 78 N. E. 98. New Jersey: Budd v. Camden, 69 N.i 821 Bl. Com: S9. J. L. 193, 54 Atl. 569. 83 1 Bl. Coni. 59. New York: Kittinger V: Buffalo Trac- 84 Radnor Township. V. Bell, 21 Pa. tion Co., 160'N.. Y. 377, 388. Super. Ct. 1, 8. An ordinance passed under' express 85 Columbus R. Co. v. Waller, 12 Ga. power cannot be unreasonable. Shelby-l App. 674, 78 S. E. 52 (1913). ville v. Cleveland, C. & St. L. R. Co., 86 McQuillin, Mun. Ord.; § 181. 146 Ind. 66, 70, 44 N. E. 929. Alabama^: Lindsay v. Anniston, 104 Ala: 257, 261, 16 So. 545, 53 Am. St. Rep. 44. MUNICIPAL OR LOCAL POLICE REGULATIONS 85 in the first instance to the municipal legislative body, and the ordi- nance, when passed, is presumptively valid.*'' The motive of such body in the exercise of a discretionary power conferred upon it by the Legislature, will not ordinarily be investi- gated.** Thus an ordinance forbidding the use of automojailes on the public highways at night, not being unreasonable on its face, was unheld.** , Likewise an ordinance fixing seven miles an hour as the maximum rate of speed at which vehicles may be driven in the city streets, was declared to be not so unreasonable as to demand its invalidity.®" An ordinance which established a maximum rate of speed for auto- mobiles at six miles an hour between street crossings, and four miles an hour at crossings, was declared reasonable and valid.'^ So, too, an ordinance making it unlawful for those engaged in oper- ating automobiles for hire to ref jise to carry any person who applies to them and tenders the amount of the fare, when the vehicle is not already engaged, is a reasonable exercise of the police power.®^ §85. Construction of ordinances passed under implied power. The reasonableness of ordinances passed under implied or incidental powers, or under a general grant of power, is subject to review by the courts, and if found to be unreasonable the ordi- nance will be declared void.®* If such ordinance is unjust or works unnecessary hardship upon those it is intended to affect, it will be held" invalid.** "Since regulation is within the power of the city, the courts will not declare any regulation ittiposed to be Unreasonable unless it clearly appears that it is so. ' Here this must be determined from 87 Knobloch v. Chicago, M. & St. P. R. 93 Springfield v. Starke, 93 Mo. App. Co., 31 Minn. 402, 404, 18 N. W. 106; 70, 77; Livingston v. Wolf, 136 Pa. St. Peterson v. State, 79 Neb. 132, 112 N. W. 519, S33, 20 Atl. SSI, 20 Am. St. Rep. 306. 936; Hayes v. Appleton, 24 Wis. S42. SSEnders v.. Friday, 78 Neb. SIO, 111 »i Illinois: Chicago v. Brown, 205 111. N. W. 140, 14^. 568, 69 N. E. 65; Chicago & Alton R. 89 Ex parte Berry, 147 Cal. 523, S2S, Co. v. Carlinville, 200 111. 314, 320,' 65 82 Pac.i44, 109 Am. St. Rep. 160. N. E. 730, 60 L. R. A. 391. 90 Chittenden v. Columbus, 26 Ohio Maryland: Frostburg v. Wineland, PS C. C. 531, 534. Md. 239, 243, 56 Atl. 811. 91 Eichman v. Buchheit, 128 Wis. 385, Missouri: State ex rel. v. Gates, 190 388, 107 N. W. 32S, 8 Ann. Cas. 435. Mo. 540, 89 S. W. 881. Same as to an ordinance fixing the Nebraska: Peterson v. State, 79 Neb. maximum speed at ten miles an hour. 132, 112 N. W. 306, 309. Radnor Township v. Bell, 21 Pa. Super. New Jersey: Taylor v. Griswold, 14 Ct. 1, 8. • N. J. L. 222, 235. 92 Fonsler v. Atlantic City, 70 N. J. L. 125, 127, 56 Atl. 119. ) 86 LAW OF AUTOMOBILES the regulations themselves -without the aid of extrinsic facts; it must be known from the inherent nature of the regulations that they are unduly oppressive- and burdensome upon the busihtess itself, or that they have no legitimate tendency to protect or advance the public interest]" ^^ ' An ordinance containing an arbitrary requirement not founded on any public necessity or convenience will not be upheld. Thus an ordinance requiridig the change in location of telephone poles as previously authorized, was held void where no reason therefor existed.'® An ordinance fixing the maximum rate of speed at which auto- mobiles could-be operated within the city, at 8 miles an hour in the business section and 10 miles an hour in other parts,' was held net to be unreasonable or oppressive."' § 86. Construction of penal ordinances, Ordinances regulat- ing the use of automobiles on the public Streets and providing a penalty for their violation, are penal ordinances. The general rule for the construction of penal ordinances is that they must b^ strictly Construed as against the local corporation.^ But the sttict and rigid rules'by which the validity of penal statutes is tested are not' to be applied to the ordinances of a municipal corporation. Few ordi- nances could stand such a test.* The constructiorl should be rea- sonable, and not strained, and effect given to the intention of the municipal legislative body if such can be done within reason.* § StvPi^criniinatipn— Class legislation. Qrdinances ; m u s t affect alike all persons of the class to which; they refer. , If they discriminate between persons of the same class, or if the classifica- tion is unreasonable, they will be declared invalid.* 96,Allen v. Bellingham, 95 Wash. 12, New Jersey: McCohvill v. Jersey City,' 163 Pac. 18X1917). 39 N. J. L. 38, 42. 96 Hannibal v. Missouri & Kansas Tel. New York: People v. Rosenberg, 138 Co., 31 Mo., App. 23. N. y. 410, 415. 97 St. Louis V. Hammond, ^ Mo. — , 2 first Municipality v. Cutting, 4 La. 199 S. W. 411 (1917). Ann. 335, 337? Loze v. Mayor, 2 La. 427. ^fflorida: Ex parte Simms, 40 Fla. «■««•.■ ivt <-v 1 ,„t a* ^ ' ^ Merriam v. New Orleans, 14 La. Ann. 432, 442. „ „ , .,„ 318; Rounds v. Mumford, 2 R. I. 154; lihnats: : Chicago v. Rumpff, 45 111. ^om. v. Robertson, 5 Cush. (llass.) 438. 90, 99. . • ■ Indiana: Chicago, L & L. R. Co. v. ^California: Ex parte Snowden, 12 Salem, 166 Ind. 71, 75, 76 N. E. 631. ^al. App. 521, 107 Pac. 724 (1910),, Kentucky:, Krickle v..! Com., 1 B. Indiana: Toledo, St. L. & W. R. Co, Mon. 361, 362. v. Long, 169 Ind. 316, 8Z N. E. 757., Missouri: Pacific v. Seifert, 79 Mo. Missouri: Hannibal v. Misso,ui;i,'- St 210, 215. Kansas Tel. Co., 31 Mo. App. 23, 32. MUNICIPAL OR LOCAL POLICE REGULATIONS 87 Municipal corporations may classify objects ' of legislation, but the difference in classes ' which wilL support such legislation must' be such as will in the nature of things; furnish a reasonable basis for separate laws and regulations.* "To forbid an individual or a class the right to the acquisition or enjoyment of property in such manner as should be permitted to the community at large would be to deprive them of liberty in particulars of primary importance to their pursuit of happiness." ® .,.;;. Accordingly it was held that' an ordinance requiring orie who uses his automobile for his private business and pleasure' only, to submit to an examination and to take out a license (if the examin- ing board see fit to gratit it) imposes a burden on one class of citi- zens in the use of the streets not imposed upon others, and is therefore invalid.'' However, laws relating to persons or things as a class, and not tb' persons or things of a class, are common and will usually be sus- tained.* Thus, an ordinance fixing a lower maximuni rate of ^pged for automobiles than is allowed street cars does not unlawfully dis- criminate against the fbrmier. Such a classification is reasonable, because street cars run on fixed tracks, while automobiles are un- certain in their course, 6onsequently more dangerous.® An ordinance regulating the rate of speed of vehicles was not renderied invalid by a provision exempting vehicles operated for public use by the fire and police departments of the city.^" §88. Distinction between "regulate" and "prohibit." Regulate and prohibit have different and distinct meanings. Power granted to a municipal corporation to regulate a business, occupa- Soiith Carolina: Laurens v. Anderson, Louisiana: State v. Schleniimer, 42 La. 75 S. C. 62, SS S. E. 136. Ann. 1166, S So. 307. Canada: Reg. v. Flory, 17 Ont. 71S; Missouri: State v. Bishop, 128 Mb.' Reg; V. Johnston, 38 Up. Can. Q. B. ^4^. 373, 385, 31 S. W. 9', 29 L.R.'A. 200.' 5 St. Louis V. Hammond, — Mo. — , Nebraska: -Magneau v. Fremont, JO 199 S. W. 411 (1917) ; State" v. Loomis, Neb. 843, 8S4v 47 N. W. 280, 9 L. R.^ A. 115 Mo. 307, 314, 22 S. W. 350. 786,27 Am. St. ReJ). 436.' ' eCooley, Const. Lim. (7th ed.) 561; North Carolina: State v. Wolf, '145 State V. Loomis,^ 115 Mo. 307, 314, 22 N. C. 440, 59 S. E, 40. S. W. 350. ' . Ohio: Davies v. State, 27 Ohio Cir. 'Chicago V. Banker, 112 111. App. 94, Ct. 593. 99. South Carolina: Summerville v. Pres'S- ^ Illinois: Chudnovski v. Eckels, 232 ley, 33 S. C. 56, 11 S. E. 545, 8 L. R. A. 111. 312, 320, 83 N. E. 846. 854. Kansas: State v. Addison, 76 Kan. 9 Chittenden v. Columbus, 26 Ohio Cir. 699, 92 Pac. 581; Goodrich v. Mitchell, Ct. 531, 534. ' 68 Kan. 765, 75 Pac. 1034, 64 L. R. A. l" Ex pirte Snoiyvden, 12 CalJ Afip. 521, 945, 104 Am. St. Rep. 429. 107 Pac. 724' (1910). ■ ' 88 LAW OF AUTOMOBILES tion or vocation does not confer power to^ prohibit, either (Jirectly or; by prohibitory charge for a license.*^ Power to regulate a useful trade does not authorize its prohibition nor the creation of a monop- oly .^^ It would be stating a paradox to says that a grant of power to regulate carries with it by implication the power to prohibit, for the very essence of regulation is the existence of something to regu- late." Travel along the streets in an automobile, or any other usual method of travel, cannot be declared a nuisance and prohibited on that account.^* However, a reasonable regulation of a privilege is not a denial of the right.^^ It has been held that the power to prohibit the operation of auto- mobiles by persons under the age of 16 years is not included in the power to regulate hackmen, draymen, omnibus drivers, and drivers of baggage wagons; that this grant of power relates to regulation and confers no power to prohibit.^^ § 89, Title of ordinances. The constitutional provision that "no bill shall contain more than one subject, which shaH be clearly expressed in the title," does not apply to municipal ordinances.^^ 11 Alabama: Miller v, Jones, 80 Ala. 89, 96. Florida: Mernaugh v. Orlando, 41 Fla. 433, 437-438,. 27 So. 34. . Michigan: In re Hauck, 70 Mich. 396, 407, 38 N. W. 269. Missouri: State v. De Bar, S8 Mo. 39S, 397. New Jersey: McConvill v. Jersey City, 39 JV. J. L. 38, 44. New York: Thousand Island Park Assnl V. Tucker, 173 N. Y. 203, 210, 63 N. E. 97S, 60 L. R. A. 786. Ohio: Bronson v. Oberlin, 41 Ohio St. 476, 483, 52 Am. Rep. 90. Texas: Ex parte Patterson, 42 Tex. Cr. Rep. 256, 260, 58 S. W. 1011, 51 L. R. A. 654. But see People v. Pratt, 129 N. V. 68, 72, 29 N. E. 7. Ordinarily the power to regulate will not be construed to include the power to prbhibit. State v. Mott, 61 Md. 297, 309. 12 Thousand Island Park Assn. v. Tucker, 173 N. Y. 203, 210, 65 N. E. 975, 60 L; R. A. 786. 18 State V. De Bar, 58 Mo. 395, 397; Ex parte Patterson, 42 Tex. Cr. Rep. 256, 260, 58 S. W. 1011,' 51 L. R. A. 654. 1* Chicago V. Banker, 112 111. App. 94, Township commissioners have no power to prohibit the use of automobiles on the public highways of a township. Walker v. Com., 40 Pa. Super. Ct. 638 (1909). IBFrankford etc. R. Co. v. Philadel- phia, 58 Pa. St. 119, 123, 98 Am. Dec. 242. 16 Ex parte Epperson, — Tex. Civ. App. — , 134 S. W. 685 (1911). , ^1 California: Ex parte Haskell, 112 Cal. 412, 421, 44 Pac. 725, 32 L. R. A. 527. Colorado: Scanlon v. Denver, 38 Colo. 401, 403, 88 Pac. 156. Illinois: Harris v. People, 218 111. 439, 442, 75 N. E. 1012. Indiana: Baumgartner v. Hasty, 100 Ind. 575, 585. Kansas: Topeka v. Raynor, 61 Kan. 10, 58 Pac. 557. Kentucky: Tuggles v. Com., 30 Ky. L. Rep. 1071, 100 S. W. 235. MUNICIPAL OR LOCAL POLICE REGULATIONS 89 However, the same rule has been made applicable to such ordi- nances in many dfthe states by charter or statutory provision. This rule is generally declared to be mandatory, except in California and Ohio, where it is held to be directory only.^* The object of this law is to prevent the uniting in one ordinance of diverse subjects or measures and effecting its passage by uniting in its support all those in favor of any subject which it contains, and to prevent the adoption of ordinances by the votes of members of the legislative body ignorant of their contents.^® There was no design, however, by this clause to embarrass legis- lation by making laws unnecessarily restrictive in their scope and operation, and thus multiplying their number;*" and if the provi- sions of the act all relate, directly or indirectly, to the same subject, having a natural connection, and are^ not foreign to the subject expressed in the title, the act is sufficient.''^ It is not necessary that every end and means necessary to the accomplishment of the general object should be provided for by a separate act relating to that alone.** Matters of detail need not be specified in the title, nor is' it nec- Michigan: People v. Wagner, 86 Mich. 594, S97, 49 N. W. 609, 13 L. R. A. 286, 24 Am. St. Rep. 141. Missomi: Tarkio v. Cook, 120 Mo. 1, 7, 2S S. W. 202, 41 Am. St. Rep. 678. Pennsylvania: Yardley Borough, 22 Pa, Co. Ct. 179, 180. South .Carplma:, State v. Gibbes, 60 S. C. S00,,39 S. E. 1. 18 Chittenden v. Columbus, 26 Ohio Cir. Ct. S31, 533. ^^ Idaho: Pioneer Irrigation Dist. v. Bradley, 8 Idaho 310, 317, 68 Pac. 295, 101 Am. St. Rep. 201. Michigan: People v. Mahaney, 13 Mich. 481, 495. Minnesota: Winters v. Duluth, 82 Minn. 127, 131, 84 N. W. 788. Nevada: State v. Commissioners of Humboldt Co., 21 Nev. 235, 237, 29 Pac. 974. New York: Board of Water Com- missioners V. Dwight, 101 N. Y. 9, 11, 3 N. E. 782. Ohio: Chittenden v. Columbus, 26 Ohio Cir. Ct. 531, 533; Heffner v. To-, ledo, 75 Ohio St. 413, 80 N. B. 8. 20 Pioneer Irrigation Dist. v. Bradley, 8 Idaho 310, 68 Pac. 295, 101 Am. St. Rep. 201'; People v. Mahaney, 13 Mich. 481, 495; Board of Supervisors v. Hee- nan, 2 Minn.i330i 336; Heffner v. Toledo, 75 Ohio St. 413, 80 N. E. 8. ^^ California: Law v. San Francisco, 144, Cal. 384, 387, 77 Pac. 1014. Iowa: Lovilia v. Cobb, 126 Ia."557, 559, 102 N. W. 496. Michigan: People v. Mahaney, 13 Mich. 481, 495. Missouri: St. Louis v. Liessing, 190 Mo. 464, 489, 89 S. W. 611, 1 L. R. A. (N: S.) 918. Nevada: State v. Commissioners of Humboldt Co., 21 Nev. 235, 238, 29 P^c. 974. >,, -..- Pennsylvania: Com.' v. Larkin, 27 Pa.; Super. Ct. 397, 403. Federal: Ackley School Dist. v. Hall, *113 U. S. 13S, 142, 28 L. :ed. 954. 22 People V. Mahaney, 13 Mich. 481, 495; Ackley School Dist. v. Hall, 113: U. S. 135, 142, 28 L. ed. 954. 90 1)1 ! / LAW OF AUTOMOBILES essaryiitbat the title be a f till index to all tbe contents of tbe law.^* "Tbe. generality of a title; is no objection so long as it is not made to cover legislation incongruous in itself." ^* Thus Tequirements that automobiles carry lighted lamps between' sunset and sunrise; and that warning: be given of their approach by sounding a bell, whistle, horn or gong^iare properly included in an ordinance entitled, "An ordinance;" to regulate thCi speed of automobiles and other vehicles."^*, , . §90. Ordinance void in part. The fact that one portion of an ordinance is void for any (reason which, does not affect the whole does not invalidate another part, unless the two are sointerblended or dependent that the vice of the one must be held; to vitiate; the other.?^ ; I i,i ( Where the provisions of ;the ordinance are severable and are not interdependent one upon the other, the valid portiotls will be up- held, provided that; eliminating the void portions and upholding and enforcing : the parts that are valid will not defeat the substantial object of the enactment.^'' And this may be so even though the sound and unsound parts are in the same section.^' '^ 28Lockhart v. Troy, 48 Ala. S79, S84; State y. Calloway, 11 Idaho 719, 737, 84 Pac. 27; State v. Commissionets of Hum- boldt Co., 21 Nev. 235, 237, 29 Pac. 974J Veager v. Weaver, 64 Pa. St. 425, 428. 2*:St. Louis V. iLiessingj igOMo. 464, 490, 89 S. W. 6ir, IL. R. A. (N. S.); 918. 25 Chittenden v. ColumbuSj- 26 Ohio Cir. Ct. 531,\532:' i; • ,, : An lArdinance ' itlhich prohibits cattle running at large, various features' beitig treated by different sections all germane to the subject, does not contain more than ojie subject. Paducah v. Ragsdale, 28 Ry. Ii. Rep. 1057, 10S9, 92 S. W. 13. 26 California: Ex parte Haskell, 112 Cal. 412, ,420, 44 Pac. 725, 32 L. R. A. 527. - Georgia: Fichtenberg v. Atlanta, 126 Ga: 62, S4 S. E. 933. ; Illinois.' Chicago & J. E. R. Co. ;v. Freeman, 125 111. App. 318, 320; Quincy V. Bull, 106 111. 337, 348. Kentucky: McNulty v. Toopf, 25 Ky. L. Rep. 430, 433, 75 S. W. 258. Maine: State v. Robb, 100 Me. 180,' 194, 60 Atl. 874. Missouri: St. Louis v. Liessing, 190 Mo. 464, 489, 89 S. W. 611, 1 L. R. A. (N. S.)' 918; Barber Asphalt Paving Co., y'.' Ullman; 137 Mo. 543, 569,' '38 S; W. 458. • ' New Jersey: Haynes v. Cape May, 52 N.'J." L. 180,' 18?. Neti/ York: Yellow Taxicab Co. v. Gaynor, 82 ■ Misc. 94, . 143 N. V. Suppi 279 (l'9'l3), aff'd"l59 App. Div. 893 (1913); Broadway & S. A. R. Co. v. New Vork, 49 Hun 126, 133, 1 N. V. Supp. 646 ; Rogers v. Jones, 1 Wend. 237, '2fed, 19 Am.' bee. 493.' Ohio: Sterling v. Bowling Green, 26 Ohio Cir. Ct.,S81, 589. South Carolina: State v. Johnson, 76 S. C. 39, 44, 56 S. E. 544. Washington: Hillman v. Seattle, 33 Wash. 14, 19, 73 Pac. 791. McQuillin, Mun. Ord., § 295. , . ^1 St. Louis v. Grafeman Dairy Co., 190 Mo. 492, 503, 89 S. W. 617, 1 L. R. A. (N. S.) 936. 28 Ex parte Haskfell, 112 Cal. 412, 420, 44 Pac; 725, 32 L. R. A. 527; State v. Boekstruck, 136 Mo. 335, 353', 38 S. W. 317. I - I MUNICIPAL OR LOCAL POLICE^ REGULATIONS 91 ■iiBut if the ordinance is entire,, each part having a general in- fluence over the rest, and part is invaUd, the entire ordinance is void.^' And if to enforce the valid portions would not carry :out the, general scheme of the. ordinance, the whole must be declared inoperative.*" A section of an ordinance relating to the equipment of automo- biles being void does not affect another 'section regulating their speed." ;i , . §91. Conflict of ordinance with state statute. The fact that the Legislature has imposed certain regulations on an occupa- tion, business or vocation applicable to the i entire state does not exclude the right oi a municipal corporation to impose other regula- tions adapted ' to its own peculiar conditions, provided such regu- lations do not conflict, and are not inconsistent with those of the state.''' But local authorities have not the power to suspend the operatiofl, or change the provisions,; of a state law.'* If there are inconsistencies between an ordinance and a statute, to- the; extent of such inconsistencies, the, ordinance must give way;'* and this is true where the act of the LegiSlaturfe follows as well as where it precedes the ordinance.'^ This rule is sometimes changed by law. '^ In some states it has been held that; aside from statutory prohi- bition, however, a municipal corporation may enact an ordinance 29 Chicago V. Gunning Syfetenij 114 Iir. ) N. E. 216; State v. Austin, 114' N. C. 8SS, App. 377, 383, aff'd 214 111. 628, 73 N, E. 8S7i. 19 S. E. 919, 25 -L. R. A. 283, 41 103S. Am. St. Rep. 817., , , . ; . - . sopiackshear v. Strickl?ind, 126 Ga. 34Helena, v. ^Dunlap,,, ip^ Ark., 131, 492, S4 S. E. 966. , ' 143 S. ,W.'i38 (l9,12) ;' Anderspn v. Went- 31 Chittenden v. Cblunibus, 26 Ohio worth, — Fla. '—,'78 So. 265 (1918); Cir. Ct. S31, S33. Heartt v. Downers Grove, '^i^S 111. 92, 32 Ex parte Snowden, 12 Cal. App. S21 US N. E. 869 (1917) ; Fulton v. Sims, 107 Pac. 724 (1910); Mann v. Scott, :— 127 Mo. App. 677, 106 S. W. 1094; St. Cal.—, 182 Pac. 281: (1919) ; Pemberton. Louis v. i Williams, 235; Mo. 'S03y 139 S. V. Amy, — Cal. App. — , 183 Pac. 3S6 W. 340 (1911); Braziel: v. Philadelphia, (1919) ; Seager v. Foster, — la. —,169 IS Pa. Dist. 14, 16, aff'd 215 Pa. St. 297, N. W. 681 (1918) ; People v.. Keeper of 64 Atl.' 508 ; State v. Thurston, 28 R. I. Prison, 121 App. Div. 64S,' 106 N: Y. 2,65, 66 Atl. S80; Seattle v. Rothweiler, Supp. 314 aff'd 190 N. Y. 315, 83 N. E. 101 Wash. 680, 172 Pac. 82S (1918)'.-. 44; Brazier v. Philadelphia, 15 Pa. Dist. This rule applies to the proA^isions of 14, 16, aff'd 215 Pa. St. 297, 64 Atl. 508; a city charter. Badgley v. St. Louis, 149 State V. Austin) 114 N. C. 8SS, 858, 19 Mo. 122. S. E. 919, 25 L. R. A. 283, 41 Am. St. 3BEx, parte Smith, 26 Cal. App. 116, Rep. 817; Seattle v. MacDonald, 47 146 Pac. 82 (1914). ' Wash. ,298, 91 Pac. 952. 36Muther v. Capps, ,— Cal. App.;— , SSHartje v. Moxley, 235 111. 164, 85 17 7, Pac. 882 (1919). 92 LAW OF AUTOMOBILES establishing a lower maximum rate of speed for automobiles than that provided by statiite.'''' Thus it was decided that a statute regulating the licensing and operation of automobiles, and providing, inter alia, that not more than one state license number shall be carried on the vehicle, and that a "license number obtained in any other place or state shall be removed from said vehitle while the vehicle is being used in this commonwealth," does not conflict with or supersede an ordinance which also provides for the licensing, regulation and operation of automobiles' wi±in the city for which the ordinance was passed.** A statute providing for a state license of a,utomobiles and -• regu- lating their rate of speed, and declaring that cities shall have no power to; require any such, license, or to exclude automobiles from the free use of the streets, was held not to prevent a city from fixing the speed of automobiles at a lower rate than that provided by the statute.*' An ordinance which regulates the driving of automobiles in the city streets, covering conditions that a statute relating to the use of automobile on the public highways does not reach, was held not to be in conflict with the statute.*" A municipal regulation that "a vehicle overtaking another vehicle shall, in passing, keep to the left, but it shall not leave the line on the right unless there is a clear way of at least 100 feet in advance on the left," is not in conflict with a statutory provision that the driver shall keep his vehicle on the right of the traveled part of the Way whenever there is not ah unobstructed view of the road for at least 100 yards .*^ An ordinance imposing a license tax on vehicles is not in conflict with a statute prohibiting the passage of ordinances limiting or re- stricting the use of motor vehicles.*^ 37 Dowdell V. Beasley, — Ala.' App. — , afive within the jurisdiction of the city, 82 So. 40 (1919); People v. Keeper when the statute does not expressly pro- of Prison, 121 App. Div. 64S, 106 N. Y. hibit it. Seattle v. Rothweiler, 101 Wash. Supp; 314, aff'd 190 N. Y. 315, 83 N. E. 680, 172 Pac. 82S (1918). 44; Brazier v. Philadelphia, IS Pa. Dist. 88 Brazier v. Philadelphia, IS Pa. Dist. 14,;17, aff'd 2 IS Pa. St. 297, 64 Atl. SOS. 14, aff'd 21S Pa. St. 297, 64 Atl. SOS. Where a city' has concurrent powers 89 Bellingham y. Gissna, 44 Wash. 397, with the state it may prescribe a. penalty 400, 403, 87 Pat. 481. ' for the violation lof its ordiriances dif- *<> Seager v. Foster; -^ la. — , 169 N. W. ferent from that prescribed by the state 681 (1918); Hiscock v.' Phinney, .81 for the violation of a statute regarding Wash. 117, 142 Pac. 461 (1914). the same subject matter. St. Louis v. 41 Com. v. Gile, 217 Mass. 18, 104 Klausmeier, 213 Mo. 119, 112 S. W. S16. N. E. 572 (1914),. A city may enact ordinances on sub- ** Ayres v. Chicago, 239 111. ^37, 87 jects covered by the state statutes, oper- N. E. 1073 (1909). MUNICIPAL OR LOCAL POLICE REGULATIONS 93 In some jurisdictions an otdiriance lliat imposes more severe restrictions than a statute relating to the sarne subject is condemned, ds being in conflict with the statute. It is held that the ordinance is valid, though differing in terms and limits from the statutes, so long as those limits are not broader than and in conflict with the statutory provisions.*' In other states it is held that an ordinance imposing more stringent limitations on the operation of automo- biles than those imposed by statute is not in conflict with the stat- ute on that account.** A statute which provided that no ordinance of any city should .require automobiles to trav/el at a lower rate of speed than, eight miles an hqur,in th^ closely built up portions of such city, nor less ,t}iap,i|ifteen)ipileSi an houi;' where the hpusps in sych city upon, any highway -yvere more than one hundred feet apart, \yas held not , to fix any rate of speed at whicli automobiles might be run, nor to qopfpr upon, municipal authorities power to pass .ordinanpes^ regulat- ing thespeed with reference the:^eto;Jt: merely limi.ted the rights _wbi9h; the municipalities already ,h^dv** An ordinance is not rendered invalid merely because it does, not prescribe the same rule of presumptive evidence as to unlawful speed that the statute relating to the same subject does.*® A statute prohibiting municipalities rfrom, making any ordinance respecting the speed of automobiles, or their regulation, use, or equipment, does not prevent the imposition of 'license fees upon the owners of such vehicles engaged ill the business upon which the iee^ is imposed. But where such ordinance goes further and licenses automobiles and, , their drivers carrying , passengers for hire, and charging, fares of 20 cents or less, and im some respects regulating *3 St. Louis V. Scheer, 235 Mo. 721, fixes a higher staridard than the statute 139 S. W. 434. they are in conflict, and the ordinance to 'An Ordinance may p'rescribe a higher that 'extent is invalid. An ordinance re- speed limit than' the statute. Ex parte quiring that skimmed milk contain not Snowden, 12 Cal.> App. S21, 10? Pac. less than iO.S'per cent, of total solids 724 (1910). ' : is in conflict with a Statute fixing the An ordinance fixing the' standard for standard at 9.2S per cent, of total solids, milk solids at 8.S per cent, is not in St. Louis v. Klausmeier, 213 Mo. 119, conflict with a statute fixing that' stand- 112 S. W. S16. ; • afd it 8.7S per cent, of milk solids. St. 4* Ham v. Los Angeles County, — L^uis V. Scheer, 23SMo.'721, 139 S. W. Cal. App. — , 189 Pac. 462 (1920). 434. 45 People v. Ellis, 88 App. Div. 471', 85 ■ ThC' legal 'effect of such an ordinance N. Y. Supp. 120: ■' is not to authorize the sale of milk which 46 Hood & W. Furn. Co. v. Royal, ■— does not come up to the standard fixed Ala. -^, 76 So. 965 (1917). ' by the statute. But where the ordinance m LAW OF AUTOMOBILES the useof such roachines, it is in conflict with the statute.*'' A city, ordinance relating to right of way at street intersections, and . applying to all vehicles, is not annulled by a statute repealing all ordinances regulating or limiting the use of automobiles.** [Some statutes 1 expressly allow municipalities to regulatgr auto- mobiles within certain limits, or except from their provisions, regu- lations; enacted by cities or cities of a certain class. And on the other : band they frequently prohibit municipal regulation, leaving the provisions of the statute to prevail uniformly , throughout the state.*Vi; § 92. Sarne-^ Illustrations. An ordinatice limiting the speed of automobiles to 10 miles an hour was held not to be in conflict with a statiite fb'rbidding their operation in excess of 8 miles an hour, ^s the ordinance "does riot undertake to license them to run at at'^peed'in' excess of 8 'miles an hour.'' ^" An ordinance requiring motorists to stop at least one foot in the riat of street caits stopped to take on or let off passengers, was held to be valid, although there was a. statute providing that such mot- orists should slow down and stop if necessary." The rnotor vehicle act of California ^^ provides that motor vehi- ._ '". -■){'!! r ,'. • ■ ■ *• "It thus appears that the Legislature contemplated the registration of motor vehicles used for. the carriage of passen- gers .for hire, and &xa,ctfed a registration fee fpr^: vehicles so, used, and a, license fee for the driver .thereof. This is pre- cisely what the ordinance under consid- ' eration ' does. It provides fftr! the' pay- ment of a license fee for using thfe vehicle to do what the statute authorized it to be used iior,i and the payment of a driver's license fee .for>' driving the car which the st^te hadiilicensed him to drive. It, re- quires more than the state required, : for it provides that the license shall not be issued I uji til the person licensing the ve- hicle executes a bond with surety to pay any Judgment which may be rendered against him growing out of the relation existing between him and his passengers. It also limits .the number of ' passengers to be carried, and makes other provisions as to the manner in which the vehicle shall bei used, how it shall be marked, and how conducted upon the street. The ordinance is clearly an attempt to regu- late the use of the vehicle, and apparently was understood to be so, for its title describes it as an ordinance to regulate and license certain public conveyances. A license may , \tt imposed for the, pur- poses of regulation, and in the present case it was taanifestly provided as a means in part of the regulation contem- plated." State v. Scheidler, 91 Conn. 234, 99 Atl. 492 (1916). 48 Bruce v. Ryan, 138 Minn. 264, 164 N. W. 982 (1917). 49 Helena v. Dunlap, 102 Ark. .131, 143 S. W. 138 (1912); Ayres v. Chicago, 239 III 237, '^7.N. E. 1073 (1909); People V. Untermyer, 1S3 App. Div. 176, 138 N. Y.- Supp. 334 (1912); Oshkosh V. Campbell, ISl Wis. S67, 139 N. W. 316 (1913); Barrett v. New York (Cir. Ct. S. D. N. Y.), 189 Fed. 268 (1911). fiOAdler v. Martin, 179 Ala. 97, S9 So. 597 (1912). 61 PuUen v. Selma, — Ala. App. — , 79 So., 147 (1918). B2 Cal. St. 1913, p. 639, § 22. MUNICIPAL OR LOCAL POLICE! /REGULATIONS 95 cles shall not be driven on the public highways at a^ greater rate of speed than is reasonable and proper/ having regard tO' the traffic and use of the highway, but mak'es it unlawful to drive the same in excess of 30 miles an hour. It further provides: "In any event no person shall operate or drive a motor or other vehicle on any public highway where the territory contiguous thereto is closely built up, at a greater rate of speed than one mile in three minutes, or in the business district of any incorporated city and county, city or town, at a greater rate than one mile in four minutes, or at a greater rate of speed than one mile in six minutes where the operator's df chauf- feur's view of the road traffic is obstructed either upon approaching an intersecting way, or in traversing a crossing," etc., "or in goin^ around corners or a curve in a street or highway:" A city of the sixth class passed an ordinance prohibiting the driving of any vehi- cle over the streets at a greater rate of speed than 12 miles an hour. Held, that the ordinance was in conflict with the statute.** That this ordinance was in conflict with the provisions of the statute is shown by the fact that the rate fixed by it for all parts of the city, was 12 miles an hour, while, the statute limits the speed to 10 miles an hour under, certain conditions, and allows IS miles an hour in other sections of the; city, and the fact that the statute deals specifically with the speed of motor vehicles in incorporated cities, such regulations differing materially from; those applicable outside of incorporated municipalities. The court in that case; further held that the act was intended to provide uniform regula- tions to govern all persons in .operating motor, vehicles in incor- porated cities and towns, "unless it, may be where some exceptiona,l conditions in such cities and towns demand a lower rate, of spieed in some parts thereof than is prescribed by the state, law and such con- ditions clearly appear.'' ' ii, An ordinance which prohibited the operation p^ any automobile at street crossings in certain sections of the city ^.t a greater rate of speed than 10 miles an hour, and in other portions of, tihie city at a greater rate of speed, than S miles an hour, was held to be void because in conflict with a statute limiting the speed of automobiles at street crossings to 6 miles ap hour.** An ordinance forbidding motor vehicles, on overtaking a street car, to pass on the left side of the car, is not in violation of a statute' 63 Ex parte Smith, 26 Cal. App. 116, B4 Carter v. State, 12 Ga. App. 430, 78 146 Vac. 82 (1914). S. E. 20S (1913). ■>! ' ■ 96 LAW OE! AUTOMOBILES providing that no ordinance shall be passed limiting i or restricting the speed of automobiles.*^ An ordinance requiring all vehicles used on the streets to be licensed annually, is invalid as to non-resident owners of automo- biles: Aiirho have complied with the law of the state of their residence requiring the payment thereon of such license tax, where a statute regulating and providing for the registration and licensing of auto- naobiles, exempts froih: such of its provisions such^ non-residenti owners; the ordinance in this respect being in conflict with the statute.** 1. . , , - An ordinance imposing a wheel tax upon vehicles, the proceeds to be us£d for maintenance and repair of the streets, is not in con- flict with a statute regulating the speed and operation of motor vehicles .and forbidding any city from passing! any ordinance in respect to- or limiting the use or ispeed thereof . " A statute contained the following provisions:^ i^ . "Except as herein otherwise * * * provided, this article shall be exclusively controlling: (1) Upoh the registration, numbering and regulation of motor vehicles, and the licensing and the regulation of chauffeurs; (2) On their use of the' public highways, arid (3) On the accessories used upon motor vehicles and their incidents and the speed of motor vehicles upon the public highways; (4) On the punishment for the violation of any of the provisions of this arti- cle; I- ■^'* * Every person operating a motor vehicle on the public highway of this state shall drive the same in a careful and prudent manner and at a rate of speed so as not to endanger the property of anotherior the life or limb of any person: Provided, that a rate of speed in excess of twenty-five miles an hour for a distance of one- half of a mile shall' be presumptive evidence of driving at a rate of speed: which is not careful and prudent." Held, that thte statute did not withdraw from municipalities the power to regulate auto- mobile traffic on their, streets.** An -ordinance reqiiiring that the number of tbe city license shall be displayed on automobiles is in conflict with a statutory provision that the owner of an automobile "shall not be required to place any other mark of identity ut)bh his iriotor vehicle" than the registration number provided for by the statute.*® 66 Chicago V. Keogh, 291 111. 188, 125 198 S. W. 1107 (1917); St. Lotik v. N. E. 881 (1920). Hammond, — Mo. — , 199 S. W. 411 66 Newport V. Merkel Bros. Co., 1S6 (1917); Windsor v. Bas^, ^ Mo.'App. Ky. S80, 161 S. W. S49 (1913). —,199 S: W.'722 (1917). ( >, I ."ii; ) 67 Park V. Duluth, 134 Minn. 296, 159 59 St. Louis v. Williams, 235 Mo. 503, N. W. 627; (1916.).; I ,,,,., ,,;,, 139 S. W. 340.(1911)., , ., i .'u 68 Roper V. GreenspOn, 272; Mo. 288, MUNICIPAL OR LOCAL POLICE REGULATIONS 97 A statute which defclared invalid any municipal ordinance which regulates the speed or restricts the use of automobiles, was held not to deprive a city of the power to require the licensing of motor vehicles employed within its limits for the public conveyance of passengers. "While the ordinance 'governs or restricts the use' of the defendant's taxicab in relation to the business he employs it in, it does not govern or restrict his use of it as a carriage or vehicle upon the streets. The word 'use' in the statute was not intended to have so broad an effect as to prohibit the regulation by a city of the occupation of hacking within its limits, because it was carried on by means of motor vehicles. Otherwise it might be said that the fact that a peddler carries his goods about in a licensed auto- mobile makes it unnecessary for him to obtain a peddler's license — a somewhat surprising proposition." ®" An ordinance which regulates the conduct of a motorist when approaching or passing a street car which has stopped to take on or let off passengers, has been held not to be in conflict with a statute providing that no owner, purchaser, or driver of a motor vehicle shall be excluded or prohibited from, or excluded or limited in the free use thereof, nor limited as to speed upon public streets, nor required to comply with other provisions or conditions as to thc- use of motor vehicles except as provided in the act.®^ An ordinance requiring every motorist passing a street car which has stopped to take on or let off passengers to come to a full stop 10 feet from said car, was held to be inconsistent with a statute providing that every motorist in such circumstances shall slow down, and if necessary for public safety to stop.** An ordinance enacted by the authorities of a township under proper authority limiting the speed of automobiles to ten miles an hour was held not be suspended by reason of a later act which allowed automobiles a maximum rate of speed of twenty miles an hour outside of cities and boroughs.** , , A statute provided as follows: "Except as herein . provided » local authorities shall have no power to pass, enforce, 'lor maintain any ordinance, rule, or regulation: (a) Requiring [from] any owner to whom this act is applicable any fee, license or permit for the use of the public highways, or (b) excluding any such owner from the free use of such public highways * * * or (c) in any other way regu- 60 State V. Dunklee, 76 N. H. 439, 84 62 People v. Braun, 100 Misc. 343, 166 Atl. 40, Ann. Cas. 1913B 7S4 (1912). N. Y. Supp. 708 (1917). 61 Kolankiewiz v. Burke, 91 N. J. L. 63 Radnor Township v. Bell, 27 Pa. S67, 103 Atl. 249 (1918). Super. Ct. 1. B. Autos.— 7 98 LAW OF AUTOMOBILES lating motor vehicles or their speed upon or use of the public high- ways; (d) and no ordinance, rule or regulation Contrary or in any wise inconsistent with the provisions of this act, now in force or hereinafter : (herealter] enacted, shall have any effect." It was held that the Legislature, in enacting such statute, did not intend to deprive municipalities of the power to enact ordi- nances in relation to the law of the road;, that the clauses "free use of such public highways" and "regulating motor vehicles or their * * * use of the public highways" were not intended to give any greater privileges to drivers of motor vehicles than were enjoyed by drivers of all vehicles; that these clauses did aim to prevent municipalities froin' singling out motor vehicles and legislating against them in particular. It was further held that an ordinance providing that, "Every person driving or operating any such vehicle [motor or animal drawn], on any street in this city shall keep to the right hand side of such street and as close as: possible to the curb and shall stop the same only on the side of such street to the right hand of such driver," was not in conflict with said statute.®* An ordinance prohibiting a rate of speed in excess of 10 miles an hour over all bridges regardless of conditions, was held to be in conflict with a statute prohibiting unreasonable speed, and making the speed limit in unusual circumstances depend upon the particu- lar facts, and allowing local authorities to enact regulations only in strict conformity: with state statutes.®^ §93. Same— Forbidding municipalities to deny free use of streets. A statute forbidding municipalities to deny to motor vehi- cles the free use of the streets, does not prevent a reasonable regu- lation of such vehicles by municipalities, nor the regulation of busi- ness carried on by the use of them.®® "We do not undei^stand that the words 'free use of such public ,road,' etc., as employed in section 12, conferred upon the owner of an automobile an absolute right to travel the streets of any city at such rate of speed as he might, desire, provided he did not exceed 1 2 miles per hour, or that, by reason of such enactment, the munci- pal authorities could not by ordinance prevent him from so doing. * * * Our view is that the proviso does not contemplate ordinances, rules, or regulations pertaining to the speed of automobiles which 64 Kelly V. James, 37 S. D. 272, 1S7 66 Allen v. Bellinghain, 9S Wash. 12, N. W. 990 (1916). 163 Pac. 18 (1917). 66Baraboo v. Dwyer, 166 Wis. 372, 165 N. W. 297 (1917). ■ MUNICIPAL OR LOCAL POLICE REGULATIONS 99 are offered to the public for hire. Such automobiles are in many respects similar in their uses and purposes to other vehicles kept for hire. The' Legislature evidently intended that they might be subjected to like rules and regulations by the local authorities, in so far as the same might be practical. It is customary for munici- palities to regulate the rates of fare charged by the owners of cabs, carriages, or other vehicles offered to the public for hire, and to designate the stands or locations which they may occupy upon the public streets. We think regulations such as these, and others that might be mentioned, are contemplated by the proviso contained in section 12."^' A statute prohibiting municipalities from prohibiting "the free use of the highways" to any motorist who has cjomplied with the terms of such statute, and which provides that the power of such municipalities is not thereby prohibited f rohi "governing traffic, in addition to the provisions of" the statute, does not prohibit the regulation of the operation of jitneys by municipalities.®* § 94. Same aet may be offense against state law and ordi- nance. Penal ordinances are not criminal laws, and an action to recover the penalty imposed by an ordinance for its violation is not a criminal action.®' The phrase "criminal cases" has reference to such acts or omissibns as are in violation of the public laws of the state and not the violation of local ordinances or police regulations of a municipal corporation.''" An action to recover a penalty for the violation of a municipal ordinance is an action for the recovery of a debt, and is a civil suit.''^ Hence, with the exception of a few states,''^ the rule is that 8'' Bellinghjm v. Cissna, 44 Wash. 397, Georgia: Floyd v. Commissioners of 87 Pac. 481. Eatonton, 14 Ga. 3S4, 356. 68 Allen v. Bellingham, 9S Wash. 12, Illinois: Chicago v. Kenney, 3S III. 163 Pac. 18 (19i7). App. 57, 64. ^^ Colorado: Garland v. Denver, 11 Indiana: Shea v. Muncie, 148 Ind. Colo. 534, 535. 14, 33, 46 N. E. 138. Georgia: Williams v. Augusta, 4 Ga. Michigan: People v. Board of Sii- 509, 513. pervisors, 26 Mich, 422, 424. ' ' Maryland: Shafer v. Mumma, 17 Md. Missouri: Gallatin v. Tarwater, 143- 331, 336, 79 Am. Dec. 656. Mo. 40, 46, 44 S. W. 750; Mexico v. Michigan: Cooper v. People, 41 Mich. Harris, 115 Mo. App. 707, 711, 92 S. W. 403. 505. Missouri: Gallatin v. Tarwater, 143 New Jersey: Smith v. Clinton, S3 Mo. 40, 46, 44 S. W. 750. N. Jj L. 329, 21 Atl. 304. 70 Williams v. Augusta, 4 Ga. 509, 513. South Dakota: Lead v. Klatt, 13 S. '^'i- Colorado: Walton v. Canon City, D, 140, 143, 82 N. W. 391. 13 Colo. App. 77, 78, 56 Pac. 671. TZ state v. Welch, 36 Conn. 215, 217; 100 LAW OF AUTOMOBILES the same act may violate both the statute of the state and a munici- pal? ordinance;''* and, a prosecution under one will not bar a prosecu- tion under the other.''* Thus where a municipal ordinance pre- scribed a lower rate of speed at which automobiles might be oper- ated in the city streets than a statute of the state, one driving an automobile within the city in excess of the higher rate of speed was subject to prosecution under both the ordinance and statute.''* Taylor v. Owensboro, 98 Ky. 271, .?2 S. W. 948, ,S6 Am. St. Rep. 361; Ex parte Freeland, 38 Tex. Cr. App. 321, 42 S. W. 29S.~ 1^ Dakota: Elk Point v. Vaughn, 1 Dik. 113; 46 N. W. 577. Florida: Theisen v. McDavid, 34 Fla. 440, 16 So. 321, 26 L. R. A. 234. ,^ Idaho: State V. Preston, 4 Idaho 215, 38" Pac. 694, ' " , , Illinois: McPherson v. Chebanse, 114 111. 46, ,28 N. E. 454. Indiana: Williams v. Warsaw,' 60 Ind. '457. ' ■ .'-.'•' Iowa: Neola v. Reichart, 131 la. 492, 109 N. W. S:, Bloomfield v. Trimble, 54 la. 399, 6 N. W. 586, 37 Am. Rep. 212. .Lpntisiana,:, Monroe v. Hardy, 46 La. Ai}n. 1232, 15 So. 696. Michigan: People v. Hanrahan, 75 MichJ 611, 42 N. W. 1124. MissouH: St. Louis v. De Lassus, 205 Mo. 578, 583, 104 S. W. 12. New Jersey: State v. Trenton, 51 N. J. L. 498, 18 Atl. 116, 5 L. R. A. 352. New York: , Brooklyn v. Toynbee, 31 Barb. 282. ,, , Ohio: Wightman v. State, 10 Ohio 452. : ,,„. Washington: Seattle v. Chin Let, 19 Wash, 38, 52 Pac. 324! Federal: Moore v. People, 14 How. (55 U, S.) 13, 14 L. ed. 306. '^^ Alabama: Mayor v. Allaire, 14 Ala. 400, 403. Arkansas: Van Buren i v. Welfe, S3 Ark. 368, 14 S. W. 38,, 22 Am. St. Rep. '214. Colorado: Hughes v. People, 8 Colo. 536, 9 Pac. 50. : Georgia: McRea v. Americus, 59 Ga. 168, 27 Am. Rep. 390. Illinois: Hankins v. People, 106 111. 628, 638. Indiana: Waldo v. Wallace, 12 Ind. 569. ' Louisiana: Mogroe v.. Hardy, 46, La. Ann. 1232, 15 So. 696. Maryland: Shafer v. Murnmai 17 Mrt. 331, 336, 79 Am. Dec. 656. Minnesota: State v. Robitshek, 60 Minn. 123, 61 N. W. 1023. Missouri: State v. Muir, 164 Mo. 610i.,6S S. W. 285. New York: Blatchley v. Mose;, 15 Wend. 215. , Oregon: Wong v. Astoria, 13 Oreg. 538, 11 Pac. 295. Texas: Hamilton v. State, 3 Tex. Cr. App. 643. \ McQuillin, Mun, OVd., § 500, Contra, State v. Welch, 36 Conn. 215, 217; Taylor v. Owensboro, 98 Ky. 271, 32 S. W. 948, 56 Am. St. Rep. 361; Ex parte Freeland, 38 Tex. Cr. App. 321, 42 S.'W,. 295. ., : . '6 People V. Keeper of Prison, 12-1 App. Div. 645, 106 N. Y. Supp. 314, aff'd 190 N. Y. 315, 83 N. E. 44. CHAPTER V STATE LICENSE LAWS § 95. License defined. i§j 96. Distinction between "license fpe,'' "license tax," and '.'tax." § 97. Power of state to license automq- biles. § 98. Power to impose privilege tax. § 99. Purpose of license.'' . § 100. License is personal. § 101. License may be revoked. § 102 . License fee must be > reasonable: § 103. Fixing the amount of the fee. § 104. Revenue incidentally derived froni license. § lOS. Disposition of license fee. § 106. License fee i^ot a tax, on ,automQ- , biles. §107. Equality and uniformity of taxa- tibn. § 108. Excise, privilege, or license tax. § 109. Double taxation. §110. Statute as both police! and reve- nue measure. §111. License tax, as to persons in , in- terstate commerce. §112. I/Ocal or special law, §113. Classification for purpose, of li- cense or tax.^ I . ,, i § 114. Classification according to horse power. ; , , ; ! §! 115. Annual luttip sum tax. . . , , -I §116. Exempting automobiles from tax- ation. §117. County license — Necessary, in every county. §118. False representations in applica- tion for license. '/ §119. Mandamus to compel issuance of license.' ' § 120. Verified copy of application for license as evidence. § 95. License defined. Generally, a license is a privilege, granted by competent authority, to do that which would be unlaw- ful without such privilege.^ ' ■"' '^Georgia: Home 'Insurance Co. v. Augusta, SO Ga. 530, 537. Illinois: Wilkie v. Chicago, 188 111. 444, 453, 58 N. E. 1004, 80 Am. , St. Rep. 182; Chicago v. Gall, 195 111. App. 41 (1915). Indiana:' Shuman v. Ft. Wayne, 127 Ind. 109, lis, 26rN. E. 560, 11 L. R. A. 378. ; ' ' .,,-, - ■ -,',,.:■■ Nebraska: State ex rel. v. Hardy; 7 Neb. 377, 380. New Jersey: North Hudson Co. R. Co. v. Hoboken, 41 N. J. L. 71, 75. Ohio: Anderson v. Brewster, 44 Ohio St. 576, 587, 9 N. E. 683 ; State v. Hipp, 38 Ohio St; 199, 226., ' ... Oregon: Hackett v. Wilsonj. 12 lOrgg. is, 37, 6 Pac. 652. ' ' '■' '■■ , Pennsylvania: Caldwell v. Fulton, 31 Pa. St. 475, 477, 72 Am. Dec. i76Q.. Wyoming: Metcalf v. Hart, 3 Wyo. 513, 527, 27 Pac. 900; 31. Am; St. Rep. 122., ■ ^ ■ ; , '•: Federal: Pullman i Southern Car Co. V. Nolan, ,22 Fed. 276, 279. 101 102 LAW OF AUTOMOBILES Justice Mcllvaine, in State v. Frame,^ says that, "A license is essentially the granting of a special privilege to one or more per- sons, not enjoyed by citizens generally, or, at least, not enjoyed by a class of citizens to which the license belongs."' And he_adds: "A common right is not the creature of a license law. The removal of indivdiual disabilities, as to all persons, is not the granting of a license." Justice Cdoley defines a license to be "A permission to do some- thing -which without the license would not be allowable." * Further definitions are: "A permit to do business which could not be done without the license." * "A right or immunity granted to a person either against or beyond the course of the common or general law." ® "In a general sense a license is an official permit to carry on a business or trade or perform other acts which are for- bidden by law except to persons obtaining such permit." '' 2 39 Ohio St. 399, 413. ' * Silver v. Sparta, 107 Ga. 275, 33 S. E. 31; State y. Peel Splint Coal Co., 36" W. Va. 802, 814, IS S. E. 1000, 17 L. R. A. 385. *Youngblood v. Sexton, 32 Mich. 406, 419, 20 Am. Rep. 654; Standard Oil Co. V. Com., 26 Ky. L. Rep. 985, 987, 82 S. W. 1020; Sinnot v. Davenport, 63 U. S. (22 How.) 227, 240, 16 L. ed. 243. BSonora v. Curtin, 137 Cal. 583, 585, 70 Pac. 674; San Francisco v. Liverpool & L. & G. Ins. Co., 74 Cal. 113, 122, 15 Pac. 380, 5 Am. St, Rep. 4i5. 6 Dike V. State, 38 Minn. 366, 368, 38 N. W. 95. "^ Hoefling v. San Antonio, 85 Tex. 228, 231. Arkansas: "A license is a privilege granted by the state, usually on pay- ment of a valuable consideration, though this is not essential." Hubman v. State, 61 Ark. 482, 489, 33 S. W. 843. Colorado : "A license confers the right to do that which without the license would be unlawful." Jefferson Co. v. Mayr, 31 Colo. 173, 175, 74 Pac. 458; People v. Raims, 20 Colo. 489, 493. Connecticut,: "The word 'license' is used in the statute to signify the in- tangible right granted to the licensee, as well as to signify, the writing signed by the commissioners which is the in- strument and evidence of that grant." Connecticut Bre:weries Co. v. Murphy,, 81 Conn. 145, 70 Atl. 450; Quinnipiap Brew- ing Co. v. Hackbarth, 74 Conn. 392, 394, 50 Atl. 1023. Illinois: A license implies a privilege that cannot be' enjoyed without legal authority. Chicago v. Banker, 112 III. App. 94, 97. "Permission or authority;" "freedom to act;" "to be left free;" "allowable." Hartford Fire Ins. Co. v. Peoria, 156 111. 420; 427, 40 N. E. 967. Vermont: "Consent or permission." Winooski v. Gokey,; 49 Vt, 282, 286. Wisconsin: , "Permit." Neuman v. State, 76 Wis. 112, 116, 45 N. W. 30. ,"Is a grant of perniission or authority." State v. McFetridge, 56 Wis. 256, 259, 14 N. W. 185. Federal: "A license is merely a pei-- mission to do what is unlawful at com- mon law, or is made so by some stat- ute or ordinance, including the one authorizing or requiring the license." Laundry License Case, 22 Fed. 701, 703. "Permission or authority; as a license to do a particular thing." Anderson's Law Diet., tit. ' "License." "Authority to do some act, or carry on STATE LICENSE Laws 103 "The thing to be done may be something lawful in itself, and only prohibited for the purposes of the license; that is to say, pro- hibited in order to compel the taking out of a license.'" There are three leading ideas involved in the definition of a license. First, it confers a privilege on the persons so licensed to do certain things or pursue a certain calling not open to all; second, it legalizes acts which, if doqe without the license, would be imlaw- ful; third, it is a privilege granted as part of a system of police regulation, and herein it differs from taxation.^ The object of a license is to confer a right which does not exist without the license.^" The word "privilege," as used in the definitions of license, means, "that which cannot be enjoyed without a legal authority, which is generally evidenced by a license." ^^ "License" is frequently used' in a secondary sense to mean the written document which is generally issued to the licensee upon his fulfilling all the requirements of the law relating to the licensed some trade or business, in its nature lawful but prohibited by statute, except with the permission of the civil author- ity or which would otherwise be un- lawful." Bouvier's Law Diet., tit. "Li- cense."' The license need not be in writing. Boston V. ScTiaffer, 9 Pick. (Mass.) 415. The law itself is the license. State V. Hipp, 38 Ohio St. 199, 221. 8 Hubman v. State, 61 Ark. 482, 489, 33 S. W. 843. 9 Hubman v. State, 61 Ark. 482, 489, 33 S. W. 843. 10 Georgia: Home Insurance Co. v. Augusta, SO Ga. S30, S37 ; Savannah v. Charlton, 36 Ga. 460, 462. Indiana: Shuman v. Ft. Wayne, 127 Ind. 109, 115, 26 N. E. S60, 11 L. R. A. 378. Michigan: People v. Lyng, 74 Mich. S79, 585, 42 N. W. 139; Chilvers v. People, 11 Mich. 43, 49. Nebraska: Pleuler v.' Stkte, 11 Neb, 547, 564, 10 N. W. 481. Ohio: Anderson v. Brewster, 44 Ohio St. 576, 588, 9 N. E. 683 ; Adler v. Whit- beck, 44 Ohio St. 539, 558, 9 N. E. 672. Utah: Matthews v. Jensen, 21 Utah 207, 218, 61 Pac. 303. 1 Desty, Taxation, 306. " Chicago v. Collins, 175 III. 445, 456, 51 N. E. 907, 49 L. R. A. 408, 67 Am. St. Rep: 224; Gate v. State, 3 Sneed (Tenn.) 120, 121. See also Van Valken- burg V. Brown, 43 Gal. 43, 49, 13 Am. Rep. 136. A privilege is "the exercise of an occupation or business which requires a license from some proper authority designated by a general law, and not open to all or any one without such license." State v. Schlier, 3 Heisk. (Tenn.) 281, 283; Clark v. Montague, 71 Tenn. (3 Lea) 274, 277; Jenkins v. Ewin, 8 Heisk. (Tenn.) 456, 457. The carrying on of "every occupa- tion which is not open to every citizen, but can be exercised by a license from some constituted authority." Pullman Southern Car Co. v. Nolan, 22 Fed. 276, 279; French v. Baker, 4 Sneed (Tenn.) 193, 195. "A privilege is whatever the legislature chooses to declare and tax as such, and a positive prohibition, or the power to prohibit, is not essential to its validity." Burke v. Memphis, 94 Tenn. 692, 694, 30 S. W. 742; Kurth v. State, 86 Tenn. (2 Pickle) 134, 136. 104 LAW OE, AUTOMOBILES jYiehiclfi, business or occupa^JQn, . Jt is not essential ,to.t;liq authority or privilege itself, and, is i^^ped principally as a matter of evidence.^* A license is essentially a, part of the, police power, and an inci- dent to the power to regulate.^* §96. Distinction between "license fee," "license tax," and ' 'tax. " : • It is a fact to be depl6red that legal terms are often loosely and improperly used. ^* . ' The terms, "license,'? "license fee" and "license tax" have been used without regard to their distinguishing features to such an extent that one mlist: follow closely the reading of a case dealing with either to detenmine to which it refers. A tax isa burden or charge imposed by the legislative power upon persoils or property to raise money for public purposes, or to defray the expenses of administering the government.^'' ' A license ■ tax is imposed on a business or occupation merely for the ipurpose of raising revenue.^^- It is not a tax on property,^'' and, Other definitions of privilege will be found in Territory y. Stokes, 2 N. M. 161, 169; Turnpike Cases, 92 Tenn. 3,69, '37^, '22 S, W.. 75; La\y,yer's Tax Cases, 55 Tenn. (8 Heisk.) ,565, 649. . \ 12,Elpiore,. y. .Overton, 104,. Ind. 548, S'SS, 4 rif,^|'E.' 197',' 54 Am.Rep. 3.43; Moore v. St. Paul,' 61 Minn. 427, 429, 63 N. W. 1087; United States v. Cutting, ■70,U. S.' (3 Wall.), 441, 4,43, 18 L. ed, 24 Ij,, Connecticut Breweries Co. v. Murphy,' 81 Conn. ,145, ^7o' Atl,f4,S0. ,, , 13 CaUjornia:^ In re„Guerrero, 69 (C^l. 88,' 10"P.ac. 26,1, ' ' ' ,■ ' ' , Illinois,:, Conklin Lumber Co. v. Chi- ,M) .!.U--i 1/ ■ Al'. ■ ■ 1'"" ■ cage, 127|I11. App. 103. . , . /o?«a .• jOttumwa , V. Zqkind, 95 la, 622, 626,, 64. N. W. 646, 29 L. R. , A. 734,' 58 Am.' St. Rep. 447, ' \ \" Maryland: Vansant v. Harlem Stage Co.,. 59,Md.,330, 335. , r, Massachusetts:, ,Co,pi. v. Newhall, ,164 Mass., 338, 41,' N. E. 647, New Hampshire: State v. Forcier, 65 N, H. 42, ,17, Atl, 577. , 14Titusville v. Gahan, 34 Pa. Super, Ct. 613,, 616, 624. , ,,, , ^^ Pulifornia : ^ Dranga v. Rowe, 127 CJaJ,!' 506, 50.9,. 59 ,Pac. 94^, ., , Illinois: Chicago ,y,.,Bap(tist Theolog- ical Union, i'iS 111. 24S,)51,"2 N.iE;, ?54. Missouri: Deal v. Mississippi Co., 107 Mo. 464, 4:70, 18 S. W- 24, 14 L. R. A. 622. , New York: In re ,Hun, 1,44 N. Y. 472, 477, 39 N. E. 376. Federal: Illinois Central R. Co. y. Decatur, 147* ,U. S. I99, 13 Sup. Ct. 293, 37 L. ed. 132. A tax !> a rate or sum of money .as- sessed on the person or <]5roperty, of the citizen for the support of the gov- ernment. Home Insurance ]Co. v. Augusta, SO Ga. 530, 537 ; Savannah y. Charlton, '36 Ga. 460, 462; Pullman Southern Car Co. V. J^olan,, 22 Fed. 276, 279., "The providing oj revenue for the ordinary expenses of the state." Lit.ye- field V. State, 42 Neb. 223, 226, 60 ,N. W. 724, 28 L. R, A. 588, 47 Am. St. Rep. 697. 16 Calif arnia: In re Guerrero, 69 CaJ, 88, 91, 10 Pac. 261. ^Indiana: Schmidt v. Indianapolis, 168 Ind., 631, 637, 80 N. E. 632. Missouri: St. Louis v. Boatmen's In- surance & Trust Co., 47 Mo. 150; Kansas City v. Crush, 151 Mo. 128, 52, S. W. 286. Oregon: Ellis v. Fraziet, 38 Oreg. 462, 466, 63 Pac. 642, 53 L. R. A. .454. Utah: I Matthevys v. Jensen, 21 Utah 207, ;218, 6,1 I^ac. 303. 1'' San Francisco v, Liverpool & L., & STATE LICENSE iv\W& , 105 'accurately speaking, it has nothing to do with the granting' of a privilege or the riegulation of business." ' A license is merely the permission Or authority to do soine act,^^ while a license fee is a sum of money charged to dfefray the expense of issuing a license certificate arid of regulating the business, vehi- cle or occupation so licensed.^" A business may be subject to a license and a license tax; the former being a mere privilege to do business for which a fee niay be required, and the latter imposed for revenue.*^ And the property used in such business is, at the same time, subject to an ad valorem tax.''* " "A license being of the nature of a privilege, it would be a strange incongruity to grant to one the privilege of bearing 'the burden of a tax. * * * The two things are entirely distinct in 'their character- istics. The license riiay exist without the imposition of a tax, and the tax may be imposed' without the granting of a' license."*^ V S 97. Power of the state to license and tax use of auto- mobiles. The state has the power to license a,s a means of regula- tion all business and employments which impose a burden on the public, or when the public interests or welfare require that the business or occupation should be regulated.** The licensing of automobiles , is a valid exercise ,of the police power,*® and is unaffected by the fourteenth amendment to the Fed- G. Ins. Co., 74 Cal. 113, 122, IS Pac. 81 San Francisco v. Liverpool^ &' LI k 380, S Am. St; Rep. 425. • ^ G. Ins. Co.;' 74 Cal. 1-13, 122, 15 'Pac. "A license fee is not a tax within 380, S Am. St. Rep. 425.'"' : ■!'!! the meaning of the ■ provisions of the 22 pt. Smith v, Scruggs, 70 Ark. 549, organic law requiring uniformity of rates ; 69 S. W. 679, 58 L,:;R. A. 921, Jajpkson and just valuations of property for pur- v. Neff, 64 Flac 326,,,60j So. 3|50 (.19J2) ; poses of taxation." Jackson v. Neff, ,6'4 State v. Ingalls, ,18 N. M. 211, 135.|Pac. Fla. 326, 60 So.'35d (1912). ' ~ 117/ (1913)-; '' ' "'' 18 Schmidt v. Indianapolis, 168 Ind. 23 Anderson v. Brewster, 44 Ohio St. 631, 637, 80 N. E. 632; State v. Jarvis, 576, 588, 9 N. E. 683. 89 Vt. 239, 95 Atl. 541 (1915). 8* People v. -Steele;' 231 111.; 340, i83, N. When the word "tax" is used in- E. 236; Otting v. Bellevue, 32 Ky. _L. stead of "Ucense," when the tax is Rep. 186, 105 S. W. 375 ;' Cobb v. Cum- allowed for a privilege, it means a berland Co. P. & L. Co., 117 Me. 455, "license" for a privilege. ' Buffalo v. 104 Atl. 844 (1918)' ; Marme'f v. State, Lewis, 123 App. Div. 163, 108 N. Y. 45 Ohio St. 63, 71, 12 N. E, 463. / Supp. 450. 26fib:^einan v. State, 7 Ala. App. 151, 19 Connecticut Breweries Co, v. 61 So. 604, 63 So. 201 (1913), citing Murphy, 81 Conn. 145, 70 Atl. 450. this wb'rk;' 'Conkliri' Lumber Co. v. Chi- 20Conklin Lumber Co. v. Chicagb, 127 cago, 127 111. App. 103; Park v. r)ultit!i, , 111. App. 103 ; Schmidt v. Indianapolis, 134 Minn. 296, 159 N. ' W; 627 (1916) ; 168 Ind. 631, '637, 80 N. E. ' 632 ; State Unwen v. State, 73 N. J. L. 529,^ Ssis,, V. ^ean, 91 N. C, SS4, 559. 64 Atl. 163', 68 Atl. IIO':' '" 106 LAW^OF AUTOMOBILES eral constitution.*® Such law is not in violation of the Federal constitution because it "infringes upon the constitutional rights of a class of citizens by denying to the owners of automobiles within the state the equal protection of the law," *'' "That a reasonable fee may be imposed as an incident to the exercise of the police power of regulation is too well settled to require citation of authorities." *' On the other hand, it has been held that an ordinance which requires one who uses his automobile for his private business and pleasure to submit to an examination and tQ take put a license (if the examining board see fit to grant it), is imposing a burden on one class qf citizens in the use of the streets not imposed upon others, and is invalid.^' ,; y,; The use of the public highways for pleasure autornobiles^ ,bas been declared by' statute to be a privilege, and a tax imposed on such privilege is valid.'" § 98. Power to impose privilege tax. The state may impose fees for the registration of automobiles for the purpose of raising revenue; such being clearly within tte sovereign power of the state." , ^ It is within the power of the Legislature to require those who use autpmobiles on the public highways to pay a license tax there- for to be used in keeping the highways in proper condition for convenient use.'* A license tax may be imposed by the Legislature for the use of automobiles on the public highways even though an ad valorem tax is paid on such automobiles and they are not used for hire, and even though a license tax is not imposed for the same use by vehi- cles of other kinds.'* The state may charge an increased license fee for the use of the highways by automobiles used for hire, over the charge made upon such vehicles in private use. This is a reasonable and proper classi- fication for such purpose.'* «6Unwen v. State, 73 Nr J. L. S29, 64 — , 8S So. S64 (1920) ; Kane v. Titus, 81 Atl. 163, 68 Ail. 110. N. J. L. S94, 80 Atl. 4S3, Ann. Cas. 1912D 27 Jackson v. Naff, 64 Fla. 326, 60 237 (1911), aff'd in 242 U. S. 160, 37 So. 3S0 (1912). Sup. Ct. 30, 61 L. ed. 222 (1916). 28 State V. Gish, 168 la. 70, ISO N, W. 32 Jackson v. Neff, 64 Fla„ 326,, 60 37 (1914). , So. 350 (1912); Park v. Duluth, 134 29 Chicago V. Banker, 112 111. App. 94, Minn. 296, 1S9 N. W. 627 (1916). 99-100. S3 Jackson v. Neff, 64 Fla. 326, 60 So. SOOgilvie V. Hailey, 141 Tenn,, 392, 350 (1912). > 210 S. W. 645 (1919). 34 Jackson v. Neff, 64 Fla. 326, 60 So. 81 Mills V. Court of Com'rs, — Ala. 350 (1912). STATE LICENSE LAWS 107 When collected by the state under a statute authorizing the same, an automobile privilege tax. becomes state funds, which- may be expended in counties or cities other than those in which the tax, was collected, at the discretion of the Legislature.'® § 99. Purpose of license. By means of licensing^ the per- sons or occupations to be regulated are located and identified, and brought within the observation of the public authorities, so that whatever regulations are made concerning them may be the more easily and certainly enforced.*® Frequently the law requires evidence as to the good moral char- acter and general qualifications of the applicant before a license will be issued to him.*'' The object of, licensing automobile operators is to, furnish a further guaranty than registration of the automobile, that proper use of the autonjobile will be made, and that it will be operated in compliance with the law." § 100. License is personal. An automobile or chauffeur's license is personal to the one to whom it is issued, arid it cannot be delegated or assigned to another.'® Where a law imposing a license tax or registration fee on auto- mobiles provides no manner of transferring such license, the license cannot be transferred; and when a car which has been licensed is sold the purchaser must secure its- registration anew.*" A license is generally issued to an individual on account of his peculiar fitness for the business, trade or profession which he is licensed to carry on, for the purpose of identification and regula- tion, and in either'case to allow the license to be, transferred would be to thwart the purpose and intent of the law. 35 Jasnowski v. Dilworth, 191 Mich. Missouri: Ragan v. McCoy, 29 Mo. 287, 157 N. W. 891 (1916). 3S6, 368. 36 Laundry License Case, 22 Fed. 701, New Jersey: East Jersey Iron Co. v. 703. ' Wright, 32 N. J. Eq. (S Stew.) 248, 37 Freeholders v. Barber, 7 N. J. L. 2S3.: (2 Halst.) 64, 67 ; State v. Moore, 113 Oregon: Hackett v. Wilson, 12 Oreg, N. C. 697, 706. 25, 37, 6 Pac. 652. 38 Emerson Troy Granite Co. v. Pear- Pennsylvania: In re Buck's Estate, son, 74 N. H. 22, 64 Atl.i 582. 185 Pa, St. 57, 60, 39 Atl. 821. ^^ Alabama: Foshee v. State, 15 Ala. It is a mere personal permit, neither App. 113, 72 So. 685 (1916); transferable nor vendible. Foshee v. Connecticut: Prince v. Case, 10 Conn. State, 15 Ala. App. 113, 72 So. 685 375,382. (1916). Mississippi: Seal v. Donnelly, 60 Miss. *0 Foshee v. State, 15 Ala. App. 113, 658, 662. '■ 72 So. 685 (1916). 108 LAW OF AUTOMOBILES A partnership, or .coi:ppira;tiQn as such is not entitled to a license toi operate! an automobile.. As was said in a New Hampshire case: "The license contemplated by the statute is personal to the particu- lar person who operates the automobile. Every person who oper- ates it must have a license. A corporation or partnership which owns or controls an automobile should register it in the corporate or partnership name, but is not entitled to a license to operate it." *^ i Jn Massachusetts it; is held tiiat registration of an automobile could be made in a fictitious partnership name, under which the owner conducted business and was well known ; but that it could not be done for the purpose of concealing identity. This, however, is a different question from that of license.*^ § 101. License may be revoked. A license has none of the elements of a contract, and does not confer an absolute right, but only a personal privilege to be exercised under the resTtrictions imposed by the law.*^ Such license may be revoted for cause at any time by the authority which granted it.** However, a license cannot,, be reyqkedi without such cause as will reasonably {justify the .revocation thereof.*^ *1 Emerson Troy Granite. Co. v. Pear- son, '74 fJ.' H:"22, '64 Xti.'*S82.' **Cromptbh v.' Williams, 2l'6'Mas3. 184, ■ 103' . N. ' E. 298 (1913). '' *^ Alabama: Fbshee v. State, IS Ala. ■ App. 113, ; 72, So. ,685, ,(1916). Coloradp:- People v. Rairns, ,20 Colo, 489, 493.'' * . . ,|. ' > JlliHois: A license of an aUtoinobile for carrying persons for hire does not create any contract between the city' and the licensee, and the acceptance of thei , same does not impose any obliga- tion upon the licensee to follow the business iCoypred by the license. Chicago V. Gall, 195 111. App. 41 (1915). Indiana: Stone v. Fritts, 169 Ind. 361, 82 N. E.:,7,92. :■ ■ Massachusetts: Calder v. Kurby, 5 Gray, 597; Com. v. Kinsley, 133 Mass. 578, 579. ^Missouri: St. Charles v. Hackman, 133 Mo. 634, 642.M New, York: Yellow Taxicab Co. v. Gaynor, 82 Misc. 94, 143 N. Y. Supp. 279 (1913), aff'd 150 App. Div. 893, 888 (1913). Tennessee: State y. ,Burgoyrie, , , 75 Tenn. (.i Lea) 173, 40 Am. Rep. '60. ** Colorado: People v. Raims, 20 Colo. 489, 493. Illinois: Schwuchow v. Chicago,! '. 68 ,111. 444. , , -J-, Indiami Stone v; Fritts, il69 Ind, ,361,,, 82 N. E. 792.' " , ' Maryland:' Ruggles v. State, 120 Md. 553, sV Atl. 1080 (1913). Massachusetts: Com. v. Kinsley, 133 Mass. 578, 579. Missouri: St. Charles v. Hackman, 133 Mo. 634, 642. New York: Metropolitan Milk \^ Cream Co. v. New York, 113 App. Div. 377, 98 N. Y., Supp. 894, aff'd' 186 N. Y. 533, 78 N. E. 1107. < "The correlative power, to revoke or recall a permission is a necessary con- sequence of the main power." Stone v, Fritts, 169 Ind. 361, 82 N. E. 792 ; Doyle V. Continental Ins. Co., 94 U. S. 535, 540, 24 L. ed. 148. *6 State ex rel. v. Baker, 32 Mo. App. 98, 101; United States v. MacFarlanid, 28 App. D. C. 552, 561. But see Doyle STATE LICENSE LAWS 109 Statutes imposing licenses frequently provide for their revocation' upon the happening of certain contingencies.*® / And by accepting such a license, the licensee consents to all the conditions thereby imposed, including the provisions as to revoca- tion.*^ An ordinance under which certain abutting property owners were permitted to establish private hack stands, at which only cer- tain owners could keep their vehicles, such owners being licensed by the city, could be repealed by the city; and with its repeal the licenses issued thereunder became of no effect.*' The repeal of the law imposing or authorizing a license does not of necessity revoke the licenses issued under such law.*^ § 102. License fee must be reasonable. A hcense fee should be such a sum of money as will compensate for the expense of issu- ing the license certificate and for the probable expense of regulating, and controlling the operation of the automobile licensed.*" Any- V. Continental Ins. Co., 94 U. S. 535, where it is held that a license may be revoked by the state without cause. «Com. V. Kinsley, 133 Mass. 578; Grand Rdpids v. Braudy, 105 Mich. 670, 677, 55 Am. St. Rep. 472; Child v. Bemus, 17 R. I. 230. 47 Wiggins v. Chicago, 68 111. 372, 378; Stone v. Fritts, 169 Ind. 361, 83 N. E. 792 ; Metropolitan Milk & Cream Co. V. New York, 113 App. Div. 377, 98 N. Y. Supp. 894, aff'd 186 N. Y. 533, 78 N. E. 1107. Where a pawnbroker had been con- victed of -violating a city ordinance regulating the business of pawnbrokers, it was lawful to revoke his license, and this notwithstanding an appeal had been taken and was pending in the case of his conviction. Harrison v. People, 121 111. App. 189. *8 Yellow Taxicab Co. v. Gaynor, 82 Misc. 94, 143 N. Y. Supp. 279 (1913), aff'd 159 App. Div. 893, 888 (1913). 49 Adams v. Hackett, 27 N. H. 289, 59 Am. Dec. 376. The license is a privilege which, dur- ing its term, is not dependent on the continuance of the law under, which it was granted. Hirn v. State, 1 Ohio St. 15; Davis v. State, 2 Tex. App. 425, 431. ■'■'■< ■ :; ^''Alabama: Van Hook v. Selma, 70 Ala. 361, 364, 45 Am. Rep. 85. Arkansas: Fayetteville v. Carter, 52 Ark. 301, 12 S. W. 573, 6 L. R. A. 509. Florida: Jacksonville v. Ledwith, 26 Fla. 163, 206, 7 So. 885, 9 L.- R. A. 69, 23 Am. St. Rep. 558. Illinois: Price v. People, 193 111. 114, 61 N. E. 844, 55 L. R. A. 588, 86 Am. St. Rep. 306. Indiana: Wysong v. Lebanon, 163 Ind. 132, 71 N. E. 194. Iowa: Burlington v. Unterkircher, 99 la- 401, 405, 68 N. W. 795. Kansas: In re Martin, 62 Kan. 638, 64 Pac. 43. Maine: State v. Snowman, 94 Me. 99, 113, 46 Atl. 815, 50 L. R. A. 544, 80 Am. St. Rep. 380. Michigan: Grand Rafjids v. Braudy, 105 Mich. 670, 676, 64 N. W. 29, 32 L. R. A. 116, 55 Am. St. Rep. 472; Vernor v. Secretary of State, 179 Mich. 157, 146 N. W. 338 (1914), citing this work. Minnesota: St. Paul v. Dow, 37 Minn. 20,. 22, S Am. St. Rep. 811. no LAW OF AUTOMOBILES thing in excess of an amount which will defray such necessary expenses cannot be imposed under the police power, because it then becomes a revenue measure.*^ , . While the license fee must not be imposed with a view to reve- nue, ^* all reasonable intendments must favor the fairness and justice of the fee fixed by the law-making body.*^ It has been held that the fact that a license fee is in excess of the necessary expense of regulation does not convert the measure into one for revenue, since the tax is imposed for a specific and bur- densome use of the highways.®* A license fee of two dollars, required to be paid on the registra- tion of an automobile, was held to be reasonable and proper.®* Like- wise, a fee of one dollar, was declared to be a reasonable exaction for a license to operate an automobile.®® • " A statute imposing an annual fee of. fifty cents a horse power on all motor vehicles was held to be designed as a revenue measure, as well as a police measure, on account of the fact that the sum thus collected would far exceed any amount required for police pur- poses; and its object to produce revenue noit being expressed in its title, the statute was declared to be invalid.®''' A statute fixipg the registration fee for automobiles having a rating of less than 30 horsepower at $3 each, and for automobiles Missouri: St. Loui^ v. Boatmen's In- surance & T'rust Co., 47 Mo. ' ISO. Nebraska: Littlefield v. State, 42 Neb. 223, 226, 60 N. W. 724, 28 L. R. A. S88, 47 Am. St. Rep. 697. New Jersey : Blanke v. Board of ' Health, 64 N. J. L. 42, 44 Atl. 847. Ohio: Baker v. Cincinnati, 11 Ohio , St. S34. Pennsylvania: Johnson v. Philadel- phia, 60 Pa. St. 445, 4S0. Texas: Ex parte Gregory, 20 Tex. Ct. App. 210, 221, 54 Am. Rep. 516. Wisconsin: State v. Heinemann, 80 Wis. 253, 27 Am. St. Rep. 34. 61 California: In re Guerrero, 69 Cal. 88, 91, 10 Pac. 261.. Indiana: Schmidt v. Indianapolis, 168 Ind. 631, 637, 80 N. E. 632. Michigan: Vernor v. Secretary of State, 179 Mich. 157, 168, 146 N. -W. 338 (1914). Missouri: Kansas City v. Crush, 151 Mo. 128, 52 S. W. 286. New Jersey: North Hudson Co. R. Co. V. Hoboken, 41 N. J. L. 71, 81. . New York : New York v. Second Ave. R; Co., 32 N. Y. 261. "Any clearly unnecessary expense im- pdsed is unreasonable, and its , imposition is an arbitrary exercise of governmental power." State v. Lawrence, 105 Miss. , 58, 61 So. 975, (1913). 52 State V. Bean, 91 N. C. 554, 559. B*Coldwater v. Russell, 49 Mich. 617; Van Baalen v. People, 40 Mich. 258: 54Bozeman v. State, 7 Ala. App. 151, 61 So. 604, 63 So. 201 (1913). 66 Com. v. Boyd, 18§ Mass. 79, 74 N. E.,255. BSUnwen v. State, 73 N. J. L. 529, 64 Atl. 163, 68 At^ 110. f 67 Vernor v. Secretary of State, 179 Mich. 157, 146 N. W. 338 (1914). STATE LICENSE LAWS 111 having a rating of 30 horsepower or more at $S each, was upheld.*' Where the expense necessary to. be incurred by the state in regis- tering and numbering an automobile was less than one dollar, a statute imposing a license fee varying from $5 to $25, according to horsepower of the machine, was held invalid.*' What is a reasonable fee must depend largely upon the sound discretion of the Legislature, having reference to all the circum- stances and necessities of the case. It will be presumed that the amount of the fee is reasonable unless the contrary appears upon the face of the law itself, or is established by prpper evidenc^.^" In determining whether a fee required for a license is excessive, the absence or amount of regulatory provisions and the nature of the subject of regulation should be considered, and if the amount is wholly out of proportion to the expense involved, it will be declared a tax.*^ §103. Fixing the amount of the fee. There is a large field for the exercise of discretion in determining the amount of the license fep. It must necessarily be prescribed in advance, when it cannot be determined with accuracy what the cost of regulation will be. In fixing the arhount of the fee it is proper for the law- making JDody to take into account not the expense merely of direct regulation, but all the incidental consequences that may be likely 58 deary v. Johnston, 79 N. J. L. 49, Pennsylvania.: Oil City v. Oil City 74 Atl. S38 (1909). Trust Co., 11 Pa. Co. Ct. 3S0, 352. •5? State V. Lawrence, 105 Miss. 58, 61 Texas: Atkms v. State Highway Deptv, So. 975 (1913). — Tex; Civ. App. — , 201 Sj, W. 226 SO Alabama: Gamble v. Montgomery, (1918). 147 Ala. 682, 39 So. 353. Washington: Seattle v. Barto, 31 Florida: Atkins v. Phillips, 26 Fla. Wash. 141, 147, 71 Pac. 735. 281, 299, 8 So. 429, 10 L. R. A. 158. An ordinance imposing a license fee Illinois: Spiegler v. Chicago, 216 111. of one dollar a year on each telephcfne 114, 131, 74 N. E. 718. ■ pole erected in a city is not so ' urirea- lowa: Iowa City v. Newell, 115 la. sonable as to justify the court in in- S5) 58. terfering with the discretion of the city Maine: State v. Snowman, 94 Me. council. Chester v. Western Union Tel. 99, 110, 46 Atl. 815, SO L. R. A. 544, Co., 154 Pa. St. 464. 80 Am. St. Rep. 380. A licenlse fee ' of fifty dollars a year Michigan: Vernor v. Secretary of imposed on itinerant physicians is not State, 179 Mich. 157, 168, 146 N. W. per se unreasonable. Fairfield v. Shal-' 338 (1914). lenberger, 135 la. 615, 113 N. W. 459. Minnesota: Willis v. Standard Oil 61 Ex parte Braun, 141 Cal. 204, 206, Co., SO Minn. 290, 52 N. W. 652. .74 Pac. 780; Vernor v. Secretary of Nebraska: Littlefield v. State, 42 Neb. State, 179 Mich. 157, 168, 146 N. W. 223, 227, 60 N. W. 724, ' 28 L. R. A. 338 (1914), citing of thiswork.: 588, 47 Am. St; Rep, 697. 112 LAW OF AUT^OMOBILES to subject the public to cost by reason of the regulation and licens- ing of the vehicle, business or occupation.** The nature of the thing to be licensed has, of necessity, much to do with the amount of the fee. The amount of supervision is a controlling element. The amount may also be graduated accord- ingly as the community is densely or sparsely populated.®' ;§104. Revenue incidentally derived from license. While the power to tax is not included in the police power of a state,** and any attempt to create revenue under the guise of police regulation will be declared invalid by the courts,** the fact that the public treasury is incidentally augmented by the fee paid for an auto- mobile license will not have the effect of making such license fee a t^x.** The fee will not be declared illegal on this account if, under all the circumstances, it is not wholly unreasonable.*'' § 105. Disposition of license fee. There are cases holding that where the law expressly directs that the license fee shall be used for purposes other than defraying the expenses of issuing the license arid of regulation, that it thereby makes of the fee a tax, and converts what was intended to be a police measure into a revenue law.** Thus, it was declared that an ordinance imposing 62 van Baalen v. People, 40 Micli". 2S8; Wysong V. Lebanon, 163 Ind. 132, 71 N. E. 194; Cooley, Taxation, 1142. 6* Van Hook V. Selma, 70 Ala. 361, 364, 4S Am. Rep. 85 ; Fayetteville v. Carter, S2 Ark. 301, 302, 12 S. W. S73, 6 L. R. A. 509. 6*Terre Haute v. Kersey, 159 Ind. 300, 306, 64 N. E. 469. SSMugler V. Kansas, 123 U. S. 623, 661. 66 Indiana: Terre Haute v. Kersey, 159 Ind. 300, 306, 64 N. E. 469; Schmidt v. Indianapolis, 168 Ind. 631, 637, 80 N. E. 632. Iowa: Huston v. Des Moines, 176 la. 455, 156 N. W. 883 (1916). Maryland: Vansant v. Harlem Stage Co., S9 Md. 330, 335; Sta^e v. Rowe, 72 Md. 548, 553, 20 Atl. 179. Michigan: Vernor v. Secretary of State, 179 Mich. 157, 168, 146 N. W. 338 (19 14),, citing this work. Missouri: State ex rel. v. Hudson, 78 Mo. 302. Nebraska: Littlefield v. State, 42 Neb. 223, 228, 60 N.- W. 724, 28 L. R. A. 588, 47 Am. St. Rep. 697. ' ' New Mexico: State v. Ingalls, 18 N. M. 211, 135 Pac. 1177 (1913), citing this work. New Jersey: North Hudson Go. R. Co. V. Hoboken, 41 N. J. L. 71, 78. Ohio: Adier v. Whitbeck, 44 Ohio St. 539, 566, 9 N. E. 672; Baker v. Cincinnati, 11 Ohio St. 534, 544; Marmet V. State, 45 Ohio St. 63, ^8, 12 N. E. 463. Oregon: Ellis v. Frazier, 38 Oreg. 462, 467, 63 Pac. 642, S3 L. R. A. 454. 67 Smith V. Com., 175 Ky. 286, 194 S. VV. 367 (1917); Matthews v. Jehsen, 21 trtah 207, 61 Pac. 303. "It does not follow because the li- cense fee is large, or because it may become a part of the public revenue, that it is, therefore, a tax," , State ex rel. V. Hudson, 78 Mo. 302 ; State v. Hipp, 38 Ohio St. 225. 68 Chicago V. Collins, 175 III. 445, 457, 51 N. E, 907, 49 L. R. A. 408, 67 Am. STATE LICENSE LAWS 113 a license fee on vehicles and providing that the money so derived should be held as a special fund for improving the city streets, created a double tax, which rendered it invalid, the same vehicles having been taxed for general purposes, at their value, as persona,! property.®® Likewise, a statute which imposed a yearly charge of one dollar and twenty-five cents on every bicycle was held to be a tax for revenue, inasmuch as the larger part of such sum was di- rected by the law to be set aside as a fund for constructing and maintaining bicycle pathsJ" But the better rule would seem to be that the disposition of the fee will not alone determine whether it is a license or a tax. ,What difference can it make if the fee charged for an automobile license is paid into the public treasury and the expenses of regulating the automobile paid out of the same general fund? Is it necessary in order that the fee retain its character as a license fee, to hold it in- a special fund to be used only in defraying the expenses of regu- lating the automobile licensed? If, upon investigation, the fee is found to be only sufficient to pay the expenses that mSy reasonably be presumed to arise in the supervision and regulation of the auto- mobile licensed, its disposition should not have the effect of con- verting it into a tax.'^ A statute of Florida -requiring that IS per cent of all -taipney 'collected on county automobile licenses be paid to the state treas- urer for the maintenance of the state road department, was held to be valid.''* Referring to an ordinance the title of which stated its purpose to be to levy and collect an annual license tax "for general revenue purposes," the court said: "It is probably true that this does not determine the real character of the taxes imposed, but it will aid us somewhat in knowing what the purpose of the legislative body was St. Rep. 224; Livingston v. Paducah, 80 of State, 179 Mich. 157, 169, *146 N. W. Ky. 656; Ellis v. Frazier, 38 Oreg. 462, 338 (1914); State ex rel. v. Hudson, 78 468, 63 Pac. 642, 53 L. R. A. 454 ; Vernor Mo. 302 ; Atkins v. State Highway Dept., V. Secretary of State, 179 Mich. 157, 169, — Tex. Civ. App. — , 201 S. W. 226 '146N, W. ,33,8 (1914),. citing this worli. (1918). , 69 Chicago V. Collins, 175 111. 445, The fees for registration of motor 457, 459, 51 N. E. 907, 49 L. R. A. 408, vehicles in Missouri are required to.be 67 Am. St. Rep. 224. paid into "the general state, road fund." 70 Ellis V. Frazier, 38 Ojeg. 462, 468, Gasconade County v. Gordon,, 241 Mo. 63 Pac. 642, 53 L. R. A. 4S4; see also 569, 145 S. W. 1160 (1912),. Livingston v. Paducah, 80 Ky. 656. 72 state ex rel. v. Johnson, 71 Fla. 71 Smith v. Com., 17S Ky. 286, 194 363, 72 So. 477 (1916). S. W. 367 (1917) ; Vernor v. Secretary B. Autos. — 8 114 LAW OF AUTOMOBILES in passing the ordinance, and may assist us in determining the pur- poses as provided by the ordinance itself." ''* Where a city was empowered to impose a license tax on automo- biles for revenue purposes, the fact that the ordinance levying such license tax provided that "All revenues derived from such license fees shall be kept as a, separate fund and used only for paying the cost and expenses of street and alley improvement and repair," was held not to render the ordinance unconstitutional as creating a double tax.''* ! ■ That a license fee is called a tax and goes into the public treasury does not make it a ,tax.7® And the fact all license fees are paid into the school f,und' of the county in which they are assessed, and the cost of regulation is paid out of the general revenue raised by taxation, is of no consequence in determining the character o( the fee.'s § 106. License fee not a tax on automobiles. The fee which is required by law to be paid to some designated state official upon the registering of an automobile and the issuing of a license, if reasonable in amount, is not a tax on property, but a license fee, and itp exaction to cover the reasonable expenses of regulation is valid. Such legislation falls within the police power of the state.'''' Hence, statutory or constitutional provisions relating to the method of ascertaining the value of property for the purpose of taxation, and to equality and uniformity of taxa,tion, have no appli- cation to the imposition of license fees.'" A statutory or constitutional provision relating to property tax has no application to a license fee required to be paid before ah automobile may be operated on the public highways; the latter being an "occupation, privilege, or excise tax." ''^ Neither does a license tax on vehicles amount to double taxa- tion.'" ■ ' ''S Titusyille v. Gahan, 34 Pa. Super. State v. Jarvis, 80 Vt. 239, 95 Atl. 541 Ct. 613, 615, 624. (1915) ; Com. v. Boyd, 188 Mass. 79, 80, ''♦Harder's Storage Co. v. Chicago, 74 N. E. 255; People v. Schneider, 139 235 111. 58, 85 N. E. 245. Mich. 673, 677, 103 N. W. 172, 69 L. R. TBAdler v. Whitbeck, 44 Ohio St. 539, A. 345, 12 Detroit Leg. N. 32; Unwen v. 566, 9 N. E. 672 ; Baker v. Cincinnati, State, 73 N. J. L. 529, 64 Atl. 163, 68 11 Ohio St. 534, 544. Atl. 110. 76Littlefield v. State, 42 Neb. 223, 78 state v. Ingalls, 18 N. M. ill, 135 228, 60 N. W. 724, 28 L. R. A. 588, 47 Pac. 1177 (1913). Am. St. Rep. 697. TS state v. Collins, 94 Wash. 310, 162 "Jackson v. Neff, 64 Fla. 326, 60 So. Pac. 556 (1917). 350 (1912) ; Smith v. Com., 175 Ky. 286, 80 state v. Strawbridge, — Ala. — , 76 194 S. W. 367 (1917); State v. Ingalls, So. 479. 18 N. M. 211, 135 Pac. 1177 (1913); STATE LICENSE LAWS 115 A fee of one dollar required by a state law to be paid when an automobile is registered was declared to be a license fee paid for the privilege of running the machine on the highways.*^ It was held that an ordinance requiring automobiles to be regis- tered and a number displayed at a cost of one dollar to cover the value of the figures furnished by the city to form the number is not objectionable on the ground that it imposes a license tax, as the amount paid is clearly a license fee.*^ A registration fee of two dollars was declared to be a license fee and not a tax.** § 107. Equality and uniformity of taxation. It is frequently contended thsit by the imposition of a license fee or privilege charge upon the use of automobiles on the public highways, auto- mobile owners are denied the equal protection of the law, in that such imposition violates the requirement of equality and uniformity in taxation. The last preceding section answers this contention by showing that such fee or charge is not a tax. The requirement of equality and uniformity in taxation applies only to taxes in the proper sense of the word, levied with the object of raising revenue for general purposes, and not to such as are an extraordinary and exceptional kind, and is, under a constitutional provision providing for equality in taxation, to be restricted to taxes on property, as distinguished from stich as are levied on occupations, business, or franchises, and as distinguished from exactions iniposed in the exer- cise of the police power rather than the power of taxation.** § 108. Excise, privilege or license tax. It is a well known fact that motor vehicles, and especially w:hen driven at high speed, are far more destructive of roadways than aninial-drawn vehicles. Their use materially increases the cost, of maintaining the public roads; and It is neither unreasonable nor unjust that they should be required to pay, or help to pay, this increased expense.*^ "The imposition is a license or privilege tax charged in the nature of compensation for the damage done to the roads of the st9,te by 81 Unwen V. state, 73 N. J. L. S29, 64 Pac. 113 (191S); State v, Ingalls, 18 Atl. 163,, 68 Atl. 110. N. M. 211, 135 Pat. 1177 (1913); Atkins 82 People V. Schneider, 139 Mich. 673, v. State Highway Dept., — Tex. Civ. 677, 103 N. W. 172, 69 L. R. A. 34S, 12 App. — , 201 S. W. 226 (1918). Detroit Leg. N. 32. 86 Re Hoffert, 34 S. D. 271, 148 N. W. 88 Com. V. Boyd, 188 Mass. 79,^0, 74 20, S2 L. R. A. (N. S.) 949 (1.914); State N. E. 255. V. Collins, 94 Wash. 310, 162 Pac. 556 84 Ard V. People, — Colo. — , 182 Pac. (1917) ; Kane v. New Jersey, 242 U. S. 892 (1919) ; Smith V. Com., 175 Ky. 286, 160, 37 Sup. Ct. .30, 61 L. E. 222 (1916) 194 S. W. 367 (1917), quoting from this aff'g 81 N. J. L. 594, 80 Atl. 453, Ann. work; Re Kessler, 26 Idaho 764, 146 Cas. 1912D 237. 1 16 LAW OF AUTOMOBILES the driving of these machines over them, and is. properly based, not upon the value of the. machine, but upon the amount of the destruction caused by it." *® Hence, the registration fee may properly be based not only on the cost of inspection and regulation, but also on the cost of main- taining improved roads.*'' ,A statute requiring the payment of annual fees for the operation of automobiles on the public highways, the fees graduated accorjd- ing to the horsepower of the machines, is a charge in the nature of compensation for damages done to the roads of the state by, driving such machines over them, is properly based on the amount of de- struction done ,by them, , instead of on the value of the machines, and is not a property tax.** A statute which levied on, motpr; vehicles and motor-cycles an "annual privilege tax for the privilege of using tlje public roads," the revenue so derived to be devoted to improving the roads, was held not; to be a tax on property, and to be a proper exercise, of the, legislative power. In this respect the coxirt said: "This law does not impose tax on motor vehicles and motor-cycles as property, . nor is it a,t^x on the person for the ownership o,f the vehiclp, It is a tax on the privilege of using the vehicle upon the public roads. It is in the nature of a toll for the use of the highway. Not the, vehicle, but the privilege of using the vehicle, is taxed. The revenue from this, tax ;is to be used.ip the building and maintaining of public highways.. The Legislature, in enacting the law, decidpd that this was proper to be done. The Legislature has full power oyer the public roads, and can make all needfill regulations concerning the use thereof , and can provide means by which they may be improved and kept up. In the preseht act to provide such means it has declared the use of the road^ to be a privilege for which motor vehicles and motor-cycles', a class of vehicles accustomed to use the roads, must pa!y a tax. We know of no restricti&n upon the Legis- lature to prevent it from imposing the tax and adopting the method for raising funds to be expended in making good roads." 86 State V. Ingallg, 18 N. M. 211, .13'S 88 Kane v. Titus,> 81 .N. J. L, 594, 80 Pac. 1177 (1913). Atl. 4S3, Ann. Cas. 1912D 237 (1911), The charge is for a specific and bur- aff'd in 242 U. S. 160, 37 Sup. Ct. 30, densome use of the highways. Bozeman 61 L. ed. 222 (1916); Atkins v. State V. State, 7 Ala. App. 151., 60 So. 604, 63 Highway Dept., — Tex. Civ. App. — , So. 201 (1913). , 201 S. W. 226 (1918) ; State v. Lawrence, 87 Kane v. New Jersey, 242 U. S. 160, 108 Miss. 291,, 66 So. 745 (1914). 37 Sup. Ct. 30, 61. L. ed. 222 (1916), • aff'g 81 N.-J. L. 594, 80 Atl> 453, Ann. Cas. 1912D 237. STATE LICENSE LAWS 117 It was further held that, the tax being for the privilege of using the highways, the equaHty and uniformity clause of the constitu- tion was not applicable to the statute, which was, therefore, not void for lack of uniformity and equality according to the value of the property.*' There is no constitutional inhibition against the imposition of a license charge upon the privilege of operating automobiles upon the public highways, while such automobiles are at the same time sub- ject to an ad valorem tax, This, as will be inferred from a reading of the last preceding section, does not constitute double taxatipn,'" § 109. Double taxation. The imposition of a tax upon the use of 'automobiles on the public highways, in any reasonable amount, the proceeds to be applied to the cost of registration and enforce- ment of police regulations applicable to the vehicles so taxed, and to the upkeep of the public highways, is legal and will be enforced by the courts. It is when the money derived from a tax against such vehicles is directed by the statute imposing same to be placed in the general fund of the state, that a serious question arises as to its validity. When paid into the general fund the proceeds of such tax go to defray the general expenses of government, and if the automobiles are also taxed according to their assessed value, the question of double taxation arises. Here, then, is a tax which does not purport to be for the upkeep of the highways, and its charac- ter as a license fee is rendered doubtful by the fact that it is directed into the general revenue fund of the state. It does not follow as a matter of course that the tax is rendered invalid by the fact that it is paid into the general fund. The regulation of automobiles necessairily involves the expenditure of some money, and if the amount of the fee or tax is clearly no more than is required for this: 89 state V. Lawrence, 108 Miss. 291, 66 the purpose of raising revenue to pay So. 74S (1914). the interest on the bonds and pfovide 9* Ard V. People, — Colo. — , 182 Pac. a sinking fund for the redemption^ 892 (1919), citing this work; Re Schuler, thereof at maturity. No provision in the 167 Cal. 282, 139 Pac. 68S (1914) ; State Constitution can be found prohibiting the V. Ingalls, 18 N. M. 211, 13S Pac. 1177 Legislature from imposing such a licence. (1913). That it has the inherent power, in the To be objectionable as double taxation absence of constitutional inhibition, to the second tax must be imposed upon the impose such a tax directly, or to author- same property by the same state or gov- ize its imposition by a inunicipal corpo- ernment during the same taxing period. ration, either for the purpose , of raising State v. Ingalls, 18 N. M. 211, 13S Pac. revenue, or as a police regulation, is con- 1177 (1913). clusively established by the authorities." "The vehicle license imposed is ob- Lillard v. Melton, 103 S. C; IQ, 87 S.. E. viously a tax upon the right to use the 421 (1915). improved highways of the county for 118 LAW OF AUTOMOBILES purpose, it is thought that it is not invalid because paid into the general fund, the expense of regulating such vehicles being paid out of the same fund. If the amount so derived is clearly more than can be required for the purpose of regulation, the balance, being used to defray the general expenses of government, takes on the complexion of a genefal tax. Where the owner of an automobile, registered and licensed by the state, engages in a business necessitating additional police protec- tion and an increase in public expenditures, a license fee may be charged' for the privilege of employing the automobile in such busi- ness.®^ It has been held that a charge imposed by the Motor Vehicle Act of California, which requires that motor vehicles be registered,; and in registering shall pay a license fee or tax fixed under the terms of the act, and graduated in proportion to the horsepower of such vehicles, such tax going to provide a fund for the upkeep of public roads, is an excise or privilege tax, and not a tax imposed as a rental charge or a toll charge for the use of the highways, It was further hdd tha,t, in view of the constitutional provision of that state imposing ta,xes upon the operative property of public service corporations at specified percentages of their gross receipts, and declaring that such taxes shall "be in lieu of all other taxes and licenses, state, county and municipal" upon such property, a public service company, owning motor vehicles which it ijses in its busi- ness, is entitled to have the same registered under the Motor Vehi- cle Act without being required tO pay the fees or taxes provided therein.®* 1 The Legislature of South Dakota enacted a statute®' which im- posed an annual registration fee of $6 on all motor vehicles used upon the public highways of the state. This fee was to be paid to the county treasurer, who was required to forward twelve and a, half per cent, thereof to the Secretary of State, this amount being used to defray the expenses of registering and numbering the vehi- cle for the purpose of identification, while the remaining eighty- seven and a half per cent, was directed to be placed in the "county motor vehicle road fund" to, be expended only for the repair and maintenance of the public highways beyond the limits of cities and towns. It was conceded that the state could regulate the use of automobiles on the public highways, and exact a fee sufficient iii amount to cover the cost of registering and numbering said vehi- II 91 Applewold Borough V. bosch, 239 9S Pacific Gas & El. Co. v. Robe'rts, Pa. St. 479, 86 Atl. 1070, Ann. Cas. 1914D 168 Cal. 420, 143 Pac. 700 (1914). 481(1913). 9SS.D. Laws, 1913, c.' 276. \ STATE LICENSE LAWS 119 cles for the, purpose of identification, but it was contended that it had no right to collect a greater amount than necessary for such purpose. It was argued that, to the extent of the eighty-seven and a half per cent, of the fee, the statute was a revenue measure, and to that extent the Legislature had attempted to exceed its con- stitutional limitation; "that motor vehicles are assessed and taxed according to their value, the same as other personal property, and that the collection of the above sum amounts to double taxation, and is therefore in violation of the constitution." In upholding the validity of the statute, the court said: "Section 8 of the act in question provides that, upon the application for registration of a motor vehicle, $6 shall be paid to the county treasurer, but by section 3 no application need be made except for motor vehicles that are to be operated or driven upon the public highways of the state. From this, it is plain that the" amount involved is in no sense a property tax. It is not levied upon the vehicle itself nor upon its possession or ownership, but is collected only for the privilege of using such vehicle upon die public highway. Under this law, a man may own one, or any number of motor vehi- cles, but if their use or operation is confined to his own premises they will be subject to no license fee or tax other than a personal tax based upon assessment thereof." '* § 110. Statute as both police and revenue measure. A regu- latory measure may also be a revenue measure without being ob- jectionable on that account.®* The fact that a statute provides for the regulation of aut6mo- biles operated on the public highways and "for levying specific taxes upon such vehicles so operated and to provide for the disposi- tion of such funds and to exempt from all other taxation such motor vehicles so specifically taxed," etc., does not render it re- pugnant to a constitutional provision that "no law shall embrace more than one object;" the regulation and taxation being so blended as to have but a single purpose. However, the decision of such a question depends upon whether the tax imposed is a property tax or a privilege or excise tax. If the former, the law contains two objects; if the latter, it may be regarded as containing but one.'^ 9*,Re Hoffert, 34 S. D. 271, 148 N. W. New Jersey, 242 U. S. 160, 37 Sup. Ct. 20, 52 L. R. A. (N. S.) 949 (1914). 30, 61 L. ed. 222 (1916) affg 81 N. J. L. 85 Ex parte Smith, 26 Cal. App. 116, S94, 80 Atl. 4S3, Ann. Cas. 1912D 237. 146 Pac. 82 (1914) ; State v. Ingalls, 18 96 "An illustration of this may be N. M. 211, 135 Pac. 1177 (1913) ; Atkins found in the liquor law of 1887 (No. V. State Highway jDept., • — Tex. Civ. 313), which was an act providing for the App. — , 201 S. W. 226 (1918) ; Kane v. 'regulation and taxation' of the liquor 120 LAW OF AUTOMOBILES A law providing for the registration of motor vehicles before operating them upon the public highways, and requiring the own- ers to pay therefor a license, or registration fee, in excess of any amount needed for "policing purposes, has been held to be within the power of a state Legislature, the license, or fee, not being exacted upon the ownership of the vehicle, but upon the right to use it upon the public highways. In this connection it was held that, in matters of taxation the Legislature has plenary power, except as such power may be limited or restricted by the constitu- tion."^ If a statute is designated as a regulatory measiire and for the purpose of producing revenue, it must so designate both purposes in the title. If it is not objectionable as embracing more than one object, it is not then objectionable on account of failure of the title to express its object. A statute of Michigan entitled, "An act to amend sections two, four, five, fifteen and eighteen of act, num- ber 318 of the Public Acts of 1909, entitled 'An act providing for the registration, identification and regulation of motor vehicles operated upon the public highways of this state, and of the opera- tors of such vehicles,' " could not legally contain revenue provisions, because its title indicated that it was solely, for the purpose of regu- lation — a police measure. So, where such statute imposed annual fees of fifty cents a horsepower on all motor vehicles, a sum far in excess of any amount required as a police measure, such pror traffic. The title to that act was assailed hides in stock owned by manufacturers, on the same ground as the present one, except those vehicles licensed to go upon but this court approved it in Robison v. the highway, shall be subject to the per- Miner, 68 Mich. S49, 37 N. W. 21. A sonal property tax. The act provides for careful study of the various provisions no exemption from the payment of this of the act persuades us that a privilege tax, even though the owner has thereto- tax was intended rather than a property ' fore paid a property tax on his motoi" tax. The tax is not imposed upon the vehicle. This and other like considera- property, but upon the privilege of oper- tions tend to characterize the act as one ating a motor vehicle upon the highway. imposing a tax for the privilege of oper- That it was not intended by the Legis- ating motor vehicles upon the public latiire to impose a property tax is evi- highways of the state. In view of the^f; dehced in part by the fact that one may considerations we are of the opinion own one or more motor vehicles and that the tax imposed is a privilege tax have them in his possession, and they and is one of the regulatory features, of will not be subject to the provisions of the act. This being so the objection that the act, unless he chooses to operate them the title gives notice of two distinct ob- upon the highway. And a person who is jects is without force." Jasnowski v. not the owner of a motor vehicle is liable Dilworth, 191 Mich. 287, 1S7 N. W. 891 for the tax if he operates one upon the (1916). highway for a period greater than 30 ^ Re Kessler, 26 Idaho 764^ 146 Pac. days. The act provides that motor ve- 113 (191S). STATE LICENSE LAWS 121 Migipns; were ^Iso intended to produce revenue, which the statute provided should be expended in maintaining the pubhc highways, and was invalid. In respect to the statute in question, the court, in declaring it in,valid, said: "The act we are considering provides for no polic- ing or police regulation. The expense of operating the department, including the furnishing of the lists of owners to the county clerks, will be so inconsiderable, compared with the amount collected, that we must take judicial notice that the great amount of surplus (probably more than half a million dollars) renders the imposition of the license fee or tax so wholly and palpably unreasonable as to invalidate the law as a license measure, and to stamp upon it the intention of imposing a tax instead of a license. The clear pur- pose of the Legislature in exacting so large an amount from the owners of automobiles was to produce a fund for highway purposes under the guise of regulation, which makes it a tax measure which clearly is not covered by the title of the act." '* A Florida statute entitled, "An act to license automobiles and other motor driven vehicles using the public roads or highways in the state of Florida either for hire or otherwise," was held to properly impose a license tax on such vehicles.'® § 111. License tax as to persons in interstate commerce. The fact that a statute requiring the payment of annual fees for the operation of automobiles on the public highways, the fees grad- uated according to horsepower, applies to nonresidents traveling in interstate journeys, does not render the same invalid. While it affects interstate commerce, it does so indirectly, and state laws may do this without being obnoxious to the commerce provision of the Federal constitution. And it is immaterial whether the inter- state traveler has merely driven into the state or is driving through it.i A state may do this because, having expended moneys, either itself or by the agencies created by it, in increasing the facility with which commerce, either interstate on intrastate, may be car- ried on, it is entitled to charge a fair remuneration for the outlay made by it, and for the maintenance of the public work which it has constructed.'^ 98Vernor v. Secretary of State, 179 aff'g 81 N. J. L. 594, 80 Atl. 453, Ann. Mich. 157, 146 N. W. 338 (1914). Cas. 1912D 237,, 99 Jackson v. Neff, 64 Fla. 326, 60 So. 2 Kane v. Titus, 81 N. J. L. 594, 80 350(1912).' Atl. 453, Ann. Cas. 1912D 237 (1911), 1 Kane v. New Jersey, 242 U. S. 160, aff'd in 242 U. S. 160, 37 Sup. Ct. 30, 37 Sup. Ct. 30, 61 L. ed. 222 (1916), 61 L. ed. 222 (1916). 122 1 LAW OF AUTOMOBILES A very ordinary example of the exercise of this pbwer is the con- struction of public roads known as "turnpikes" by agencies created by, the state, for the use of which tolls are permitted to be charged to persons using the same. Such roads are open to the use of every person desiring to travel upon them upon payment of the tolls authorized to be charged, and it has proba:bly never been contended, and certainly could not be with merit, that a team and wagon bringing merchandise from another state is entitled to the use of thesfe improved highways, without the payment of the required toll, because engaged in interstate commerce.* § 112. Local or speciallaw. The fact that a statute regulat- ing and licerising automobiles directs that the fees derived, there- from shall be held as a special fund for the permanent improve- ment of the highways of the state, does not make of; it a local or special law "for the laying out, opening, altering, and workijig roads or highways," as prohibited by constitutional provision.* A statpte providing for' the registration and licensing of motor vehicles, and, imposing a privilege tax thereon, is not open to attack as being , "local" or "special" because it provides for the expenditure of nearly all the proceeds derived therefrom on public highways' outside of cities and towns; the privilege of using these highways being open alike; to all owners of automobiles.* § 113. Classification for purpose of license or tax. A stat- ute regulating the use of automobiles on the public highways and imposing an annual license tax on such vehicles for the use of the public highways, but excepting from its operation "motor trucks, motor drays, motor delivery wagons, traction engines, road rollets, fire wagons and engines, police patrol wagons, ambulances, and such vehicles as run only upon - rails or tracks" ^ has been upheld against the contention that the classification of vehicles made by it was discriminatory and illegal. The statute provided that eighty- seven and a half per cent, of the fee should be placed in the "county motor vehicle road fund" and be expended only for the repair and maintenance of the public highways beyond the limits of cities and towns. In respect to this classification the court said: "Nor does the classification of self-driven vehicles provided by 8 Kane v. Titus, 81 N. J. L. S94, 80 5 Re Schuler, 167 Cal. 282, 139 Pac. Atl. 453, Ann. Cas. 1912D 237 (1911), 68S (1914). aff'd in 242 U. S. 160, 37 Sup. Ct. 30, 61 6 is. D. Comp. Laws, 1913, c. 276, § 2. L. ed. 222 (1916). 4 People V. Sargent, 2S4 III. S14, 98 N. E. 959 (1912). STATE LICENSE LAWS 123 the terms of said law amount to an- unlawful discrimination. The law creates two classes of self-driven vehicles, one of which is com- posed of motor trucks, motor drays, motor delivery wagons, traction engines, motor rollers, fire engines, police patrol wagons, ambu- lances, and such vehicles as run only upon rails or tracks, while the other class includes all other vehicles not propelled by muscular power. This latter class includes all those motor- vehicles commonly known as automobiles, and are used for the conveyance of persons largely over the public highways, beyond the confines of incorpor- ated cities and towns, while the vehicles comprising the former class are used largely for various trade and commercial purposes within the limits of cities or towns. In other words, the one class, for the use of which the license fee is collected, uses, to a great extent, the roads and bridges that are built and maintained at the expense of the county, while the other class is confined largely to the use (jf roads and streets that are built, owned, and maintained by the vari- ous municipalities. Thus self-driven vehicles are classified according to the use to which they are put rather than according to the mearis by which they are propelled. This classification is clearly within the legislative power, and, so long as there is no partiality within the classes, no unlawful discrimination is shown." ' A privilege tax may be imposed on pleasure automobiles with- out so taxing business machines.* The imposition of 2 5 cents a horsepower and 2 S cents a hundred- weight on all automobiles of individual owners, and a flat rate of $10 each on all automobiles of manufacturers, this latter rate not including automobiles of manufacturers kept for private use or for hire, was not objectionable as class legislation.' § 114. Classification according to horsepower. Classification of automobiles according to horsepower for the purpose of fixing the amount of the registration or' license fee is a reasonable and 7 Re Hoffert, 34 S. D. 271, 148 N. W. way. This difference ill ownership and 20, 52 L.. R. A. (N. S.) 949 (1914). See use of the motor vehicle constitutes a rea- ante, §43. sonable distinction, which will support SOgilvie V. Hailey, 141 Tenn. 392, 210 the classication which the Legislature has S. W. 64S (1919). seen fit to make. It will be observed that ^"The cardinal purpose of the manu- all persons in a given class, are treated facturer is to manufacture and sell motor alike. When this is accomplished the con- vehicles. In accomplishing this purpose stitutional mandate with reference to uni- they are incidentally used on the high- formity is satisfied." Jasnowski v. Dil- way. The chief object of the individual worth, 191 Mich. 287, 157 N. W. 891 in, owning a motor vehicle is to use it (1916). for business or pleasure upon the high- 124 LAW OF AUTOMOBILES proper mode of classification; ^^ and a statute fixing the amount of the fee according to the horsepower of the vehicle, and not accord- ing to its value, is not invalid on that account, as the fee, in excess of the ahfiount required for registration, etc., is a privilege tax charged in the nature of compensation for the damage done the roads of the state, and is properly based upon the amount of destruction caused by it. Classification according to horsepower is not violative of the "due process" clause of the constitution because it results in the imposition of a greater tax on one auto- mobile than on another, for an automobile of high power is generally heavier and more destructive to roads than one of low power. Nor does a statute violate such clause because it provides for the deter- mination of the horsepower of automobiles by the state depart- ment of engineering, where the owners are given the right to present their case to that department.^^ The apportionment on a basis of horsepower has a direct and natural relation to the privilege granted, the use of the highway, and since the license relates to all persons in a class, and operates uniformly upon all therein, there is no urilawful discrimination.^* § 115. Annual lump sum tax. The charging of an annual lump sum for the use. of its highways by automobiles, instead of a mileage fee, is clearly a matter within the discretion of the state. No constitutional objection lies in the way of a legislatiye body pre- scribing any mode of measurement to determine the amount it will charge for the privilege it bestows. The only limit upon its power is that the amount shall not be unrfeasonable. Instead of charging a mileage fee, or toll, to be regulated by liie distance traveled, it was held valid to regulate the annual charge according to horsepower, as follows: Automobiles of 10 horsepower^ or less, $3; between 10 and 30 horsepower, $5; and more than 30 horsepower, $10.*^ § 116. Exempting automobiles from taxation. Under a constitutional provision that the Ltegislatiire may allow exemptions from taxation as shall seem necessary and just, the Legislature has power to exempt motor vehicles from taxation.^* lOHendrick v. Maryland, 235 U. S. 12 Lillard v. Melton, 103 S. C. 10, 87 ■610, 35 Sup. Ct. 140, 59 L. ed. 385 S. E. 421 (1915). (1915); Kane v. New Jersey, 242 U. S. 18 Kane v. Titus, 81 N. J. L. 594, 80 160, 37 Sup. Ct. 30, 61 L. ed. 222 (1916) Atl. 453, Ann. Cas. 19J.2D, 237 (1911), aff'g 81 N. J. L. 594; 80 Atl. 453, Ann. aff'd in 242 U. S. 160," 37 Sup. Ct. 30, Cas. 1912D 237. 61 L. ed. 222 (1916). < 11 Re Schuler, 167 Cal. 282, 139 Pac. l*Achenbach v. Kincaid, 25 Idaho 76S, 685(1914). 140 Pac. 529 (1914). STATE LICENSE LAWS 125 Under a constitutional provision that, "The Legislature shall hot enact any law which will permit any person, firm, corporation, or association to pay, a privilege, license, or other tax to the state,,and relieve him or it fronj the payment of all other privilege and license taxes in the state," it has been held that the Legislature may enact a statute imposing a license fee upon automobiles, \vhich "shall jje in lieu of all other privilege license which the state or any county or municipality thereof might impose," but which provided for the apportionment of the revenue so derived between the state and the county or municipality from which it is derived." A statute regulating the operation of automobiles on the high- ways and imposing a privilege tax thereon was held to properly exempt such automobiles from all other taxation." § 117. County license— Necessary in every county. A license cannot be of any force or effect outside of the jurisdiction of the officer who issues it. If issued by a state officer, unless expressly limited in its application, it is effective throughout the state, but when issued by a city officer it affords no protection beyond the corporate limits of the city. Thus, where a state law required every person desiring to operate an automobile' to "obtain a license from the license commissioner, if in a city having such commissioner, or if desired^ to operate the same in any county put- side the corporate limits of any such city, or any of the public highways, streets or, roads of this state, shall obtain a license from the county clerk of such county," it was held that an owner or operator of an automobile must take out a license in every county over whose roads he may desire to run his machine.^'' § 118. False representations in application for license. The fact that an applicant for license to operate an automobile conceals the fact that he is crippled, or suffers from some serious physical infirmity, does not have the effect of i-endering the license invalid, ISBozeman v. State, 7 Ala. App. 151, tax should be in lieu of, or in addition to, 61 So. 604, 63 So. 201 (1913). all other forms of taxation, was one 16 "It may well be assumed that the which appealed to the discretion of the Legislature gave heed to the growing de- Legislature. Having exercised that dis- mand among the people of the state for cretion, it is not for the courts to declare imprflved highways and concluded that that it did not execute it wisely or the motor vehicles, which are largely re- justly." Jasnowski v. Dilworth, 191 sponsible for that demand, should bear Mich. 287, 157 N. W. 891 (1916). the expense of the betterments, and ac- l' State v. Cobb, 113 Mo. App. 156, cordingly imposed this form of contri- 160, 87 S. W. 551., bution. The question as to whether this 126 LAW OF AUTOMOBILES although failure to make such disclosure as required may justify the revocation of the license.^* § 119. Mandamus to compel issuance of license. Where the law allows the licensing officer no discretion, but provides for the issuance of a license upon the applicant complying with all the provisions of the law relating thereto, the officer may be compelled by mandamus to issue the license.^' But the applicant must have complied with the law in every particular to be entitled to a writ of mandamus, because the Vrit will be issued only where there is a clear legal right, and until he has complied with the law he has no right to a license.*" The writ will not be granted if the law places the issuance of the license within the discretion of the license officer.*^ Nor will it be granted unless there has been a clear violation of a legal duty.** . It has been held that where one has complied with a statute qr ordinance providing for the licensing of a business or occupation, he will be protected in carrying on such business or occupation, though the license, through no fault of his, has npt been issued. This is on the theory that the law itself is the authority to carry on the business or occupation,, the license certificate being only evi- dence of the license.*' § 120. Verified copy of application for license as evidence. If applications for automobile licenses are required by law to be kept by a public officer, a copy thereof, properly certified by such officer, is competent evidence in any court. This is true, although the application was not made out as required by law, and was not verified.** 18 0'Hare v. Gloag, 221 Mass. 24, 108 Hun 45S, 12 N. Y. Supp. 879; State v. N. E. 566 (1915). Hagood, 30 S. Q. S19, 9 S. E. 686, 3 L. 19 People V. Busse, 231 111. 251, 255, R. A. 841; Williams v. Dental Exami- 83 N. E. 175; State ex rel. v. Turner, 210 ners, 93 Tenn. (9 Pickle) 619, 27 S. W. Mo. 77, 107 S. W. 1064; St. Louis v. 1019. Meyrose Lamp Mfg. Co., 139 Mo. 560, 22 Perkins v. York, 118 Me. 488, 106 41 S. W. 244; State ex rel. v. Ruark, 34 Atl. 17 (1919). Mo. App. 325, 332 ; People v. Metz, 123 2* Prather v. People, 85 III. 36 ; Zanone App. Div. 269, 107 N. Y. Supp. 970; v. Mound City, 11 111. App. 334, 339; People V. Perry, 13 Barb. (N. Y.) 206. Fossett v. Rock Island L. & M. Co., 76 20>State ex rel. v. Mcintosh, 205 Mo. Kan. 428, 431, 92 Pac. 833. 589, 610, 103 S. W. 1078; Rosenkrani v. But see contra. Phoenix Carpet Co. v. State Board, — R. I. — (1907), 67 Atl. State, 118 Ala. 143, 22 So. 627, 72 Am. 367. St. Rep. 143. 21 Harrison v. People, 101 III. App. 224; 24 Windham v. Newton, — Ala. — , 76 People V. Wurster, 14 App. Div. 556, 43 So. 24 (1917). N. Y. Supp. 1088; People v. Grant, 58 CHAPTER VI MXINICIPAL OR LOCAL LICENSE LAWS § 121. Power of municipal corporation to impose license. §122. Construction of power to license and tax. § 123. Distinction between power to li- cense and power to tax. § 124. Power to license does not imply power to tax. § 12S. Power to regulate includes power to license. ' § 126. Power to license and regulate im- plies power to charge license fee. § 127. Amount of license fee. § 128. Same — Illustrations. § 129. Same— All licenses expiring at same time. § 130. Power to license or regulate does not imply power to prohibit. § 131. Licensee fee not a tax on automo- biles. § 132. License from both state and city. § 133. Exempting automobiles from mu- nicipal license and tax. § 134. Uniform I'ate of taxation. § 135. Classification of subjects of license. § 136. Unreasonable searches and seizures. § 137. Scope of phrase "Transporting persons or property.'' § 121. Power of municipal corporation to impose license. A municipal corporation has no inherent power to license occupations or callings, or to exact a license fee from any person.^ It must derive all its authority in this regard from the state, and the power must come by direct grant and cannot be taken by implication.^ Aside from any constitutional inhibition the Legislature may delegate to a municipal corpoiration the powpr to license vehicles, businesses and occupations, and to require the payment of a , fee therefor.' 1 Chicago V. Banker, 112 III. App. 94, 97; Matthews v. Jensen, 21 Utah 207, 61 Pac. 303. 2Cooley, Taxation, 1138; Matthews v. Jensen, 21 Utah 207, 61 Pac. 303. ^Arkansas: Little Rock v. Prather, 46 Ark. 471. Kentucky: Com. v. Pearl- Laundry Co., lOS Ky. 259, 263, 20 Ky. L. Rep. . 1172, 49 S. W. 26. Massachusetts: Boston v. Schaffer, 9 Pick. 415, 419. Minnesota: Moore v. Minneapolis, 43 Minn. 418, 45 N. W. 719. Missouri: American Union Express Co. V. St. Joseph, 66 Mo. 675, 680, 27 Am. Rep. 582. North Carolina: State v. Irvin, 126 N. C. 989, 35 S. E. 430. Pennsylvania: Butler's Appeal, 73 Pa. St. 448, 451. Virginia.: Gordon Brothers v. New- port News, 102 Va. 649, 47 S. E. 828. Washington: Fleetwood v. Read, 21 Wash. 547, 58 Pac. 665, 47 L. R., A. 205. 127 128 LAW OF AUTOMOBILES "The power of the state to authorize the license of all classes of trades and employments cannot be doubted. And there is just as little doubt of the power to delegate this right to municipalities, either for the purpose of revenue, or that of regulation." * The Legislature may empower; municipalities to impose a license or license tax on owners of vehicles for using the same on the public streets,* and it may authorize a license fee to be imposed on auto- mobiles solely for revenue purposes.' § 122. Construction of power to license and tax. The power of a municipal corporation to license a business or occupation, or exact a license fee from any person, must be expressly granted by its charter, or it must be a necessary incident to the carrying out of a power so granted.^ The authority of a municipal corpora- tion generally to impose a tax or exact a license must be strictly construed.* And, likevyise, the power to impose a license tax on automobiles for the purpose of raising revenue for the maintenance and repair of the streets is to be strictly construed.' And where a city's charter enumerates certain powers it is to be, construed as excluding all others.^" A grant of power, made before automobiles were known, to a municipal corporation to require the proprietors of "hacks, cabs, omnibuses and other vehicles for transporting passengers for hire" to pay an annual license, was held not to include the automqljile. It was said in that case that automobiles were unknown to, and *Vaii llook V. Selma, 70 Ala. 361, 363, Ohio: Marmet v. State, 45 Ohio St. 45 Am. Rep. 85. ' ' " 63, 12 n! E. 463. _ ^Arkansas: Pine Bluff Tr. Co. v. Pennsylvania: Bennett v. Birming- Nichol, — ArJt. — , 215 S. W. S79 (1919). ham, 31 Pa. St. IS;- Chess v. Birming- lllitiiois: Gartside y. East St. |Louis, ham, 1 Grant Cas. 438. 43 111. 47. 6 Harder's Storage Co. v. Chicago, 235 Indiana: Terre Haute v. Kersey, 159 111. 58, 85 N. E. 245. Ind. 300, 310, 64 N. E. 469; Tomlinson 7 Chicago v. Banker, 112 111. App. 94, V. Indianapolis, 144 Ind. 142, 36 L. R. A. 97. 413. 8 Kiel V. Chicago, 176 111. 137; Chicago Kentucky: Smith v. Louisville, 9 Ky. v. Banker, 112 111. App. 94, 97; Decam- L. Rep. 779, 6 S. W., 911. bre v. Clere, 34 La. Ann. 1050; Com. v. Massachusetts: Com. v. Theberge, Stodder, 2 Cush. (Mass.) 562; Matthews 231 Mass. 386, 121 N. E. 30 (1918). „. Jensen, 21 Utah 207, 218, 61 Pac. 303. Minnesota: Park v. Duluth, 134 9 Terre Haute v. Kersey, 159 Ind. 36o, Minn. 296, 159 N. W, 627 (1916). 307, 64 N. E. 469. Misso-uri: St. Louis v. Green, 7 Mo. 10 Chicago v. Banker, 112 111. App. 94, App. 468, 70 Mo. 562. 98; Kiel v. Chicago, 176 III. 137. Nev) Jersey: State v. Mayor, 58 N. J. L. 604, 33 Atl. 850; Haynes v. Cape May, 52 N. J. L. 180. MUNICIPAL OR LOCAL LICENSE LAWS 129 certainly- not within the contemplation, of the, auliiors of the act at the time of its passage. The terms "other vehicles,'' mentioned in the act, were manifestly intended to embrace only such other vehicles as were ejusdem generis.. It was not intended to include every conceivable vehicle that might thereafter be invented and brought into use." i , . >; Under power to "regulate the use of coaches, hacks, drays, and other vehicles for the transportation of passengers, freight," etc., within, the city for hire; "to levy and collect a specific tax on omni- buses, or other carriages and other vehicles used and run fpr, pas- sengers for hire, unless the same be licensed;" and "to, license, tax and regulate vdiicles;" and under power of exclusive control of its streets, a city was held to be empowered to impose a license tax on automobiles for the use of its streets, including private vehicles, f br the purpose of creating a revenue for the maintenance and repair of its streets.^^ A grant of power "to regulate and license all cars, wagons, drays, coaches, omnibuses, and every description of carriages," was held to authorize a city to inipose a license fee on all automobiles operat- ing on its streets. The phrase "every description of carriages" was said to include automobiles, although they were unknown at the time of the passage of the law.^' , | Power to regulate and license the use of the streets by persons who use vehicles fJiereon, includes power to impose a license on automobiles used in the streets.^* The defendant borough passed an ordinance making it unlawful to make use of any motoi: vehicle within the borough for the trans- portation of passeiigers for compensation without being first licensed as provided by the ordinance. The Motor Vehicle Act of the state ^* provides that no owner, purchaser, or driver of a motor vehicle who shall have complied with the requirements of the act shall be required to obtain any otlier license, or permit, to use or operate the same, or be limited in the free use thereof, or limited as to speed upon any public street or other ptiblic place when the same is open to the use of persons having carriages, or 11 Washington Electric Vehicle Transp. Rep. (U. S.) 369; Sewall v. Jones,, 9 Pick. Co. V. District of Columbia, 19 App- (Mass.) 412. D. C. 462. 12 Terre Haute V. Kersey, 1S9 Ind. 300, Duties are never imposed upon citizens 307,. 312, 64 N. E. 469. upon doubtiul interpretation, for every 13 Com. v. Hawkins, 14 Pa. Dist. 5^2. duty imposes a burden upon the public i* Mobile v. ,Gentry, 170 Ala. 234, ,54 at large, and is construed strictly. Adams So. 488 (1911),. ,; V. Bancroft, 3 Sumn. (U. S.) 384, 387; 15 3 N. J. Comp. St. 1910, p.'343S, § 22. United States v. Wigglesworth, 2 Story ,, ^ B. Autos.— 9 130 LAW OF AUTOMOBILES be required to comply with other provisions or conditions as * to the use of the motor vehicle except as provided in the act. The act also provides that no municipality shall have power to make any ordinance, by-laws, or resolution limiting or restricting, the use of speed of motor vehicles, and no such ordinance, by-law, or resolu- ton in respect to or limiting the use or speed of motor vehicles shall have any force, effect, or validity. It was held that the object of the Motor Vehicle Act was to secure the right of the road to auto- mobile travel free from interference by conflicting regulations of municipalities through which they might run, but that it was not intended to prevent municipalities from regulating the conduct of business by means of licenses in the long accustomed way; which right was not taken from defendant by the act in qpestion.^* § 123. Distinction between power to license and power to tax. The power to license and the power to impose a tax on automobiles are essentially different and distinct. They may be unitedly exercised, if such appears to be the legislative will, but between them there is no necessary or legal connection.^'' The power to tax is for the purpose of raising revenue, while the power to license is granted for the purpose of regulation, or as an incident or means thereto.*' The distinction between the power to license, as a means of regulation, and the same power when conferred for revenue pur- poses, is of the utmost importance, for if the power be granted with a view to revenue, the amount of the tax, if not limited by the charter, is left to the discretion and judgment of the municipal authorities; but if it is given as a police power for regulation merely, a much narrower construction is adopted; the power must then be exercised as a means of regulation, and cannot be used as a s5urce of revenue." And where a power to license is given a municipal corporation the presumption is that it is for the pur- pose of regulation merely, unless there is something in the grant, or the circumstances attending, which indicates that it was made for the purpose of revenue. ''" 16 Morristown-Madison Auto Bus Co. 19 Dunn v. Hoboken, 85 N. J. L. '79; V. Madison, 8S N. J. L. 59, 88 Atl. 829 North Hudson Co. R. Co. v. Hoboken, (1913). 41 N. J. L. 71,' 81; Muskogee v. Wilkins, " Muhlenbrinck v. Long Branch — Okla. —, 175 Pac. 497 (1918). Com'rs, 42 N. J. L. 364, 367; Freeholders 20Bassette v. People, 193 111. 334, 342, V. Barber, 7 N. J. L. (2 Halst.) 64, 67. 62 N. E. 215, 56 L. R. A. 558; St. Louis 18 East St. Louis v. Wehrung, 46 111. v. Boatmen's Insurance & Trust Co., 47 392; People v. Herod, 29 la. 123; Frank- Mo. 150; Mulcahy v. Newark, 57 N. J. ford etc. R. Co. v. Philadelphia, 58 Pa. L. 513, 515. St. 119. MUNICIPAL OR LOCAL LICENSE LAWS 131 § 124. Power to license does not imply power to tax. It is well established that a grant of power to a municipal corporation to license a business, occupation or calling does not include the power to impose a tax.*^ Tlje power to license automobiles and to require a fee therefor is a police power, and it does not give the power to tax for revenue purpose?.^* It is said that the power to license, if granted as a police power, must be exercised as a means of regulation only, and cannot be used as a source of revenue.^' ^ That a legislative grant was intended to confer the power tp license automobiles for revenue may be deduced from the legislative declaration that the amount of the license fee shall be at the dis- cretion of the municipality, or that the proceeds of licenses shall be appropriated to municipal uses beyond the expenses of licensing and regulating the automobiles.^* The fact that automobiles are taxed uhder a statute which exiempts them from further taxation, does not deprive a city of the power, otherwise possessed, to regulate and license their use in a particular business.^® Under power to grant licenses for any lawful purpose and to fix the amount to be paid therefor, a city may license vehicles operated for hire, for the purpose of revenue as well as for regu- lation.*^® , 21 /oiaa; Burlington v. Putnam Ins. not imply a rigiit to charge a licetise fee Co: 31 la. 102, 105; Ottumwa v. Zekind, therefor with a view to revenue, unless 9S la. 622, 626, 64 N. W. 646, 29 L. R. A. such seems to be the manifest purpose of 734, S8 Am. St. Rep. 447 ; State v. Smith, the power." Van Hook v. Selma, 70 Ala. 3ria. 493. 361, 364,' 45 Am. Rep. 85. Kentucky: Adams Express Co. v. 22Decambre v. Clere, 34 La. Ann. Owensboro, 8S Ky. 265. 1050; State v. Bean, 91 N. C. 554, 560; Louisiana: Decambre v. Clere, 34 La. Ex parte Mayes, — Okl. — , 167 Pac. 749 Ann. 1050. (1917) ; Hoefling v. San Antonio, 85 Tex. Maryland: State v. Rowe, 72 Md. 228, 232. 548, 553, 20 Atl. 179 ; Vansant v. Harlem 23 Van Hook v. Selma, .70 Ala. 361, 363, Stage Co., 59 Md. 330, 335. 45 Am. Rep. 85; North Hudson Co. R. Missouri: ' St. Louis v. Boatmen's In- Co. v. Hoboken, 41 N. J. L. 71, 78; State surance & Trust Co., 47 Mo. 150. v. Bean, 91 N. C. 554. New Jersey: Mulcahy v. Newark, 57 24 Adams Express Co. v. Owensboro, N. J. L. 513, SIS; State v. Hoboken, 33 85 Ky. 265; Boston v. Schaffer, 9 Pick. N. J. L. 280. (Mass.) 415, 419; Chilvers v. people, 11 North Carolina: State v. Bean, 91 N. Mich. 43; Mulcahy v. Newark, 57 N. J. C. 554, 560; Commissioners v. Means, 7 L. 513, 515. ' Ired. 406. 26 state v. Jarvis, 89 Vt. 239, 95 Atl. Utah: Matthews v. Jensen, 21 Utah 541 (1915). 207, 218, 61 Pac. 303. 26 Seattle v. King, 74 Wash. 277, 133 "A right to license an employment does Pac. 442 (1913). 132 LAW OF AUTOMOBILES §125. Power to regulate includes power to license. Accord- ing to the weight of authority, a legislative grant of power to a municipal' corporation to regulate a business or calling carries with it authority to license, as a convenient and proper means to that end.^''' On the contrary, it has been held that to license and to regulate do not require the exercise of the same power, and the same objects are not attained by the acts authorized; and this leads to the con- clusion that the first cannot be exercised under authority to do the last.^* Thus charter power to regulate the use of streets and the speed of vehicles within the city limits does not autJiorize a miinitipal corporation to require a license and exact a license fee of automobile owners before using the streets.®' , The reasoning in these latter cases is erroneous. 'It would be correct if the only purpose of a license were to raise revenue,, but such is not the case, ^o license as a means of regulation requires the exercise of one and the same power, and only one object is sought to be attained, and that is the regulation and control of the subject of the license. - § 126. Power to license and regulate implies power to charge license fee. A grant of power to a municipality to license auto- mobiles carries with it the authority to require the payment, of a reasonable fee therefor.*" The fee should be sufficient only to compensate the corporation for issuing the license, and for ' the carfe exercised by tihe city, ufader its police authority, over the ^"^ Arkansas:. Ft.. Smith v. lAyers, 43 28 Burlington v. .Baumgardnef J 42 ' la. Ark. 82, ! 83; Russellville v. White, 41 673. ;. ! - .. - Ark. 485. 29 Chicago V. Banker, 112 III. App. 94. Illinois: Chicago' Packing & Prpvision Seei.also, Chicago v. Collins, 17S 111.445, Co. V. Chicago,' 88 111. 221, 225. 51 N. E. 907, 49 L. R. A. 408; Dackwall Maryland: State v. Rowe, 72 ■ Md. v. New Albany, ;2S Ind. 283. >i 548, SS3, 20 Atl. 179; Vansantv. Harlem ^0, Connecticut: Welch v. HotchkisS, Stage Co., 59 Md. 330, 335. 39 Conn. 140, 143, 12 Am. Rep. 383. Michigan: People v. Schneider, 139 Iowa: Burlington v.: Putnam Ins. Co., Mich. 673, 103 N. W. 172, 69 L. R. A. 31 la. 102, 105; State v. Herod, 29 la. 345, 12 Detroit Leg. N. 32. 123, 125. il/JMWejoto; - St. Paul V. Dow, 37 Minn. Maryland: State v. Rowe, 72 Md-T 20, 22, 32 N. W. 860, 5 Am. St. Rep. 811. 548, 553, 20 Atl. 179. 'New Jersey: Muhlenbrinck v. Long Massachusetts: Boston V. Schaffer; 9 Branch Com'rs, 42 N. J. L. 364, 367. Pick. 415. But see, North Hudson iCo. R. Co. v. New Jersey: Margolies v. Atlantic Hoboken, 41 N. J. L. 71. City, 67 N. J. L. 82, SO Atl. 367. Federal: Laundry License Case, 22 Ohio: Cincinnati Gas L. & C. Co. v. Fed. 701.' State, 18 Ohio St. 237. MUNICIPAL -OR LOCAL LICENSE LAWS 133 automobiles licensed.'^ Anything in eiddition to this would amount to a tax for revenue, and is not authorized by such a grant of power.'^ § 127. Amount of license fee. Automobile licenses are a part of the police regulations of i a municipal corporation and should be charged for only to such an extent as will compensate the corpora- tion for issuing the license certificates and regulating the automo- biles.^' If an automobile license fee is so large as to have been manifestly imposed for the sole or main purpose of revenue it is, in effect, a tax on the automobile and cannot be imposed by a municipal corporation under a grant of power to regulate and license automobiles.'* What is a reasonable fee depends upon the circumstances of the particular case: the cost of issuing the license certificate, registering, supervising, and keeping in control the sub- ject of the license!'^ A license fee of seven dollars and fifty cents a year on each vehicle used in the transportation of goods and merchandise in a citjr was declare'(| to be reasonable.*® Five dollars for each license issued, was held to be reasonable.''' ' The question of determining the amount of the license fee is for the legislative body of the municipal corporation, and when once Sl'Ottu'mwa V. Zekind, 95 la. 622, 626, Missouri: Springfield v^ Jacobs, 101 64 N.-W. 646, 29 L. R. A. 734, S8 Am. Mo. App. 339, 73 S. W. 1097. St. FLep.,447; St. Lo|uis. v. Boatmpn's In- New Hampshire: State v. Angelo, 71 sura^ce,& T^ustCo., 47 Mo. ISO; Ma^T, N. H. 224, ?28,.S1 Atl. 90S., -■, golies V. Atlantic City, 67 N. J. L. 82, SO iVero yprk: State v. Jarvis, 19 App, Atl. 367; Cincinnati G^s t. & C Co. v. Div. 466, 46 N. Y.'Supp. S96. State, '18 Ohio St. 237. • ' ' North Carolina: State v. Moore, 11:^ 32Bassette v. People, 193 111. 334, 343, N. C. 697, 18 S. E. 342, 22 L. R. A. 472. 62, N. E. 21S, S6 L. R. A. 5S8. ,.Qhio:_ Cincinnati v. Bryson, IS, Ohio " 83 lienderson v'. Lockett, 15?" Ky. 366, '62S,'"64S, 4S Am! Dec.' S93. 163' S. W. 199 (1914); Ottumwa v. Ze- Oklahoma: Muskogee v. Wilkins, — kindj 9S la. 622, 626, 64 N. W. 646, 29 Okla. — , 175 Pac. 497 (1918). L. R. A, 734, 58 Am. St. Rep. ,447; Bur- .Federal: American Fertilizmg Co. v. Ungton V. Putnam Ins. Co., 31 la. 102, Board of Agiriculture, 43 Fed. 609, 11 lOS; St. Louis v. Boatmen's Insurance & L. R. A. 179; Philadelphia v. Western Trust Co., 47 Mo.' ISO. • Union Tel. Co., 40 Fed. 615. ^^ArkdnsUs.: Ft. Smith vi AyeK, 43 35 Henderson v. Lockett, 157 Ky. 366, Ark. 82. 163 S. W. 199 (1914). ' Iowa: Ottumwa V. Zekind, 9S la. 622, 36Kentz v. Mobile, 120 Ala. 623,- 24 64 N. W. 646, 29 L. R. A. 734, 58 Am. So.'952. St. Rep. '447. i. 37Com. V. Slocum, 230 Mass. 180, 119 Minnesota: State v. Finch, 78 Minn. N. E. 687 (1918). • 118, 80 N. W. 856, 46 L. R. A. 437. Mississippi: Jackson v. Newman, 59 Miss. 385, 42 Am. Rep. 367. 134 LAW OF AUTOMOBILES fixed by that body it is presumed to be reasonable unless the con- trary appears from the ordinance itself, or is shown by proper evi- dence to the court.** § 128. Same— Illustrations. Where an ordinance required the payment of forty dollars a year for a license for hack driving it was said that it could not be sustained as an exercise of the police power.*' An ordinance which required owners of omnibuses to pay seventy-five dollars for an original license on each omnibus used for hire, and fifty dollars for the annual renewal thereof, was declared unlawful and void on account of the unreasonableness of the fee." Likewise, an ordinance was held void whidi imposed a fee of fifty dollars on owners of coal oil wagons used on the streets for the purpose of delivering coal oil and gasoline." On the other hand, an ordinance imposing a license fee of $75 a year on each motor bus operated for hire, and which in fact were operated as "jitneys," was upheld as reasonable.*^ A fee imposed on motor vehicles used in transporting freight and passengers for hire, or hauling merchandise, etc., exclusively, within the county, and graduated from $10 to $150, was held valid.*' § 129. Same— All licenses expiring at same time. An ordi- nance imposing a wheel tax on all vehicles, the proceeds to be used for the maintenance and repair of the streets, is not void because all licenses expire at the same time. Nor is it void as to resi- dent owners of vehicles habitually used on the city streets because it fixes a minimum of one-quarter of the annual tax for use for a portion of a year.** § 130. Power to license or regulate does not imply power to prohibit. A grant of power to license automobiles, unless such appears to have been the legislative intent, does not carry with it the authority to prohibit their use.** Under such a grant of power, 38 Burlington v. Putnam Ins. Co., 31 ** Booth v. Dallas, — Tex. Civ. App. la. 102, 106; State v. Hammond Packing -^, 179 S. W. 301 (191S). Co., 110 La. 180, 187, 34 So. 368, 98 48 Pine Bluff Tr. Co. v. Nichol, — Ark. Am. St. Rep. 4S9; Cincinnati Gas L. & — , 21S S. W. S79 (1919). C. Co. V. State, 18 Ohio St. 237, 24S. 44 Park v. Duluth, 134 Minn. 296, 1S9 89 Jackson v. Newman, S9 Miss. 38S, N. W. 627 (1916). 42 Am. Rep. 367. 45 Ex parte Sikes, 102 Ala. 173, 17S, 40Vansant v. Harlem Stage Co., S9 IS So. S22, 24 L. R. A. 774; B.urlington Md. 330. V. Bumgardner, 42 la. 673, '674. 41 Waters-Pierce Oil Co. v. Hot Springs, 8S Ark. 509, 109 S. W. 293. MUNICIPAL OR LOCAL LICENSE LAWS 135 a^ municipal corporation cannot prohibit the use of automobiles by the imposition of an unreasonably large' license fee under the guise of a police regulation.*® And this rule applies in like manner with reference to a grant of power to regulate.*'' § 131. License fee not a tax on automobiles. A license fee required by a municipal corporation for the operation of automo- biles within the corporate limits, imposed as a police regulation, is not a tax on the automobile as property, nor on the occupation of operating it, but is a mere license fee, imposed as compensation for issuing the license, for keeping the necessary record, and for municipal supervision.*' Thus, it was held that an ordinance sub- jecting the owners of automobiles to the payment of a sum of money for the privilege of using such vehicles on the city streets did not impose a tax on the vehicles.*' But an ordinance which neither professes nor is intended in any manner to regulate or restrict the use of vehicles, but the primary purpose of which is to impose a license tax for the purpose of raising revenue for the maintenance and repair of the streets, is not an exercise of the police power, but the taxing power.*" However, power to grant licenses for any lawful purpose and fix the amount to be paid therefof, authorizes licenses for revenue as well as for regulation; and under such power a license fee of $4 imposed on vehicles for hire is not objectionable because in excess of the sum needed for regulation.*^ § 132. License from both state and city. A statute may legally provide thg,t persons desiring to engage in a certain busi- ness or occupation shall procure a license from both the state and the city, *^ or from both county and town.*'- Consequently, it has 46 state V. Moore, 113 N. C. 697, 707, 49Terre Haute v. Kersey, 1S9 Ind. 300, 18 S. E. 342, 22 L. R. A. 472. 306, 64 N. E. 469. 47 Miller v. Jories, 80 Ala. 89, 96. . See also Toralinson v. Indianapolis, 144 48 Ft. Smith V. Ayers, 43 Ark. 82 ; Ex Ind. 142, 36 L. R. A. 413. parte PhiUips, — Okl. — , 167 Pac. 221 BOTerre Haute v. Kersey, 159 Ind. 300, (1917) ; State v. Jarvis, 89 Vt. 239, 95 306, 64 N. E. 469. AO. 541 (1915) ; Seattle v. King, 74 Bl Seattle v. King, 74 Wash. 277, 133 Wash. 277, 133 Pac. 442 (1913). Pac. 442 (1913). An automobile may be charged with B2 Fairfield v. Shallenberger, 135 la. both a general tax and an excise. Mark 615, 113 N. W. 459; Leavenworth v. V. District of Columbia, 37 App. D. C. Booth, 15 Kan. 627,^36; State v. Foster, 563 (1911). 22 R. I. 163. A license fee is not a tax, but a sum SS People v. Raims, 20 Colo. 489. paid for a privilege. Chilvers v. People, 11 Mich. 43, 50. ■ 136 LAW OF AUTOMOBILES been held that, in itself, it is no objection that an operator of an automobile is required to take out both a state and a city license^** § 133. Exempting automobiles from municipaL license and tax. A statute providing thai owners of autoinobiles who shall have regis terjed their automobiles in compliance with such s.tatute shall not be requp;ed by any. municipal corporation, other than that within which the owner resides^ to pg,y any tax, or license for the use of such autprnobile, was held valid as .against, the ^conten- tion that it, was not, vii,i,fQrm as to the classes on which it operated, the classificati6n beside^ that of r:esidence, was,: (1) motor trucks, motor-driven commerpialyiehicles, and motor y,ehicles used for pub- lic Jiire; (2), motor vphiiclesnot belonging tq the first-meiiti^Qnied class and, motor bicycles,.** § 134. Uniform rate of taxation. It has been decided that an ordinance imposing a license tax on vehicles to raise revenue for the maintenance and repair of the city str^eets does not violate the constitutional provision requiring the rate of assessment and taxation to be uniform and equal, for that part of the constitu- tion relates to a general assessment of taxes on property accord- ing to its vajufej and not to the imposition of a license tax required for the privilege of using the streets." ' Nor has the provision ; relating to uniformity of taxation any application to a city license tax on vehicles operated for hire.'^ An ordinance exacting $10 on account of a business truck) and 50 cents per horse power on other cars was not unequal and unfair in Violation of the "uniform tax" rule. "The Constitution pro- vides that 'taxes shall be uniform upon the same class of sub- jects.' The question is, DoeS the ordinance square with this requirement of the Constitution? Classification is the function of the -city council. Exact equality is not possible. If the classi- fication is made on some reasonable basis, and is applicable, with- out discrimination, to all similarly situatpd, it is valid." " § 135. Classification of subjects of license. A municipal cor- poration may classify the various subjects which it is authorized to license, provided the classification is natural and real, not arbi- trary or fanciful. A classification of vehicles for the purpose of 54 Brazier v. Philadelphia, 15 Pa. Dist. See also St. Louis v. Sternberg, 69 14,, 16,;aff'd 215 Pa.,,St. 297, 64.Atl. 508. Mo. 2S9.,,,,- ' SBHeartt v. Downers Grove, 278 111. 67 Seattle v. King, 74 Wash. 277, 133 92, lis N. E. 869 (1917) ,, , i „,, Pac. 442 (1913) B6Terre Haute v. Kersey, 159 Ind. 300, 58 Park v. Duluth, 134 Minn. 296, 159 309, 64 N. E. 469. N. W. 627 (1916). MUNICIPAL OR LOCAL LICENSE LAWS 137 imposing a licensfe tax is properly based upon the use to which such vehicles are devoted, rather than the value of the vehicles.*' Thus it has been held that, in the exercise of the power of classi- fication, a city may exclude from its scheme of taxation electric street cars a;nd automobiles.®" "These vehicles were perhaps omitted because the common council concluded that their use did not cause any substantial wear upon the pas^ements." Nor does the mere fact that a vehicle tax ordinance fails to provide for the taxing of vehicles Of non-residents who habitually use the streets of the city, render such ordinance invalid on the ground of dis- crimination.*^ It is riot essential that all vehicles which may be so taxed be included in the ordinance, but it must include all that come within the class sought to be taxed. *^ Classification for this purpose should be, as far as possible, general and impartial, and not such as to restrain trade or contravene common right. Power to impose license fees does not authorize arbitrary and oppressive distinc- tions to be made.®' Thus an ordinance requiring a license fee of $100 for express wagons or motor vehicles used in delivering express matter, and which exacted only $12 for similar vehicles used in delivering goods not in the express business j was held to be unreasonable and discriminatory as against those engaged in the express busi- ness.®* The fact that an ordinance licensing motor trucks does not include hoi-se-drawn vehicles, and imposes a higher fee on the fprmer than is paid for the latter, does not render it invalid.®* But an ordinance taxing vehicles, which exempts automobiles used by the owner in his business, while horse-drawn vehicles so used are subject to the tax,' does not follow a reasonable classification, and is invalid.®® 69terre Haute v. Kersey, IS9 Ind. 300, 108 Miss. 291, 66 So. 745 (1914), citing 312, 64 N. E. 469. this work. Where a tax law distinguishes a class, ^^Kellaher v. Portland, SI Oreg. S7S, and.impQses an excise. thereon, such clas- 112 Pac. 1076 (19J1). ,: ., jification need not be either logically 63 Siciliano v. Neptune Twp., 83 N. J. appropriate or scientifically accurate, if it L. 158, 83 Atl. 865 (1912). is impartial within the class. Mark v. 6* Siciliano v. Neptune Twp., 83 N. J. District of Columbia, 37 App. D. C. 563 L. 158, 83 Atl. 865 (1912). (1911). ' 85 Westfall's' S.,- V. & E. Co. v. Chicago, 60 Kersey v. Terre Haute, 161 Ind. 471, 280 111. 318, 117 N. E. 439 (1917). 475, 68 N. E. 1027. ■ " seKellaher v. Portland, 57 Oreg. 575, '«1 Kersey v! Terre Haute, 161 Ind. 471, 112 Pac' 1076 (1911). ' 475, 68 N. E. 1027; State v. Lawrence, 138 LAW OF AUTOMOBILES An ordinance imposing a tax on automobiles is not invalid because it exempts out of town vehicles, pleasure vehicles, trucks used for hire, and vehicles subject to tax under another ordinance.*'' A flat rate charge may be made upon electric motor vehicles, although other motor vehicles are subjected to graded license fees, since the electric vehicles in general use are comparatively slow moving and of low horsepower.®* The legislature may delegate the power to classify automobiles, for the purpose of fixing the amount of license each type shall pay, to a municipality or board.*' § 136. Unreasonable searches and seizures. The contention has been made that to require the owner of an automobile to register the same with a designated municipal officer and to take out a license and display a registered number on his machine is in violation of a constitutional provision forbidding unreason- able searches and seizures. But it has been held that there is no ground to sustain such a contention.'"" Thus, a law providing that the rates charged for licenses should depend upon the receipts and profits of the business, or upon the amount of business done, and that the applicant for license might be examined upon such matters and required to subscribe to an affidavit that he has, to the best of his knowledge and belief, truly answered all questions touching the amount of the license, was held not to be objectionable on the ground that it was violative of the constitutional right of a citizen to be secure against unrea- sonable searches and seizures.''^ Nor does such a law require an automobile owner to testify against himself in a criminal case.''* § 137. Scope of phrase "Transporting persons or property." Ordinances sometimes provide for the licensing of automobiles used in the transportation or conveyance of persons or property. These ordinances are not confined in their scope to automobiles used for business purposes, but also include those used solely for pleasure. Thus, an ordinance made it unlawful to use vehicles in transporting persons or property upon the public streets and 87Kellaher v. Portland, S7 Oreg. 575 103 N. W. 172, 69 L. R. A. 345, 12 De- 112 Pac. 1076 (1911). troit Leg. N. 32. 68 Graves v. Janes, 18 Ohio C. C. (N. 71 Marmet v. State, 45 Ohio St. 63, ?.) 488. 69, 12 N. E. 463. 88 Smith V. State, — Md. — , 100 Atl. 'a People v. Schneider, 139 Mich. 673, 778 (1917).^ 103 N. W. 172, 69 L, R. A. 345, 12 De- ""> People V. Schneider, 139 Mich. 673, troit Leg. N. 32. MUNICIPAL OR LOCAL LICENSE LAWS 139 alleys of the city unless such vehicles were licensed. It was de- clared that an automobile carrying persons for pleasure was within the terms of such ordinance.'" 73 Harder v. Chicago, 23S 111. 294, 8S -, N. E. 2SS. CHAPTER VII FEDERAL LAWS AFFECTING THE AUTOMOBILE §138. Federal control of , automobiles. § 139. Automobile in use by man in naval service during war. §140. Automobiles in United States mail service. § 141. Customs duties on automobiles. •_ § 142. Automobiles carrying gasoline on passenger vessels. § 143. Automobile used in fraudulent evasion of Federal tax. § 144. Automobiles in interstate com- merce. § 14S. Taxing automobiles used in inter- state coinmerce. § 146. Automobiles operating between two states. § 138, Federal control of automobiles. Opinions have been expressed to the effect that the United States should undertake the regulation and control of travel in automobiles. At present it is only when the automobile is engaged in carrying" the mails, or in interstate commerce, or in some other business, or in some place over which the Congress is vested with control, that it becomes subject to Federal regulation. Eveh then it is usually subject to a concurrent power of police regulation of the state. While uniform laws throughout the United States relative to this subject are greatly to be desired, it is thought that it is to the greater satisfac- tion of the public generally that the states retain such control. § 139. Automobile in use by man in naval service during war. A man of the United States Naval Reserve force, on duty as a dispatch driver, while acting under the specific instructions of his superior officer to proceed in a motor vehicle with all possible dispatch along one of the highways of the state, which instruction said man -was obliged to obey, which instruction was assumed by said officer to necessitate the violation by said man of the speed laws of the state, and which instruc,tion was given by said officer in a matter deemed by him to be oi urgency and appertaining to the conduct of the war between the United States and Germany, is not amenable to a statute regulating the speed of motor vehicles. He may be prosecuted, however, for violation of such a statute if violation is not a matter of military necessity.^ 1 State V. Burton, 41 R. I. 303, 103 > Atl. 962 (1918). 140 FEDERAL LAWS 141 • The court in this case said: "In essence this question is: Are the rules established by the General Assembly regulating the use of the highways of the state subordinate to the exigencies of mili- tary operations by the federal government in time of war? In our opinion they are. Under the Constitution of the United States, the conduct of the war now existing beweeri this country and Ger- many vests wholly in the federal government. Any state law, the operation of which will hinder that government in carrying out such constitutional power, is, during the exercise of the power, suspended as regards the national government and its officers, who are charged with the duty of pirosecuting the war. The principle is well established that in respect to the powers and duties exclu- sively coiif erred and imposed upon the federal government by the Constitution of the United States the several states have sub- ordinated their sovereignty to that of the nation.^ "it is not questioned that in time of war within the territory occupied by the army or the navy, and in the districts affected by military operations, a military commander is supreme; he may override civil authority, and pursue whatever course the necessities of the situation' cpmmend to his judgment. Newport is not within the theater of actual conflict. It is, however, the head- quarters of the Second naval district. The waters about it are in the actual control of the naval forces of the United States, which are charged with the duty of guarding our coasts and waterways against surprises and attacks by an active and respurceful eneiliy. Any plan of the naval authorities for the furtherance of that pur- pose cannot be hampered by the enforcement of the ordinary regu- lations pertaining to the use of our highways. The respondent is a sailor in the service of the United States, and was bound to obey the lawful orders of his superior officer. The order in question, although it called for a disregard of the ordinary rules of conduct, was not illegal in the circumstances, but on its face was one which was justified by the rules of war and the situation then existing at Newport. It should protect the respondent. - "In the argument before us it was suggested that the prosecu- tion of this complaint was in some measure forced upon the police authorities of Newport in an effort to , restrain the inconsiderate use of motor vehicles in the congested streets of that city by a few men in the military and naval service, who have appeared to consider that their connection with that service relieved them from ' Citing Ex parte Siebold, 100 U. S. 135: U. S.l, 10 Sup. Ct. 6S8, 34 L, ed. 371, 25 L. ed.. 717; Tennessee v. Davis, SS ; In re Waite (D. C.) 81 Fed. 3S9j In 100 U. S. 257, 25 L. ed. 648; In re Neagle, re Fair (C. C.) IQO Fed. 149. 142 LAW OF AUTOMOBILES an observance of the ordinary highway and traffic regulation of the state and city. If such condition exists, this opinion should in no degree foster such false and un-American notion. Such an attitude is undoubtedly contrary to the spirit of the general orders and regulations of the United States Army and Navy. The princi- ple which we have enunciated in this opinion is without applica- tion to cases which show a failure to comply with our laws and ordinances when no military necessity exists." * § 140. Automobiles in United States mail service. Automo- biles are now quite extensively used in transporting the United States mail. Motor-cycles are especially adapted to the necessity of rapid service in the delivery of "special delivery" letters. While in such service automobiles are under the protection and control of the United States laws, among which is a provision punishing the obstruction or retarding of the passage of the mail or of its. carriers.* But it was never intended that these laws should abro- gate the reasonable police regulations of the state. Carriers of the mairare subject to the reasonable police regulations of the statp or city, and to compel them to keep within a prescribed speed limit does not conflict with the postal laws.* The Federal laws in sin the case of In re Waite (D. C.) 81 Fed. 3S9, the court, after stating the proposition that in matters within the sole control of thci government of the United States its officers carrying forward such, matters should not be interfered with by criminal proceedings instituted in the staite court, said: "By this it is not meant to assert that, because a person is an officer or agent of the federal government, he is thereby ex- cepted out from the jurisdiction of the state or the binding force of its laws.'' The mere fact that when the acts by him done were done he was an officer of the United States, charged with certain du- ties to that government, will not afford him immunity /from prosecution under the laws of the state; nor will the mere fact that he claims that the acts done were within the line of his official duty afford him protection, if the acts are such as to show that the claimed im- munity is a mere subterfuge, and that under no fair consideration of his official duty could he have assumed that he was acting in his official capacity when the acts complained of were done by him." 4 Rev. St. U. S. §3995. 5 S Opinions of Attys. Gen. SS4 ; Com. V. Closson, 229 Mass. 329, 118 N. E. 65.1 (1918). "The designated streets or ways are not however instrumentalities created by the general government, where 'exemp- tion from state control is essential to the independent sovereign authority of the United States within the sphere of their delegated powers.' If they were the de- fendant has committed no offense. While undoubtedly they are post roads un- der Act Cong. March 1, 1884, c. 9, enacting that 'all public roads and high- ways while kept up and maintained as such are hereby declared to be post routes' (U. S. Comp. St. 1916, § 7457), and whoever knowingly and wilfully obstructs or retards 'the passage of the mail, or any carriage,' * * * driver, or carrier, * * * ' is upon conviction subject to fine, or imprisonment, or both, by U. S. Rev. Stats. § 3995, Act of \ FEDERAL LAWS 143 question would not justify a carrier of the mail in driving an auto- mobile through the streets of a city at such a rate of speed as to endanger the lives of the people.* An ordinance limiting the speed of trains in the limits of a city to ten miles an hour, which included interstate trains carrying mail, being a reasonable regulation for the safety of the people, is not void as being in conflict with the Federal postal lawsJ Like- wise a mail stage coach is subject to the laws of the state govern- ing the use of vehicles on the public highways.' These rules are equally applicable to automobiles in ' similar circumstances. § 141. Customs duties on automobiles. The automobile is included in the phrase "household effects," as used in the Federal statute which provides that the "household effects of persons or families from foreign countries, ... if actually used abroad by them not less than one year, and not intended for any other person or persons, nor for sale," shall be admitted to this country free of duty.' In applying this law, a single article may be constructively separated into parts subject to different classifications. , Hence, the repairs on an automobile which had not been used abroad one year after the repairs were made are subject to duty; but the rest, including the cost of overhauling, oiling, cleaning, readjust- ing and regulating, is free under said statute.^" ' Where an automobile is imported without tires attached, but the March 4, 1909, c. 321, § 201, 35 Stat. T Peterson v. State, 79 Neb. 132, 112 N. 1127 (Comp. St. 1916, § 10371), yet the W. 306. See also 5 Opinions of Attys. ways remain public ways laid out and Gen. SS4. maintained by the commonwealth, whicn 8 Polton v. Colder, 1 Watts (Pa.) 360, has the exclusive power not only of 363. See also United States v. Sears, alteration, and of discontinuance, but to 5S Fed. 268; United States v. Kirby, 74 make and enforce reasonable regula- U. S. (7 Wall.) 482, 487, 19 L. ed. 278. tions for their use. Nor do the facili- 9 Hillhouse v. United States, 1S2 Fed. ties thereby afforded for transportation 163. of the mails confer extraordinary rights A carriage used abroad one year by upon mail carriers to use the ways as its owner, who brings it to this couu- they please, or necessarily, or impliedly try for his own use, is "household do away with the power of supervi- effects," and free from duty. Arthur v. sion and control inherent in the state." Morgan, 112 U. S. 49S, S Sup. Ct. 241, Com. V. Closson, 229 Mass. 329, 118 N. 28 L. ed. 825. E. 653 (1918). 10 Hillhouse v. United States, 152 Fed. 6 United States v. Hart, 1 Peter's Cir. 163. Ct. (U. S.) 390. 144 LAW OF AUTOMOBILES four tires necessary to put it in complete running order are con- tained in the same crate, the parts are dutiable as a whole.''^ The requirement of the statute that the household effects be u^ed abroad not less than one year is satisfied if the periods of such use aggregate one yeaj-; although the use has not been con- tinuous. Thus where an automobile was used abroad for four mpnths, and then brought to this country, duty being paid dn it; and used several months, then taken abroad and used nine months, on being brought to this country a second time it was entitled to entry free of duty.^^ I Under a provision exempting from duty "books, libraries, usual and reasonable furniture, and similar household effects," it was held that the use of the. word "similar" indicated that Congress intended to do away with the exemption of household effects gen- erally, and to restrict it to such, as should be like books,, libraries, or household furniture, and that automobiles are not similar to \ these; hence, not included in such provision .^^ § 142. Automobiles carrying gasoline on passenger vessels. , The United States statutes prohibit passenger vessels from carry- ing petroleum products and other like explosives^ as freight. But it is also provided that nothing "shall prohibit the transportation by steam vessels of any gasoMne or any of the products of petro- leum when carried by motor vehicles ^ (commonly known as auto^ mobiles) using the same as a source of motive power: Provided, that all fire, if any, in such vehicles or automobiles be extinguished before entering the said vessel and the same be not relighted until after said vehicle shall have left the same." It was decided under this law that gasoline contained in the tank of an automobile being transported on a steam vessel was carried as freight, and that an automobile in which the motive power was generated by passing an electric spark through a compressed mixture of gasoline and aii^ in the cylinder, causing intermittent explosions, carried a fire while the vehicle was under motion frofti its own motive power. The. carrying by a steam ferryboat of such a vehicle, which was run on and off the boat under its own power, was a violation of the statute.^* § 143. Automobile used in fraudulent evasion of Federal tax. Under a Federal statute providing for the forfeiture of 11 United States v. Auto Import Co., 18 United States v. Grace & Co., 166' 168 Fed. 242, 93 C, C. A. 456 (1909). Fed. 748, 92 C. C. A. 596 (1909). 12Hillhouse v. United States, 152 Fed. 14 The Texas, 134 Fed. 909. 163. FEDERAL LAWS 145 any vehicle, etc., used in the removal or concealment of any goods or commodities with intent to defraud the United States of taxes thereon, an automobile used by a servant in removing or conceal- ing distilled spirits on which the tax had not been paid, was Sub- ject to forfeiture, although the owner had sent the servant on a lawful errand, and was innocent of any wrong.^* An automobile used in transporting liquor on which the tax had not been paid, with the intent to defraud the government of such tax, is subject to forfeiture, even as against a mortgagor who had no knowledge of its unlawful use.^^ § 144. Automobiles in interstate commerce. The constitu- tion of the 'United Stp-tes expressly grants to Congress exclusive jurisdicfioii "to regulate commerce with foreign nations, and among the several states." ^"^ Therefore, all state laws or munici- pal ordinances which materially interfere with, or, in effect, at- tempt to regulate, interstate commerce will be declared void by the courts as being in conflict with this provision of the consti- tution." Automobiles used as vehicles of transportation in interstate com- merce are, of course, subject to and under the protection of the laws enacted by Congress regulating inteirstate commerce. But these vehicles, even while so engaged, are subject to the reasonabVe police regulations of the state and the municipal corporation in which they operate.^' And while it is not within the competency of a state to legislate in such manner as to obstruct interstate com- merce,*" a state police regulation is not invalid merely because it affects indirectly, incidentally or remotely, and not so as to burden or impede, such commerce.*^ Thus, a state may niake reasonable regulations to secure the safety of passerigers on interstate trains,** 15 United States, v. Mincey, .165, C. Caldwell v. .North Carolinaj 187 U. S. C. A. syS, 2S4 Fed. 287 (1918)',' ' " " 6'i2, 62S, 23 Sup. Ct. 229, 47 L. ed. 336. 16 United States- v. One Saxon, 168 19 Stone v. Farmer's toan & Trust C. C. A. 335, 257 Fed". 251 (1919). Co., 116 U. S. 307,334, 6 Sup. Ct. 334,' Automobile: carrying liquor into a pro- 388, 1191, 29 L. ed. 636. hibition state is not subject to forfeiture 20 In re Debs, 158 U. S. 564, 581, 15 by virtue of Act Congress March 2, 1917, Sup. Ct. 900, 39 L. ed. 1092. Sec. 1. United States v. One Cadillac 21 Missouri, K. & T. R. Co. v. Haber,* Eight Auto., 255 Fed. 173 (1918). 169 U. S. 613, 18 Sup. Ct. 488, 42 L. ed. Nor under Act Congress March 3, 1917, 878; Smith v. Alabama, 124 U. S. 465, Par. 5. United States v. One Buick Auto., 8 Sup. Ct. 564, 31 L. ed. 508. 255 Fed. 793 (1919). , 22 Illinois Central R. Co. v. Illinois, 17 U. S. Const., art. 1, sec. 8, pat. 3. 163 U. S. 142, 154, 16 Sup. Ct. 1096, 18 Robbins v. Shelby Taxing Dist., 120 41: L. ed. 107 ; Railroad Co. v. Rich- U. S. 489, 7 Sup. Ct. 592, 31 L. ed. 694; mond, 86 U. S. (19 WaU.) 584, 589. B. Autos. — 10 146 . LAW OF AUTOMOBILES and for the safety and, well-being of the public generally by regula- tions affecting the speed of interstate trains, and the use of the public highways of the state,^* In the absence of national legislation, covering the subject a state may rightfully prescribe uniform regulations necessary for public safety and order in respect to the operation upon its highways of all motor vehicles — those moving in interstate commerce as well as others, and to this end it may require the registration of such vehicles and the licensing of their drivers, charging therefor rea- sonable fees graduated according to the horsepower of the engines --a, practical measure of size, speed, and difficulty of control. This is but an exercise of the police power uniformly recognized as belonging to the states and essential to the preservation of the health, safety and coinfort of their citizens; and it does not consti- tute a direct and material burden on interstate commerce. The reasonableness of the state's action is always subject to inquiry in so far as it affects interstate commerce, and in that regard it is subordinate to the will of Congress. Where a state, at its own expense furnishes special facilities for the use of those engaged in commerce, interstate as well as domes- tic, it may exact compensation therefor. , The- amount of the charges and the method of collection are primarily for determina- tion by the state; and so long as they are reasonable and are fixed according to some uniform, fair and practical standard they con- stitute no burden on interstate commerce.^* This power applies as well to automobiles moving through the state' as to such as are moving into it only. As applied to such vehicles, as well as to those of residents, the amount of the registra- tion fee may properly be based not only on the cost of inspection and regulation, but also on the cost of maintaining improved roads.** § 145. Taxing automobiles used in interstate commerce. Autpnipbiles, like other property, used in carrying on interstate commerce are subject to taxation by the state in which they have their situs. ''^ There is a difference between imposing a tax on auto- es Robbins v. Shelby Taxing Dist., 120 2B Kane v. New Jersey, 242 ■ U. S. 160, U. S. 489, 493, 7 Sup. Ct. 592, 31 L. 37 Sup. Ct. 30, 61 L. ed. 222 (1916);, ed. 694. aff'g 81 N. J. L. S94, 80 Atl. 4S3, Ann." 2*Hendrick v. Maryland, 23S U. S. Cas. 1912D, 237. 610, 622, 624, 35 Sup. Ct. 140, 59 L. 26 state ex rel, v. Wiggins Ferry Co., ed. 385 (1915); Kane v. New Jersey, 242 208 Mo. 622, 106 S. W. IOCS; Leloup v. U. S. 160, 37 Sup. Ct. 30, 61 L. ed. Mobile, 127 U. S. 640, 649, 8 Sup. Ct. 222 (1916), ^ff'g 81 N. J. L. 594, 80 Atl. 1380, 32 L. ed. 311. 453, Ann. Cas. 1912D, 237. FEDERAL LAWS 147 mobiles so used and taxing the franchise of a company engaged in operating them in interstate commerce, or imposing a license tax on the business of such a company. The state cannot require a license tax to be paid on the business of interstate commerce, for the reason that such taxation affects the entire business of the com- pany and is a burden on that commerce, and amounts to a regula- tion of it; and the power to regulate interstate commerce lies solely with Congress.^'' § 146. Automobiles operating between two states. Automo- biles have been, and are used as vehicles of transportation over bridges across streams separating two states. A question arises as to what control a state or city in which one terminus of such a route is located has over the operation of the automobiles and the conduct of such business. It seems quite clear that a state or city under such circumstances has the power to impose reasonable police regulations on the operation and conduct of the business and require compensation therefor. Such control would not amount to a regu- lation or interference with interstate commerce.^* 27 State ex rel. v. Wiggins Ferry Co., 208 Mo. 622, 106 S. W. 1005; Leloup V. Mobile, 127 U. S. 640, 648, 8 Sup. Ct. 1380, 32 L. ed. 311; Philadelphia & Southern Steamship Co. v. Pennsylvania, 122 U. S. 326, 7 Sup. Ct. 1118, 30 L. ed. 1200; Pickard v. Pullman Southern Car Co., 117 U. S. 34, 6 Sup. Ct. 635, 29 L. ed. 785; Case of State Freight Tax, 82 U. S. (15 Wall.) '232. 28 The following cases regarding fer- ries involve the same principle of law: Madison v. Abbott, 118 Ind. 337, 339, 21 N. E. 28; St. Louis v. Waterloo- Carondelet T. & F. Co., 14 Mo. App. 216; Wiggins Ferry Co. v. East St. Louis, 107 U. S. 365, 374, 2 Sup. Ct. 257, 27 L. ed. 419; Transportation Co. v. Wheel- ing, 99 U. S. 273, 25 L. ed. 412. CHAPTER VIII RIGHTS AND DUTIES ON THE HIGHWAYS GENERALLY § 147. Right of motorist to use high- ways. § 148. Use of automobile not negligence per se. § 149. Unreasonable use of highway. § ISO. -Care required of operator. § ISl. Same^-Comniensurate with dan- gers of vehicle and surround- : ings. §152. Care dependent upon condition of automobile. § 153. Higher degree of care imposed by I statute § 154. Care required of motorist for his own safety. §155. Statute creating only criminal liability for violation. § 156! Must observe statutory require- ments. § 157. Inexperience as affecting liability. §' 158. Liability of occupants of automo- bile for injury to another. § 159. Evidence of want of care. § 160. Presumption as to skill of oper- ator. § 161. Intoxicated driver. § 162. Duty as to brakes. § 163. "Two independent brakes." § 164. On private land by invitation. § 165. Negligent speed. § 166. Same — Under statute making speci- fied rate prima facie evidence of negligence. § 167. Same — Introduction of hospital quiet zone signs as evidence of. §168. §169. §170. §171. §172. §173. §174. §175. § 176. §177. §178. §179. §180. §181. §182. §183. §184. Same — Unable to stop within dis- tance objects are visible. Same — Application of speed reg- ulations to Fire Department Vehicles. Speed' greater than is reasonable, etc. Speed that endangers life, limb or property. Speed in approaching a descent- statutory provision. Racing in highways. Coasting as negligence. Laws regulating traction engines not appjicable to automobiles. Duty to have lights on automo- biles at night. Driving without lights at night as negligence. To create liability absence of lights must proximately cause injury. Lights required on .automobile "Operated or Driven." Lights to show in direction in which vehicle is proceeding — Standing automobile. Lights required on "Front" of automobile. Judicial notice of time of sun- set. * Rain collecting on windshield — "Obstruction." Requiring automobiles to stop in rear of street cars. 148 RIGHTS AND DUTIES ON THE HIGHWAYS 149 §210, § 18S. Duty to sound warning of ap- proach. § 186. Same — When warning would be unavailing. § 187. "Signal upon approaching and upon crossing." § 188. Testimony concerning giving of warning signal. § 189. Towing truck without brakes on slippery street. § 190.; General rights and duties at street , , intersections. § 191. Same — Vehicles having right of way. § 192. Turning at street intersections — Cutting corners. § 193. Care in turning corners and at curves. § 194. Turning corner where view is obscured. § 19S. Statute regulating speed in ap- proaching or traversing an in- tersecting way construed. § 196. May assume others will exercise due care. § 197. Violation of statute or ordinance as negligence. § 198. Same— Must be proximate cause of injury to create liability. § 199. Imiriinent peril. § 200. Proximate cause of injury. § 201. Last clear chance doctrine. § 202. Same — Doctrine of discovered peril. §203. Same — tJnder statute imposing high degree of care. § 204,, Same — Doctrine explained. § 205; Application of Res Ipsa Loquitur. I 206. Same — ^Automobile starting of own ' accord. • 1 207. Rebuttal of res ipsa loquitur by defendant's evidence,. § 208. Statute or ordinance enacted for particular purpose. § 209. Liability of joint tort feasors. Liability of persons whose inde- pendent acts concur in causing injury. §211. Rights and duties of , incapacitated persons. §212. Insane persons. §213. Deaf persons. § 214. Persons with defective sight. § 21S. Blind, persons. § 216. Intoxicated persons. § 217. Verdict as warning to other oper- tors or as protection to other travelers. § 218. Skidding automobiles, §219. Same — Striking lamp standard. ' § 220. Same — Evidence of negligence. §221. Collision with telephone pole in highway. § 222. Leaving autoinobile unattended in highway. §223. Same — Started by gravity. § 224. Same — Leaving automobile on car track. § 225. Backing automobile. §226; Man under automobile injured by another car colliding therewith. LAW OF THE ROAD § 2 2 7 . General consideration. § 228. Highway defined. § 229. Turnpike defined. § 230. Use of the highway. §231. Use of automobiles ' on the high- ways. § 232. Right of automobiles on turn- pikes. § 233. Right-of-way on highways. §234. Duty to turn to right. § 235. Driving on wrong side of high- way. § 236. Same — Backing northerly on west side to park car. §237. Same — Creates civil liability only when cause of injury. ISO LAW OF AUTOMOBILES § 238. Traveler may justify driving on wrong side. § 239. When not meeting other veTiicles. § 240. Forced to leave roadway by negli- gence of other driver — Emer- gency. § 241. Vehicles passing in same direction. § 242. Same— Rule does not apply to automobiles passing street cars. §243. Turning around in street. § 244. Vehicles having right-of-way by law. § 245. Regulation of traffic by police officers. § 147. Right of motorist to use highways. The driver of an automobile and ^any other user of the highways, aside from special provision changing the rule, have equal rights in the use of the same, and each is required to exercise reasonable care not to injure the other, or infringe upon the other's rights.^ ^Alabama: Reaves v. Maybank, 193, Ala. 614, 69 So. 137 (191S) ; Terrill v. Walker, S Ala. App, 53S, S9 So. 775 (1912). Arkansas: Bona v. Thomas Auto Co., — Ark. — , 208 S. W. 306 (1919) ; Russ v. Strickland, 130 Ark. 406, 197 S. W. 709 (1917). Delaware: Walls y. Windsor, S Boyce (28 Del.) 265, 92 Atl. 989 (1915) ; Trav- ers V. Hartman, 5 Boyce (28 Del.) 302, 92 Atl. 855 (1914) ; Grier v. Samuel, 4 Boyce (27 Del.) 106, 86 Atl. 209 (1913) ; Camp- bell V. Walker, 2 Boyce (Del.) 41, 78 Atl. 601 (1910) ; Lemmon v. Broad- water, — Del. — , 108 Atl. 273 (1919). Florida: Farnsworth v. Tampa El. Co., 62 Fla. 166, 57 So. 223 (1911). Georgia: Shore v. Ferguson, 142 Ga. 657, 83 S. E, 518 (1914); Knight v. Savannah El. Co., 20 Ga. App. 314, 93 S. E. 17 (1917). , Illinois: Kerchner v. Davis, 183 111. App. 600 (1913); Smith v. Hersh, 161 111. App. 83 (1911). Indiana: Elgin Dairy Co. v. Shep- herd, 183 Ind. 466, 108 N. E. 234. (1915), citing this work; Luther v. State, 177 Ind., 619, 98 N. E. 640 (1912) ; East v. Amburn, 47 Ind. App. 530, 94 N. E. 895 (1911). Iowa: Turner v. Bennett, 161 la. 379, 142 N. W. 999 (1913); Scott v. O'Leary, 157 la. 222, 138 N. W. 512 (1912); Simmons v. Lewis, 146 la. 316, 125 N. W. 194 (1910) ; Corning v. May- nard, 179 la. 1065, 162 N. W. S64 (1917). Kentucky: Louisville R. Co. v. Louis- viUe F. & L. Pro. Assn., 151 Ky. 644, 152 S. W. 799 (1913) ; Cumberland Tel. & Tel. Co. v. Yeiser, 141 Ky. 15, 131 S. W. 1049 (1910). Maine: Gurney v. Piel, 105 Me. 501, 74 Atl, 1131 (1909). Massachusetts: Foster v. Curtis, 213 Mass. 79, 99 N. E. 961, Ann. Cas. 1913E, 1116 (1913). Minnesota: Carson v. Turrish, 140 Minn. 445, 168 N. W. 349 (1918). Mississippi: Ulmer v. Pistole, llS Miss. 485, 76 So. 522 (1917). Missouri: Bruening v. Metropolitan . St. R. Co., 180 Mo. App. 434, 168 S. W. 248 (1914)'. Nebraska: Tyler v. Hoover, 92 Neb. 221, 138 N. W. 128 (1912). New York: Clarke v. Woop, 159 App. Div. 437, 144 N. Y. Supp. 595 (1913). Pennsylvania: Spangler v. Markley, 39 Pa. Super. Ct. 351 (1909); Millikin V. Richhill Twp., 67 Pa. Super. Ct. 326 (1917). Tennessee: Coca Cola Bot. Wks. v. Brown, 139 Tenn. 640, 202 S. W. 926 (1918). Texas: Riley v. Fisher, — Tex. Civ. App. — , 146 S. W. 581 (1911). Utah: Richards v. Palace Laundry Co., — Utah — , 186 Pac. 439 (1919). RIGHTS AND DUTIES ON THE HIGHWAYS 151 It is incumbent "upon all users of the highways to exercise ordi- nary care for the safety of themselves and of others.^ Automobiles have no special privileges in the streets more than other vehicles,* and the fact that it is registered and licensed by the state gives its driver no rights superior to the drivers of other vehi- cles on the highways* § 148. Use of automobile not negligence per se. The oper- ator of an automobile is not an insurer of the safety of others against injuries resulting from the operation of his machine,* and liability does not attach merely because of the character of . his vehicle.^ "Since the operators of automobiles have the right to use the highways in common with other persons otherwise lawfully using the highways, such operators of automobiles are only liable for the consequences of negligence in respect of the enjoyment of the com- mon right stated." ' In other words, the operation of an automobile upon the public highways is not negligence per se} Thus, in an action for damages Washington: Minor v. Stevens, 65 Wash. 423, 118 Pac. 313 (1911), citing this work. Wisconsin: Pfeiffer v. Radke, 142 Wis. 512, 125 N. W. 934 (1910) ; Klokow V. Harbaugh, 166 Wis. 262, 164 N. W. 999 (1917). 2Terrill v. Walker, S Ala.*App. 535, 59 So. 775 (1912). Consult cases cited in last preceding note. A cyclist and the driver of a nrotor car are governed by rules applicable to other vehicles. Clarke v. Woop, 159 App. Div. 437, 144 N. Y. Supp. 595 (1913). The movement of a motor car is gov- erned generally by rules applicable to other vehicles. Clarke v. Woop, 159 App. Div. 437, 144 N. Y. Supp. 595 (1913). STerrill v. Walker, 5 Ala. App. 535, 59 So. 775 (1912); Barbour v. Shebor, 177 Ala. 304, 58 So. 276, 1 N. C. C. A. 120 (1912), citing this work; Reitz v. Hodgkihs, 185 Ind. 163, 112 N. E. 386 (1916) ; Everitt v. Auchu, 66 Pa. Super. Ct. 443 (1917). *Applewold Borough v. Dosch, 239 Pa. St. 479, 86 Atl. 1070, Ann. Cas. 1914D, 481 (1913). SArrington v. Horner, 88 Kan. 817', 129 Pac. 1159 (1913) ; Rump v. Woods, 50 Ind. App. 347, 98 N. E. 369 (1912) ; Simmons v. Lewis, 146 la. 316, 125 N. W. 194 (1910). 6 Riley v. Fisher, — Tex. Civ. App. — , 146 S. W. 581 (1911), citing this wprk. There is no presumption of negligence arising from the mere fact that a pedes- trian has been struck by an autom,obiIe; but the negligence of the operator must be proved. Millsaps v. Brogdon, 97 Ark. 469, 134 S. W. 632 (1911). , 7McCray v. Sharpe, 188 Ala,. 375, 66 So. 441 (1914), citing this work; Boyd v. Boston Elevated R. Co., 224 Mass. 199, 112 N. E. 607 (1916). 8 Fielder v. Davison, 139 Ga. 509, 77 S. E. 618 (1912); Indiana Springs Co. V. Brown, 165 Ind. 465, 468, 74 N. E. 615, 6 Ann. Cas. 656, 1 L. R. A. (N. S-) 238; Gaskins v. Hancock, 156 N. C. 56, 72 S. E. 80 (1911). Ante, § 13. 152 LAW OF AUTOMOBILES for injuries caused by plaintiff's mule, which he was driving, taking fright at defendant's automobile and becoming unmanageable, the court said: "Of course, if the automobile was being run properly, and not in an unusual manner, the defendant would not be liable merely because the mule was frightened and the plaintiff injured." ' And where the defendant approached the plaintiff's horse and carriage at a moderate rate of speed, and there was nothing to indi- cate that the horse would become frightened at the automobile, and when the automobile was opposite the horse and about five feet distant therefrom the horse became frightened atid overturned plaintiff's carriage, it was held not to amount to negligence on the part of the defendant as a matter of law.^" § 149. Unreasonable use of highways. The use of the public highways is restricted to a use with due care and in a reasonable manner. It has been held that, asicje from legislative enactment, the fact that one uses vehicles heavier than customary does not give rise to a cause of action against him; and that an uflreasonable use must be more than the weight of the vehicle and its load, and must relate to the manner of the use.^^ § 150. Care required of opera,tor. Aside from special duties imposed by statute or ordinance, the operator of an automobile is required to exercise ordinary or reasonable care.^^ So, an instruc- 9 Murphy v. Meacham, 1 Ga. App. Georgia.— GUes v. Voiles/ 144 Ga. 853, ISS, 57 S. E. 1046. 88 S. E. 207 (1916) ;' Shore v. Ferguson, lODavis V. MaxweU, 108 App. Div. 142 Ga. 657, 83 S. E. 518 (1914). 128, 96 N. Y. Supp. 45. Indiana:' Martin v. Lilly, - Ind. -, 11 Sumner County v. Interurban Tr. j2i ^r E 443 (1919^ Co. 141 Tenn. 493, 213 S. W. 412 (1919). ,,„^„. \^^^^ ^ j„^^ bounty, - ^'Alabama: Dozier v. Woods, 190 Ala. 279, 67 So. 283 (1914) ; White Swan Laundry Co. v. Wehrhan, — Ala. 79 So. 479 (1018), citing this work; la. — , 169 N. W. 388 (1918). Maine: Meserve v. Libby, 115 Me. 282, 98 Atl. 754 (1916). Karpels v. City Ice Del. Co., 198 Ala. ^'^'-y^^^ Winner v. Lmton, 120 449, 73 So. 642' (1916) ; Hester v. Hall, ^'^- ^^^' «' A"" ^"^ ^^^^^^ ' ^P'^^^ ^■ - Ala. App. -, 81 So. 361 (1919). Ruppert, 129 Md. 432, 99 Atl. 685 Arkansas: Russ v. Strickland, 130 (1916). Ark. 406 197 S. W. 709 (1917). Michigan: Ketchum v- Fillingham, 162 Colorado: Phillips v. Denver City Tr. Mich. 704, 127 N. W. 702 (1910). He Co., 53 Colo. 458, 128 Pac. 460, Ann. « fJo' '■e9«i>'e^ 15 Grier v. Samuel, 4 Boyce (27 Del.) 106, 86 Atl. 209 (1913). 154 LAW OF AUTOMOBILES He must keep a lookout in the direction in which he is moving/^ and is bound to see persons on the highway in front of him when his view is unobscured.^'' In ordinary circumstances the driver of an automobile is not required to have it under absolute control, but is required to main- tain a reasonable control thereof. He is required to give notice of his presence by proper sounding of a horn, or otherwise, and to keep a lookout for persons and vehicles in the streets or highways.^' "On account of the ease with which injury can result from the slightest negligence or inattention in the operation of his machine, ordinary diligence requires that the driver of an autoriiobile be con- stantly on the lookout, and that he have his machine in such condi- tion as that it shajl be under his perfect control." ^' "If dangerous and powerful machines, such as automobiles whose weight, when in motion, gives them great momentum, are to be per- mitted to use the public highways, prudence requires that they be' kept under good control so that they may be promptly brought to a halt, if need be." "» "If it was dark at the time, and defendant ran his car along a public, street, where he was likely to run into some one, and did so noiselessly and without warning or without having lights or taking any precaution of that character whereby he could see objects in his pathway, then he was negligent, and if by reason thereof he ran against and injured plaintiff he was guilty of a wrong, and plaintiff has a common-law cause of action against him." *^ "The driver of an automobile in the public highways, constantly traveled by pedestrians and teams and occupied by children of all ages, should, to establish due care, exercisfe so high a degree of dili- gence in observing the rights of a foot passenger or team when approaching them; as to enable him to control it, or stop it if neces- ISEiseman v. Griffith, 181 Mo. App. under control so as to avoid collisions 183, 167 S. W. 1142 (1914) ; Richards v. with pedestrians and other persons using Palace Laundry Co., — Utah — , 186 Pac. the highway.' He cannot assume that 439 (1919) ; Barker v. Savas, — Utah, the road is clear, but he must at all 172 Pac. 672 (1918), citing this work. times be vigilant and anticipate and 1'' Barker v. Savas, — Utah — , 172 expect the presence of others." Coca Cola Pac. 672 (1918),. citing this work. Bot. Wks. v. Brown, 139 Tenn. 640, 202 18 Baldwin's Adm'r v. Ma'ggard, 162 S. W. 926 (1918). Ky. 424, 172 S. W. 674 (191S) ; Flynt l»0'Dowd v. Newnham, 13 Ga. App. v. Fondren, — Miss. — , 84 So. 188 220, 80 S. E. 36 (1913). (1920) ; Barker v. Savas, — Utah — , 172 20 Lorah v. Reinhart, 243 Pa. St. 231, Pac. 672 (1918), citing this work. 89 Atl. 967 (1914). "It is the duty of the operator of an 81 Walden v. Stone, — Mo. App. — , automobile to keep his machine always 223 S. W. 136 (1920). RIGHTS AND DUTIES ON THE HIGHWAYS 155 sary, to avoid a collision, which cannot be regarded as a pure acci- dent or due to contributory negligence." *^ In the last case cited the court said that if the enforcement of the rule just quoted renders the operation of automobiles impracticable, "let the business stop." It further declared that automobile drivers should be required to do everything that human agency can to avoid taking hunian life. "Those who handle these machines, which are highly dangerous if driven rapidly, especially along a crowded thoroughfare, and more especially when turning at the angle of two intersecting streets or roads, should strictly obey the law and exercise that degree of care generally which is commensurate with the great hazard produced by a failure to do so. They should hold their cars well in hand and give timely signals at points where people should reasonably be expected to be and where they have the right to be." ** He must anticipate the use of the streets by others, and keep on the alert.^* He is bound to anticipate that machines parked along the curb might turn into the street, and to keep a proper lookout for them, and use care to haye his machine under such control as to enable him to avoid collisions with them.^* Mere compliance with all statutory requirements does not absolve a motorist from a charge of negligence; he must, in addition, do everything that ordinary care demands.^® And even if he runs his car a.t a moderate rate of speed, he may be negligent through incom- petency, inattention, or mistake in judgment.^T He has the right, however, to expect from other users of the high- way the exercise of ordinary care.** §151. Same— Commensurate with dangers of vehicle and surroundings. The quantum of required care is to be measured by the exigencies of the particular situation,*^ and accordingly varies 22 Savoy V. McLeod, Til Me. 234, 88 — Mo. App. — , 217 S. W. 8S6 (1920); Atl. 721, 48 L. R. A. (N. S.) 971 (1913). Gillespie v. Shafer, 69 Pa. Super. 389 23 Manly v. Abemathy, 167 N. C. 220, (1918). 83 S. E. 343 (1914). 29 White Swan Laundry Co. v. Wehr- 24Ulmer v. Pistole, US Miss. 485, 76 hdn, — Ala. — , 79 So. 479 (1918); So. S22 (1917). Grier v. Samuel, 4 Boyce (27 Del.) 106, 25 Sullivan v. Ohlhaver Co., 291 III. 86 Atl. 209 (1913) ; Winner v. Linton, 120 3S9, 126 N. E. 359 (1920). Md. 276, 87 Atl. 674 (1913); Haver- 26M&ore V, Hart, 171 Ky. 725, 188 male v. Houck, 122 Md. 82, 89 Atl. 314 S. W. 861 (1916). (1913); Baker v. Close, 204 N. Y. 92, 27Fricker v. Philadelphia R. T. Co., 2 N. C. C. A. 289 (1912), aft'g 137 63 Pa. Super. Ct. 381 (1916). App. Div. 529, 121 N. Y. Supp. 729; 28 Dice. V. Johnson, — la. — . 175 N. Coca Cola Bot. Wks. v. Brown, 139 W. 38 (1919); Lawler v. Montgomery, Tenn. 640, 202 S. W. 926 (1918). 156 LAW OF AUTOMOBILES with the si^rroundings, as the likelihood of causing injury is gteat or small.^" What would be ordinary care in the operation of an auto- mobile on a country road would not be ordinary care in its control on a much traveled city street.'* The required care is ' commensurate with the risk of injury to others, having in view the condition of the traffic at the time and place, and the nature and condition of the machine being operated.^' In order to fulfil the duty of even ordinary diligence, the danger attending the use of a particular instrumentality may impose a greater degree of care than would be necessary in the use of an in- strumentality which, no matter how it may be used, is not capable of inflicting so serious an injury.'* So, in an action to recover for personal injuries inflicted by the operation of an automobile, it waS held proper for the, trial court to instruct the jury, that in passing 30 Livingstone v. Dole, 184 la. 1340, 167 N. W. 639 (1918) ; Kirby v! Dela- ware & H, Canal Co., 20 App. Div. 472, 479 J Richards y. Palace Laundry Co., — Utah — , 186 Pac. 439 (1919); Deputy V. Kimmell,' 73 W. Va. S9S, 80 S. E. 919, 8 N. C. C. A. 369 (1914), citing this woik. 32 Leach v. Asman, 130 Tfenn. SIO, 172 S., W. 303 (1914); McGettigan v. Quaker City Auto Co., ,48 Pa. Super. Ct. 602 (i912y. "Usually a country highway is not, as a, railroad crossing is, a place of danger, to be approached and traversed only after looking and listening for coming vehicles. Usually, when persons having an equal right to use it come into collision arid one is injured and brings suit, the question of his due care and of the defendant's failure to take due care are questions for a jury." Hill v. Lappley,- 199 Mich. 369, 165 N. W. 6S7 (1917). ■ ^^ Alabama: Reaves v. Maybank, 193 Ala. 614, 69 So. 137 (1915) ; Terrill v. Walker, 5 Ala. App. 535, 59 So. 775 (1912); Karpeles v. City 'ice Del. Co., 198 Ala. 449, 73 So. 642 (1916) ; Mor- rison v. Clark, 196 Ala. 670, 72 So. 305 (1916), citing this work. California: Belliiiger v. Hughes, 31 Cal. App. 464, 160 Pac. 838 (1916). Connecticut: Laufer v. Bridgeport Traction Co., 68 Conn. 475, 490, 37 Atl, 379, 37 L. R. A. S33. : , ,, Iowa: Delfs v. Dunshee, 143 la.. 381, 122 NT. W. 236 (1909). Kentucky: Collett v. Standard Oil Co., 186 Ky. 142, 216 S. W. 356 (1919). Minnesota:^ Allen v. Johnson; — Minn. — , 175 N. W. 545= (1919).. .; Maryland: 'Cooke v. Baltimore Trac- tion Co., 80 Md. 551. Massachusetts: Com. v. Horsfall, 213 Mass. 232, 100 N. E. 362 (1913). Missouri: Bongner v. Ziegenhein, 165 Mo. App. 328, 147 S. W. 182 (1912); McFern v. Gardner, 121 Mo. App:: 1, 10, 97 S- W. 972. ' ~ ■ . . Nebraska: Smith v. Coon, 89 Neb. 776, 132 N; W. 535 (1911), quoting from this work. "' North Carolina: TUdor v. Bowen, 152 N. C. 441, 67 S. E. 1015,- 30 L. R. A. (N. S.) 804, 21 Ann. Cas. 646 (1910). Tentiessee: Leach v. Asman, 130 Tenn. 510, 172 S. W. 303 (1914). Washington: Grant v. Armstrong, 55 Wash. 365, 104 Pac. 632 (1909). West Virginia: Deputy v. Kimmell, 73 W. Va. 595, 80 S. E. 919, 8 N; C. C. A. 369 (1914), citing this work. 34 0'Dowd V. Newnhams 13 Ga. App. 220, 80 S. E. 36 (1913). RIGHTS AND DUTIES ON THE HIGHWAYS 157 upon the question of the operator's negligence they might consider the powerful agency placed under his control, and the disastrous consequences to other travelers if there was mismanagement. "What might be due care," said the court, "in the management of a horse and carriage jogging along a country road, affords no standard for the measurement of the prudence of the driver of a motor car running over the same road at high speed." '^ "The possession of deadly or dangerous instruments always entails great care upon the possessor.' One who walks along a crowded thoroughfare with a sharp scythe in his hand must use greater care in handling this instrument than would be required of him if he held an umbrella or srnall cane. The degree of care one must use always bears a direct ratio to the degree of injury which would probably be caused by negligeiice. When one comes through the highways of a city with a machine of, such deadly force as an automobile, it is incujnbent upon the driver to use great care that it be not driyeii against or over pedestrians." '® Ordinary care^ if the .danger ia great, may aris^ to the grade of a very exact and unremitting attention.^''' Thus when passing chil- dren of tender age on the highway, it is the operator's duty to exer- cise increased exertion to avoid injuring them on account of their lack of capacity to appreciate g,nd guard against danger.'* The fact that the highway is much traveled does not alter the rights of the travelers, but merely calls for the exercise of greater care in proportion to increased risk.'® The duty imposed upon him by the common law is the same that is imposed upon the driver of a team, except that the higher ratfe of speed at which automobiles usually run calls for more constant watchfulness on his part.*" In considering whether the operator of an automobile exercised djie, diligence irj a given instance, or, by failure to exercise due dili- gence, was guilty of negligence, the character of the instrumentality which lie operated, and the danger attached to its operation if im- properly managed, as well as the charactei" of the highway traversed, arid the proba;bility of inflicting injury if all needed care was not 35 Brown v. Thayer, 212 Mass. 392, 99 -276, 280; Buscher v. New' York Transp. N.E.237 (1912).. Co., 106 ,App. Div., 493, 496, 94 N. Y. 36 Weil V. Kjeutzer, 134 Ky. S63, 121 Supp.; 796; McDonald v. Metropolitan S. ,W. .471,-24,,L. R., A. .{N. S.) SS7 St. R. Co., 80 App,; Div. 233. , , (1909)., 89 Eyeritt V. Auchu, 66 Pa. Super. Ct. S7i>arry Mfg. Co. v. Eaton; 41 Ind. 443 (1917)i App. 81,83 N. E. SIO. 40 Williams ,v. Benson, 87 Kan. 421, 124 SSIIhies V, Thomas, 77 N. Y. Supp. Pac. 531 (1912). 158 LAW OF AUTOMOBILES used in the operation of the machine, are all to be taken into con- sideration.*^ He should exercise such skill and care in the management of his machine as to anticipate such collisions as the nature of the machine and the locality might suggest as liable to occur in the absence of such precautions,*^ § 152. Care dependent upon condition of automobile. The conduct of the motorist may be greatly influenced by the condition of his automobile. For instance, if the brakes of his car are defective the care exercised by him must be proportionately greater; the con- dition being similar to driving without a signal device, or driving at night without lights.*' In an action growing out of a collision between an automobile and a motorcycle, it was held that the condition of the brakes on the automobile was material for the purpose of determining the relative care, under the circumstances, to be exercised by the driver of tiie automobile. "The practical legal question always presented is whether due care was exercised under the existing conditions. Manifestly in this situation a defective brake, if it existed, would be one^ of the existing conditions necessitating extra care, similar to the absence of lights at night, or the failure to sound a horn in the proper situation or environment." ** § 153. Higher degree of care imposed by statute. The Mis- souri statute of 1911, since repealed,*® relating to the use of auto- mobiles on the highways, exacted of the operator the highest degree of r care that a very careful person would use under like or similar circumstances, to prevent injury or death to persons on, or travel- ing over public roads, streets, avenues or places much used for travel.*® *l O'Dowd V. Newnham, 13 Ga. App. *3siegeler v. Neuweiler, 91 N. J. L. 220, 80 S. E. 36 (1913); Patterson v. 273, 102 Atl. 349 (1917). Wagner, 204 Mich. S93, 171 N. W. 3S6 4*Siegeler v. Neuweiler, 91 N. J. L. (1919) ; Richards v. Palace Laundry Co., 27S, 102 Atl. 349 (1917). — Utah — , 186 Pac. 439 (1919). *B Mo. Laws 1911, p. 327, sec. 8. *2Domke v. Gunning, 62 Wash. 629, 46 Davis v. United Rys. Co., — Mo. 114 Pac. 436 (1911). App. — , 218 S. W. 357 (1920) ; Dignum "While he has the right to presume v. Weaver, — Mo. App. — , 204 S. W. that both pedestrians and others using 566 (1918); Rappaport v. Roberts, — the highway will use due care, he is Mo. App. — , 203 S. W. 676 (1918) ; under a like duty with respect to every Mitchell v. Brown, — Mo. App. — , 190 one else, taking in consideration the S. W. 354 (1916) ; Carradine v. Ford, character of his vehicle." Coca Cola 195 Mo. App. 684, 187 S. W. 285 (1916) ; Bot. Co. v. Brown, 139 Tenn. 640, 202 Grouch v. Heffner, 184 Mo. App. 365, S. W. 926 (1918). 171 S. W. 23 (1914); Roberts v. Trunk, RIGHTS AND DUTIES ON THE HIGHWAYS 159 This statute has been helcj by the Supreme Court of Missouri to establish a rule of conduct for drivers not only in respect to other users of the highways but also as to the degree of care to be exer- cised for their own safety; that it prescribes a standard for testing both negligence and contributory negligence.*'' Under this statute it is the duty of the operator to keep a look- out for persons who fail to observe the appfoach of his machine. He is required to keep a lookout, not only straight ahead, but later- ally ahead,** and it is his duty to guard against all movements of persons likely to take place in the highway which a prudent man, exercising high care, should anticipate as within the range of rea- sonable probability and likely to occur according to the rationale of human experience.** But the measure of care thus imposed is to be deteri^ined in the circumstances of the particular case.*" The court, in one case, suggested that, "among the precautions, which a very careful person exercising the Jiighest degree of care would use, would be that of watching to see, whether the plaintiff's team," which the automobile was overtaking and passing, "was be- coming badly frightened." " Where the duty is an extraordinary one, like that imposed by this statute, and the situation highly suggestive of hurt to others, slight evidence may be sufficient to suggest a breach ^^^ 179 Mo. App. 3S8 (1914);, Porter v. roadway." Priebe v. Crandall, — Mo. Hetherington, 172 Mo. App. S02, 158 S. App. — , 187 S. W. 605 (1916). W. 469 (1913); Hodges v. Chambers, ^ Threadgill v. United R. Co., — Mo. 171 Mo. App. 563, 154 S. W. 429 — , 214 S. W. 161 (1919) ;: Monroe v. - (1913) ; Bongner v. Ziegenhein, 165 Mo. Chicago & A. R. Co., — Mo. — , 219- S App. 328, 147 S. W. 182 (1912) ; W. 68' (1920) ; overruling Stepp v. §t. Fields v' Sevier, 184 Mo. App. 685, 171 Louis S. F. R. Co., — Mo. App. — , 211 S. W. 610 (1914); Williams v. Kansas S. W. 730 (1919); Advance Thresher Co. City, ^ Mo. App. — , 177 S. W. 783 v. Chicago, R. I. & P. R. Co., — Mo. (1915) ; Cool V. Peterson, 189 Mo. App. App. — , 19S S. W. 566 (1917) ; Hopkins 717, 175 S. W. 244 (1915) ; Gintef v. v. Sweeney Auto School Co., — Mo. O'Donoghue, — Mo. App. — , 179 S. App. — , 196 S. W. 772 (1917). W. 732 (1915). *8Aronson v. Ricker, 185 Mo. App. This rule applies to a motorist ap- 528, 172 S. W. 641 (1915) ; Bongner v. preaching a railroad crossing. England Ziegenhein, 165 Mo. App. 328, 147 S. W. V. Southwest Mo. R. Co., — Mo. App. 182 (1912). ^ 180 S. W. 32 (1915). *9Bongner v. Ziegenhein, 165 Mb. App. "Under the circumstances, it was- the 328, 147 S. W. 182 (1912). duty of the driver of defendant's auto- BO Bongner v. Ziegenhein, 165 Mo. mobile to exercise a high degree of care App. 328, 147 S. W. 182 (1912). to have the machine so under control as 51 Fields v. Sevier, 184 Mo. App: 685, to be able to stop quickly, when at- 171 S. XV. 610(1914).' tempting to pass the pony near the S2 Bongner v. Ziegenhein, 16£i Mo. App. edge of the traveled portion of the 328, 147 S. W. 182 (1912). 160 LAW OF AUTOMOBILES - Such a provision, being in derogation of the common law, is strictly construed, but not so as to defeat the obvious in tenti0n of the law' makers.^' .: Under this statute, where a collision occurred at an intersection of streets between a motorcycle and an automobile, if the cyclist was warranted in believing that he could safely proceed, and entered upon the intersectioin after exercising reasonable care to see that he would not be run into, he wa,s not required to look back to see whether the automobile would turn toward and overtake him.®* , I^hia statute was held to apply to injury to animals: running at large in the highways,, as well as to those which are being driven or in control of someone/® ; A failure to exercise this degree of care by a servant in the oper- ation of his master's automobile is regarded as a failure on the. part of the master.®® § 154, Care required of motorist for his own safety. Under the "ordinary care" rule, a motorist is required to exercise the same degree of care for the protection and safety of others that he is required to exercise for his own safety. • " , ,', The Missouri statute of 1911 provided that operators of auto- mobiles: "Shall use the highest degree of care tliat.a very careful person would use, under like' or similar circumstances, to preiveni injury or death to persons on, or traveling over, upon or across such public roads, streets, avenues, alleys, highways, or places much used for travel. Any owner, operator or person in control of an automobile, failing to use such degree of care, shall be liable to damages, to a person or property injured by failure of the owner, operator or person [s] in control of an automobile, to use such de- giree of care, * * * unless the injury or death is caused iby the neg- ligence of the injured or deceased person, contributing thereto." Under this provision it was held that a motorist is required to exer- cise the specified high degree of care alike for his own safety and the safety of others.®''' ' ' 63 Nicholas v. Kelley, 1S9 Mo. AppI 20 Mo. — , 214 S. W. 161 (1919) ; Monroe 139 S. W. 248 (1911). V. Chicago & A. R. Co., — Mo, — , 219 6* Hopkins v. Sweeney Auto School S. W. 68 (1920), overruling Stepp v. Co., — Mo. App.: — 1^6 S. W. 772 St. L. & S. F. R. Co., — Mo. App.,— , (1917). 211 S. W. 730 (1919); Advance Thresher. 66 Pullman v. Moore, — Mo. App. Co. v. Chicago, R. I. & P. R. Co., — — , 218 S. W. 938 (1920). Mo. . App. — , 19S S. W. S66 (1917); 86 Nicholas v. Kellfey, 1S9 Mo. App. Hopkins v. Sweeney Auto School Co., — 20,, 139, S. W. 248 (1911). Mo. App. — , 196 S. W.. 772 (1917). . 57ThreadgilI: V. .United Rys. Co., — RIGHTS AND DUTIES ON THE HIGHWAYS 161 § 155. Statute creating only criminal liability for violation. The Missouri Motor Vehicle Statute of 1917, unlike the act of 1911, which was repealed by the 1917 act, does not provide a civil liability, but only a criminal penalty for its violation. Hence the failure to have two lamps bright enough to reveal objects 150 feet away does not create a civil cause of action, though the failure to have any lights at all so as to enable one to avoid running into -another does give rise to a cause of action under the common law to one injured by the failure of any automobile driver to see.** "But, though the statute does not provide a civil remedy, yet an injured party may find redress by a common-law action, based on the negligence found in violation of the statute (a violation being considered to be negligence per se). if one violates a city ordi- nance, it is negligence, and the ordinance may be admitted in evi^ dence on the issue of negligence. If a general statute is violated, notice will be taken of its provisions, and a common-law action may be sustained by proof of violation of the statute and the resulting injury to the plaintiff. But an injured party cannot sue, and sub- mit his case to the jury under the statute, when the statute fails to give a right of action, although he may have a right of action at common law for the same wrong. In this case plaintiff cannot be allowpd to sustain his judgment by an appeal to the common law, when his action was not under that law. A plaintiff may sue at common law, and make proof of negligence by showing a violation of a statute or an ordinance; but, if he brings his action imder the statute, he must confine his proof to the statutory negligence, and he cannot recover at common law." *' § 156. Must observe statutory requirements. Statutory duties imposed upon operators of automobiles are cumulative; that is, additional to the common law, and do not destroy the duties that the common law imposes upon them.^" In fact these statutes frequently are merely declaratory of the common law. Thus, the following statutory provisions were declared to state merely what was already common law: "In approaching or passing a car of a street railway, which has been stopped to allow passengers to alight or embark, the operator of every motor vehicle shall slow down, and, if it be necessary for the safety of the public, he shall bring said vehicle to a full, stop, Upon sswalden v. Stone, — Mo. App. — , , 60 Giles v. Voiles, 144 Ga. 853, 88 S. 223 S. W. 136 (1920). E. 207,(1916)., 69 Dortch V. Reichel Motor Co., — Mo. App. — , 223 S. W. 67S (1920). B. Autos. — 11 162 LAW OF AUTOMOBILES approaching a pedestrian, who is , upon the traveled part of any highway and not upon a sidewalk, and upon approaching an inter- secting highway or a curve or a corner in a highway, where the operator's view is obstructed, every person operating a motor vehicle shall slow down and give a timely signal with his. bell, horn, or other device for signaling." ®i , i An automobilist should ever bear in mind the ordinances - and statutes regulating the operation of his machine and designed for the protection of the public.®^ ' § 157. Inexperience as affecting: liability. An unskillfill ' or inexperienced driver is not to be excused from liability for injiiries inflicted because of his inexperience and unskillfuliless. On the contrary, he should not frequent places where injury is liable to result from inexperience or unskillfulness in handling an automo- bile. Where a person operates an automobile along a public high- way frequented by other travelers, he assumes the responsibility for injuries resulting from his unskillfulness in the operation of the car. Hence, an instruction which contained the statement that the driver "must posstess reasonable skill in bpei-atirlg an automo- bile before he undertakes to operate said automobile upon, the pub- lic thotoughfares or highways," was held to properly state the law.^^ It has been declared 'that if one does not have ordinary skill, it is lack of ordinary care for him to attempt to drive an automo- bile where there is danget of colliding with others.®* § 158. Liability of occupa,nts of automobile for injury to another. A passenger or guest in an automobile is npt liable for injuries to a third person caused by the negligent operation of the automobile, unless he himself iS guilty of negligence, or ,is engaged ~ in a joiiif enterprise with the owner or operator.*^ § 159. Evidence of want of care. The pfdinary rules of evi- dence cannot be discussed in a work of this character, and the rules given in this section are included because of their peculiar valile, owing to their special applicability to this subject. In determining whether a chauffeur was in the exercise of due care at a given time, it bas been said to be immaterial whether he 61 Meenach v. Crawford, — Mo. — ; 64 Arnold v. San Francisco Oakland 187 S. W. 879 (1916). Ter. Rys. 17S Cal. 1, 164 Pac. 798 68 0'Dowd V. Newnham, 13 Ga. App. (1917). 220, 80 S. E. 36 (1913) ; Eames v. Clark, 66 Burns v. Southern Pac. Co., — Cal. — Kan.—, 177 Pac. 540 (1919). App. — , 18S Pac. 873 (1919); Foxley 63Hughey v. Lennox, — Ark. — , 219 v. Gallagher, — Utah — , 185 Pac. 775 S. W. 323 (1920). See post, § 259. (1919); RIGHTS AND DUTIES OlN THE HIGHWAYS 163 was educated or uneducated -in the business.^^ So, testitaony as to the skill and care usually exercised by' a chauffeur is inad- missible to disprove negligence on his part in a given instance.®'' A chauffeur's reputation for carefulness, competency or skill- fulness cannot be shown on the question of his negligencfe, unless in the absence of direct evidence on such question.®* \ The tonduct of a chauffeur after an accident involving his niachine is not relevant or material except in $o far as it is a part of the res gestae, and might tend to throw light on the question of his alleged negligence.®' Evidence that after the accident in question the operator drove differently; that he ran the car steadier, avoided thte rough places, and drove safely, was properly eJxcluded, as it was not evidence of negligence prior to the accident.''*' In an action against the owner of an automobile to recover on account of injuries caused by the negligent operation of his auto- mobile by his son, on the theory that the son was known by the father to be reckless and a negligent driver, it was held compe- tent to show that prior to the occasion in question the son, while driving the automobile, had damaged two buggies.''^ The fact that after an automobilfe accident the defendant dis- charged his chauffeur, was no evidence of negligence on his part at the time of the accident.''^ Nor was the fact that the chauf- feur was discharged because the women of the owner's family would never, feel safe with him again, any evidence of the chauf- feur's negligence.''* An ordinance prohibiting autompbiles from being, operated in excess of a certain rate if speed is admissible in evidence, although the complaint does not allege a violation thereof, but there is. evi- dence that such speed limit was violated by the defendant, and the complaint charges wantonness and wilfulness on the part, of the defendant. It assists the jury in determining whether the wrong complained of was wanton or wilful.''* Where the question of right of way at street intersection is 66 Latham v. Cleveland^, C., C. & St. 70 Desmarchier v. Frost, — Vt. — , L. R. Co., 179 111. App. 324 (1913). 99 Atl. 782 (1917). 67 Carr v. Stern, 17 Cal. App. 397 71 Linville v. Nissen, 162 N. C^ ■ 95, (1911); Young v. Avery Co., 141 Minn. 77 S. E. 1096 (1913). 483, 170 N. W. 693 (1919). 72 Webster v. Orr, 174 Cal. 426, 163 68 Shaw V. Corrington, 171 111. App. Pac. 361 (1917). 232 (1912); Slack v. Joyce, 163 Wis. 73 Buchanan v. Flinn, 51 Pa. Super. 567, 158 N. W. 310 (1916). Ct. 145 (1912). 69 Minor v. Stevens, 65 Wash. 423, 118 74Yarbrough v. Carter, 179 Ala.) 356, Pac. 313 (1911). 60 So. 833 (1913). I 164 LAW OF AUTOMOBILES important, an ordinance giving vehicles moving north or south right of way over vehicles moving east or west is admissible in evidence.''* Testimony, in ah action by a boy to recover for personal inju- ries incurred when an automobile collided with him, that the chauf- feur stated that it would teach the boys a lesson to stay out of the street, was inadmissible.''® A statement by a passenger for hire, at the time of an accident, that the operator was not negligent or to blame, will not prevent recovery by him for injuries then received, and due to the opera- tor's negligence.''"'' Where the facts can be placed before the jury, expert testimony on the conduct of a chauffeur at the time of the accident is not admissible.''* The manner of a collision of automobiles may be testified to by experts expressing their opinion after examination of the breakage, marks, and indentations.''^ But it has been held that whether or not it was dangerous to operate an automobile in certain conditions is a question of fact for the jury, and not a sub- ject for expert testimony."* Testimony that the front wheel of deceased's motor cycle looked as ;if he had lost control of it, was inadmissible because it was merely a conclusion of the witness.*^ § 160. Same— Presumption as to skill of operator. There is no' presumption, one way or the other, as to the skill, or want of ' skill, of the driver of a vehicle, whether horse-drawn or propelled by mechanical^ power, when all the facts and circumstances out of which the charge of negligence arose are before the jury. When negligence is charged and there is evidence in support of such charge, the fact that the driver of the vehicle was a reasonably careful and skillful driver, and that he exercised that degree of care and skill which an ordinarily careful and skillful driver would have exercised under the circumstances, is a matter of proof by the defendant.*^ * §161. Intoxicated driver. It has been held that the act of intoxication on the part of the operator of an ^.utomobile which 'BEbllng Brewing Co. v. Linch, 80 79 Young v. Dunlap, 19S Mo. App. 119, Misc. 517, 141 N, Y. Supp. 480 (1913). 190 S. W. 1041 (1916). 76 Shaw V. Corrington, 171 111. App. SOReed v'. Edison El. 111. Co., 223 232 (1912). Mass. 163, 114 N. E. 289 (1916). 77 Desmarchier v. Frost, — Vt, — , 81 Zimmerman v. UUmann,' 173 App. 99 Atl. 782 (1917). Div 6S0, 160 N. Y. Supp. 81 (1916). 78 Buchanan v. Flinn, 51 Pa. Super. 82pevine v. Brunswick-B.-C. Co., 270 Ct. 14S (1912). HI. 504, 110 N. E. 780 (1915). RIGHTS AND DUTIES QN THE HIGHWAYS 165 causes injury to another, is not in and of itself such negligence as will authorize recovery. It may be pleaded and proved by way of inducement, for the purpose of illustrating the negligent conduct alleged against the defendent; but if one, although intoxi- cated, drives his machine in a proper manner and observes the law in every respect, he cannot be held liable for an injury inflicted by his machine merely because he was- intoxicated at the time.** 8*Sheppard v. Johnson, 11 Ga. App. 280, 75 S. E. 348 (1912) ; Winston's Adm'r. v. Henderson, 179 Ky. 220, 200 S. W. 330 (1918), quoting from this work; Southern Tr. Co. v. Kirksey, — Tex. Civ. App. — , 222 S. W. 702 (1920). "In this busy age when the public highways are alive with motor vehicles, apparatus drawn by animal power and pedestrians of both sexes and various ages, the driver of an animal-drawn vehicle owes a duty not only to him- self, but to the public generally, not to so befuddle his faculties as to be unable to take such care of himself and team as an ordinarily prudent man would take under such circumstances, and if he is drunk, it is manifest that he is not in a condition, as a usual thing, to exercise the care that an ordinarily pru- dent man should exercise; in fact, his very condition, as a general proposition, incapacitates him from acting as an ordi- narily prudent man should act, and we feel that the public policy of the state can be best subserved, and the interests of the citizens best protected, by putting persons bibulously inclined on notice (if there was ever any doubt about it) that they are negligent, as a matter of law, when they attempt to operate a mule- drawn vehicle upon a public highway while in a drunken condition. The in- terest and safety ^f the public requires that a clear mind and steady arm should control the reins on such occasions; and the characteristics and propensities of the faithful but eccentric mule are suf- ficiently well known for us to say that a. body and mind that have become overwhelmed by the effects of alcohol are in no condition to foil such animal's fancies, or to curb its sometiities dis- astrous ambitions" Stewart v. Smith, — Al^. App. — , 78 So. 724. "As drunkenness does not furnish an excuse for negligence, neither does it con- stitute negligence as matter of law. It is possible, whether probable or not, for one man to act with the care of a prudent man while intoxicated, and for another to act with a, lack of ordinary care while sober. If the cppdjict of the drunken man measures up to the stand- ard fixed by law, the drunkenness alone will not authorize a recovery for an in- jury caused by him. Still it is one of the facts entering into the transaction, and is provable as such. It is not negligence .per se for a man to have a defective vision, or to have an iinpotent hand; but if a person so afflicted should undertake to drive a powerful automo- bile on a crowded thoroughfare, and injury should occur from a collision with another passer, the condition of the driver of the machine would be a prov- able fact, under proper allegations, ' for consideration , by the jury in determining whether in his entire conduct he was negligent. It is not negligence per se to have a cork leg. But, it may be negli- gent for a man with a cork legi to chase and seek to board a moving train; or the condition of a passenger, known to a carrier, may have an effect upon what; due care requires of the carrier. As liquor may affect,, not only the brain, but the nerves, the muscles, and the eyesight, if a person voluntarily becomes intoxi- cated, and in that condition undertakes, to, drive an automobile, ,and injury, re-, suits to another from the negligent opera- tion of it, his conditigi) would be a fact 166 LAW OF AUTOMOBILES It is held that evidence that the general reputation of a motorist, killed in k collision, waS that he was in the habit of getting drunk and driving an automobile at a rapid and dangerous speed, is admis- sible; but that evidence of particular or isolated instances as to his reckless driving while drunk is' not.** Testimony that the breath of one of the drivers in an automo- bile collision smelt of liquor, ahd of acts which had a tendency to show that he was under the influence of liquor, was held to be admissible and relevant.'^ In an action to recover for the death of a motor-cyclist, who, in the dark, rode against a pile of wood left in the street by defendant, it was held that special findings of the jury, based upon sufficient evidence, that the decedent at the time of the accident was intoxi- cated, and that such intoxication contributed proximately to his injury, precluded recovery because of deceased's contributory neg- ligence.*® One who operated a motor-cycle while in an intoxicated condi- tion, in violation of a statute, was not precluded from recovering for the consideration of the jary, in determining whether he acted with dili- gence or negligence'; or, if injury should result to him, and he should bring suit, whether he had voluntarily' created a con- dition which affected his action is a matter which the Jury may consider in determining whether he was diligent or nefgligent. It has sometunes been said that this condition of the person whose act is under consideration is a part pf the res gestae of the transaction." Powell V. Berry, 14S Ga. 696, 89 S. E. 753, 13 N. C. C. A. 8S8 (1916). "Voluntary intoxication is not per se negligence. But in an action to recover on account of an alleged negligent tort, in which it was alleged, on the one hand, that the defendant was intoxicated and negligent, and, on the other hand, that the plaintiff himself had been drinking and was negligent, so as to affect his right to recover, the condition of the parties, respectively, as to intoxication, is a fact which could be proved for the consideration of the jury, in connection with the other evidence as to negligence, if any, in determining the diligence or negligence of the parties respectively. If a person was injured by reason of the negligent operation of an automobile by another, and was himself- negligent, in determining the effect of such negligence on his right to recover for the injury, if he had voluntarily drunk liquor until he was intoxicated, this would furnish no excuse for his negligence, or relief to him from the consequences thereof." Powell V. Berry, 14S Ga; 696, 89 S. E. 7S3 13 N. C. G. A. 858 (1916). "The admission of evidence tending to show that the appellants were more or less intoxicated at the time the injury was inflicted is not, therefore, open to question. If ' it were, however, it was unquestionably competent. The issue was whether the appellants were guilty of neglect. Intoxication ordinarily de- prives one of the same power to exer- cise caution as when sober." Alexander & Alexander, etc., v. Humber, 86 Ky. 569, 6 S. W. 453, 9 Ky. Law Rep. 734. 84 Southern Tr. Co. v. Kirksey, — Tex. Civ. App. — , 222 S. W. 702 (1920). 86 Clyde v. Grill, 172 N. Y. Supp. 136 (1918). 86 Parker v. Smith Lbr. & Mfg. Co., 70 Oreg. 41, 138 Pac. 1061 (1914). RIGHTS AND DUTIES OtN THE HIGHWAYS 167 fqr injuries received in a collisipn with an automobile, where iti did not appear that his qonditipn was a proximate cause of his injuries.*'' ..Where a statute expressly prohibits the operation of a motor vehicle by an intoxicated person, an innocent person injured as a consequence of the violation thereof, may maintain an action, for damages therefor. The plaintiff's taxicab was being driven over a street crossing, and when about the center thereof it was struck by defendant's touring car, being driven by himself. The trial court; excluded evidence that at the time defendant, who had been placed under arrest, was in an intoxicated condition. It was held tb^t this was error, as any one injured as a result of the operation of an autoniobile in violation of a statute prohibiting the driver of a motor vehicle by a person in an intoxicated condition, may recover therefor, The evidence was held to be material for the further reason that a witness had testified that defendant's automo- bile was in a wobbly condition, and moving SS or 60 miles an hour; that the collision occurred near the center of the intersection; and that no collision would have occurred if the defendant had directed his car to the rear of the taxicab.** Intoxication of either a plaintiff or a defendant at the time of an appidenti may be proved as beariiig on the question" of his exerr cis& of due care, and also as affecting the accuracy of his testi- mony.*' |, ' , ,; .. A driver of an automobile, it has been held, is not "intoxicated" unless his indulgence in the use of intoxicating liquor was such as to resiilt in an appreciable interference with the exercise by him of ordinary care in the management of the vehicle.®" § 162. Duty as to brakes. It is the duty of a motorist, in the exerpise of reasonable care, to have his automobile equipped with brakes for use in controlling the speed and in stopping. This is a duty aside from any statutory provision relative to the equipment of the automobile with brakes.®^ The rule has been laid down that one who operates in the streets of a city such a dangerous instrumentality ' as an automobile is bound to take notice that he may be called upon to make emer- gency stops, and it is negligence on his part not to keep the auto- mobile in such condition that such Stops are possible.** 87 Allen V. Pearson, 89 Conn. 401, SOSteinkrause v. Eckstein, — Wis. — , 94 Atl. 277, (191S).i 17S N, W. 988 (1920). 88 Lincoln Taxicab Co. v. Smith, 88 91 Owens v. Iowa County, -^ la: — , Misc.:9, ISO N. Y. Sllpp. 86 (1914); 169 N. W. 388 (1918). 89Herzig v. Sandberg, S4 Mont. 538, 92 Allen v. Schultz, 107 Wash. 393, 172 Pac. 132 (1918). 181 Pac. 916 (1919). 168 LAW OF AUTOMOBILES "It was the duty of deceased, in the exercise of reasonable care, to have his car equipped with brakes in such condition that he could, by the: use thereof, aid in stopping, or controlling, the speed of the car." ®* 'A motorist must be familiar with the use of such safety appli- ances, and must use them in a reasonable and prudent manner to avdid collisions.^* '' The automobile laws of most states require that every automo-, bile operated on the highways shall be provided with good and efficient or sufficient brakes. • The word "efficient," as so used, means that the brake should be reaonably safe for the purpose for which it was intended. The use of the word "sufficient" instead of "efficient" in an instrucJtiort to the jury regarding the statutory requirement as to brakes, does not constitute reversible error, as " 'sufficient' as used in the in- struction was practically synonymous, with the word 'efficient' as used in -the statute, and appellant was not harmed by use of the word."«« The fact that the brakes on defendant's automobile were defec- tive was not material if that was not the cause, or partly the cause of the accident complained of.*^ And where the evidence showed that plaintiff had his car under full control all of the time in question, the fact that the brake was worn and slightly loose, was imtnaterial." ^ Evidence as to the condition of the brakes of an automobile after an accident is admissible where there is also evidence from which it can be found that no change had been made in their condition subsequent to the accident in question.'* 93 Owens V. Iowa County, — la. — , a vehicle of any kind, to use one of the 169 JSf, W. 388 (1918). methods at hand for avoiding a collision, , 9* Garrett v. Peoples R. Co., 6 Pennew, and, when he sees that it is not going to (Del.) 29, 64 Atl. 2S4. have the desired effect, sit, either help- "Observing then that his brakes were less or careless, and fail to use other not haying the desired effect, we think means at hand."' Russell v. Electric it vfas plainly his duty to have uSed Garage Co., 90 Neb. 719, 134 N. W. his steering lever and turned out so 253 (1912). as to avoid the collision. If he had 9BFox v. Barekman, 178 Ind. 572, 99 testified that, when he found his brakes N. E. 989 (1912). were not going to prevent a collision 96 Russell v. Watkins, 49 Utah 598, 164 he tried to turn out, but was unable to Pac. 867 (1917). do so, that claim might have been made 97 Bigelow v. St. Johnsbury, — Vt. — , with some show of reason. We do not 105 Atl. 34 (1918). think it is a sufficient exercise of dili- 98 Owens v. Iowa County, — la. — , gence by. the driver of an automobile, 169 N. W. 388 (1918). when he sees he is about to collide with RIGHTS AND DUTIES ON THE/ HIGHWAYS 169 §163. "Two independent brakes." Under a requirement that every automobile be equipped with "two independent brakes/' it was held that a car equipped with one brake on the hind wheels, which could be worked either by a lever or a treadle, did not meet with such requirement, although it was shown that the engine could be used as a brake by throwing it into gear. The Lord Chief Justice, in giving judgment, said that the case was too; clear fori argument. "It was found as a fact by the learned magistrate that, 8,1 though the engine could be used so as to lock the wlieels, it was not an independent brake. The people who framed these i regulations knew what they were talking about, and would: know that all, or at least most, engines could be used in this manner to supplement the brakes. The intention in framing this regulation was that if one of the brakes failed the other independent brake, should be used in its stead." ^ § 164. On private land by invitation. If the owner of land by invitation, express or implied, induces a person to come upon his land and to cross over it, he must use ordinary care to keep that part of the land, to which such person is invited, safe for the pas- sage. The invitee must also use reasonable care for his owni safety.* § 165. Negligent speed. One may be guilty, of operating an automobile at a negligent rate of speed and still be well within the rate prohibited by statute or ordinance.* The driving of an automobile on a city street at a rate of speed 1 Wilmott V. Southwell, 2S T. L. Rep. Missouri: Ginter v. O'Donoghue,, — , 22, 99 L. T. 839 (1908); , Mo. App. — , 179 S. W. 732 (1915); 2Reddington v. Getchell, 40 R. I. 463, Denny v. Randall, — Mo. App. — , ,202 101 Atl. 123 (1917). S. W. 602 (1918). ' , ^California: Opitz v. Schenck, 178 New York: Thies v. Thomas, 77 N. Cal. 636, 174 Pac. 40 (1918); Cook v. Y. Supp. 276, 279. Miller, 175 Cal. 497, 166 Pac. 316 (1917). Oregon: Ahonen v. Hryszko, 90 Oreg. Connecticut: Irwin v. Judge, 81 Conn. 451, 175 Pac. 616 (1918). 492, 71 Atl. 572 (1909). Pennsylvania: Flanigan' v. McLean, lUinois: Kessler v. Washburn, 157 111. — Pa. St. —,,110 Atl. 370 (1920). App. 532 (19'10). ' Tennessee: West Constr. Co. v. Iowa: Livingstone v. 'Dole^ 184 la. White, 130 Tenn. 520, 172 S. W. 301 1340, 167 N. W. 639 (1918). (1914), citing this work. Kentucky: Forgy v. Rutledge, 167 Utah: Fowkes v. J. I. Case Th. Mach. Ky. 182, 180 S. W. 90 (1915). Co., 46 Utah 502, 151 Pac. 53 (1915). Michigan: Winckowski v. Dodge, 183 Washington: 'Adair v. McNeil, 95 Mich. 303, 149 N. W. 1061 (1914); Pat- Wash. 160, 163 Pac. 393, (191/). terson v. Wagner, 204 Mich. 593, 171 N. • W. 356 (1919). 170 LAW OF AUTOMOBILES prohibited by statute is negligence; and where one wds so driven towards a railroad crossing, and the driver, seeing a locomotive and cars approaching the Crossing when the automobile was SO to 7S' feet distant from the track, turned the automobile so ais to run it into an intersecting street, and one of the rear Tvheels went off a bridge in making the turn, and the automobile was wrecked,' it was held that the automobile driver was guilty of negligence that was a proximate cause of the accident.* It has been held that the owner of a jitney bus was liable to' a passenger for injuries sustiained in a collision if the excessive speed of the bus would, without more, have brought it to the place of -the cdllision at the moment of time when it took place.* Driving at the rate of 5 to 8 miles an hour was not negligence as matter of law, although the motorist was approaching closie to a crossing of a busy street, and -was in the immediate vicinity of two street cars probably discharging passengers on the opposite side, and was bound to operate his automobile at such a ' rate of speed and in such a manner as to have the same under such control that it could be stopped within a reasonable distance in order to prevent danger of colliding with pedestrians.® The mere running of an automobile at an unlawful rate of speed is ordinarily simple negligence, and becomes gross negligence only when accompanied by such wanton and reckless disregard of human safety as to evince intent, actual or constructive, to injure.' The situation may be such that, he would; be negligent in driving at a much less rate of speed, or in moving at all.' A statute forbidding a greater rate of speed than therein specified is not a license or permission to drive at that rate.' A statute limiting the speed of any automobile approaching horses to 8 miles an hour, does not permit that rate to be maintained in every instance where horses are being approached. It is necessary 4 Houston Belt & Ter. R. Co. v. — Tex. Civ. App. — , 171 S. W. 826 Rucker, — Tex. Civ. App. — , 167 S. W. (1914). 301 (1914). 9Bohm v. Dalton, 206 111. App. 374 6 Singer v. Martin, 96 Wash. 231, 164 (1917). Pac. IIOS (1917). "The speed limit fixed by the various 6 Gilbert v. Vanderwaal, 181 la. 685, statutes and city ordinances is a maxi- 16S N. W, 16S (1917). mum limit which motorcars may not ex- ' Barlow v. Foster, 149 Wis. 613, 136 ceed in any case, and not a minimum N. W. 822 (1912). speed at which they may run under all 8Schaar v. Conforth, 128 Minn. 460, circumstances." Chrestenson v. Harms, ISl N. W. 275 (1915); Prince v. Taylor, . 38 S. D. 360, 161 N. W. 343 (1917). RIGHTS AND DUTIES ON 3^HE HIGHWAYS 171 that the machine, move slower, or even be stoppd altogether, if, the situation requires it." , ,, The driver is, required to operate his automlaile on the piibKc highway at a proper and reasonable rate of speed, with regard to the traffic and use of the highway in the existing conditions, to ayqid as far as possiblf^ endangering the life gr limb of any person or the safety of any property. This duty he owes, regardless of any provision of statute or ordinance.''^ , He is bound to anticipate that he may meet persons at any point in the public street and he must keep a proper lookout for them and keep his machine vinder such control as will enable him) in the exercise of due care, tp avoid a collision with a person using proper care and caution; and, if necessary, he must sIqw up and even stop. No blowing of a horn or of a whistle or ringing of a bell or gong, without an attempt to slacken the, speed, is sufficient, if the circum- stances at a given point demand that the speed be slackened or the machine be stopped, and such a course is reasonably practi- cable.''^ ,; Although the rate of speed of an autonaobile may not have been great, it is generally a question of fact for the jury whether in a given instance it, was dangerous.^* On the question of speed it is proper to consider that the street was, torn up, that ti:affic; was heavy, and that all vehicles had to pass on the street car tracks." Where there is a, statute limiting the rate of speed of automo- biles to 24' miles an hour, and the plaintiff testifies that at the time of : a collision between his, machine and defe|idant's truck he was driving between 20 and 25 miles an hour, it is for the jury, and not the court, to say whether or not. he was driving in exciess of 24 miles an hour, and hence was guilty of contributory negligenpe." When no statute is applicable to his conduct, it is gauged by the common law.-'® 10 Curry v. Fleer, 1S7 N. C. 16, 72 v. Seattle Taxicab Co., 80 Wash. 396, S. E. 626 (1911). 141 Pac. 890 (1914). 11 WinckQwski v. Dodge, 183 Mich. l^Kessler v. Washburn, 1S7 111. App. 303, 149 N. W. 1061 (1914). 532 (1910). It is the duty of a chauffeur to oper- iSHartwig v. Knapwurst, 178 111. App. ate his car at a reasonable speed. Helm 409 (1913). V. Phelps, 1S7 Ky. 795, 164 S. W. 92 - 14 Hood & W. Furn, Co.; v. Royal, -- (1914). Ala. —, 76 So. 965 (1917). "It was the duty oi the driver of the is Webster v. Adams Ex. Co., 69 Pa. automobile, especially when driving at an Super. Ct. 547 (1918). excessive rate of speed, to observe foot- 16 Schaar v. Conforth, 128 Minn, 460, men upon the usual crossing." Franey 151 N. W. 275 (1915). 172 LAW OF AUTOMOBILES In an action to recover for injuries due to being struck by an auto;nobile, the rate of speed, whether high or low, lawful or un- lawful, at which the automobile was run at the time, is immaterial unless it entered into the cause of the accident complained of." Byt if the accident was due to the high rate of speed combined with the noise of the automobile, the fact that the excessive speed was alone pleaded and relied upon as a cause of action will not prevent a recovery. It is unnecessary to allege and prove both causes.^* § 166. Same— Under statute making specified rate prima facie evidence of negligence. A statute declaring speed in ex- cess of 25 miles an hour maintained for one-eighth of a mile to be pri'hia facie evidence of a rate of speed greater than is reasonable and proper, does not forbid a rate of speed in excess of 25 miles an hour, nor make a person operating a,n automobile in excess of that speed an insurer against all mishaps which might arise in the course of such operation. It merely makes proof of such rate of speed for such distance prima facie evj^dence of negligence, which may be overcome by evidence to the contrary.^® Under a statute providing that, "Every person operating a motor vehicle on the public highways shall drive the same in a careful and prudent manner, and at a rate of speed so as not to endanger the property of another, or the life or limb of any person: Pro- vided, that a rate of speed in excess of twenty-five miles an hour shall bfe presumptive evidence of driving at a rate of speed which is not careful and prudent in case of injury to the person or property of another," it was held that any rate of speed less than 25 miles at hour may constitute negligence in a given instance.^" Under such a provision, one charged with operating his auto- mobile in excess of the rate of speed mentioned in the statute, has the burden of showing '/lat, in the circumstances, his driving was not negligent, or that the accident was not due to the rate of speed.^^ • l* Major Taylor & Co. v. Harding, 182 «0 pisher v. Ellston, 174 la. 364, 156 Ky. 236, 206 S. W. ,285 (1918) ; Thies v. N. W. 422 (1916) ; Nafziger v. Mahan, Thomas, 77 N. Y. Supp. 276, 279. — Mo. App. — , 191 S. W. 1080 (1917). ' ISShinkle v. McCulIough, 116 Ky. 960, 21 Moore v. Hart, 171 Ky. 72S, 188 S. 964, 25 Ky. L. Rep. 1143, 77 S. W. 196, W. 861 (1916); Nafziger v. Mahan, — 105 Am. St. Rep. 249. Mo. App — , 191 S. W. 1080 (1917) ; 19 Radwick v. Goldstein, 90 Com. 701, People v. Mellen, 104 Misc. 355, 172 98 Atl. 583 (1916) ; People v. Ruetiman, N. Y. Supp. 165 (1918). 85 Misc. 233, 148 N. Y. Supp. 612 (1914). RIGHTS AND DUTIES QN THE HIGHWAYS 173 Such a statute containing a provision that the driving of an auto- mobile in excess of a specified number of miles an hour shall con- stitute prima facie evidence of unreasonable speed, does not pro- hibit a rate of speed in excess of that specified in all conditions, as, for instance, where it appears that owing to the deserted con- dition of the highways at night, or the lack of traffit thereon, such speed is reasonable and proper and will not endanger the life or limb or the property of another persian.** § 167. Same— Introduction of hospital quiet zone signs as evidence of. In an action to recover for death alleged to have been caused by negligent driving by defendant's chauffeur, it was held to be error to permit the plaintiff to introduce in evidence signs erected by a hospital, under provisions of an ordinance, requiring drivers to "walk your horses," and forbidding unneces- sary noise in the district in which the accident occurred. In com- menting upon the trial of the case in the lower court, the court said: "The court (trial court) stated, in effect, that the jury might infer, from the existence of such signs, that plaintiff's intestate having seen such a sign, might rely upon it as an assurance of safety, and also that the jury might infer that the chauffeur, hav- ing seen it, neglected to obey its mandate. Had the signs related to automobiles, and commanded that such vehicles traverse said street at slackened speed, there would have been some reason in the suggestion of the court; but the signs were directed solely against- the making of noise upon this hospital street, and com- manded drivers to walk their horses, instead of trotting or running them, with the evident sole purpose of avoiding unnecessary noise. By no possible stretch of imagination can it be said that the signs in question related to the driving of automobiles, or the speed with which such vehicles should be driven. The direction of the signs, that drivers should walk their horses and make no unnecessary noise, was clearly for the benefit and comfort of inmates of the hos- pital, and had no bearing whatever upon the speed at which automo- biles should be driven upon the street. As affecting the question of passing vehicles upon the street, there is absolutely no comparison between horse-drawn vehicles and automobiles. It is a matter of common knowledge that a trotting or a running horse, with the ac- companiment of heavy hoof falls upon the pavement, causes a much louder noise than as though the animal were slowly walked upon 22 Berg V. Michell, 196 111. App. 509 (1915). 174 LAW; OF AUTOMOBILES the .paveijient. The speed at which, a motor car travels has little, if anything, to (Jo with the noise. ;which it makes." ^^ §168. Same— Unable to stop within distance objects are visible. It has been held to be negligence , for the; driver of an autornpbile to drive on a highway at night at such a rate of speed that he cannot stop ,in time to avoid objects after they come within the area lighted by his lamps .^* „ ,, :, .-hj :M,i An automobilist, traveling at night, "is required to have such Jights as will show objects immediately in front oi him, and he must have his machine under such control as not to overtake and run down people iwithin the scope of his^ lightss^^ . "It is the duty of the driver of a car, driving on a dangerous highway on a dark, stormy night, to ha;ve his car under such con- trol that he may stop or turn it away when objects intercepting his passage come within range of the rays of light from his laihps. If he drives so fast that he cannot avoid what ordinary prudence would make a knbwn obstruction, he is guilty of negligence." ^^ ' In an action in which it appeaired that the plaintiff had driven his automobile, at night, when the lamps thereon were properly lighted arid the brakes in good order, against a pile of debris about two and a half feet "high with a radiator on top of it, which was in a city' street some 3 or 4 feet from the curb, causing the injuries complained of, the court said: "If, as plaintiff says, he could not distinctly see an object of the character here in question 10 feet' in front of his machine, because of weather conditions, amd he never- theless was driving his automobile at such a rate of speed as to make it impossible to stop, with the appliances at haild, within such distance as he could disciern such an object, then we think that he was plainly guilty of contributory negligerice barring a recovery. It the night was misty or foggy, and the street wet and slippery, all the more care was needed on his part. Wha,t is ordinary care will depend, of course, upon all the facts and cirtumstarices of the ca!se. And the law required that plaintiff exercise such care 1 , 28 FaJf ope V. Ivfational Casket Co., 190 Tenn. 520, 172, S. W. 301 (1914) ;, Lauson App. Div!, 6S1, 180 N. Y. Supp. '455 v. Fond, du Lac, 141 Wis. 57, .123 N._ W. (i^'20)'. '■■• '' 629,25 L. R: A. (k. S.) 46, 135 Am.'St. 24 Fisher v. O'Brien, <)9 Kan. 621, 162- Rep. 30 (1909). ' ' •!■':. Pac. 317 (1917), citing this work; Knox- 25 Harnau v. Haight, 189 Mich. '600, villa R. & L. Co. v. Vangilder, 132 Tenn. 155 N. W. 563 (1915). 487, 178 S. W. 1117, 10 N. C. C. A. 820 26 ]y[cGrath v. Pennsylvania R, Coi, 71 (1915); West Constr. Co. v. White, 130 Pa. Super. Ct. 1 (1918). RIGHTS AND DUTIES ON THE HIGHWAYS 175 as an ordinary prudent man would have exercised under the cir- cumstances." ^®^ Where a motorist with dim side lights drove at night at such a rate of speed that he could not stop within the distance which, with the light from his lamps and other available light, he could see an object the size of a person, he was held to be negligent.^ It was held to be negligence as matter of law for one to drive an automobile at 12 miles an hour in a fog so dense that he could not see beyond the hood or distinguish another car, although there were lighted lanterns 75 feet apart in the street.^* A motorist was held to be negligent in driving at such speed that he could not stop within the range of his vision in the day time.^® ' 1 This rule applies where, by reason of his headlights having given out, the operator is using a lantern hung in front of his radiatori*" The Supreme Court of Iowa expressly refused to adopt the fore- going rule. That court holds that the duty is not imposed upon a motorist to drive his automobile at such a rate of speed that it may always be stopped within the distance that objects, depressions, defects, or obstructions in the highway may be visible.^^ The Iowa Court goes on to say that, "the duty to provide bar- riers, lights, or warning to attract the attention of travelers upon the highway would be so relaxed as to be easily avoided," if this were not the rule. In a California case it is held that, while negligence may be pred- icated as matter of law on the fact that an automobile was driven at night at a rate of speed which would not permit it being stopped within the distance illuminated by its lights, still the laying- down df the rule that it is negligence per se to so drive,' without taking into consideration the degree of darkness or the known condition of the road, constituted error.'^ "As a general rule, it is the duty of the driver of an automobile to, maintain a speed sufficiently slow and to have such control of his car that he can stop within the distance in which he can plainly see an obstruction or danger ahead. But that rule does not apply 26a Solomon v. Duncan, 194 Mo. App. 30 Fisher v. O'Brien, 99 Kan. 621, 162 S17, 18S S. W. 1141 (1916). Pac. 317 (1917). ' 27Yahnke v. Lange, 168 Wis. 512, 170 81 Owens v. Iowa County, — la. — , N. W. 722 (1919). 169 N. W. 388 (1918); Kendall v. Des 28Albertson v. Ansbacher, 102 Misc. Moines, 183 la. 866, 167 N. W. 684 S27, 169 N. Y. Supp. 188 (1918). (1918). 29 Raymond v. Sauk County, 167 Wis. 32 Ham v. Los Angeles County, — Cal. 125, 166 N. W. 29 (191-8). App. — , 189 Pac. 462 (192(». 176 LAW OF AUTOMOBILES to a case where a dangerous situation which the driver of the auto- mobile had no reason to expect suddenly appeared immediately in front of the car."^* An instruction that it is negligence to driVe an automobile at a very rapid rate of speed at night without lights necessary to enable a person crossing the road to see that the automobile is coming and to enable the driver to see ahead and know whether there are per- sons or vehicles in the road in front of him; that the driver of an automobile is held to the degree of care which an ordinarily pru- dent person would exercise under the circumstances and that the rate of speed should be consistent with reasonable safety, and the lights necessary to afford reasonable protection to others on the road should be lit, was upheld, and held not to impose any greater or other duty upon the operator of an automobile than that pre- scribed by a statute^* requiring him "to show two side lights visi- ble not less: than two hundred feet in the direction in which the vehicle is progressing." ** § 169. Same— Application of speed regulations to fire de- partment vehicles. While the fire departments of cities are re- quired to exercise reasonable care while responding to an alarm of fire, such care is reasonable in view of the exigencies of the occa- sion. It is generally held that statutes and ordinances regulating the speed of vehicles in the highways do not apply to fire depart- ment vehicles.*® Where a statute regulating the speed of motor vehicles expressly excepted fire department vehicles from such provisions, the excep- tion was held to be applicable to a, fire department automobile responding to a call outside the limits of the city to which it belonged.*' § 170. Speed greater than is reasonable, etc, Some statutes do not fix an arbitrary maximum rate of speed, but prohibit any speed "greater than is reasonable and proper, having regard to the 3» Jacobs V. Jacobs, 141 J^a. 272, 74 So. 222, 46 N. E. 506, 57 Am. St. Rep. 511; 992 (1917). Oklahoma R. Co. v. Thomas, — Okla. S*Pa. Laws 1909, p. 265, sec. 12. — , 164 Pac. 120 (1917). SSCurran v. Lofch, 247 Pa. St. 429, 90 3'? Hubert v. Granzow, 131 Minn. 361, Atl: 62 (1915). 155 N. W. i04 (1915). 36 Kansas City v. McDonald, 60 Kan. On the question of the negligence of 481, 57 Pac. 123, 45 L. R. A. 429; War- firemen, or police officers in .driving at reff;v. ^Mendenhall, 77 Minfi.. 145, 79 N. excessive speed, see note in 9 N. C. C. A. W. 661; Farley v. New. York, 15,2 N. Y. 665-676. RIGHTS AND DUTIES ON THE HIGHWAYS 177 traffic and the use of the way;" leaving it to the court and jury to say what in the particular instance was a reasonable and proper rate of speed.** Generally the question is for the jury." * This provision does not refer to the number of persons or vehi- cles in the immediate vicinity of the automobile, but to the traffic that is usual, or might reasonably be expected on the highway. Thus the English "Light Locomotives on Highway Order," 1896, pro- vides that a person driving or in charge of a light locomotive when used on a highway shall "not drive the light locomotive at any speed greater than is reasonable and proper, having regard to the traffic on the highway." The English courts have held that, in order to constitute a violation of such provision, it is not necessary that Any vehicle or person be interrupted, interfered with, incom- moded or affected by the speed at which the light locomotive is driven.*" In a Kentucky case it was said: "It was the rule of the common law, and has been made so by legislative declaration that no person shall operate a motor vehicle on a public highway at a rate of speed greater than is reasonable and proper in view of the time and place and having i regard to the traffic and condition and use of the highway." *^ The Kentucky sta,tute just mentioned further provides that a speed in excess of eight miles an hour when rounding a curve is prima facie evidence of unreasonable speed. An instruction, in an action to recover from a motorist for dam- ages caused by a collision of his automobile with a team on a pub- lic highway, tiiat a verdict should be folind for the plaintiff, if, the jury find "that the speed at which defendant was driving his ma- chine, at the time of the accident was greater than that prescribed by law, under the circumstances, said speed being greater than is reasonable having a regard for the traffic and the highway, arid that same rate of speed exceeded 15 miles per hour," was. held not to conform to a statute which provided that no automobile should be run "at a greater rate of speed than is reasonable, having regard to the' traffic and use of the highway, or so as to endanger the life and limb of any person, or the safety of any property, and shall not in any event, while upon any public highway, run at a greater 38 People V. Lloyd, 178 111. App. 66 *» Mahew v. Sutton, 86 L. T. (N. S.) (1913) ; People v. Sumwalt, 178 111. App, 18, SO Weekly Rep. 216; Smith v., Boon, 357(1913). 84 L. T. (N. S^) S93, 49 Weekly>Rep. 480. 39 Central of Georgia R. Co. v. Larsen, *l Wade v. Brents, 161 Ky. 607, 171 19 Ga. App. 413, 91 S. S. S17 (1917). S. W. 188 (19i4). B. AutOB.— 12 178 LAW OF AUTOMOBILES rate of speed than IS miles an hour." The instruction was also held to be so confusing as to amount to misdirection.*^ § 171. Speed that endangers life, ,limb or property. In an action against the driver of an automobile on account of personal injury resulting from a collision, alleged to have been due to exces- sive speed and a dim light, it is not error to instruct that, if by such driving the life or limb of any one were endangered, this con- stituted negligence because of the violation of the statute for- bidding a rate of speed such as to endanger the life or limb of any person.*' A statute prohibiting the operation of any automobile upon the public highways "at a rate of speed greater than is reasonable and, proper, having regard to the traffic and use of such highway, or so as to endanger the life or limb of any person or the safety ; of any prpperty," and prescribing a penalty for its violation, was held to he too indefinite and uncertain to be capable of enforcement as a penal statute.** But the contrary has also been held.** IJndei: a provision simi- lar to that last mentioned, it was held that what constitutes a proper degree of care and prudence under said statute deptends upon the circumstances in each particular case, and is to be determined by the jury in view of all such circumstances.*^ Under such a provision, where the evidence showed that the speed mentioned was maintained, but there was expert testimony that, in the conditions existing at the time and place in question, an automobile could be safely driven at a higher rate of speed, the qiiestion of negligence was for the jury.*'' , § 172. Speed in approaching a descent. ^Statutory provi- sion. A statute requiring motorists approaching a descent to have control of their machines and not to move at a speed in excess of 6 miles an hour, does not mean that the descent shall be made at a rate not greater than 6 miles an hour. Said the court: "The stat- ute does not in fact require that a speed of 6 miles per hour shall be maintained while the machine is making the descent of a hill or 42Raybourn V. Phillips, 160 Mo. App. 46 Chrestenson v. Harms, 38 S. D. 360, S34, 140 S. W. 977 (1911). 161 N. W. 343 (1917). 48 Fisher v. O'Brien, 99 Kan. 621, 162 « Stern v. International R. Co.. 167 Pac. 317 (1917). App. Div. S03, 153 N. Y. Supp. S20, 9 44 Carter v. State, 12 Ga. App. 430, 78 N. C. C. A. 949 (1915). S. E. 205 (1913). 4B Smith V. State, — Ind. — , 115 N. E. 943 (1917). ' RIGHTS AND DUTIES ON THE HIGHWAYS 179 incline ; and we think this construction is based upon good reason, the object of the statute, in this respect, being to require the trav- eler, on approaching the crest of a hill, and before commencing the descent, to slow down his car in order to ascertain whether some other person, whom he could not theretofore discern, might be using the highway on its incline." *' § 173. Racing in the highways. Persons using the highways have no right to subject others to peril by neglijgent conduct. Rac- ing in the public highways is a plain and serious danger to every otrheir. person using the way, and a danger it is often impossible to avoid. When persons ai-e making such unlawful use of the high- ways and another is injuried thereby, the former are liable in dam- ages for the injuries sustained by the latter.*' And where a per- son is injured by such racing, a!ll engaged iri the race are liable, although only one, or even none, of the vehicles came in contact with the injured person.*" So, the several employers of truck drivers, who injured a pedes- trian while racing in the highway, were liable, although the injiired person was struck by only one of the trucks.®^ §174. Coasting as negligence. The mere fact that a motorist was coasting down, hill with the power shut off, does not shp^y that he was negligent.®* § 175. Laws regulating traction engines not applicable to automobiles. Some of the states; have statutes regulating the running of traction engines on the public highways. The terms of the statutes are applicable to slow-moving vehicles, and not to the modern rapid automobile. Thus a statute prohibited the use in the public streets, except on railroad tracks, of any vehicle propelled by steam unless, a per- son be sent at least one-eighth of a mile in advance to warn trav- elers of its approach. It was held that this statute, though broad enough to include automobiles, was passed before such vehicles were in use, and was directed against traction engines, which are 48 Central of Georgia R. Co. v. Lar- v. Thayer, 212 Mass. 392, 99 N, E. 237 sen, 19 Ga. App. 413, 91 S. E. 517 (1917). (1912). 49 Rose V. Gypsum City, — Kan. — , 50 Brown v. Thayer, 212 Mass. 392, 99 179 Pac. 348 (1919) ; Brown v. Thayer, N. E. 237 (1912) ; Hanrahan v. Cochran, 212 Mass. 392, 99 N. E. 237 (1912); 12 App. Div. 91. Potter V. Moran, 61 Mich. 60. 51 De Carvalho v. Brunner, 223 N. Y. "Our public -ways are not designed or 284, 119 N. E, 563'. maintained as thoroughfares for racing 52 lannone v. Weber-McL. Co., 186 automobiles, and those who use them for App. Div. 594, - 174 N. Y. Supp. 580 this purpose do so at their peril." Brown (1919). 180 LAW OF AUTOMOBILES slow, ponderous and noisy. The provision of the statute that a forerunner must precede the vehicle to warn persons of its approach clearly indicates that the la-^ was not passed with automobiles in mind.^' § 176. Duty to have lights on automobile at night. A statute providing' that automobiltes shall exhibit lights between certain hours is intended for the safety of all those using the highways. The lights are not alone required to guide and benefit those approaching the automobile on the highway, but also for the direc- tion and guidance of those in charge of the automobile. It is the duty of the motorist to keep a vigilant watch ahead for other vehicles as well as for pedestrians upon the highway, and the hghts are required to enable him to see persons and vehicles in time to avoid them as well as for the protection of those occupying the automobile.^* Statutory .provisions requiring lights on an automobile generally apply only when the cars are on the public highways.** A statute providing that "every motor vehicle while in use on the public highways of this state shall display" certain lights dur- ing certain hours, intends that the user, whether he be the owner or another person, shall be held responsible for a violation of its provisions, and is not void for uncertainty in this respect.** The distance lighted by automobile lamps is not "reasonable" unless the road is illuminated for at least as far as the distance required for stoppiqg the vehicle.*'' A statute requiring the display of a red light at night on the rear of every automobile while in use on the highways, and pro- viding that "no person shall allow a motor vehicle owned by him or under his control to be operated" in violation of the provisions of such statute, imposes the duty of seeing that such light is car- ried upon the owner when he is in control of his machine, either personally or by a servant. When the machine is under control of another, the duty as to displaying the light is upon him.*' MNason V. West, 31 Misc. S83, 587,. v. Alberts, 192 Mich. 25, 158 N. W. 170 65 N. Y. Supp. 651. (1916). 64 Fisher v. O'Brien, 99 Kan. 621, 162 66 Stewart v. Smith, — Ala. App. — , Pac. 317 (1917) ; Giles v. Ternes, 93 Kan. 78 So. 724 (1918). 140, 143 Pac. 491, 144 Pac, 1014 (1914); 66 State v. Myette, 30 R. I. 556, 76 Lauson v. Fond du Lac, 141 Wis. 57, 123 Atl. 664 (1910). N. W. 629, 25 L. R. A. (N. S.) 40, 135 67 Fisher v. O'Brien, 99 Kan. 621, 162 Am. St. Rep. 30 (1909). Pac. 317 (1917). Lights are for the benefit of persons 68 Luckie v. Diamond Coal Co., — in and out of the automobile. Jolman Cal. App. — , 183 Pac. 178 (1919). RIGHTS AND DUTIES ON THE HIGHWAYS 181 A statute providing that, "Every motor vehicle while in use on a public highway shall be * * * so constructed as to exhibit, during the period from one hour after sunset and one hour before sunrise, two lamps showing white lights visible within a reason- able distance in the direction towards which such vehicle is pro- ceeding, and also a red light visible in the reverse direction," was held to have no application to dead automobiles being towed through a street by a live one, which was properly lighted.^' The word "day-break," as -used in an ordinance requiring lights. to be displayed on vehicles after a certain hour in the evening until day-break, means the dawn or first appearance of light in the morning.®" Generally speaking, the common law did not require a light to be displayed on a wagon used on the highways at night.®^ § 177. Driving without lights at night as negligence. It has been held to be negligence' per se to operate an automobile on a public highway at night without the lights thereon required by statute. li such negligerice contributes' to cause an injury to another traveler who is in the exercise of due care, the owner or operator of the automobile is liable therefor in damages.®^ It is held that failure to light an automobile before the time fixed by statute requiring lights is not negligence.®* It is also held that whether the driving of an automobile at night without sufficient lights is negligence, is usually a question for the jury.®* The rule that it is not negligence to drive horses on a highway on a dark night, is not applicable to automobiles.®® ^^"The phrase 'while in use on a pub- 6" Sullivan v. Chicago City R. Co., 167 lie highway' shows a clear intent not to 111. App. 152. include every motor vehicle that may be 61 Roppr v. Greenspon, — Mo. App. moved in some maijner on the streets or — , 192 S. W. 149 (191^). highways. With that limitation, how- 62Sheppard v. Johnson, 11 Ga. App. ever, so clearly expressed, there can be 280, 75 S. E. 348. (1912). no doubt that the statute has no appli- 68 Turner v. Bennett, 161 la. 379, 142 cation to motor vehicles that were merely N. W. 999 (1913). being moved on the street for the pur- 64 Sweet v. Salt Lake City, 43 Utah pose for which the two cars in question 306, 134 Pac. 1167, 8 N. C. C. A. 922 were being moved. Any other construe- (1913). tion would do violence to the natural, 6S Lauson v. Fond du Lac, 141 Wis. ordinary, and obvious meaning of the 57, 123 N. W. 629, 2S L. R. A. (N. S.) language of the statute." Musgrave v. 40, 135 Am. St. Rep. 30 (1909). Studebaker Bros. Co., 48 Utah 410, 160 Pac. 117 (1916). 182 liAW; OF AUTOMOBILES § 178. To create civil liability absence of lights must proxi- mately cause injury. It is essential, in order to, impose civil lia- bility upon the owner of an automobile for operating the same on the public highways without displaying lights, that the absence of lights was the proximate cause of the injuries complained of.^' The absence of lights from an automobile when it should be lighted isJmmaterial in, a personal injury action, unless their absence sus- t9,ined some relation, to the injury^ as cause to effect.®'' Hence, in an action to recover on account of injuries resulting from collision with an automobile in the nighttime, an instruction allowing plaintiff to recover because of a violation of a statute requiring motor vehicles to carry sufficient lights,' without sub- mitting the question whiether failure to comply with the statute caused or contributed to the injuries, or whether defendant oper- ated .his automobile in ,a, negligent manner, constituted reversible error.'®* "' '' ' ' '. \. ' i .."'',,. , The mere fact that one Tyho was injured in a collision of vehicles was ridiiig in a vehicle at night without a light attached thereto as required by, la,w, did npt render, him guilty of contributory neg- ligence which would bar his cause of action, unless the omissiqn of such light in some way approximately contributefl to the accicjent in, which he was injured,.®' : If a street is so lighted .that a vehicle having no light on it can be, plainly seen, the fact that such vehicle carried no light, in vio- lation of the law, is of no consequence on the question of negligence arising out of a collision between such vehicle and an automobile.'"' So, rpcovpry may be had for injuries received in a collision when plaintiff was driving, without a light half an hour after sunset, con- trary to statute, if he could have been seen by the defendant in the exercise of due care; his' unlawful act in such circumstances not contributing to the accident.''^ The fact that a taxicab was not ligbted as required by law will npt justify an automobile driver in colliding with it; ^t appearing that it was lighted so as to be visible a block away. In such case 66,Pugsley V. Tyler, 130 Ark. 491, 197 68 Schurlow v., Hoadley, 186 111. App> S. W. 1177 (1917); Fenn v. iQark.ll 328 (1914):. Cal. App. 79, 104 Pac. 632 (1909); Har- 69 Graham v. Hagmann, 270 111. 252, die,v. Barrett, 257 Pa. St. 42, 101 Atl. 110 N. E. 337 (1915). 75(1917),: ' , 70 Surmeian V. Simons, — R. I. — , 107 67T'urner V: Bennett, 161 la. 37.9, 142 Atl. 229 (1919.) N. W. 999 (1913); Roper v. Greenspon, ^lireson v. Cunningham, 90 N. J. L. — Mo. App. — , 192 S'. W. 149 (1917). 690, 101 Atl. 49' (1917). RIGHTS AND DUTIES 0|N THE HIGHWAYS 183 the violation of the law was not the proximate cause of the col- lision.'''^ §li9. Lights required on automobiles "operated or driven." An ordinance requiring every niotor vehicle "operated or driven" on the public streets, between certain hours, to display certain lighted lamps thereon, the one in the rear to be visible for at least SO feet "in the direction from which the motor vehicle is proceeding)" and the front ones to be visible at least 500 feet "in. the direction in which the motor vehicle is proceeding," has no application to a standing automobile, as it is not, in the ordinary sense being "operate^ or driven," nor "proceeding" in any direc^ tion. The distinction between rear and front lights is also sugges- tive of a moving vehicle. Then, there is no more reason why a standing motor vehicle should display lights than that any other vehicle should do so. And if it was necessary that standing vehi- cles should display lights, there is no reason for requiring stronger lights in front than on the rear.'"' An automobile standing with machinery dead next to a curb in a public highway is not being "operated," within a statute requir- ing lights during certain hours on an automobile "operated" on the public highways.''* Practically the contrary has been held in Massachusetts. There a statute which prohibited the operation of automobiles between certain hours without certain lights, was held to be violated by one who left his automobile standing in a street without lights, dur- ing such time, and with the engine stopiped: Said the court: "It is obvious that an automobile standing upon a highway under such conditions may be fully as great a menace to the safety of travelers as if running upon the way without lights, and that the danger of serious injury to travelers by coming in contact with such an auto- mobile would be very great. , " "The word 'operated' is not, as the defendant contends, limited to a state of motion produced by the mechanism of the car, but includes at least ordinary stops upon the highway, and such stops are to be regarded as fairly incidental to its operation. It does not appear from the agreed facts how long the automobile had been left upon the street or for what purpose the defendant went into the building. Certainly there is nothing to, show that he had 72 Carlton v. Boudar, 118 Va. S21, 88 '4 State v. Bixby, — Vt. — , 100 Atl. S. E; 174 (1916). 42 (1917). 78 Harlan v. Kraschel, .164 la. 667, 146 N. W. 463 (1914). 184 LAW OF AUTOMOBILES left it for an unreasonable time, or that the stop was not for a proper purpose; nor is there any evidence that the car had been abandoned, although we do not mean to intimate that if it had been the statute would not have been violated." ''* Under a statute requiring certain lights to be fixed on every automobile "driven" on the highways during the hours of darkness, it has been held that an automobile standing in a highway was required to be so lighted. In this case the court said: "An auto- mobile does not cease to be 'driven' when stopped or left stand-' ing on a public highway during the hours of darkness. It cannot be said that the driver of such a machine must carry lights while it is moving, but that he may stop it during the houirs of darkness in the roadway, turn off the lights, and leave it standing, without Violating the law. The statute must be read with reference to its plain spirit and intent. Its spirit may not be destroyed by nar- rowing- it to the literal meaning of a single word. ' Public highways are designed for travel in all lawful ways, by both pedestrians and those driving vehicles, and the driver of a vehicle does not cease to be a driver or traveler when he stops his machine in the street." '^ § 180. Lights to show in direction in which vehicle is pro- ceeding—Standing automobile. A statute requiring motor vehi- cles to show lights from an hour after sunset until an hour before sunrise in the directioh in which "the vehicle is proceeding," was held not to apply to a motor vehicle standing- on the side of a public highway. "It is quite clear that the section contemplates a moving motor- vehicle. This is indicated by the language which is used. The 'S "The statute must he read with ref- plaintiff's car was as much in the ordi- , erence to its , manifest intent and spirit nary course of operation on the highway and cannot be limited to the literal mean- at the time of the injury as if it had been ing of a. single word. It must be con- used for shopping, calling, or delivering strued as a whole and interpreted ac- merchandise." Stroud v. Hartford, 90 cording to the sense in which the words Conn. 412, 97 Atl. 336. are employed, regard being had to the 76 jaquith v. Worden, 73 Wash. 349, plam intention of the legislature. So con- 132 Pac. 33, 48 L. R. A. (N. S.) 827, sidered, we cannot doubt that the statute (1913). is broad enough to include automobiles "In order to be a traveler it is not nec- at rest, as well as in motion, upon the essary that one should be constantly highways." Com. v. Henry, 229 Mass. moving, if he is a pedestrian, or that the 19, 118 N. E. 224 (1918). vehicle he drives, or that in which he is "The word 'operation' * * * must conveying goods, if he is using one, shall include such stops as motor vehicles or- be continuously in motion." Smethurst dinarily make in the course of their v. Barfon Square Church, 148 Mass. 261, operation. * * * In this case the 2 L. R. A. 69S. RIGHTS AND DUTIES ON THE HIGHWAYS 185 legislative thought evidently was that of a motor-vehicle being operated on, or proceeding on, a public highway. If it was of a wider range, apt words could have been readily used to express it. The manifest purpose of the requirement was to secure the safety of public travel, in view of the speed at which motor-vehicles can be operated and the distance they can cover in a short time. By observing the statutory mandate, the operator of a motor- vehicle proceeding on the public highway would give timely no|;ice of his presence to other vehicles in front of him and would be able to warn them of his approach, thus avoiding a collision. If the mo tor- vehicle is not proceeding, the danger to be anticipated from it would be no greater than that to be anticipated from any less modern conveyance." ''' § 181. Lights required on "front" of automobile. A statute providing that every motor vehicle, operated and driven upon the public highways shall, during the period of one-half hour after sunset to one-half hour before sunrise, display at least two lighted lamps on the "front," which shall be visible at least 500 feet in the direction in which the motor vehicle is proceeding, intends that such lamps shall be attached to that portion of the vehicle in front of the driver or operator of the car, and at such a point in front of the operator as will niake the lights yisible, in the direction in which the car is proceeding, for at least 500 feet. It appeared that the defendants had two lighted lamps fastened to the top, and to each side of the dashboard, and in front of the dashboard, facing to the front; that the lamps were lighted and were visible to persons approaching the automobile, from the front, at a distance of more than 500 feet; that the seats were behind these lighted lamps; that there was nothing in front of the lamps to obstruct a view of the light; that each of the lamps had a metal substance in the rear part and behind the light for the purpose of projecting and throwing the light forward as a reflector. Held, that the lamps were in compliance with the terms of the statute; that they were not only within the spirit of the law, but within its letter. In regard to the meaning of the word "front," the court said: "Webster defines the word 'front' as follows: 'At that, part or sur- face of anything which seems to look out, or be directed forward; the fore or forward part; opposed to the back or rear.' Thus applying this definition, we speak of the front yard, or the back 77 Com.^ V. Keister, 26 Pa. Dist. 922 (1917). 186 :, LAW OF AUTOMOBILES yard, thereby ineaning that which is in front or the; rear of the house. It does not necessarily mean the very forempst part of the frqnt yard, but that whiqh is in front of something else."''* § 182, Judicial notice of time of sunset. It is proper to instruct the jury, when the question has been raised in issue, that a statute ""^ requires that every motor vehicle, during the period from one hour after sunset to "one hour ^before sunrise, shall dis- play at least two white lights, etc., a,lthough there was no testi- mony as' to the hour at which the sun set; the setting of the sun being a matter of which! the court takes judicial notice.*" §183. Rain collecting on windshield— "Obstruction." It has been held to be not negligent per se for the driver of an auto- mobile to allow rain-water to collect on the windshield. ' Nor does rain, fog or snow constitute an "obstruction" within the meaning of an ordinance prohibiting the driving of any vehicle so inclosed, constructed or loaded as to prevent the driver from having a clear and unobstructed view to the front, rear, and both sides.*^ § 184. Requiring automobiles to stop in rear of street cars. An ordinance requiririg automobiles to be stopped 10 feet in the rear of street cars when they are stopped to take tin or let off passengers, applies to automobiles following street cars, whether nearer to or farther from the car than 10 feet. "In view of the obvious danger of passing cars when they stop for the accom- modation of passengers, it behooves motorists neither to trail cairs so closely that 'they cannot comply with the ordinance, nor to atternpt to pass a car at a regular stopping point until they are sure that there will be no stop." *^ i § 185. Duty to sound warning of approach. A statute pro- viding that every motor vehicle, while in use on a public high- way, shall be provided with good and sufficient brakes and also with a suitable bell, horn, or other signal device, imposes, infer- entially, the duty on automobile operators to use such signaling devises to give suitable warnings of the approach of the machine, 'i'S state V. Read, 162 la. S72, 144 N. The court will take judicial notice of W. 310 (1913). ' the time of sunset on a given day. State TSpreg. Laws 1911, p. 26S, c. 174. v. Bixby,, — Vt. — , 100 Atl. 42 (1917). 80 Topper V. Maple, 181 la. 786, 16S 81 Schwalen v. Fuller & Co., 107 Wash. N. W. 28 (1917); Eyerart v. Fischer, 7.') 476, 182 Pac. S92 (1919). Oreg. 316, 145 Pac. 33, 147 Pac. 189 82 Koehl v. Carpenter, — Cal.App. (1914). — , 191 Pac. 43 (1920). RIGHTS AND DUTIES ON THE HIGHWAYS 187 when such warnings would be necessary for the safety of persons traveling upon the public highways or streets. The necessity for their use is implied from the provision requiring automobiles to be equipped with them.** Where a statute requires that a reasonable warning' be given by the driver of an automobile, it is error to instruct that such warn- ing must be given by some signal device on the machine. The statute cannot be so restricted', especially where there is evidence that the driver shouted.** It is equally error to refuse to give an instruction covering such provision when the facts come within its terms.*® A statute providing "that upon approaching a pedestrian in a roadway or highway, or a horse or horses or other draft animals being ridden or driven thereon, the person operating the miachine shall give reasonable warning of its approach by the use of a bell, horn, gong, or other signal, and use every reasonable precaution to insure the safety of such person or animal, and in the case of horses or other draft animals, to prevent frightening the same," was held to refer and apply to, and extend to the protection of, persons driving or riding horses or other draft animals, and not to be intended for the protection only of pedestrians and animals.** "This statute recognizes the duty of a hxotorist not only to keep watch to ascertain the presence of pedestrians in front of his madhine, but in case his view is so limited -that be is liable to come upon them without seeing them to warn them by a sound indicating his approach. It also irivolves the duty, upon discov- ering them, to so manage his machine as not to do them harm. If he sees a man on a crutch in front of him, it is his duty to avoid him, or give him an opportunity to escape'; and, if it is a child evidently too young to understand the danger, he must act accordingly. This statutory rule is firmly founded in the impulse of common humanity as well as in public safety. The duty to watch is an instinct of the normal mind. While the operator has the right to assume that persons whom he sees in, his path will do their piart, that right ceases wlien it is developed that it is a child too young to understand the danger." *'' 83Forgy V. Rutledge, 167 Ky. 182, 180 85 Johnston v. Cornelius, 200 Mich. S., W. 90 (191S) ; Johnston v. Cornelius, 209, 166 N. W. 983 (1918). 200 Mich. 209, 166 N. W. 983 (1918); 86 Holland v. State, 11 Ga. App. 769, Vannett v. Cole, — N. D. — , 170 N. W. 76 S. E. 104 (1912).' 663 (1919). 87 Reynolds v. Kinyon, — Mo. — , 222 84 Shaw V. Corrington, 171 III. App. S. W. 476 (1920). 232 (1912). 188 LAW OF AUTOMOBILES The mere fact that a motorist thinks a pedestrian will cross ahead of him, does not excuse his failure to sound a warning/* Where a statute imposes upon the operator of an automobile the duty to exercise the highest degree of care which a very care- ful person would exercise in the same or similar circumstances, but which does not require him to sound any warning on approaeh- , ing street crossings, his obligation to sound ^uch warning is that imposed by common law, except that he must exercise the high degree of care required by the statute.*® So, the common law rule of reasonable care may require that a warning of approach be sounded in circumstances not mentioned by statute.'" It was held that a trial court properly refused to instruct the jury that "there is no law requiring the operator of an automobile, while properly using the streets, to soimd a gong, blow a horn, or give other warning to pedestrians of its approach;" as whether the use of a gong, a horn or other warning to pedestrians is neces- sary in the exercise of due diligence by the driver of an automo- bile, and whether the failure of the driver to give these or other cautionary signals is negligence, are both jury questions, dependent for their solution upon the facts of the particular case. "To have given the charge requested would have trenched upon the preroga- tive of the jury in determining what would constitute negligence or diligence in the case." '^ Passing an occupied standing automobile on a highway, where there was abundant room to pass, without sounding a horn, was not an, act of negligence per se?^ A motorcyclist who failed to equip his machine with a signal device, as required by statute, and collided with an automobile; approaching from the opposite direction, at the top of a hill, each driver being ignorant of the approach of the other because of the failure of each to sound a warning, could not recover; being guilty of contributory negligence.'* § 186. Saipe— When warning would be unavailing. Negli- gence cannot be predicated upon a failure to sound a horn or giVe other warning of the approach of an automobile when it was seen by the plaintiff, and the giving of such warning would not have 88 Wine V. Jones, 183 la. 1166, 168 »1 0'Dowd v. Newnham, 13 Ga. App. N. W. 318 (1918). 220, 80 S. E. 36 (1913). 89 Clark V. General Motor Car Co., 177 '2 Anderson v. Voeltz, — Mo. App., Mo. App. 623, 160 S. W. 576 (1913). — , 206 S. W. 584 (1918). 90 Moore v. Hart, 171 Ky. 725, 188 93 Corning v. Maynard, 179 la. 1063, S. W. 861 (1916). 162 N. W. 564 (1917). RIGHTS AND DUTIES CM THE HIGHWAYS 189 communicated to him any knowledge he did not_already have of the position of the automobile.'* And unless neglect to sound warning contributes to the injury, no liability attaches on that account.'* It was held that a motorist, in passing another vehicle on the highway, was not negligent in failing to give warning of his approach, in respect of his duty to a boy riding on the tail of the other vehicle; there being nothing to indicate that the boy intended to jump from the vehicle.'® In an action by a boy to recover for injuries incurred when he rode against defendant's automobile, which the latter was driving at a slow rate of speed and turning at a street intersection, it was held that the defendant was not negligent in failing to sound a warning horn when there was no apparent necessity therefor.'"' The failure of defendant to give warning of his approach was not the proximate cause of a collision with the plaintiff, who was riding a pony, where she saw the automobile at a distance of 600 feet and turned to the side of the road in ample time." §187. "Signal upon approaching, and upon crossing." An ordinance providing that "upon approaching a crossing or intersection, and also upon traversing the crossing or intersection," a motorist "shall sound a signal in such a way as to give warning" of his approach, is complied with by sounding a signal when about to enter the crossing; and it is not necessary to sound a signal while actually f on the crossing. In part the court said: "To be effective in warning others of the approach of an automobile signal or approach must be given somewhat in advance. Otherwisroppor- tunity to avoid collisions therewith is not afforded. Greater pro- tection ordinarily will be given by sounding the warning when about to enter on the intersection than when actually traversing it. Indeed, any other construction would defeat the purpose had in the enactment of the ordinance, i.e., that of guarding against danger to other travelers on or about to enter the intersection; for warning in passing over the intersection would likely be given MMatiack v. Sea, 144 Ky. 749, 139 82 Wash. 377, 144 Pac. S40 (1914). S. W. 930 (1911); Moran v. Smith, 114 96 Sheldon v. James, 17S Cal. 474, 166 Me. 55, 95 Atl. 272 (1915) ; Patterson v. Pac. 8 (1917). Detroit United Ry., 187 Mich. 567, 153 96 Bishard v. Engelbeck, 180 la. 1132, N. W. 670 (1915); Peterson v. United 164 N. W. 203 (1917). Rys. Co., 270 Mo. 67, 192 S. W. 938 97 Barton v. Van Gesen, 91 Wash. 94, (1917), rev'g 183 Mo. App. 715 (1914); 157 Pac. 215 (4916). Herzig v. Sandberg, 54 Mont. 538, 172 98 Priebe v. Crandall, — Mo. App. — , Pac. 132 (1918); Van Dyke v. Johnson, 187 S. W. 605 (1916). 190 LAW OF AUTOMOBILES wHen the automobile had come too near to enablfe either party to avoid the danger warned against. The design of the ordinance is that warning be giVeri when approaching the intersection in order to put others on the lookout and when at and about t to traverse the intersection another warning be sounded that the auto- mobile is going on what the city council, in enkctinjg the ordinance, evidently regarded as the danger zone." As to the meaning of the word ''upon," the court said: "The meaning of the word 'upon' ordinarily is the same as 'on' but this is not at all definite, for the meaning of 'on' varies with the connection in whiqh used. Thus 'upon' m'sLy niean.'as soon as,' as where, something is ' to be done upon receipt of money, or 'near to,' as in the phrase 'upon the , Atlantic seabbard,' or 'at the time of,' as upon the death of a named person, title to certain property shall devolve on the one named, a:nd where upon admission to office imnlediate qualifica- tion is required. Or signifies a condition precedent, when used in a contract of subscription 'provided that upon such paynienl there shall be delivered a certificate of stock,' etc., . a tender of stock is a prerequisite to the maintenance of an action on the subscription, or upon condition that, or in case of, or after, pr ^t the tin^e of ."/ § 188. Testimony concerning giving of warning signal Ordinarily negative testimony has not the probative force that positive testimony has. Under ordinary circumstances, the testi- mony of a witness, who was in a position to hear, ^hat he did hear a bell rung, is more reliable as a basis for forming a judgment than the testimony of onfi; in the same position, who simply testi- fies that he did not hear the bell rung at the time in question. However, the probative force of negative testimony depends largely upon circumstances. Where it appears, from the testi- mony, that the witness was in fact looking and listening, that it was his duty to look and listen, and where a failure to exercise his faculties in respect to these matters, not only imperiled his property, but his own safety as well, then, when he says that he looked and listened and did not see and did not hear, it reaches the mind with most persuasive force.^ 1 Rolfs V. Mullins, 180 la. 472, 163 that he and his companion, at a point N. W. 232 (1917). • ISO feet from. the railway track, stopped, 2 Lockridge v. iVIinneapolis & St. L. looked, and listened for the approaching R. Co., 161 la. 74, 140 N. W. 834 train, and then proceeded toward the (1913); McMillan v. Atlanta & C. A. track down a slight grade at low speed L. R. Co., 172 N. C. 853-, 90 S. E. 683 in plaintiff's automobile, still looking and (1916). listening fof the train, and that they "On the part of the plaintiffit appeared heard no bell or whistle. It appears quite RIGHTS AND DUTIES ON THE HIGHWAYS 191 The testimony of witnesses, who were in a position to hear, that no signal was given, is admissible; its weight being for the jury.' And the question is for the jury when the only evidence is the negative testimony that no warning was given.* The testimony of witnesses who say without qualification that the automobile horn was sounded and that they heard it at or near the point of the accident, is of much more weight than that of witnesses who merely say that they did not hear it.* The testimony of a witness whose mind "was pretty well occupied" that he did not hear any whistle when an electric car approached a highway crossing was held to be insufficient to rebut the positive testimony of the motorman that he blew the Whistle, or to carry the question of negligence in that respect to the jury.® In an action to recover for injuries caused by a collision between the plaintiff's horse and buggy and a taxicab of the defendant at a street crossing, the chauffeur testified that the taxicab was equipped .with a horn, and that he sounded the horn on approach- ing i the street crossing in question. A witness testified that he was within 10 feet of the scene oif the accident, and that the taxi- cab sounded no bell or horn, and gave no notice of its approach, as he could have heard it had one been given. The plaintiff testified that he heard no warning sound of the approaching taxicab. It was held that the jury were authorized to infer from this testi- mony that if the chauffeur sounded the horn as he said he did it was not one which when sounded could be heard for 300 feet, or even a much less distance, and hence was not one which answered the requirements of an ordinance for a device that could be heard a distance of 300 feet.'' A non-expert witness may testify that he was in a position to conclusively that if., the whistle was 513, 135 S. W. 93 (1911) ; -Warruna v. sounded and the bell rung at a point 80 Dick, 261 Pa. St. 602, 104 Atl.; 749 rods from the crossing, it was done at (1918). a time when plaintiff and his companion Such is negative testimony and must be were approaching the railway traqk. weighed with caution. Long Island R. Plaintiff and his companion, having had Co. v. Darnell (C. C. A.), 221 Fed. 191 their attention called to the fact that the (1915). train was due, were then listening for the *Kuehne v. Brown, 257 Pa. St. 37, 101 train ; therefore their testimony cannot Atl. 77 (1917). be said to be merely negative." Kauf- B Campbell v. Walker, 2 Boyce (Del.) mann v. Chicago, M. & St. P. R. Co., 41, 78 Atl. 601 (1910). 164 Wis. 359, 159 N. W. 552 (1916). 6 Jordan v. Osborne, 147 Wis. 623, 133 3 Pigeon v. Massachusetts N. E. St. R. N. W. 32 (1912). ' Co., 230 Mass. 392, jll9 N. E. 762 (1918) ; "> Staten v. Monroe, — T^x. Civ. App. Turney v. United Rys. Co., 155 Mo. App. — , 150 S. W. 222 (1912). 192 LAW OF AUTOMOBILES have heard a warning signal of the approach of an automobile, had one been given.' Although testimony that no whistle was sounded and no bell was rung is of a negative character, as opposed^ to positive evi- dence that they were, it is sufficient ordinarily to warrant the sub- mission of such issue to the jury.® Whether positive evidence that warning signals were given of the approach of an automobile, which collided with a boy on a public higliway, outweighed testimony that witnesses did not hear such signals, was' held to be a question for the jury.^" § 189. Towing truck without brakes on slippery street. Towing a motor truck without brakes, backwards downgrade on a slippery street, has been held to constitute negligence.^^ § 190. General rights and duties at street intersections. In the absence of a regulation to the contrary, the general rule is that the one reaching a street intersection first has the right of way ;^* and others should approach with sufficient care to permit the exercise of such right withotit danger of collision.^* A , motorist much closer to a street intersection than another driver ordinarily has the right of way and may proceed. How- ever, if the situation is such that it would impress him as a reason- ably prudent man that a collision will likely otherwise occur, it i? his duty to stop.^* When approaching a street intersection a motorist must keep a lookout ahead, operate his machine at a reasonable rate of speed, having regard for the traffic, have his machine under reasonable 8 Young V. Bacon, — Mo. App. — ,183 , New /erieji; , Rabinowitz y. Haw- S. W. 1079 (1916). thorrie, 89 N. J. L. 308, 98 Atl. 315 9 Walters v. Chicago, M. & P. S. R. (1916). Co., 47 Mont. SOI, 133 Pac. 357, 46 L. Pennsylvama: Boggs v. Jewell Tea R. A. (N. S.) 702 (1913) ; Kaufmann v. Co., 263 Pa. St. 413, 106 Atl. 781 (1919) ; Chicago, M. & St. P. R. Co., 164 Wis. Thomas v. Stern, 26 Pa. Dirt. 468 (1917). 359, 159 N. W. 552 (1916). Washington: Hull v. Crescent M'f'g lOCoUett V. Standard Oil Co., 186 Ky. Co., — Wash. — , 186 Pac. 322 (1919); 142, 216 S. W. 356 (1919). Jahn & Co. v. Paynter, 99 Wash. 614, "Glasgow V. Dorn, — Mo. App. — , 170 Pac. 132 (1918). 220 S. W. 509 (1920). ' ISRupp v. 'Keebler, 175 111. App. 619 ^^ Illinois: Rupp v. Keebler, 175 111. (1912); RabinOwitz v. Hawthorne, 89 App. 619 (1912). N. J. L. 308, 98 Atl. 315 (1916); Simon Indiana: Elgin Dairy Co. v. Shepherd, v. Lit Bros., 264 Pa. St. 121, 107 Atl. 183 ind. 466, 108 N. E. 234 (1915). 635 (1919). Minnesota: Carson v. Turrish, 140 1* Mayer v. Mellette, — Ind. App. — , Minn. 445, 168 N. W. 349 (1918), eking , 114 N. E. 241 (1916)* this work. RIGHTS AND DUTIES ON THE HIGHWAYS 193 control, give usual and timely warning of his approach by the cus- tomary signals, exercise ordinary care generally, and conform to the requirements of statutes and ordinances.^* To drive past an intersecting street at a blind corner at the rate of 22 feet a second, has been held to constitute negligence.^® 'A motorist, approaching a street intersection in a populous por- tion of a city, must have his machine under control so as to avoid obstructions after they come within his view, and he will be held to have seen that which with ordinary care he could have seen in time to avert a collision therewith.^' The question as to the distance away from an intersecting high- way a motorist should reduce his speed is one of fact, depending upori the circumstances, as the kind of car he is driving, the speed at which he is traveling, the brake control of the car, the nature of (Obstructions, if any, at the intersection, etc.^* If a motorist, driving at night without lights, does not know of a' street crossing at a given point, it is his duty to have his machine under such control that he may immediately stop it or turn it aside from an object intercepting his path.^* The law of the road does not require that wagons, simply because they are slow vehicles, shall be stopped to let automobiles pass with undiminished speed.^" The driyer of a wagon who contin- ued over a street crossing he had fairly entered upon before an automobilist, approaching in plain vie^ of him, had reached it, was not guilty of negligence in so doing; and an ensuing collision was properly attributable to the negligence of the automobile opera- tor.'^i At common law a motorist is not required to sound his horn at every street intersection r,egardless of the conditions existing there.^* But failure of a chauffeur to sound warning of his approach to a crossing, which was a commonly used one, and where his machine collided with a boy, was held to be negligence.^* A motorist may be negligent in continuing to cross a street inter- section when dazzled by the lights of another machine.^* 15 Major Taylor & Co. v. Harding, 182 20 Rupp v. Keebler, 175 III. App. 619 Ky. 236, 206 S. W. 285 (1918). (1912). 16 Cook V. Miller, 175 Cal. 497, 166 21 Rupp v. Keebler, 175 111. App. 619 Pac. 316 (1917); (1912). 1' Roper V. Greenspon, — Mo. App. 22 Thompson v. Fischer, 188 App. Div. — , 192 S. W. 149 (1917). 878, 177 N. Y. Supp. 491 (1919). 18 Blackburn v. Marple, — Cal. App. 23Suiiivan v. Chauvenet, — Mo. — , — , 184 Pac. 875 (1919). 222 S. W. 759 (1920). , iSHealy v. Shedaker, 264 Pa. St. 512, 2*Buzick'v, Todmari, 179 la. 1019, 162 107 -Atl. 842' (1919). N.W. 259 (1917). B. Autos. — 13 194 LAW OF AUTOMOBILES The statutory regulation of speed at intersecting highways is intended for the benefit of all persons whose safety may be endan- gered by a high rate of speed at such places.*** § 191. Same— Vehicles having right of way. A driver hav- ing the right of way at a street intersection is not justified in plunging ahead regardless of consequences, nor in failing to exer- cise ordinary care to avoid injury to others. But the fact that he has the right of way is important in considering the question of, negligence.*^ "The right of precedence at a crossing, whether given by law or established by custom, has no proper application, except where the travelers or vehicles on the intersecting streets approach the cross- ing so nearly at the same time and at such rates of speed that, if both proceed, each without regard to the other, a collision or inter- ference between them is reasonably to be apprehended- In such case it is the right of the one having the precedence to continue his course, and it is the duty of the other to yield him the right of way. But if a traveler, not having such right of precedence, comes 26 National Casket Co. v. Powar, 37 Ky. 156, 125 S. W. 279 (1910). 26 Glatz X. Kroeger Bros. Co!, 168 Wis. 635, 170 N. W. 934 (1919). "If we assume that the defendant had the right of way, the conditions must be such as to justify him in the absolute exercise of the right. In any event his right upon the highway is not exclusive, but at all time relative and still subject to the fundamental common-law' doctrine. Sic utere tuo ut alienum non Idedas. Nor was his right of way exclusive because he was on the right side of the road, as required by the traffic statute. The Leg- islature did not contemplate by this en- actment to confer a monopoly of way ad libitum upon a person in the posture of the defendant, regardless of existing conditions and the distance he was from the intersecting street into which others were proceeding. The plaintiff complied with the provisions of the same act when approaching the intersection while the de- fendant was at least a block awa.y. She held out her hand as the statutory indi- cation of her intention to turn into the intersecting street. It was the duty of the defendant at that time to observe the conditions and guide his machine ac- cordingly. The legislative act was not intended to provide an exclusively hard and fast rule, applicable to all hazards and in all situations, regardless of actual conditions, and thus liberate from respon- sibility one who by fortunitously adher- ing to thfe regulation may be otherwise reckless and indifferent to the situation of others lawfully exercising equal rights upon the highway, but who may be sub- ject to untoward and unlocked for situ- ations beyond their control. Such a con- struction would tend to encourage rather than diminish and obviate the dangerous situations this legislatioii was conceived to remeily. The common-law rules ap- plicable to negligence have not been abol- ished by the enactment. Its existence but adds an additional factor to be con- sidered in given situations by which neg- ligence may be measured and determined between conflicting claimants exercising a common right." Paulsen v. Klinge, 92 N. J. L. 99, 104 Atl-.'9S (1918). RIGHTS AND DUTIES ON THE HIGHWAYS 195 to the crossing and finds no one approaching it upon the other street within such distance as reasonably to indicate danger of interference or collision, he is under no obligation to stop or to wait, but may proceed to use such crossing as a matter of right." ^'' Although the defendant had, by ordinance, the right of way at an intersection, where he was about 40 feet from the median line of the street which he was approaching from the south, and about 10 feet south of the south line of said street when he saw the plaintiff on a motorcycle already passing across the street, the plaintiff could not be expected to yield the right of way to him; and this although the defendant was moving at an unlawful rate of speed.** Where north and south bound vehicles were given right of way at intersections, and a statute prohibited speed in excess of 4 miles an hour at crossings when any person is on the same, a motorcyclist, traveling north at a street crossing, when no one was on the same, at a rate of speed in excess of 4 miles an hour, and who did not observe the speed of an automobile approaching from the west 300 feet away, was not guilty of contributory neg- ligence as matter of law.*® When a motorist approaches an intersection at which vehicles moving at right angles to his course are given the right of way, a greater duty rests upon him to avoid a collision with any such vehicle than on the driver of the latter.*' Under ail ordinance giving north and south traffic the right of way at street intersections, if a west-bound automobile was within the square formed by the intersection of streets before a trolley car traveling at right angles reached the square, the trolley car did not, as matter of law, have the right of ^ay.*^ An ordinance providing that at street intersections vehicles con- tinuing in a straight course shall have right of way over those turning from one street to the other, cannot be qualified so as to authorize the turn to be made, because viewed from the standpoint of the driver, in the light of all the attending circumstances, it reasonably appears to him to be safe.'* 27 Barnes v. Barnett, — la. ^, 169 31 Boston Ins. Co. v. Brooklyn Heights N. W. 365 (1918). R. Co., 182 App. Div. 1, 169 N. Y. Supp. 28Whitelaw V. McGilliard, 179 Cal. 251 (1918). 349, 176 Pac. 679 (1918). 32 Alamo Iron Wks. v. Prado, — Tex. 29Barth v. Harris, 95 Wash. 166, 163 Civ. App. — , 220 S. W. 282 (1920^. Pac. 401 (1917). 30Shilliam v. Newman, 94 Wash. 637, 162 Pac. 977 (1917). 196 i LAW OF AUTOMOBILES §192. Turning at street-intersections — Cutting, corners. One turning to the left' into- an intersecting highway is required to go to. the right of the center of the intersection.^' A statute requiring motorists to keep to the right of the point of intersection when turning at highway, intersections,, is for the purposei of protecting travelers and vehicles, and to avoid collisions. It has no application where a motorist drove over an embankment at a highway intersection, injuring a passenger.'* , . .. Where; the right-hand portion of a street at an intersection was habitually used by drays and, wagons while loading and unloading freight, so that ;the current of traffic was diverted therefrom,! it was a sufficient compliance with an ordinance, requiring travelers turn- ing to the left at street interSectibns to keep' to the right of the point of intersection, for a motorist to drive to the right of the center of intersection of the two currents of travel, as established by the customary use of the street. This was further held ito be true although at the time in questioi; the right-hand portion of the street was not occupied by the wagons and drays. '^ If a driver starts to turn into an intersecting street at an angle which places the center of intersection on his right, he violates a statute of ordinance requiring him to keep to the right of the center of intersection, from the moment he commences itoturn.'^ ■ One is not guilty of contributory negligence in not anticipating that a motorist will turn a corner to the left of the intersection.*'' § 193. Care in turning corners and at curves. Reasonable care requires greater caution on the part of motorists at street corners and intersections and on the more thronged streets of a city than on the less obstructed in the open or surburban parts.*' It is the-duty of a driver of a vehicle when turning a street cortier to give people who are crossing the street some opportunity of escape from his ! vehicle, because the turning of the corner is often unexpected, and unleiss care is exercised pedestrians are liable to be 33 Everhard v. Dodge Bros., 202 Mich. 38 Bona v. Thomas Auto Co., — Ark. 48, 167 N. W. 953 (1918). ' — , 208 S. W. 306 (1919) ; Grier v. Sam- 34Bogdan V. .'Pappas, 95 Wash. 579, uel, 4 Boyce (27 Del.) 106, 86 Atl. 209 164 Pac. 208 (1917). (1913); Brown v. Wilmington, 4 Boyce 36Karpeles v. City Ice Del. Co., 198 (27 Del.) 492, 90 Atl. 44 (1914); Han- Ala. 449,. 73 So. '642 (1916). nigan v. Wright, 5 Pennew. (Del.) 537, 36Squier v. Davis S. Bread Co., — 541, 63 Atl. 234; McCarragher v. Proal, Cal. — , 185 Pac. 391 (1919). 114 App. Div. 470, 100 N. Y: Supp. 208. 37Heryford v. Spitcaufsky, — Mo. App. — . 200 S. W. 123 (1918). RIGHTS AND DUTIES !0N< THE HIGHWAYS 197 injured,'^ and to this end he,, should have his car under complete control.**^ ,,: Regardless of any statutory provisions, it is the duty of an auto- naobilQ driver, when approaching: a i turn in the highway, or Qther place where extra precaution may be required to insure reasonable safety, to reduce his speed, and take such care as :the danger of: the situation demands." Thus, in; crossing a street, a pedestrian was .struck and killed by an automobile which came rapidly down a cross street and turned the corner, near him withput slackening speed. It was held that he had the, right to assume that the ^driver of the automobile would slacken i speed in, turning the cpriier, ,, and -would exercise dueicare audi respect, the rights ;of pedestrians making use of; the streets.*:^, . , , ," ., , • .•;It,is the duty of a driver of an automobile, when , approaching curves in the highway, to have his machine under control, to keep a, lookout for others, and , to,, give notice, by sounding his -horn, of his approach, , and to reduce his speed to liiat, which is reasonable and proper in the circumstances.*' § 194. Turning corner where view is obscured. When a motorist is approaching a known dangerous situation he is required to have his machine sufficiently under control to enable him to avoid a collision; and failing in' this he is guilty of negligence as matter of law.** Where the view is obscured, it is an act of negligence to drive an automobile around a street corner close to the ciifb at a high rate of speed.** Where the , plaintiff drove around . a. curve in the road at 20 to 25 miles an hour, although he could see only 35 or 40 feet ahead, and in attempting to avoid defendant's machine traveling in . the opposite direction at 25 or 30 miles ap fhour, and on the wrong side of the road, he collided with the abutment of a bridge, ,and it appeared that plaintiff was familiar' with the road , and knew ' 89 Sci'tti' V. ■Behsmatinj 81 Hun (N. Y.) 'isS^'^SSe/ib'N. E. 224, 3 L. ' R.' A. 604. " :••:-'• '. - ■ (N:'S.)' US'; Deputy v. ' Kliminell, ' 73 iOBona V. Thomas: Auto Co., — Ark. W. Va. 595, 80 S: E.'919, S^N. C. C. A. — , 208 S. W. 306 (1919), quoting from 369" (1914), citing this Work, this work; Ketchum v. Fillingham, il62 , 4*Flynt v. Fondren, — ■ Miss. — ,84 Mich. 704, 127 N. W,>7;02 (19iq). So. 188 (1920). , ; 4l,Fairchil4 v. Fleming, 125 Minn. 431, "wjheeler v. Wall, 157 Mc App. 38, 147 k.W. 434 (1914). , 137 S. W.' 63 (19H). - : « Buscher v. New York Transp. Co., « Galahan v. Moll, 160 Wis; 523, 1S2 106 App. Div. 493, 94 N. Y. Supp. 796. N. W.iJ79 (1915). See also, Hennessey v. Taylor, 189 Mass. 198 LAW OF AUTOMOBILES that it was in constant use by automobiles moving at a high rate of speed, and that, on account of broken stone on one side of the highway cars comiiig fiom the opposite direction would likely be on the wrong side of the road, it was held that the accident was due to the negligence of both parties, and that, therefore, plaintiff could not recover.*® A statute providing that "when turning a corner of intersectiiig roads or streets,, or when traversing a curve or turn in the road or street, where the view is obstructed, the speed shall not be greater than 6 miles an hour," applies only to corners and curves where the driver's view is obstructed, its purpose being to prevent a person driving an automobile from going around a curve or turn or corner in a road where the view is obscured at a rate of speed so fast that if, on passing around the curve or corner, he should suddenly discover that he is about to meet some one he could not stop in time to avoid a collision.*'' This provision does not apply to a motorist approaching a point where a side street de- bouches into another street; such street not -being an "intersecting highway." ** Uiider a statute requiring a motorist, approaching a crossing, comer, or curve, where his view is obstructed, to slow down and give a signal, a motorist on a busy street about to (jross an inter- secting street, must slow down so as to have his car under control, and to be in a position to stop, if necessary, in meeting another car on the crossing.*® It has been held that a failure to comply with a statute provid- ing that upon approaching an intersection where the view is obscured, every motorist shall give a signal and shall run at a speed at no time greater than is reasonable and proper, and that it shall be prima facie evidence of speed greater than is reason- able and proper to exceed 8 miles an hour, constitutes contributory negligence, barring recovery for injuries received in a collision then occurring.*" Under a statute limiting drivers of automobiles, when approach- ing an intersection where the view of the intersecting way is obstructed, to a speed of 10 miles an hour, it is a question for the 46 Wheeler v. Wall, 1S7 Mo. App. 38, 49 Mitchell v. Brown, — Mo. App. — , 137 S. W. 63 (1911). 190 S. W. 3S4 (1916). *'' Brooks V. Harris, — Mo. App. — , sopjewton v. McSweeney, 225 Mass. 207 S. W. 293 (1918) ; Pannell v. Allen, 402, 114 N. E. 667 (1917). 160 Mo. App. 714, 142 S. W. 482 (1912). *8 Sullivan v. Chauvenet, — Mo. — , 222 S. W. 759 (1920). RIGHTS AND DUTIES ON THE HIGHWAYS 199 jury, in the light of all the circumstances, to determine at what distance from the intersection a driver should reduce his speed. *^ § 195. Statute regulating speed in approaching or travers- ing an intersecting way, construed. A statute forbidding the driving of a motor vehicle on a public highway "at a greater rate of speed than ten miles an hour where the operator's or chauffeur's view of the road traffic is obstructed either upon approaching an intersecting way, or in traversing a crossing or intersection of ways," was construed by the court as follows: "The purpose of this limitation of speed at intersections is obviously to avoid danger from the traffic crossing on the transverse street. Under the rules regulating such traffic, no danger arises until the passing vehicles reach the territory common to both streets at or within the lines of intersection. If then the speed has been reduced to 10 miles an hour at the point of intersection, the purpose of the limitation has been met." '* § 196. May assume others will exercise due care. A person operating an automobile in a public highway, exercising reason- able care, may assume that others using the highway will also act with reasonable care; and he is not negligent in acting accord- ingly. Others may assume the same of him.** He has a right to assume that the drivers of other vehicles will observe the law of the road, and he is not guilty of contributory negligence in Bi Lawrence v. Goodwill, — Cal. App. Minnesota: Liebrecht v. Crandall, 110 — , 186 Pac. 781 (1919). Minn. 454, 126 N. W. 69 (1910). 58McPhee v. Lavin, — Cal. — , 191 Nebraska: Smith v. Coon, 89 Neb. Pac. 23 (1920). 776, 132 N. W. S3S (1911), quoting from ^^ Alabama: Karpeles v. City Ice Del. this work. Co., 198 Ala. 449, 73 So. 642 (1916). New York: Thies v. Thomas, 77 N. Y. Delaware: Travers v. Hartman, .5 Supp. 276, 280. Boyce (Del.) 302, 92 Atl. 8S5 (1914) ; Pennsylvania: Spangler v. Markley, CampbeU v. Walker, 2 Boyce (Del.) 41, 39 Pa. Super. Ct. 3S1 (1909). 78 Atl. 601 (1910). Washington: .Hiscock v. Phinney, 81 Indiana: Elgin Dairy Co. v. Shep- Wash. 117, 142 Pac. 461 (1914). herd, 183 Ind. 466, 108 N. E. 234 (191S), Wisconsin: Becker v. West Side Dye citing this work; Cole Motor Car Co. v. Wks., — Wis. — , 177 N. W. 907 (1920). Ludorff, — Ind. App. — , 111 N. E. 447 One is not required to presume that (1916). another will be negligent. Taylor v. Iowa: Pilgrim v. Brown, 168 la. 177, Philadelphia R. T. Co., S5 Pa. Super. ISO N. W. 1, 10 N. C. C. A. 823n (1914). Ct. 607 (1914). ' Maine: Towle v. Morse, 103 Me. 250, "The driver of an automobile has the 68 Atl. 1044. right to assume that the driver of an- Massachusetts : Hennessey v. Taylor, other automobile, with which it collides, 189 Mass., 583, 76 N. E. 224, 3 L. R. A. will obey an ordinance prohibiting any (N. S.) 34S. vehicle from being driven onto any boule- 200 LAW OF AUTOMOBILES " acting updfi such assumption, Unless he has knowledge to thei contrary.** He may also act upbn the assumption that other trav- elers will exercise the high; degree of care required in turning a street corner where pedestrians and persons in vehicles are pass- ing and the liability of collision is great." ,v , . It was ruled that, where a street car; confiuctpr; made use of the streeit in going from the front to the rear of feis car,, he had a right tp rely upon. the exercise of reasonable; care, by, dri;i(ers of vehicles to iayqid injuring him, and when he was injured on , account , of the . negligence of an automqbile operator he ;was. not guilty;, of i contributory negligence iq not, anticipating such, negligence,*® He; may. also assume ,tha,t others, will, snot- negligently expose thgraseilves to danger, .but, jyill attempt to ^.void it," However, if a traveler sees,, qr by the iUse;;of ordinary care, shquld see, that another is, pot , in the exercise pf; ordinary care, he is no longer entitled to this assumption, and he must ,takje, such reasonable measures as he can ,in the pircumstances, to prevent injury.** The mere fact, that some one fails in his duty towards another does not justify' that other in proceeding and asserting his rights, and it he does so and' is injured he cannot recover therefor.*' , , ,. It has been held that this rule cannot always be invoked, espe-^ cially in automobile cases, and that operators are held to anticipate, not according to the "legal," but the "usual" experience of itiari-' kind in running automobiles on the public highways, which' is, "that automobiles are raoi-e often driven without any reference to legal speed than in observance of it." ^^ vard without first bringing such vehicle speed in' turning a street corner. Buscher to a' full stop, and he is not guilty of v. New York Transp. Co., 106 'App. Div. contributory negligence in acting upon 493, 94 N. Y. Supp. 796. ' such assumption." Kilroy v. • Ju'strite SSWeber v. Swallow, 136 Wis. 4^, 116 Mfg. Co., 209 'III. App. 499' (1918). n! W. 'giw. ' ' '' ''' '' . ^^iHdiam: Indianapolis St. R. Co. v. ' B6 Caesar v. Fifth Ave.' Coach C6;; 4S Hoffman, 40 Ind. App. 508, SIO, 82 N. E. Misc. '331,' 90 N. Y. Supp! 3S9, ,3'61. "/ 543. ' ' ■ ,', ' , 5*?'Travers V.' Hartmaiil"S Boyce ^(Dei;') ' Michigan? Daniels V. Clegg, 28 Mich!'' 302, "92 Atl. 855' (1914)' ' ,' 32, 36. ' '■ ' 68 Elgin' Dairy Co. v. Sliepherdj ' 183 Neiv York: Schimpf v. Sliter, 64 Hun Ind. 466, 108 N. E. 234 (1915)^ 463,464. ' ' ' 59cliicago & Alton 'R. Co. ''v.,:Roc'k- Rhode Island: Angell v. tewis, ' 2b fordi R. I. & St. L. R.' Co., .72 'ill.' 34, R. I. 391. ■ ' ' 36; McCarragher v. Proal, 114 App! Div. Wisconsin}' Wood v. Lusconib', 23 470, 478, 100 N. Y. Supp. 208; Taylor V. Wis! 287, 291. ' ' ' ' Union Traction Co., l'84 Pa! St. '465,'/'^ One has' a right' to dssunie that, the 60 B'ragdon v. Kellogg, 118 Me. 42, lOa operator of an automobile Will slacken Atl. 433 (1919). RIGHTS AND DUTIES ON, THE HIGHWAYS 201 § 197. Violation of statute or ordinance as negligence, The , ,violatipiii( of a statute or ordinance regulating the use pf auto- mobiles on tjie, public highways, in, the interest of, the safety of ail users of the highways, is held, in some states, to constitute neg7 ligence per se, ®^ ,while in others it is held tp be only prima facie ^i Alabama: Watts v. Montgomery Tr. Co., 175 Ala. 102, 57 So. 471 <1912) ; Dowdell V. Beasleyj: — Ala. App; — , 82 So.,4Q (1919),, ,;;, , , , , ; : Arizona i Young, y. Qampbell, 20 Ariz. 71, 177 Pac. 19 (1918). ' Cdlifornia: Fenn v. Clark, 11 Cal. App. 79, 104 Pac. 632 (1909); Mann v. Scott, -^.Cal. — , 182 Pac. 281 (1919) j Opitz V. Schenck, 178 Cal. 636, l74 Pac. 40 (1918); Mathes v. Aggeler & M.,S. Co., 179 gal. 697, 178 Pac. 713 (1919,1. Colorado: Denver Omnibus & Cab Co. V. Mills, 21 Colo. App. 582, 1?2 Pac. 798., ,; , Delaware: Grier v. Samuel, 4 Boyce (27 D^l.) 106, 86 Atl. 209 (1913); Trimble ,v. Philadelphia, B. & W. R. Co., 4 Boyce (2,7 , Del.). ,,519, 89 Atl. 47p (1913) ; Travers y. Hartman, 5 Boyce (Del.) . 302, 92, Atl. 855 (1914) ; Lemmon V. Broadwater, — Del. — , 108 Atl. 273 (1919,). ., G,eorgia: ,,Shepparji v. Johnson, 11 Ga. App., 280, 75 S. £.348 (1912,}; Lpuis- ville & N. R. Co. v. Stafford,, 146 Ga. 206, 91 S.. E. 29. (1916); Ware v. Lamar, IS Ga. App. 673, 90 S.,E. 364 (1916). . Illinois: , Latham ,y. Cleveland, C, C. &:St. L. R.Co., 179 111. App. 324 .(1913) ; Kessler v. Washburn, 157,jni. App. 532 (1910). Indiana: Carter, v. Caldwell, 183 Iiid. 434, 109 N, E, 355,(1915) ; Fox v. Bafek- man, ,178, Ind. 572,, 99 N. E. 989 (1912)'; Haipilton, H. & Co. v. Larrimer, 183 Ind. 429, ,105 ,N. E. 43 (1914) ; Mayer v. Mel,, lette, -J- Ind. App. — , lUN. E. 24t (1916); Central Ind. R. Co. v. Wisjiard., 186, Ind. 262, 114 N. E. 970 (1917). low/t:. Ford v, D,es Moines I. & C. S. Co., — la. —,,174 N. W. 486 (1919) .1 Kentucky: Cumberland Tel.^ & Tel. Co. V. Yeiser, 141 Ky. IS, 131 S.V. 1049 (1910); National' Caskfet 'Co. v. Powar, 137 Ky. 156, 125 S. W. 279 (1910).' JI/OT«ej0to; Riser v. Smith, 136 Minn. 4,17, ,162, N. W, 520,(1917). Missouri: Cab^nne v. St. Louis (^ar Co., 178 Mp. App. 718, 161 S. W. 597 '(1913) ;'PanneU v. Allen, 160 Mo. App. 714, 142 S. W. 482 (1912); Barton v. Faeth,, 193 Mo. App. 402, 186 S. W. 52 (1916). , ,. „ , North Carolina: Taylor v. Stewart, 172 N. C. 203, 90 S. E. 134 (1916) ; Ledbetter y. English, 166 N. C. 125,, 81 S. E... 1066 (1914). ' , , Ohio: Chesrown, v. Bevier, — Ohio — , 128, N.E. 94 (1920); Weimer. v. Rosen, — OMo — , 126 N. E. 307 (,1919) ; Schell v. Du Bois, 94 Ohio 93, 113 N. E. 664 (1916,). Sofith . Carolina: McCpwn v. Mul- drow,' 91 S. C, 523, 74 S. E. 386 (1912) ;, Whale;^, v.. Ostendorff, 90 S. C. 281, ,73 S. E. 186 (1911). , Texas: Houston Belt & Ter. R. Co. V. Rucker, — Tex. Civ. App. — , 167 S. W. 301 (1914) ; .Lefkoyitz v. Sher- wqod, — Tex. ,piv. App. — , 136 S. ,W. 850 (,1911),; Wa,rd v. Cathey, — Tex. Civ. App. —,210 S. W. 289 (1919); Zucht v. Brooks, — Tex. Civ. App. -^, 216 S.W. 684 (1919); Schoellkopf Saddlery Co. v. Crawley, — Tex. Civ. App. — , 203 S. W. 1172. (,1918). ,, , , Washington: A^dersoh v. Kinnear, ,80 W^s^. 638, 141 Pac. 1151 (1914); Kille- , brant y. Manz, ,71 Wash. 250, 1281 Pac. 8,9? (1912) ; , Stubbs v. M,olberget, — Wash. — , 182 Pac. 936 (1919). Wisconsin: Ludke v. Burck, 160. 'Wis. 440> 152 N. W. 190, L. R. A. 1915D 968, (1915); Higgles v. Priest, 163 Wis. J99, 157 N. W. 755 ,(1916)., Federal: Harmon v. Barber, 247 Fed. 1, 159 C. C. A. 219., 202 LAW OF AUTOMOBILES evidence of negligence."* In Michigan it is held thalt the violation of a statute is negli- gence per se, but that the violation of an ordinance is merely evi- dence of negligence.*' "While it is undoubtedly correct to say that the act of driving a vehicle over a street or public highway beyond the speed limit established by a municipal ordinance or a statute merely consti- tutes evidence of negligence in cases where damage has followed the infraction of such an ordinance or law, the rule in this state is, however, that it is conclusive evidence of negligence." ®* It has been held to be negligence on the part of the operator of Particularly is this true of an ordinance regulating the speed of vehicles. Weimer V. Rosen, — Ohio — , 126 N. E. 307 (1919). The violation of a statute or ordinance is negligence per se, and a person proxi- mately injured thereby may recover for such injuries against' the violator of the law. Hill V. Condon, 14 Ala. App. 332, 70 So. 208 (191S). The violation of a speed ordinance is simple negligence only. Yarbrough v. Carter, 179 Ala. 3S6, 60 So. 833 (1913). ez Arkansas: Ward v. Ft. Smith L. & T. Co., 123 Ark. S48, 18S S. W. 108S (1916). California: Stohlman v. Martin, 28 Cal. App. 338, 152 Pac. 319 (1915). Iowa: Herdman v. Zwart, 167 la. SOOj 149 N. W. 631 (1914); Schultz v. Starr, 180 la. 1319, 164 N. W. 163 (1917). Massachusetts: Hartnett v. Tripp, 231 Mass. 382, 121 N. E. 17 (1918). Michigan: Scott v. Dow, 162 Mich. 636, 127 N. W. 712 (1910); Rotter v. Detroit U. R. Co., 20S Mich. 212, 171 ;N. W. 514 (1919) ; Patterson v. Wagner, 204 Mich. 593, 171 N. W. 356 (1919) ; Weber v. Beeson, 197 Mich. 607, 164 N. W. 255 (1917). Minnesota: Day v. Duluth St. R. Co., 121 Minn. 445, 141 N. W. 795 (1913). New Jersey: Meyer v. Creighton, 83 N. J. L. 749, 85 Atl. 344 (1912). New York: McCarragher v. Proal, 114 App. Div. 470, 477, 100 N. Y. Supp. 208; Beisegel v. New York Centraf R. Co., 14 Abb. Pr. (N. S.) 29, 34. It is not negligence per se. Temple v. Walker, 127 Ark. 279, 192 S. W. 200 (1917). Instruction on contributory negligence of driver of vehicle in violating ordinance as to turning corners to left held erro- neous as an assumption that the viola- tion of the ordinance was conclusive of the fact that driver was negligent, instead of being at most, mere prima facie evidence thereof. Culver v. Harris, 211 111. App. 474 (1918). "TJie mere fact that a motor truck is driven by defendant's employees at a greater speed than that prescribed by statute,, or that the plaintiff in turning into another street to the left did not turn around the center of the intersec- tion of the two streets, does not establish either negligence or contributory negli- gence as a matter of law; but the viola- tion of the statute and of the ordinance may be considered by the jury as evidence of negligence." Rule v. Claar Tr. & S. Co., 102 Neb. 4, 165 N, W. 883 (1917). This rule is the same in case of a child 10 years old as in case of an adult. Kolankiewiz v. Burke, 91 N. J. L. 567, 103 Atl. 249 (1918). B^Westover v. Grand Rapids R. Co., 180 Mich. 373, 147 N. W. 630 (1914). 64Scragg V. Sallee, 24 Cal. App. 133, 140 Pac. 706 (1914). RIGHTS AND DUTIES ON THE HIGHWAYS 203 an automobile, to drive an automobile at night without lights; ^* to drive without a license when one is required by law; ®^ to fail to stop upon meeting horses that appear to be frightened ; ^^ to fail to give warning of the automobile's approach; ^* to cut a corner, instead of going to the right of the intersecting point; ®' to fail to give right of way to motorist entitled thereto; '" to drive past a horse-drawn vehicle without turning to right and giving half of trav- eled part;''^ to drive without a mirror attached so that the driver could see reflection of vehicles following him; ''* to drive on the left side of the street when meeting another vehicle; '' to fail to turn to the right on meeting another vehicle on the highway; '* to turn in street at place other than street intersection; '* to attempt to pass another vehicle going in the same direction by turning to the right; '"* to pass a standing street car; '"'' to fail to give warning of his approach to a horse-drawn vehicle; ''* to drive 6* Stewart v. Smith, — • Ala. App. — , 78 So. 724 (1918) ; Fenn v. Clark, 11 Cal. App. 79, 104 Pac. 632 (1909); Buford V. Hopewell, 140 Ky. 666, 131 S. W. S02 (1910); Zoltovski v. Gzella, 159 Mich. 620, 124 N. W. S27, 26 L. R. A. (N. S.) 43S (1910) ; Lawfer v. Mont- gomery, — Mo. App'. — , i217 S. W. 8S6 (1920). 66 Brown v. Green & Flinn, 6 Boyce (29 Del.) 449, 100 Atl. 47S (1917). 67Beggs V. Clayton, 40 Utah 389, 121 Pac. 7, (1912). 68 Collett V. Standard Oil Co., 186 Ky. 142, 216 S. W. 3S6 (1919) ; Cumberland Tel. & Tel. Co. v. Yeiser, 141 Ky. IS, 131 S. W. 1049 (1910) ; National Casket Co. V. Powar, 137 Ky. 1S6, 12S S. W. 279 X1910) ; Buford v. Hopewell, 140 Ky. 666, 131 S. W. S02 (1910) ; Offerman v. Yellow Cab Co., — Minn. — , 17S N. W. 537 (1920). 69 Young V. Campbell, 20 Ariz. 71, 177 Pac. 19 (1918) ; Cook v. Miller, 175 Cal. 497, 166 Pac. 316 (1917) ; Perez v. Hart- man, — Cal. App. — , 179 Pac. 706 (1919) ; Martinelli v. Bond, — Cal. App. — , 183 Pac. 463- (1919); Jacobs v. Richard Carvel Co., 95 Misc. 252, 159 N. Y. Supp. 196 (1916) ; Berckhemer v. Empire Carrying Corp., 172 App. Div. 866, 158 N. Y. Supp. 856 (1916) ; Zucht V. Brooks, — Tex. Civ. App. — , 216 S. W. 684 (1919) ; Stubbs v. Molberget, — Wash. — , 182 Pac. 936 (1919). TO Brillinger v. Ozias, 186 App. Div. 221, 174 N. Y. Supp. 282 (1919) ; Noot V. Hunter, — Wash! — , 186 Pac. 851 (1920). 71 Carter v. Caldwell, — Ind. — , 109 N. E. 355 (1915). 72 El Paso El. R. Co. V. Terrazas, — Tex. Civ. App. — , 208 S. W. 387 (1919) 73 Baillargeon v. Myers, 27 Cal. App. 187, 149 Pac. 378 (1915) ; Baillargeon v. Myers, — Cal, — 182 Pac. 37 (1919) ; John v. Pierce, — Wis. — , 178 N. W. 297 (1920). 74 Goodrich v. Matthews, 177 N. C. 198, 98 S. E. 529 (1919). 76 Ford v. Des Moines I. & C. S. Co., — la. — , 174 N. W. 486 (1919). 76 Weaver v. Carter, 28 Cal. App. 241, 152- Pac. 323 (1915); Campbell v. Walker, 2 Boyce (Del.) 41, 78 Atl. 601 (1910). 77 Ward v. Cathey, — Tex. Civ. App. — , 210 S. W. 289 (1919). 78 Campbell v. Walker, 2 Boyce (Del.) 41, 78 Atl. 601 (1910). 204 LAW OF AUTbMO'BILteS' at an excessive rate of speed'; '''to ctoss a bridge'^t rate prdhibitfed by ordinance; *" to fail to equip his machine with sijgnal applii- knee;" to' drive at a rate of speed prohibited ' by statute, ** Ot ordinance; *^ to drive past a horse-drawn vehicle at speed in excesi of the rate allowed by statute; ** to drive in excess of the statu- tory speed Hmit at intersecting highways'; *® to drive while intoxi- cated, or With the ihtiffler open; *® all of the foriegoing being in violation of some statute or ' ordinance-. i i ■ ■ , The violation of an ordinance reqiiitihg evter^ person using any vehicle on the streets, before turning around, to lo6k t6' the rear, is negligence ^er ^e.*'" ' ■'" ' " It is negligence for a gara^eman to fail to extinguish the lights 6ii ah automobile before filling the tank with gasoline, a^ requii^ed by ordinance.** ' ' ' ''A failure to observe the stattite, if it results in injury to oile for whose protection it is enacted, brings liabiltiy irrespective of such conduct as constitutes negligence in the absence of a stat- ute.*» ',;'," \; ' "/ ' ■"" ''".\ , ; , ,."'''' ., ." ' ._ . The violation of a statute^" regulating the operation of autpT ■79 0'Neil V. 'Re'dfieid, 15S la. 246, 139 N. W. Sis '(1913);' Harmon v. Barber, 247 Fed. 1, 159 C. C. A. 219. 80 Ham V. Los Angeles County, ' — Cal. App. — , 18$ Pac.^'46^' (1^20)'."' 81 Corning v. Maynard/ 179 la. 1065, 162 N. 'W. 564 (1917)-;: ' 8Z Lawrence v. Goodwill,' — Cal. App. — , 186 'Pac. 781 ''(1919) ; O'Dowd ' v. Ne^nhaiia;' 13 Ga. App. 220, 80 S. E. 36 (19'i3) ; Hubbard v. Bartholomew,' 163 la^ 58, 144 N. W. 'l3 (1913)'; ' Westover V. Grand Rapids R. Co., 180 Mich. 373, l47 N. W.' 630 (1914); Southern Tr. Co. V. Jones, — Tex. Civ. App.' — , 209 S. W. 457' (1919); Carvel 'v. Kusel, '— ' Tex. Civ. App. -^,"205 S. W. 941 (1918) ; Noot V.' Hunter,'— 'Wash. — , 186 Pac;' 851 (1920) . . 88 C^rradine ,v. Ford, 195' Mo. App. 684, 187 S. W. 285,(1916); Mickelsfbii v. Fischer, 81 Wash. 423, 142 Pac. 1160 (1914). 84 Carter v. Caldwfell; 183 Ind. 434, 109 N. E. 355 (1915); '" ' 86 National Casket Co. v. Powar, 137 Ky. 156, 125 S. Vf. 279 (1910). 86 Steinkfause v. Eckstein, — Wis. — , 175 N. W.' 988 '(1920). 8'?Arnistedd v. Lounsberry, 129 Minn. 34,' 151 N. W. 542,' 544, 9 N. C. C.'A. 828, L. R. A. 1915D 628 (1915). 88KaTg v. Seventy-niVitK St. Garage Corp., 102 Misc. 114, 16S N. Y. Supp. 164 (1917).- • ■ ' ' 89 Benson v. Larson, 133 Minn. 346; 158 N. W. 426 (1916').' ■" 90 Such a.h a statiite of Missouri (Laws 1911, p. 327); since repealed, which pto'- vided that ''iA approaching or passing a car of 'a street railway; which has' been stopped to allow passengers to alight or embark, the operator of every motor ve- hicle shall slow down, and if It 'be nec- essary for the safety of the public, he shall bring said vehicle tO a fUU' slop;" and that, "upon approaching 'a pedestrian who' is upon the traveleid part oi any highway and not upon a sidewalk' a m6tor vehicle shall slOw down' and' gi'\>e a timHy' Signal," etc. RIGHTS AND DUTIES ON THE HIGHWAYS 205 mdbileS on the highways for the protection of all persons, or of any specifically enumerated class of persons, using the same, con- stitutes negligence.®^ The violation 6i a statute requiring a motorist, upon approach- ing an intersecting highway, or a curve, or a corner, or other place where his view is obstructed for a distance of 200 feet or less; to slow down and give a timely signal, is negligence ^ rendering the violator liable to anyone injured as a pToximate result thereof.®* It is negligence per se to drive an automobile at an unlawful and dangerous rate of speed in a frequently used street in a popiilbus part of a city.®* ■. ■ In the absence of evidence of circumstances tending to excuse by making such a course reasonably necessary, a failure to observe the law of the road by an automobile operator, resulting in injury, is negligence as matter of law.®* While the violation of the law of the road is held to be negligence, this rule must be applied in view of the circumstances under \srhich , its observapcej is - called fof.®" , ; .;■ "^' '"■ The breach of an est^iblished custom is also held to be negli- gence /(er se.®' It has been held tha,t failure to obey a traffic statute or ordi- nance is not negligence per 5e, unlessithe complaining pa,rty is one for whose benefit the statute or ordinance was enacted.®* The violation of a statute or ordina,nce is not rendered less neg- ligent by the fact that the police resolve not to enforce it.®® , To recover for injuries resulting from negligence consisting: of a violation of an ordinance, the ordinance must be both pleaded and proved.' It was held in jurisdictioiis in which the view prevails that the violation of a statute or ordinance relating to the use of automobiles is only evidence of negligence, that the fact that an autoist turned his autornobile into an intersecting street in a manner violative of a municipal ordinance was not conclusiye of the question of his negligence, the automobile at such time being struck by a street 91 Grouch V. Heffner, 184 Mo. App. S' Swigart v. Liisk, 196 Mo. App. 471, 36S, 171 S. W. 23 (1914). ' '"'' 192 S. W. 138 (1917). 9S Fisher v. EUston, 174 la. ■364, 1^6 98 Walters v. Seattle, 97 Wash. 6S7, N. W. 422 (1916). 167 Pac. 124 (1917) ; Bogdan v. Pappas, 94uimer v. Pistole, 11^ Miss. 48S, 76 9S Wash. 579, 164 Pac: 208 (1917). ' So. S22 (1917). ' 99 Riser v. Sftiith, 136 Minn. 417, 162 95 Johnson V. Heitman, 88 Wash. S95, N. W. S20 (1917). 153 Pac. 331 (1915). 1 Linstroth v. Peper, — Mo, App. — , 96 Sheffield v. Union Oil Co., 82 Wash. 188 S. W. 1125 (1916). 386, 144 Pac. 529 (1914). 206 LAW OF AUTOMOBILES car; * and that driving an automobile at a rate of speed in viola- tion of statute is prima facie evidence of negligence.' The failure of one whose wagon was struck by an automobile to display a light on his vehicle at night, as required by statute, was prima facie evidence of contributory negligence on his part.* The failure to turn an automobile to the right when driving on the public highway on meeting another conveyance in compliance with the provisions of a statute is prima facie evidence of neglir gence.* The violation of an ordinance by the plaintiff will not defeat a recovery if the defendant could have, by the exercise of ordinary care, avoided the injury.^ The violation of a law may be evidence of negligence even where it could not actually constitute negligence.'' Where such violation does not amount to gross negligence or wilful wrong, contributory negligence is a defense.' § 198. Same— Must be proximate cause of injury to create liability. While the failure of a person to perform a duty imposed upon him by statute is sufficient evidence of negligence on his part, nevertheless, such neglect, however illegal, in the absence of evi- dence showing it to have been a proximate cause of the injury complained of, furnishes no legal ground for complaint.® 2 Day V. Duluth St. R. Co., 121 Minn. Pac. 1044 (1917) ; Robinson v. demons, 44S, 141 N. W. 79S (1913). — Cal. App. — , 190 Pac. 203 (1920). 8 Fairchild "V. Fleming, 125 Minn. 431 Connecticut: Broscliart v. Tuttle, 59 147 N. W. 434 (1914). Conn. 1, 11 L. R. A. 33, * Martin v. Heriog, 176 App. Div. 614, Delaware: Lemmon v. Broadwater, 163 N. V. Supp. 189 (1917). — Del. — , 108 Atl. 273 (1919). 6 Cook V. Fogarty, 103 la. 500, 39 Georgia: Louisville & N. R. Co. /. L. R. A. 488. Stafford, 146 Ga. 206, 91 S. E. 29 (1916). 6 Steele v. Burkhardt, 104 Mass. 59, Illinois: Latham v. Cleveland, C, C. 6 Am. Rep. 191; Kearns v. Snowden, & St. L. R. Co., 179 111. App. 324 (1913 '. 104 Mass. 63. Indiana: Baldwin Piano Co. v. Allen, 'Denton v. Missouri, K. & T. R. Co., — Ind. — , 118 N. E. 305 (1918) ; Cen- 90 Kan. 51, 155 Pac. 812 (1913). tral Ind. R. Co. v. Wishard, 186 Ind. SLudke V. Burck, 160 Wis. 440, 152 262, 114 N. E. 970 (191.7); Mayer v. N. W. 190, L. R. A. 1915D 968 (1915). Mellette, — Ind. App. — , 114 N. E. 241 ^Alabama: Bowles v. Lowery, 5 Ala. (1916). App. 555, 59 So. 696 (1912). Iowa: iNfeedy v. Littlejohn, 137 la. California: George v. McManus, 27 704, 115 N. W. 483. Cal. App. 414, 150 Pac. 73 (1915); Kentucky: Cumberland Tel. & Tel. Weaver v. Carter, 28 Cal. App. 241, 152 Co. v. Yeiser, 141 Ky. IS, 131 S. W. 1049, Pac. 323 (1915); Baillargeon v., Myers, 31 L. R. A. (N. S.) 1137 (1910). 27 Cal. App. 187, 149 Pac. 378 (1915); Maryland: Gittings v. Schenuit, 122 Henderson v. Northam, 176 Cal. 493, 168 Md. 282, 90 Atl. 51 (1914). RIGHTS AND DUTIES ON THE HIGHWAYS 207 If the violation of a statute regulating tfie use of the streets proximately causes injury to another, the violator is liable there- for in damages, provided the injured person was not contributorily negligent." If such violation of statute or ordinance is a proximate cause of an injury to the motorist or his car, he cannot recover there- for, although the negligence of another was also a contributing proximate cause thereof .^^ The fact that a motorist violated a statute in turning at a street intersection, did not affect bis right to recover where, after he had made the turn and was on the right side of the street he was struck by defendant's machine driven at excessive speed on the wrong side of the street.^^ The fact that the driver of an automobile was under the age of 18 years, and therefore forbidden by statute to operate auto- mobiles on the highways, did not preclude an occupant from recovering for injuries due to the negligent operation of one of defendant's street cars.** The fact that a motorist violated the law in attempting to pass a truck on the wrong side, did not conclusively show contributory negligence unless he ought to have apprehended that his conduct in so doing might probably result in injury.** Where the defendant left the cut-out of his truck open in order to warn persons of his approach,^ the horn having been removed from the machine for repairs, he was not liable for injuries incurred by plaintiff in being struck by the truck merely because an ordi- Michigan: Johnston v. Cornelius, 200 Crawley, — Tex. Civ. App. — , 203 S. W. Mich. 209, 166 N. W. 983 (1918). 1172 (1918). Missouri: Brickell v. Williams, 180 Washington: Bullis v. Ball, — Wash. Mo. App. 572, 167 S. W. 607 (1914); — • ^^^ ^^^- ^'^^ (1917); Singer v. Mar- Roper V. Greenspon, - Mo. App. -, ""■ ^6 Wash. 231, 164 Pac. IIOS (1917).- 192 S. W. 149 (1917); Lumb v. Forney, Wisconsin: Steinkrause v. Eckstein, - Mo. App. -, 190 S. W. 988 (1916). " Wis. -, 17S N. W. 988 (1920). ,, ^r , r^ , /-. j.^ c lOGrier v. Samuel, 4 Boyce (27 Del.) New York: Cohen v. Goodman & ., , ,.„.^ 106, 86 Atl. 209 (1913) ; National Casket Co. V. Powar, 137 Ky. 156, 125 S. W. Sons, 189 App. Div. 209, 178 N. Y. Supp S28 (1919). 279 (1910); Schell v. Du Bois, 94 Ohio North Carolina: Taylor v. Stewart, „, ,,, j^ p. ,,. dgifi) 172 N. C. 203, 90 S. E. 134 (1916) ; Led- '„ ^^^^^ ^ p^.^^^^ 1^3 ^^ ^^^ ^^^^ better v. English, 166 N. C. 125, 81 S. E. jg^ s W 52 (1916) 1066 (1914). 12 Wilkinson v. Rohrer, — Cal. App. Pennsylvania: Flanigan v. McLean, ^ 190 Pac. 650 (1920). — Pa. St. — , 110 Atl. 370 (1920). 13 Bonini v. Pittsburgh Rys. Co., 23 South Carolina: Whaley v. Osten- Pa. Dist. 593 (1914). dorff, 90 S. C. 281, 73 S. E. 186 (1911). l*Mahar v. Lochen, 166 Wis. 152, 164 Texas: Schoellkopf Saddlery Co. v. N. W. 847 (1917). 208 LAW OF AUTOMOBILES nance forbade opening the cut-out; the cut-out being open having nothing to do in causing the accident.^* ,,, The fact that ; plantiff 's automobile was parked within 20. feet of a fire hydrant, in violation of an ordinance, when it was dam- aged by the negligent driving of the defendant's ;truck, did not pre- vent: recovery, there being no causal connection betweien the pres- ence oi the automobile within the forbidden limits and the acci- dent.^* The fact that a motorist did, not have a red light burning on, the rear of his automobile as required by statute, when he was injured by a defective bridge, did not affect his right to recover thprefpr from the municipality responsible for the condition of the bridge.^' One who violates a statute providing that the operator of a motor vehicle "upon meeting or overtaking any horse, or other draft ani- mal, driven or in charge of a woman, child, or aged person, shall not pass said animal at a rate of speed greater than four miles- per hour," has been held to be hable for such injuries as proximately result because of the excessive speed. ^* The fact that the plaintiff was driving his automobile on a bridge at a rate of speed prohibited by statute when the defendant'^, ma- chine i collided with him, will not prevent recovery , by , plaintiff unless such violation of law was the, , or; a, proximate cause of . the accident.^® - The mere proof of an accident, even though the defendant was violating the law at the time,, raises no presumption that his negli- gence; proximately caused the injury.^" § 199. Imminent peril. Where a person is placed suddenly in a position of peril without sufficient time to consider all the cir- cumstances, the law does not require of him the same degree of care and caution as it requires of a person who has ample oppor- tunity for the full exercise of his judgment and reasoning faculties.^^ l*LinnebalI v. Levy Dairy Co., 173 ^^ Alabama: Central of Ga. R. Co. v. App. Div. 861, 160 N. Y. Supp. 114 Faust; — Ala. App. ^, 82 So. 36 (1919). (1916). California: Tousley v. Pacific El. R. ., 16 iDenspn V. McDonald Bros., — Minn. Co., 166 Cal. 457, 137 Pac. 31, 8 N. C. — , 17S N. W. 108 (1919). , C. A. 1033 (1913); Hoff v. Los Angeles- 11' Lawrence v. Channahon, 15,7 111. Pac. Co., 158 Cal. 596, 112 Pac. S3 App. 560 (1910). (1910); Lininger v. San Francisco, V. & isSchaar v. Conforth, 128 Minn, 460, N. V. R. Co., 18 Cal. App. 411, 123 Pac. 151 N. W. 275 (1915). » 235 (1912); Potter v. Back. Country Tr. 19 Coffin V. Laskau, 89 Conn. 325,; 94 Co., 33 Cal. App. 24, 164. Pac. 342 (1917). Atl. 370, 10 N. C. C.,A. 822n (191?). Colorado: Louthan v. Peet, -^ Colo. 20 Horowitz V. Gottwalt, — N. J. L. — , 179 Pac. 135 (1919);, Leiisack v, — , 102 Atl. 930 (1918). ,,, Mogre, — Colo, — 177 Pac. 137 (i9V9>. RIGHTS AND DUTIES ON THE HIGHWAYS 209 The decision of a chauffeur, in an emergency, to use the steering whieel in an attempt to avoid a collision with a street car by turn- ing-put of its way, instead of the brake, is not determinative of the question of his negligence, although he di^l not avoid the collision.*^ Delaware: Nailor v. Maryland, D. k V. R. Co., 6 Boyce (Dei.) 14S, 97 Atl. 418 (1916). ' Illinois: Book v. Aschenbrenner, 165 111. App. 23 (1911); Kessler v. Wash- burn, 157 111. App, 532 (1910). ■... Indiana: Indiana Union Tr. Co. v. ioye,. 180 Ind. 442, 99 isi. E. IOCS (1912) ; Mayer v. Mellette, — Ind; App. A 114 N. E. 241 (1916). Iowa: Walterick v. Hamilton, 179 la. 607, 161, N. W. 684 (1917). Kansas: Kansas City L. R. Co. v. Langley, 70 Kan. 453, 461; Keil v. Evans, 99 Kan. 273, 161 Pac. 639 (1916). Kentucky: Illinois Cent. R. Co. v. Wilkins, 149 Ky. 35. Massachusetts: Neafsey v. Szemeta, — Mass, — , 126 N. E. 368 (1920) ; Emery v. Miller, 231 Mass. 243, 120 N. E. 655 (1918). Missouri: Hodges v. Chambers, 171 Mb. App. 563, *154 S. W. 429 (1913); Adams v. Hannibal & St. J. R. Co., 74 Mo. 553, 560, 41 Am. Rep. 333 ; Swig3;rt V. Lusk, 196 Mo. App. 471, 192 S. W. 13^ (1917^; Stanley v. Helm, — Mo. App. — , 223 S. W! 125 (1920). Nevada: Week v. Reno Tr. Co., 38 Nev. 285, 149 Pac. 65 (1915). New York: Heffernan v. Alfred Bar- bers' Son, 36 App. Div. 163. Nprth Carolina: Brown v. Atlantic Coast Line R. Co., 171 N. C. 266, 88 S. E. 329 (1916) ; Hinton v. Southern R. Co., 172 N. C. 587, 90 S. E. 756 (1916). Ohio.: Citizens Motor Car Co. v. Hamilton, 32 Ohio Cir. Ct. R. 407 (1909), aff'd 83 Ohio St. 450 (1910) ; Pennsyl- vania R. Co. V. Snyder, 55 Ohio St. 342, 363, 60 Am. ' St. Rep. 700. • Pennsylvania: K-Kider v. Turnpike Co., 162 Pa. St. 537; Cannon v. Traction Co., 194 Pa. St. 159, 161; Wingert v. B. Autos. — 14 Philadelphia & R. R. Co., 262 Pa. St. 21, 104 Atl. 859 (1918). terns: Missouri, K. & T. R. Co. v. Rogers-, 91 Tex. 52, 59. Utah: Cheney v. Buck, — Utah — , 189 Pac. 81 (1920). . Virginia: Richmond R. & E. Co. v. Hudgins, 100 Va. 409, 419. Washington: Tooker v. Perkins, 86 Wash. 567, 150 Pac. 1138 (1915); Shef- field V. Union Oil Co., 82 Wash. 386, 144 Pac. 529 (1914) ; Hartley v. Lasater, 96 Wash. 407, 165 Pac. 106 (1917). Wisconsin: Parkes v. Lindenmann, 161 Wis. 101, iSl N. W. 787 (1915); Valin V. Milwaukee & N. R. Co.; ' 82 Wis. 1, 13, 33 Am. St. Rep. 17. Federal: Lehigh Valley R. Co. v. Kilmer, 231 Fed. C. C. A. 514 (1916^. In an action to recover for personal injuries incurred by plaintiff when slie was riding as a guest in an autoiriobile, in a collision between the automobile and an electric interurban car, the trial court properly instructed the jury that the care that plaintiff was bou^d to exercise was that of an ordinarily prudent person under the same or similar circumstances, "considering the danger, proximity of the car, speed of the car, her position in the automobile, and all other circum- stances proved to have occurred , at the time of the accident." Tousley v. Paci- fic EI. R. Co., 166 Cal.. 457, ,137 Pacj 31, 8 N. ,C. C. A. 1033 (1913). // one Tiiithout- fault attempts, to cross a highway and is placed in a perilous situation by the negligent operation of an automobile, he is not held to the same degree of deliberation and coolness as if there had been no negligent conduct on the part of the operator. Dougherty v. Davis, 51 Pa. Super. Ct. 229 (1912). 22United Rys. & El. Co. v. State to 'Use, 127 Md. 197, 96 Atl. 261 (1915). 210 LAW OF AUTOMOBILES "A person who, in an effort to avoid immediate danger, in the exigency of the moment, suddenly, and without time for reflection, pmts himself in the way of other perils without fault, is not guilty of contributory negligence." *' This rule is held to apply only where such person is placed in danger through the negligence of the defendant and without negli- gence on his part.** If the act of such person resulted from rash apprehension of danger which had no existence or from inordinate and unreason- able fear, he is not entitled to recover for the injurious conse- quences. There must be some reasonable ground for the belief that some sort of action must be taken in order to protect himself to justify a person in taking such action. While a man is not held to the exercise of such prudence, when the negligence of another has given rise to a belief of imminent danger, as would be exer- cised by a man of ordinary prudence in more ordinary circum- stances, still a man cannot recover for damages inflicted by him- self through wildly imagining that he was in danger. In order to make a case arising from action on the part of the plaintiff caused by the negligent act of the defendant, it must be shown that there was misconduct upon the part of the defendant reasonably calcu- lated to cause the plaintiff to do the thing that resulted in his injuiy. So, where a man driving a horse to a buggy became unreason- ably frightened at an approaching automobile, 75 feet behind him, and wildly jerked his horse so that he threw the animal to the street, injuring it, when there was no ground, for fear that there would be a collision, he could not recover for the injury to the horse.*^ , Where an automobile being driven twenty or twenty-five miles 23 Simeone v. Lindsay, 6 Pennew. conscious of the presence of the engine (Del.) 224, 6S Atl. 778. cannot be passed upon as a question of 2* Dwarkin v. Johnson, — Del. — , 110 law by the court. He then faced an Atl. 44 (1920) ; Congdon v. Michigan emergency of imminent peril, where the United Tr. Co., 199 Mich. 564, 165 N. absence of the best judgment does not W. 744 (1917); Neumann v. Hudson defeat his right to go to the jury. How- County C. B. Co., 155 App. Div. 271 ever, this holding will not avail the ap- (1913). pellant, unless there was freedom from This rule does nqt apply when the contributory negligence of the driver of plaintiff's negligence created the peril, the truck, in getting into the position of Fogg V. New York, N. H. & "H. R. Co., imminent peril." La Goy v. Director 223 Mass. 444, 111 N. E. 960 (1916). General, 181 N. Y. Supp. 842 (1920). * "The acts of omission or commission 28 Carter v. Walker, — TejT. Civ. App. chargeable to the driver after he became — , 165 S. W. 483 (1913). RIGHTS AND DUTIES ON THE HIGHWAYS 211 an hour came meeting plaintiff who, when . the automobile was fifty or sixty feet away and coming directly toward him, pulled the horse he was driving to the left instead of to the rigljt, it was held that in such circumstances negligence could not be imputed to plaintiff as a matter of law, because he was confronted with a sudden danger and his failure to exercise what might seem to others the best judgment, was not necessarily negligence.*® In an action for damages due to plaintiff's horses, which she was driving, becoming frightened at defendant's automobile, an instruc- tion to the jury "that if the plaintiff, finding herself confronted by a sudden peril because of defendant's negligence in the use of his automobile, and in standing up in the carriage and in trying to get out of the same she acted under a sudden fright and impulse created by such peril, that in so doing she acted naturally, and as ordi- narily prudent persons might act when in like situation and under the influence of like fright and like impulses," then it was a fact for the jury to find whether or not she* was guilty of contributory negligence, was upheld as a proper exposition of the law.*'' A pedestrian is not necessarily negligent because he moves in the wrong direction to escape from peril caused by the negligence of an automobile driver.*' A motorist who drives onto a railroad track where his view is obstructed and is confronted by an approaching train which gave no signal, is not required to act wisely or discreetly, but only with such care and judgment as would be expected of a man of ordi- nary prudence in a like situation.*' Where a motor-cyclist was suddenly confronted with danger on account of the defendant backing his automobile without warning, he was not contributorily negligent because he failed to choose the best way to avoid injury.'" A bicyclist was not necessarily negligent because he made a mis- take in choosing a course to avoid an automobile.'^ In an action by an occupant of an automobile for injuries sus- tained in a collision with a motor truck, the fact that the plaintiff, when she saw the near approach of the truck and realized the 26McFern v. Gardner, 121 Mo. App. 28Frankel v. Hudson, 271 Mo. 49S, 1, 13, 97 S. W. 972. 196 S. W. 1121 (1917). 27McIntyre v. Orner, 166 Ind. S7, 68, 29 Brown v. Atlantic Coast Line R. 76 N. E. 750, 8 Ann. Cas. 1087, 4 L. R. Co., 171 N. C. 266, 88 S. E. 329 (1916). A. (N. S.) 1130, 117 Am. St. Rep. 3S9. 30 Williams v. Kansas City, — Mo. See also, Indiana R. Co. v. Maurer, App. — , ITT S. W. 783 (191S). 160 Ind 25; Clark v. Pennsylvania Co, 31 Walterick v. Hamilton, 179 la. 607, 132 Ind. 199. 17 L. R. A. 811. 161 N. W. 684 (1917). ' 212 LAW OF AUTOMOBILES ' danger of collision, put ovit her hand, motioning the' driver of the truck to hold up, when the forward thrust of the truck struck the paljn of her hand, whether by sheer accident or because of an in- stinctive movement on her part to ward off the threatened blow was not clear, and her injury followed; the court declared that she could not be charged with coritributory negligence as a matter of 'law, because she was confronted with a sudden peril, and her con- duct was natural in the circumstances.'^ The fact that the operator of arl automobile which collided with a bicyclist "got rattled," thereby causing the accident, does not bring him within this rule.'* The act of a motorist in driving an insufficiently lighted automo- bile at night, on the left of a tiarrow street, in order to avoid a street car that was discharging passfengeirs on the right-hand track, there being insufficient room for two automobiles to pass on that side, and he could have waited for the street car to proceed, could not be justified as an act in a suddeh emergency.** § 200. Proximate cause of injury. Although an automobile may be traveling at a rate of speed prohibited by law, unless the excessive speed of the car was the proximate cause of, an injury complained of the owner is not liable for such negligence.*® However, there may be more than one proximate cause of the same injury.*® A charge to. the jury,. in an action to recover for injuries due to having been run over by an automobile, that they should find the issue of defendant's negligence in the affirmative, if they were sat- isfied by the greater weight of the evidence that the autpnipbilp was being run in a negligent manner, was held to be erroneous, because it eliminated the question of proximate cause.*'' Although the jury found that, the plaintiff stepped back to get out of the way of the swing of a car and that, in so doing, he put himself in the pa,th of defendant's approaching automobile, and at a time and place when those in charge of the automobile could not by the exercise- of ordinary care, in the employment of the / 32Withey v. Fowler Co., 164 la. 377, ing and following this work; Prince v. 14S N. W. 923 (1914). Taylor, — Tex. Civ. App. — , 171 S. SSTschirley v. Lambert, 70 Wash, 72, W. 826 (1914); Hartley v. Lasater, ' 96 126 Pac. 80 (1912). Wash. 407, 16S Pac. 106 (1917), citing 34 Ballard v. Collins, 63 Wash. 493-, this work. 115 Pac. lOSO (1911).' 36Hellan v. Supply Laundry Co., 94 SBMoye V. Reddicli, 20 Ga. App. 649, Wash. 683, 163' Pac. 9 (19i7). 93 S. E. 256 (1917); Stubbs v. Edwards, 37 Clark' v. Wright, 1(57 N. C. 646, 260 Pa. St. 75, 103 Atl. 511 (1918), quot- 83 S. E. 775 (1914). ' RIGHTS AND DUTIES ON THE HIGHWAYS 213 means at hand, stop the machine or guide it away from the plaintiff, before he was struck, thfe defendants would not be entitled to a verdict, unless the jiiry also found that the stepping back was the proximate cause of plaintiff's injury.** Wheri^ an automobile was negligently driven by a standing street car and struck a pedestrian, knocking him against one who had just alighted from the car, which caused the latter to fall and sus- tain serious injuries, the proximate cause of the latter's injuries was the negligence of the motorist. Said the court: "There was a continuous and connected succession of events beginning with, and caused by, the negligent act of the defendant, unbroken by any new or independent cause^ and ending with the plaintiff's injuries, which would not haVe occurred without the initial wrongful act of the defendant. That some of the persons who were alighting from the car would in some manner be injured by defendant's illegal act was readily to be anticipated and should have been foreseen by the defendant. To render his act the proximate cause of the plaintiff's injury, the law does not require that the defendant should have foreseen the particular consequence or precise form of the injury, or the particular manner in which it occurred, if by the exercise of reasonable care he might have foreseen or anticipated' that some injury might result from his negligent act." *® The plaintiff alleged : facts which in substance showed that he approached defendant's tracks at a public crossing where safety gates were maintained, the same being operated by. a gateman located in a tower where he had a view of the tracks; that a traveler approaching such crossing could not see an approa!ching train and was required to depend upon the operation of the gates for his safety; that the approach to the tracks was up an incline and he put on all of the 18 horse-power of his machine to ascend to the tracks; that, the gates being up, he proceeded to cross, and when he was on the first track the towerman suddenly lowered the gates on both sides of the crossing, thus penninig him in upon the tracks; that he threw on his brakes in full emergency, killing the engine and stopping the machine, but that he did, not change the spark and gas levers; that the towerman cried out to him to move the machine, that a train was coming; that he released the brakes, and gettihg behind the machine, with an abnormal degree of strength caused by the excitement of the emergency, pushed the machine from the first to the second track; that the towermaiji 38 Prince v. Taylor, — Tex. Civ. App. SSprankel v. Norris, 252 Pa. St. 14, — , 171 S. W. 826 (1914). 97 Atl. 104 (1916). 214 LAW OF AUTOMOBILES called to him again to move the machine, that the train was com- ing on the second track; that he gave it another shove, and just as he got it onto the third track, the train dashed by on the second track ; that the gates were then raised so that plaintiff could pro- ceed, but that he was so unnerved and robbed of his ordinary senses by the fright which the situation had produced that he forgot the condition in which he left his levers and attempted to start the machine with the maximum of power turned on; that the result was that when he turned the crank the engine "kicked back," which threw him against the radiator of the machine, seriously injuring him. It was held that a demurrer to the petition was properly overruled; that whether or not the experience to which the plaintiff was subjected by the alleged negligence of the defend- ant would naturally tend to produce the effect described upon an ordinary person, was a question for the jury.*" Where an automobile struck the rear end of a wagon, forcing the wagon forward agai^nst the horse, and an occupant was thrown forward and out of the wagon when it was stop)ped by the horse, the proximate cause of the occupant's injury was the collision of the automobile with the wagon." Where a truck driver cut a corner in turning and thereby caused another automobile to swerve in order to avoid a collision, and in so doing the latter struck and injured a pedestrian, the question of proximate cause was for the jury.** § 201. Last clear chance doctrine. The doctrine of last clear chance, or "humanitarian" or "discovered peril" doctrine, as it i? sometimes called, is applicable in actions brought to recover for injuries caused by the negligent operation of automobiles.*^ "Atlantic Coast Line R. Co. v. Co., 92 Conn. 235, 102 Atl. 607 (1917). Daniels, 8 Ga. App. 77S (1911). Georgia: Athens R. & E. Co. v. Mc- 41 Haynes v. Sosa, — Tex. Civ. App. Kinney, 16 Ga. App. 741, 86 S. E. 83 — , 198 S. W. 976 (1917). (191S). *2Hellan v. Supply Laundry Co., 94 Illinois: Bozinch v. Chicago Rys. Co., Wash. 683, 163 Pac. 9 (1917). 187 111. App. 8 (1914). *^ Alabama: Birmingham R., L. & Iowa: Joyner v. Interurban R. Co., P. Co. V. Aetna A. & L. Co., 184 Ala. 172 la. 727, 154 N. W. 936 (1915); 601, 64 So. 44 (1913) ; Birmingham R., L. Hutchinson Purity I. C. Co. v. Des & P. Co. V. Broyles, 194 Ala. 64, 69 So. Moines City R. Co., 172 la. 527, 154 562 (1915). N. W. 890 (1915) ; Mondt v. Iowa L. & California: Townsend v. Butterfield, R. Co., 178 la. 666, 155 N. W. 245 168 Cal. 564, 143 Pac. 760 (1914); Pot- (1915). ter V. Back Country Tr. Co., 33 Cal. Kansas: Himmelwright v. Baker, 82 App. 24, 164 Pac. 342 (1917). K^n. 569, 109 Pac. 178 (1910). Connecticul: Petrillo v. Connecticut Louisiana: Burvant v. Wolfe, 126 La. RIGHTS AND DUTIES ON THE HIGHWAYS 215 No recovery can be had under this doctriBe unless it is shown that after the defendant knew or ought to have known that the plaintiff was going in a place of danger, or after he was aware of the plaintiff's perilous situation, the defendant had reasonable time to avoid the injury and negligently failed to do so.** "Except in the case where one, though knowing of his danger, has unwittingly gotten into it and is unable to extricate himself, obliviousness is a necessary element of a cause of action under the humanitarian rule. And where there is no allegation that the plaintiff was oblivious, and that this was manifest to the defendant, no case under the humanitarian rule is pleaded." ** The court properly instructed on the last clear chance doctrine, in an action growing out of injuries received in a collision between the defendant's automobile and a sled on which plaintiff was riding, and in which the chauffeur testified that he did not see the sled until he was within S feet of it, but there being other testimony showing that there were arc lights extending over the street at the 787, 52 So. 1025, 29 L. R. A. (N. S.) 677 (1910). Michigan: Huff v. Michigan U. Tr. Co., 186 Mich. 88, 1S2 N. W. 936 (191S) ; King V. Grand Rapids R. Co., 176 Mich. 645, 143 N. W. 36 (1913). Missouri: Eisenman v. Griffith, 181 Mo. App. 183,- 167 S. W. 1142 (1914) England v. Southwest Missouri R. Co — Mo. App. — , 180 S. W. 32 (191S) Bruening v. (Metropolitan St. R. Co., 180 Mo. App. 434, 168 S. W. 248 (1914) Bruening v. Metropolitan St. R. Co., 181 Mo. App. 264, 168 S. W. 247 (19f4i Flack V. Metropolitan St. R. Co., 162 Mo. App. 650, 145 S. W. 110 (1912) Kalinowski v. Viermann, — Mo. App. — . 211 S. W. 723 (1919); Aqua Con- tracting Co. V. United Rys. Co., — Mo. App. — , 203 S. W. 483 (1918). New Hampshire: Taylor v. Thomas, 77 N. H. 410, 92 Atl. 740 (1914). North Carolina: Lindley v. Fries M. & P. Co., 153 N. C. 394, 69 S. E. 274 (1910). Oklahoma: St. Louis & S. F. R. Co. V. Model Laundry, 42 Okl. 501, 141 Pac. 970 (1914). Oregon: Twitchell v. Thompson, 78 Oreg; 285, 153 Pac. 45 (1915); Clark V. Jones, 91 Oreg. 455, 179 Pac. 272 (1919). South Carolina: Injury to horse un- lawfully in highway. Haynes v. Kay, 111 S. C. 107, 96 S. E. 623 (1918). The last clear chance doctrine is not the law in South Carolina. Spillers v. Grif- fin, 109 S. C. 78, 95 S. E. 133 (1918). Texas: Texas Cent. R. Co. v. Dumas, — Tex.. Civ. App. — , 149 S. W. 543 (1912); Vesper v. Lavender, — Tex. Civ. App. — , 149 S. W. 377 (1912). Utah: Richards v. Palace Laundry Co., — Utah — , 186 Pac. 439 (1919). Washington: Chase v. Seattle Taxi- cab & Tr. Co.,^ 78 Wash. 537, 139 Pac. 499 (1914); Mosso ,v. Stanton Co., 75 Wash. 220, 134 Pac. 941 (1913); Hille- brant v. Manz, 71 Wash. .250, 128 Pac. 892 (1912); Locke v. Greene, 100 Wash. 397, 171 Pac. 245 (1918); Hartley v. Lasater, 96 Wash. 407, 165 Pac. 106 (1917), citing this work. Federal: Benn v. Forrest, 213 Fed. 763, 130 C. C. A. 277 (1914). WStubbs V. Edwards, 260 Pa. St. 75, 103 Atl. 511 (1918), citing this work. *B Rubick V. Sandler, — Mo. App. — , 219 S. W. 401 (1920). 216 LAW OF AUTOMOBILES location of the accident, that defendant's car was lighted, and that there was snow on the ground.*® It is held in Washington that there may be two elements of duty arising out of the last clear chance doctrine. "The first duty is to exercise reasonable care in looking out for vehicles approach- ing the street crossing on the intersecting street, and the second duty is to exercise reasonable care and caution to prevent the accit dent after actually seeing the approaching vehicle." *'' Applying this doctrine to a case of collision between a street car and an automobile, and speaking of the conduct of the motorman, the court in one case said: "Until he had, or ought to have had, reasonable grounds to believe that the occupants of the automobile were oblivious to their danger and were going into it, he was under no; obligation to stop or reduce the speed of his car. If the occu- pants of the automobile gave every indication to the motorman that they were aware of the approach of the car and of the danger therefrom, as the automobile approached the track, then the mot- orman had a perfect right to assume that the automobile would stop in a place of safety and would not enter into dangei- on the track, and, having the right to assume that, he was not required to stop or reduce the speed of his car until the contrary became manifest." " It does not apply where a child negligently runs in front of an automobile and is struck, since the negligence of the child continued till the time of the impact.*® It is a general rule that the last clear chance rule has no appli- cation where the negligence of the plaintiff continues until the very moment of the accident, and concurs with the negligence of the defendant in causing the injury.^" In an action by an occupant of an automobile to recover for 46 Williams v. Lombard, 87 Oreg. 245, or, if already in, that he is not going 170 Pac. 316 (1918). to get out of it, and that therefore the *'' BuUis V. Ball, 98 Wash. 342, 167 operator must act to avoid the injury." Pac. 942 (1917). Heryford v. Spitcaufsky, — Mo. App. 48 Lewis V. Metropolitan St. R. Co., — , 200 S. W. 123 (1918). 181 Md. App. 421, 168 S. W. 833 (1914;. « Mpran v. Smith, 114 Me. 55, 9S "The function that 'obliviousness to Atl. 272 (191S)., , ,; peril' plays in last chance cases is to 50 Maris v. Lawrence R. & L. Co., ,98 show that the injured party did not Kan. 205, 158 Pac. 6 (1916) ; Gallery v. purposely or wantonly expose himself to Morgan's L. & T. R. & S. S. Cp-i 139 danger, and also to inform the operator La. 763, 72 So. 222 (1916) ; Hubenthal of the car, or other dangerous agency, v. Spokane & I. E. R. Co., 97 Wash, that the other party is going into danger, 581, ,166 Pac. 797 (1917). , RIGHTS AND DUTIES ON THE HIGHWAYS 217 injuries incurred in a collision between tlie automobile and a train ■ of the defendant, the following instruction was held to properly state the law applicable to evidence given in the case: "If you find from the evidence that the operator drbve the automobile upon the track of the defendant, at the defendant's crossing, and that the car stopped upon the track, or whether you find that he was negligent or not, if you further find that the plaintiff, as a guest of the operator, riding in the automobile, was thereby placed in a perilous situation from threatened contact with the defendant's train, and that the defendknt's servants in charge of the train saw, or by the exercise of ordinary care could have seen, her perilous situation, and averted the injury by any available means reasonably con- sistent with the safety of the train and its crew, it was then the duty of the railroad company to make use of such available means, to give the proper warning or signal, to lessen the speed of the train if reasonably necessary, and even to bring it to a stop, if reasonably necessary and practicable, to avoid the injury; to use all available means to avert the injury, short of putting in danger the safety of the train and its crew; and if you find that the rail- road company, under these circumstances, failed to perform this duty, you will then find that it was negligent." ^^ A complaint which, after setting out prior facts, stated that said raotorman saw plaintiff on said crossing, and saw him trying to avert a collision, and by the, exercise of ordinary care after so seeing plaintiff, could have stopped said car, but made no effort tp stop such car; that by reason of such failure of said motorman to stop his car there was a collision between said car and plaintiff's automobile, clearly invoked the last, clear chance doctrine.®^ , This doctrine is not abrogated by a statute which, after declar- ing; the, care to be, used by drivers of au,tpmobiles and the liability incurred for injuries, adds the words, "unless the injury or death N is caused by the direct negligence of the injured or deceased person contributing directly thereto." It was not intended by such pro- vision "to pernjit one person to kill another, when, he could avoid it, siniply because such person was negligent." ®* What are thought to he the proper rules regarding the continu- ing or concurrent negligence rule, as applicable under the last clear chance doctrine, are those laid doysm by the supreme couirt of Washington, and are here given. Slfiagwel! V. Southern R. Co., 167 58 Ind.App. 516,106 N. E. 377 (1914). ' N. C. 611,83 S. E. 814 (1914). 53Aronson v. Ricker, 185 Mo. App. I 62 Myers v. Winona Interurban R. Co., 528, 172 S, W. 641 (1915). 218 LAW OF AUTOMOBILES When the person in ccftitrol of an automobile actually sees the perilous position of a trarveler who has negligently placed himself in a dangerous situation on the highway, and should appreciate his danger, the last clear chance rule applies without regard to the continuing negligence of the traveler concurring with that of the operator up to the very moment of the injury. Where the person in control of the automobile, by keeping a reasonbly careful lookout commensurate with the dangerous char- acter of the machine and the nature of the locality, could have dis- covered and appreciated the traveler's perilous situation in time, by the exercise of reasonable care, to avoid injuring him, and injury results from the failure to keep such lookout and to exercise such care, the last chance rule applies if the traveler's pridr negligence has terminated or culminated in a situation of peril from which the exercise of ordinary care on his part" would not thereafter extri- cate him.** The first rule applies when the traveler's peril was actually dis- covered; the second is applicable when the peril of the traveler ought to have been discovered in time to avoid the injury, but was not. The last clear chance, or humanitarian, doctrine is applicable alike in case of damage to property and injury to person.''* § 202. Same— Doctrine of discovered peril. In some states the last clear chance doctrine does not apply unless the defendant actually discovers the perilous situation of the plaintiff. In such states the rule is more properly called the "doctrine of discovered peril." *« In a case in which it appeared that the plaintiffs were struck by a taxicab, the driver of which did not see them, it was held that the doctrine of last clear chance could not be applied.''' Under this doctrine it is not sufficient that the motorman of a street car could 5* Mosso V. Stanton Co., 7S Wash. Co. v. Grant, — Tex. Civ. App. — , 223 220, 134 Pac. 941 (1913). S. W. 544 (1920); Nicholson v. Hous SB Hygienic Ice Co. v. Connecticut ton El. Co., — Tex. Civ. App. — , 220 Co., 90> Conn. 21, 96 Atl. 152 (1915) ; S. W. 632 (1920) ; Magee v. Gavins, — Borders v. Metropolitan St. R. Co., 168 Tex. Civ. App. — , 197 S. W. 1015 (1917) ; Mo. App. 172, 153 S. W. 72, 5 N. G. Adams v. Southern Tr. Co., — Tex. Civ. C. A. 120n (1912). App. — . 188 S. W. 275 (1916) ; BuUis v. S6 Barrett v. Chicago, M. & St. P. R. Ball, 98 Wash. 342, 167 Pac. 942 (1917). Co., — la. — , 175 N. W. 950 (1920); S7 Laughlin v. Seattle Taxicab & Tr. Maris v. Lawrence R. & L. Co., 98 Co., 84 Wash. 342, 146 Pac. 847 (1915); Kan. 205, 158 Pac. 6 (1916) ; Emmons Hubenthal v. Spokane & I. E, R. Co., V. Southern Pac. Co., — Orfg. — , 191 97 Wash. 581, 166 Pac. 797 (1917). Pac. 333 (1920); Southwestern G. & E. RIGHTS AND DUTIES ON THE HIGHWAYS 219 have discovered the peril of a motorist on the track in time to have averted the accident if he had exercised reasonable care to dis- cover such fact; he must have actually discovered it.^* The plain- tiff must prove that the defendant actually had knowledge of plaintiff's peril, and that he did not exercise reasonable care to prevent injuring him.*' The following rule was followed in an Oregon case: "Doubtless, notwithstanding the negligence of a plaintiff has put him in peril, yet if his danger is perceived by the defendant in time, so that by the exercise of ordinary diligence on his part injury can be avoided the defendant .will be held for the injury. But that is based upon the fact that a defendant did actually know of the danger — not upon the proposition that he would have discovered the peril of the plaintiff but for remissness on his part. Under this rule, a defendant is not liable because he ought to have known." ^° Where a backing freight train struck an automobile, which had been negligently driven onto the crossing, pushed it for a distance, and finally overturned it, killing an occupant, who had been con- cededly negligent, it was held that, there being evidence that the trainmen, by the exercise of ordinary care, could have stopped the train after discovering the peril of the motorists and before the automobile was upset, the defendant' was liable for such death. ®^ § 203. Same— Under statute imposing high degree of care. A statute requiring the operator of an automobile to exercise the highest degree of care that a very careful person would use under similar circumstances to prevent injuring others, and rendering him liable for injury resulting from failure to use such care, unless the accident was caused by Negligence of the injured person contrib- uting thereto, requires the operator to exercise the prescribed high degree of care to avoid injury after discovering the peril of the injured person; and does not relieve him of liability merely be- cause the injured person negligently went into a dangerous place. In other words, such statute does not affect the humanitarian or last clear chance doctrine, except that it imposes a very high degree of care on the motorist, which care he is required to exer- cise both before and after discovering the perilous position of the plaintiff.^** 68 Texas Traction Co. v. Wiley, — 61 Springer v. Chicago G. W. R. Co., Tex. Civ. App. — , 164 S. W. 1028 (19141. 95 Kan. 408, 148 Pac. 611 (1915). 69 Jacobe v. Houston EI. Co., — Tex. 62 Ottofy v. Mississippi Valley Tr. Co., Civ. App. — , 187 S. W. 247 (1916). 197 Mo. App. 473, 196 S. W. 428 (1917). sOTwitchell v. Thompson, 78 Oreg. •!8S, 153 Pac. 45 (1915). 220 LAW OF AUTOMOBILES §204. Same— Doctrine explained. Much ihas been said, by many of the courts about the last clear chance rule forming an exception: to the. general rules relating to negligence. It is subr mitted that such is not true,, The proposition is solely one of proximate cause of the injury. Instead of being an exception to the contributory negligence rule, we find that whenever the neg- ligence of the plaintiff is a proximate ^ cause of his injuries he can- not recover. And we also find that negligence on the part of the plaintiff is not considered contributory negligence unless it con- tributed proximately to cause his injuries; in fact,. proximate cause is one of the necessary elements in the definition of contributory negligence. Bearing in mind, then, that proximate cause is neces- sary to constitute contributory negligence, and that when the plain- tiff's negligence is a proximate cause of his injuries he cannot re^ cover under this doctrine, why say that contributory negligence is not a defense, under the last clear chance rule? Why inject false elements into this so-called last clear chance doctrine, when the sole inquiry under it is, as it is always in negligence cases, whose negligence was the proximate cause of the injury? If it was the plaintiff's, or both plaintiff's and defendant's, no recovery can be had. It must be the defendant's negligence alone that was the proximate cause in order that the plaintiff may recover, regard- less of whether this doctrine is relied upon or not. It is thought that these statements will be found to be supported almost uni- formly by the Ust clear chance cases, and even by those cases in which the courts have attempted to point out the distinctive fea- tures of the doctrine. §205. Application of "res ipsa loquitur." The doctrine of res. ipsa loquitur may be applied in actions seeking to recover for injuries due to the operation of automobiles. The facts surrounding and forming part of an automobile accident may be such as tp raise an inference that the accident was due to negligence on the part of the person operating or in control of the automobile.®' , The mere fact that one is struck by an autornobile, however, does not raise any presumption of negligence.®* And where all theifacjis and conditions attendant on the occurrence of an accident are ob- 63 Onell V. Chappell, — Cal. App. — , Desmarchier v: Frost, — Vt. — , 99 Atl. 176 Pac; 370 (1918) ; Grudberg. v. Ehret, 782; (1917).- 79 Misc. 627, 140 N. Y. Supp. 379 64presser v. Dougherty, 239 Pa. St (1913); Wallace v. Keystone Auto Co., 312, .86 Atl. 854 (1913). i ' 239 Pa. St. 110, 86 Atl. 699 (1913); RIGHTS AND DUTIES OflST THE HIGHWAYS 221 served and testified to by witnesses, the doctrine of res ipsa loquitur has no application.®* , \ There was no reason for the application of res ipsa loquitur in a case where it was found that a front tire of an automobile, which had swerved from its course and run into a gutter at the side of the road, had, a blo^-out.®® • An allegation that "the defendant so carelessly and negligently drove said rnachine that it turned completely around and smashed violently against the side of the street, throwing plaijitiff bodily out of the machine," is so specific that it precludes the application' of res ipsa loquitur.^'' Specific instances of the application of this rule appear at appro- priatp places throughout this work, and may be found by consulting the index. ' § 206. Same— Automobile starting of own accord. The plaintiiff and her husband engaged an automobile and chauffeur from the defendant, for hire, for a certain trip. When several miles had been traversed, plaintiff's husband told the chauffeur to inquire the way of some persons in a surrey, to which two horses were attached, then standing under a tree in the road. The chauffeur stopped his machine, a steam car, about 30 feet from the team, alighted and walked forward to ask the way. After he had taken a f e-yv steps in the direction of the team, the automobile started forward, and hearing it coming, he ran back, jumped upon the running board, and turned the machine to the right in time to avoid a collision with the horses, which became frightened at its approach. As tlie machine was passing the surrey, a woman jumped from the surrey directly in front of the automobile, and the chauffeur turned it still farther to the right in order to avoid a collision with her! The automobile continued across the road, where it struck a tree and threw the occtipants over an embankment, injuring the plaintiff and killing her husband. There was evidence that if the car was in proper repair and the chauffeur had properly adjusted its mechan- ism before he alighted it would not Tiave started in his absence unless set in motion by another person; and that no other person was responsible for putting the car in motion after the chauffeur left it. ^ 68 Baldwin v. Sraitherman, 171 N. C. 67Hennekes v. Beetz, — Mo. App. 772, 88 S. E. 854 (1916). — , 217 S. W. 533 (1920), fiSKlien v. Beeten, 169 Wis. 385, 172 N. W. 736 (1919). 222 LAW OF AUTOMOBILES It was held that this was a clear case for the application of the doctrihe of res ipsa loquitur; that the starting of the automobile was the proximate cause of the accident; and that the defendant was liable for the negligence of its chauffeur. Accordingly, judg- ment for plaintiff ^vas affirmed.** §207. Rebuttal of "res ipsa loquitur" by defendant's evi- dence. Plaintiff was struck by a truck owned by the defendant* while standing on the running board of his auto, which was station- ary and drawn up against the curb on the right side of the street. Defendant conceded that the doctrine of res ipsa loquitur applied, and that, in the absence of explanation as to the manner of the hap- pening of the accident, plaintiff would be e;ntitled to recover. De- fendant's driver testified that immediately prior to the accident he was driving at a moderate speed, having control of his horses; that he had driven the same team for a number of years, but that some- thing like an apple core, which was thrown or fell from the elevated structure under which he was driving, frightened his horses, so that for some 20 or 25 feet they were uncontrollable, and that the acci- dent happened before he had regained control of the horses; that he did not see the plaintiff, and did not know that he had been inijuired. The evidence of this witness was in some respects incon- sistent. He was corroborated as to many of the facts by another witness, a helper, who was riding with him; and one of plaintiff's witnesses testified that the way in which the truck was approaching attracted his attention, and that it was zigzagging as it came on. Held, for the jury to determine whether defendant's evidence was sufficient to overcome the presumption of negligence arising from the happening of the accident.®' § 208. Statute or ordinance enacted for particular purpose. There is a rule of law that when the purpose of a statute is the pro- tection of individuals one who violates it is liable to those for whose protection it was intended for injuries directly resulting from its violation, in the absence of contributory negligence.''" A statute regulating the speed of automobiles on the highways is intended for the protection of the public generally against the dangerous speed at which these vehicles are, capable of being driven, including persons who may be riding with the one guilty of driving at excessive speed.'* 68 Wallace v. Keystone Auto Co., 239 Cal. 266, 168 Pac. 131 (1917); Schaar v. Pa. St. 110, 86 Atl. 699 (1913). Conforth, 128 Minn. 460, ISl N. W. 89 Oppenheimer v. American Ry. Ex. 275 (1915). Co., 181 N. Y. Supp. 195 (1920). »! FairchUd v. Fleming, 12S Minn. 431, TO King V. San Diego El. R. Co., 176 147 N. W. 434 (1914). RIGHTS AND DUTIES OJN" THE HIGHWAYS, 223 A statute providing that, "In appToaching or passing a car of street railway, which has been stopped to allow passengers to alight or embark, the operator of every motpr vehicle shall slow down, and if it is necessary for the safety of the public, he shall bring said vehicle to a full stop not less than ten feet from said street car," was held to have been intended for the benefit of the conductor and motorman of a street car as well as for the passengers. This statute expresses an intention to protect, not merely those entering or leav- ing the car, but the public generally.''* An ordinance intended primarily to safeguard street car passen- gers against dangers from passing automobiles, was held to extend to the protection of pedestrians; the court holding that, "Every one is entitled to rely on all safeguards provided by law, no matter what motive actuated the legal authorities." '" An ordinance requiring street cars to stop or hasten from cross- ings in case of fire, was for the benefit, among others, of a pedestrian who was struck while on the sidewalk by a fire automobile, forced to go upon the sidewalk by the negligent failure of a street car motorman to clear the crossing.''* A statute prohibiting the operation of any motor vehicle on any highway at a rate of speed greater than is reasonable and proper, having regard to the traffic and the use of the road, or at a speed such as to endanger the life or limb of any person, and providing that a rate of speed in excess of 25 miles an hour shall be presump- tive evidence of a violation thereof, was held to have been intended solely for the protection of others using the highway.''* ' Where a street railway company was sued for daimages arising out of the collision of one of its cars with an automobile, the defend- ant could not rely upon the violation by the automobile driver of an ordinance requiring vehicles to keep to the right of the center 1^ Kling V. Thompson-McDonald Lbr. tecting the lives and limbs of non- Co., 127 Minn. 468, 149 N. W. 947 passengers as it is in protecting those (1914). of the passengers; and the former are "The mere fact that the automobile in no better position to see and protect struck Meenach instead of one of said themselves against approaching dangers •passengers does not relieve the conduct obstructed by the car than are the of the defendant of negligence, for the latter." Meenach v. Crawford, — Mo., obvious reason that the law imposed — , 187 S. W. 879 (1916). upon him to perform the duties men- 73 Kolankiewiz v. Burfce, 91 N.. J. L.. tioned, for the protection of not only 567, X03 Atl. 249 (1918). the passengers who were getting on and TlKing v. San Diego EI. R. Co., 176 off the car, but also for the safety of Cal. 266, 168 Pac. 131 (1917). all persons who might be about it. The 78 Walker v. Faelber, 102 Kan. 646, state is just as much interested in pro- 171 Pac. 60S (1918). 224 LAW OF AUTOMOBILES of the street; the orditiance not having been enacted for its bene- § 209. Liability of joint tort feasors. Where two or more wrongdoers cause an injury to another each i^ hable for the full amount of the damage done.''"'' There may be several suits and judgments, but there can be only one recovery or satisfaction.'''* But a judgment against one joint wrongdoer without satisfaction does not bar an action against another.''® In a case where it appeared that two defendants, each mounted on a motoi--cycle which made a loud noise and emitted steam, came up behind the plaintiff, who was driving slowly in a wagon, and passed him at a high rate of speed, one on either side, causing plain- tiff's horse to shy so that his wagon wheel struck another wagon and caused plaintiff's injury, it was held that as the defendants were found to be wroiigdoers, it made no difference that they were not actiijg in concert, or that it was impossible to determine what portion of the injury was caused by each; that if eacli contributed, to the injury both were responsible.*" Where an automobile was owned by two partners, who were engaged in the real estate business, and at the time its negligent operation caused an injury both were riding in it, one of them driving, and it was being then used in connection with their real estate business, both were liable.*^ .TJhe defendants formed a procession of 16 automobiles for the purpose of advertising a town and a picnic to be held at that place; the trip being prearranged, and the details thereof provided for, and defendants, with the other persons who accompanied them partici- pated in all matters in relation thereto. The several cars compris- ing the procession moved in the same direction, at the same time, at substantially the same rate of speed, for the same purpose, and with the same end in view. They proceeded along a road, making a great deal of noise, and unusual noises, overtook the plaintiff, who. was driving an ordinarily gentle team of horses to a wagon, and 76 Watts V. Montgomery Tr. Co., 17S 78 Worcester Co. v. Ashworth, 160 Ala. 102, S'7 So. 471 (1912). Mass. 186, 189; Elliott v. Hayden, 104 ' 77 Boston &- Albany R. Co. v. Shanly, Mass. 180. 107 Mass. S68; Mitchell v. Brown, — 79 Elliott v. Hayden, 104 Mass. 180. Mo. App. — , 190 S. W. 354 (1916) ; 8" Corey v. Havener, 182 Mass. 250, Hodgin V. North Carolina Pub. "Serv. 65 N. E. 69. Co., — N. C. — , 102 S. E. 748 (1920). 81 Van Horn v. Simpson, 35 S. D. 640, Master and' Servant: Edwards v. 153 N. W. 883 (1915): Great Northern R. Co., — N. D. — , '■- 171 N. W. 873 (1919). RIGHTS AND DUTIES ON ; THE HIGHWAYS 2 2 5 sefveral of the machines passed, turning into the roadway in front of him very close to his horses' heads.. They made such noise that plaintiff's team became frightened and conimenced to run; when six of the cars had passed him, and the automobiles continued. until his wdgon struck a bridge, and he was thrown to the ground with the wagon box on top of him. The cats were running about 25 yards apart, arid at 20 or 30 miles an hour. It was held that the evidence estabUsIjed ,epncurreiit negligence on the part of the defendants, whiqh, rendered thprn jointly apd, severally liable .for plaintiff's inju- ries.?^ ,,,.,, : , , In an action to i-eeoVer for injuries caused by the negligent opera- tion of an aiutomobile, it appeared that the defendants were travel- ing salesmen for differelit wholesale houses, ind canvassed practi- cally the same territory; that several weeks before the accident one, ;the owner of the machine, ijnvi ted the other to ride; with him over the territory canvassed in common, and the invitation was accepted; and that the latter paid sums about equal to ,the,cost of, gasoline land oil consumed. It was, held that they wei-e engaged in the joint enterprise of transportingithemselvieSiOver |the territory canvassed by both; that the invited, one was not a mere passenger or a gratuitous guest, and that both were liable for injuries caused by the negligent operation of the machine by one of them, the owner.** ... , : Where an automobile is owned jointly by husoand and wife, both are liable for, injuries negligently inflicted by the car while being operated by either in a common enterprise.** Where a mother, was riding with her son, in his aiitohipbile, at his invitation, she waS; not liable jpintly, with him, or severally, for injuries caused by his negligent operation of the automobile; such facts not showing a Joint undertaking or enterprise'. And such expedition was not converted into a joint enterprise by her request of her son that sometime during the ride he should call at a certain house and obtain a cake that a friend h^d proniised to make for her. Nor did the fact that the mother rode on the seat beside her son, and, did not protest against his driving at an excessive rate of speed, for more than a' block, at the end of which an injury was inflicted, render her liable.*" ' 82Schweppe v. Uhl, 97 Neb. 328,. 149 8*iCrawford v. McElhinney,; 171- :Ia. N. W. 789 (1914). .1/ ,• '-■'■' • ■■ ' 606, 154 N. W. 310'(,191S). ;. ■ «3 Judge V. Wallen, 98 Neb. 154, 152 85 Anthony vj Kiefner, 96 Kan. 194, N. W. 318 (191S). 150 Pac. 524 (1915). / B, Autos. — 15 226 LAW OF AUTOMOBILES § 210. Liability of persons whose independent acts concur in causing injury. Where two or more tort feasors by concurrent acts of negligence* which, although disconnected, in combination inflict injury, they may be sued jointly or severally, although there can be but one satisfaction in damages. If each contributes to the wrong the proximate cause is the wrongful act in which they con- currently participate.'' Although each defendant acted independently of the other, so faf as purpose or intention was concerned, if the negligence of each concurred and co-operated with the other in the production of a single injurious result, the cause of actioR inuring to the injured person from such result is joint and several, and recovery may be had against either or both, accordingly as the evidence divulges the responsibility for the wrong.* So, where a passenger on a sight-seeing automobile was injured in a collision between the automobile and a street car, due to the negligehefe of the operator of the automobile and the motorman of the street car, both the owner of the sight^seeihg automobile and the street car company were liable, and both could be joined as defendants in a single action for damages.' . 1 Arkansas: Bona v. Thomas Auto Co., -^ Ark. —,208 S. W. 306 (1919). California: King v. San Diego El. R. Co., 176 Cal. 266^ 168 Pac. 131 (1917). Delaware: ; Dwaikin v. Johnson, — Dei. — , 110 Atl. 44 (1920). 'Georgia: Bonner v. Standard Oil Co., 22 Ga. App: S32, 96 S. E. S73 (1918). Illinois: Sullivan v. Ohlhaver Co., 291 111. 3S9, 126 N. E. 19,1 (1920). Indiana: Gary v. Geisel, 58 Ind. App. 618, 108 N. E. 876 (19li). Iowa: Daggy v. Miller, 180 la. 1146, 162 N. W. 8S4 (1917). Kentucky: 'Miller v. Week, — i Ky. — , 217 S. W. 904 (1920). Massachusetts: Foley v. Lord, 232 Mass. 368, 122 N. E. 393 (1919) ; Meech V. Sewall, 232 Mass. 460, 122 N. E. 447 (1919);' Brown v. Thayer, 212 Mass. 392, 99 N. E. 237 '(1912). New Ydrk: Stern v. International R, Co., 167 App. Div. S03, 153 N. Y. Supp. 520, 9 N. C. C. A. 949 (1915) ; Solomon V. Branfman, 175 N. Y. Supp. 835 (1919)'. ■'■-' ■ . ■ ■ ^ Rhode Island: Samuels & Bro. v. Rhode Island Co., 40 R. I. 232, 100 Atl. 402 (1917). Washington: Ross v. Smith & B., 107 Wash. 493, 182 Pac. 582 (1919) • Hellan V. Supply Laundry Co:, 94 Wash. 683, 163 Pac. 9 (1917). , Wisconsin: Meh^gan v, Faber, 158 Wis. 645, 149 N. W. 397 (1914)!. // in the absence of any of the causes the accident would not have happened, those responsible for each cause are jointly liable. Stern v. International R. Cp„ 167> App. Div. 503, 153 N. Y. Supp. 520, 9 N. C. C. A. 9fl9,|(191,S). »McFadden v. Metropolitan St.' R. Co., 161 Mo. App. 652, 143 S. W. 884 (1912), ' i ') 8 McFadden v. Metropolitan St.. R. Co., 161: Mo. App. 652, 143 S. W. 884 (1912). RIGHTS AND DUTIES ON THE HIGHWAYS 227 Where two automobiles collide to the injury of a thii-d person, both are liable therefor, if both were in fault; if only one was in fault, he alone is liable.* It has been held that where the drivers of two automobiles approach each other at right angles at the intei-section of two streets, and do not abate their speed, although in full view of each other, Until but a few feet apart, when each diverges sharply fron(i his course, and one strikes and injures a pedestrian who was com- mitted to the crossing, such pedestrian may recover a joint judg- ment in the same suit against the two drivers as joint tort feasors.* In actions to recover for the death of one j^^oung man a;nd serious injury to another there was evidence tending to show that these two boys and another boy were walking along the extreme right side of a public street, pushing a bicycle on which rested their suit- cases ; that a buggy drawn by a horse, moving in the same direc- tion, was a little in advance of them and between them and the left side of the street; that the automobiles of the defendants were approaching from the rear and were racing; that the first warning of their approach was given by the blowing of the horn of the auto- mobile of defendant T., which was leading; that when the boys heard the horn, they turned and saw the approaching automobiles; that H. leaped out of the road to the right, and that B. and C. leaped toward the left, where they were struck by the automobile of defendant H., which also struck and smashed the two rear wheels of the buggy, and, with its emergency brakes set, con- tinued on its course for 80 feet before it was stopped; that the autoihobile of defendant T. in the meantinie had passed to the right of B. and C, merely striking the bicycle i which H. had dragged with him from the street; that the car of T. turned to, the right while the car qf H, turned to the left to pass thee buggy; that the width of the roadway was insufficient to permit the car on the right to pass, and its Ijiorn was not sounded until it was .almost upon the boys, wheri it swerved to the left bearing dpwii directly upon them,, and then moved quickly to the right; that the boys were in plain sight for at least AQO feet. It was held that verdicts holding both defendants liable were sustainable. It was also held that it could not be^ ruled, as the defendants requested, that the law of the road had no application, for the jury were to decide whether the attempt to pass on the 4Matlack v. Sea, 144 Ky. 749, 139 S. 8 Hitchins v. Wilson, 68 Pa. Svfper. W-. 930 (1911). Ct. 366 (1917). 228 r n i i ! ; M LAW OF AUTOMO'B ILES - ' right iqf the team^ contrary ; to statute was' prudent in the'circlim- stances.^'i' /'m<' i' -: - • w, ummI ," -.im-w.^ i^^ ■! -t. !■!.«' It matters not that the law irriposes different degrees ©f duty upon i^es wrongdoersJ ,i w.-,.\ 1. 1 > i f An employee, injured while riding in an:autorno,biliei,, byi the con- current negUgence of his employer , and a street car : motorman, which caused a collision between the iautomobile and a ear, prop- erly joined; the street car company and his employer as defendants ini an action toi recover therefor.' , . . "If the injiuries caused by the concurrent acts of two persons are plainly separable, so ,that, the damage (cajisefi, by,,e^ch can be, dis- tinguished, .eaqh ,iyouldt be lia,t)le,:or)ily fpr,,thje; di^mage wfiiclji, he qa,used,; but.if ,this isnot the case, all perspns,,^ho. c,ontribjiite, to thp injuryilayp their negligence are liablp Jjoiixtjy, ^and severally for t^e whple damage." * '( §211. Rights and duties of incapacitated . persons. One driving! or operating an automobile is bound to consider the lack of capacity bfi those I in his way to care for their own safety;, when such incapacityi is known or'shoiild be known by him. The! law exacts greater care towards those who are unable to care for them- selves, as ' childreny blind persons,! ^ and even intoxicated persons:, wihen such incapacity is known or Should be known to the opterator of' the' vehicle."'; '' ■ ■ '' ' ■'.'!] ■.•-<■■■ ■ ^•■-"■- ' tj'As'to the' use of the highways, "the public incitdesi the young and oM, without necessary reference toi physical) or mental ability or theii* means of locomotion. "^^ ^ ;■■' > - An instruction that the defendant automobile driver "wa;s bound to -anticipate that he might meet infirm persons on this public highway/' was upheld ^^^ " . , § 212. Insane ^ersons^ 'An insane person is held tp the same degree of care and ' diligence that persons of sound mind are, and he is liable for torts committed by himself or at his direction. He is hot, however, liable, noi: cah his pi-operty, be made liable, for the negligence or wtorig of ah employee ofhisguardisLh. So, where the guardian of a pei-isoh who had been adjudged to "bie !',■>:■ '■ .' - .(1. . .,,'. i' :' ,..- ':;!'. i-jii' i ; , ,i i., .:J • 1 ,6 Brown y, Thayer, .212 Mjass. 39^, 9? ^ ;10^rowii v. Wilmmgton, ,4j Boyce (27 N.'e. 237 '(1912-).', "'', ' '"' '■ ■' ''\l)el.r492^/9b,M 4 (1914). , ' '' TCari'ton v. Boudar, il8' Va.' S21,'88''' ' 'u Reynolds v. Kinybn, — 'itfo'.'— , S. =Ei'174 (1'916); i '• ■ ' '• • 'I'' " 222 S. W. '476 (1'920)'. 'IJI ,'il :<^: 8 Coleman v. Minneapolis St. R. Co., i^Warruna v. Dicli, 261 Pa. St. 602, 113 Minn. 364, 129 N. W. 762 (1911). 104 Atl. 749 (1918). SCarltdn v. Boudar, 118 Vaj 521, ' 1 < :,,,i,s- 88 S. E. 174 (1916). ' iii ' . '' '; RIGHTS AND DUTIES ON THE HIGHWAYS 229 a lunatic purchased an automobile and engaged a chauffeur for him, and a third person was injured by the negligent operation of the automobile by the chauffeur, outside of the immediate view of the lunatic, and not by his direction or authority, it was held that neither the lunatic nor his property could be held liable ; the chauf- feur being an employee of the guardian.^' § 213. Deaf persons. While it is not necessarily negligent for a deaf mute to walk unattended about the streets of a city, his infirmity imposes upon him the duty of being more vigilant in the use of his eyes for his safety than is required of a person of good hearing.^* ^ ' One who is deaf is not on that account obliged to be constantly looking back in order to avoid being struck by any autoniobile that might approach from the rear; and he is not negligent if he fails to keep Such a lookout.^^ > §214, Persons with defective sight. The fact that a pedes- trian, who was injured by an automobile while walking in a high- way, was alnjost blind and without attendance, was not in itself contributory negligence.^® A count in a declaration alleged the fact of a collision of the defendant's automobile with the vehicle in which plaintiff was riding, and averred that the collision and consequent injury were due to the neg;ligence of the defendant, "in that the defendant is blind in one of his eyes and of imperfect visionj and is not on account of said blindhess and imperfection, of vision competent to run and operate an autprnpbile on the public roads with reasonable safety to, other, users of the said public roads, and plaintiff alleges that on accqunt of the premises it was negligence for the defendant to operate and run said autprppbile then and tjiere, and that by reason of said blindness and imperfect yision of the defendant the said autpmpbile collided with and strupk.-the said vehicle." It was h,eld that this, count was not subject to demurrer; tha,t it did not state that the defendant was negligent in operating an automobile Vi^lien he ha,d tlje sight of only one eye, but t|iat he was negligent in operating the machine because he was incompetent to operate it, rendered so by -such want pf vision.^'' "GiUet V. Shaw, 117 Md. 508, 83 16 Furtado v. Bird, 26 Cal. App. 1S2, Atl. 394 (1912).. 146 Pac. 58 (1914). 1* Brereton v. Milford & U. St. R. 16 Apperson v. Lazro, 44 Ind. App. 186 Co., 223; Mass. 130, 111 N. E. 715; 88 N. E. 99 (1909). Drusky v. Schenectady R. Co., 164 App. IV Campbell v. Walker, 1 Boyce (Del.) Div. 406 (1914). 580, 76 Atl. 475 (1910). 230 LAW OF AUTOMOBILES ' § 215. Blind persons. A blind person has the same rights on the public highways as aiiy other person, and, ordinarily, it is not negligence for him to go upon the streets unattended. He is bound to exercise the care that a person of ordinary prudence would exer- cise in the circumstances. ^ And the fact that he is blind not only will not excuse him from 'the exercise of ordina.ry care, but requires of him the greater use of his other senses to discover whether any vehicle is approaching in a street which he is crossing.^' If the operator of an automobile can discover the fact that a pedestrian is blind, by the use of ordinary care, in time- to ayoi.d a collision with him, then it is his duty to stop, if necessary, or do whatever is necessary in the exercise of ordinary care, to avoid an accident. If the fact that the pedestrian is blind is not known to the operator, and not discoverable by him in; the exercise of ordinary care, he may drive his machine as an ordinarily prudent man would and as if the pedestrian were in possession of his. sense of sight." When a blind man left a street- car and proceeded at an ordinary pace toward the sidewalk, it could not be said as a matter of law that the driver of an automobile who saw him in time to avoid a collision, but who in fact ran into him, was free from negligencfe; that being a question for the jury.^° § 216. Intoxicated persons. In a case in which recovery was sought by a pedestrian for injuries caused by a police patrol auto- mobile colliding with him, the jury were instructed: "If in this case you find from the testimony fliat at the time Of the accident complained of the plaintiff was intoxicated, arid that the driver of the polic'e patrol did not know it or by the rxercise of reasonable care on his part would not have known it or would not have known he was so intoxicated as to be unable to take ordina,ry care of hipi- self, and if you should further find that the accident occurred not by the patrol striking the plaintiff, but by the plaintiff falling into the side of the patrol, the case then becomes one either of pure accideiit or contributoiy negligence, and in eiliier event, your ver- dict should be for the defendant." "^ § 217. Verdict as ' 'warning to other operators or as pro- tection to other travelers." In an action to recover damages for 18 McLaughlin v. Grif&n, ISS la. 302, aOHefferon v. Reeves, 140 Minn. SOS, 13S N. W. 1107 (1912); Warruna v. 167 N. W. 423 (1918). Dick, 261 Pa. St. 602, 104 Atl. 749 (1918). »l Brown v. Wilmington, 4 Boyce (27 19 McLaughlin v. Griffin, ISS la. 302, Del.) 492, 90 Atl. 44 (1914). . 13S N. W. 1107 (1912). RIGHTS AND DUTIES QN THE HIGHWAYS 231 injuries to plaintiff's horsq, buggy, and harness, and personal in- jtiries to himself, due to his rig being struck by defendants' auto- mobile, a statement by plaintiff's attorney, in his address to the jury, that "You should find a verdict against the defendants in order to protect the lives of citizens in traveling on the highway, and that would be a warning to the driver of automobiles on the highways," was held to be improper, and to require a new trial of the case, the jury having found in plaintiff's favor. In this respect the court said: "If as a matter of fact plaintiff and his property were injured by reason of defendants' negligence, he was entitled to such a sum as would reasonably compensate him fbr the damages actually sustained, but no more. He was not entitled to a verdict that would protect the lives of citizens travel- ing on the highway, or that would be a warning to drivers of auto- mobiles. Coimsel for plaintiff insists that he did not go outside of the record in making the statement conlplained of, for the record shows that the lives of one or more citizens were endangered, and being established by the record, the words about the warning were within the limits of legitimate argument. All of us know that in the minds of many citizens there is a natural prejudice against automobile owners and drivers growing out of the fact that some of them operate their machines in a reckless manner. Because of this prejudice it is extremely difficult to get a jury who will calmly and dispassionately weigh the facts of a particular case, without taking into consideration the recklessness of other automobile owners and drivers. We therefore concliide that an argument like the one in question, which was evidently designed to play on and increase this natural prejudicey and therefore to arouse the passions of the jury, wais not within the bounds of legitimate argument." *^ §218. Skidding automobiles. There are dangers connected with the use of an automobile in the public highways not incident to the use of horse-drawii vehicles. By reason of its power, speed, weight, and peculiar construction, it is capable of doing great .dam- age and inflicting great injury if not carefully and capably handled. No other vehicle has the dangerous combination of speed and weight that the automobile has; and it is this combination that renders it extremely dangerous to other travelers in the highways when it is negligently operated or when it gets beyond the com- plete control of its driver. The automobile is more likely to skid to a dangerous extent on ««Wefl V. Hagan, 161 Ky. 292, 170 S. W. 618 (1914). 232 LAW OF AUTOMOBILES '' a smooth or slick pav'eirifent than any other vehicle. This, too, is principally due to itS speed and weight. This charaQteristic iS well known to all users of the machine, and must be taken into Coii'- sideration in exercising reasonable care for the saffety of dthefs.^* When the condition of streets is such that automobiles are likely to skid, thereby becoming a menace to other travelers, owners thereof must take reasonable precautions to guard against inflict- ing injury in this manner, by adopting appliances that have proved practicable as a preventive of skidding. Failure to exercise rea- sonable care in this respect may charge an owner with negligence, although at the time of aii accident he may make use of every facility at hand, and do everything in his power to avoid inflicting injury. These precautions are required to be taken only in view of the condition of the highways at the time, and conditions that ordi- narily arise in the operation of automobilies on highways in that condition. An owner would not be liable for failure to guai'd against conditions that he could not reasonably foresee. ' "If the jury should find that in consequence of the size of the machine, the condition of the pavement and the motive poWei* used, the machine could not be controlled so as to prevent an accident of this kind, there was a question for the jury as to the defendant's negligence. If they should find that it was negligence for the defendant to use such a machine in the prosecution of its business so that a person lawfully on the sidewalk is moweddown by it in consequence of its operation which could not, .by the exercise of due diligence, be so regulated that it could be kept from the side- walk, causing injury to people there, the defendant would 'be liable.'"'* '••■■'■ Where one familiar with the road made a sharp turn at a rate of speed in excess of 30 miles an hour, causing the automotiile to skid and overturn, the surface of the road being loose and w,et^ , the question of his negligence was for the jury.** , .;,;;.),. Where the defendant's automobile was proceeding after dus.k on the proper side of the street, at a lawful rate of speed, when an electric car, without lights and without warning, suddenly b^ked out of an alley close in front, and defendant's chauffeur applied his brakes and attempted to make a quick turn around th,e .electric; 28 Schoepp V. Garety, 263 Pa. St. 538, 2B Loftiis V. Pelletier, 223 Mass! ' 63; 107 Atl. 317 (1919). . : 111 N. E. 712 (1916). ' ' ' 24Philpot V. Fifth Avenue Coach Co., 142 App. Div. 811, 128 N. Y. Supp. 35 (1911). RIGHTS AND DUTIES ON THE HIGHWAYS 233 car to the left, which caused the rear wheels to skid to the right on the wet pavement and strike the right rear wheel of the electric car at substantially the same moment the front of defendant's car' col- lided with plaintiff's automobile, which was proceeding lawfully on its right side of the street, it was held that a statute requiring vehicles to keep to the right of the center of the street had not been violated by defendant, as it was not applicable "where a motor vehicle, through no fault of its driver, skids on a slippery pavement, and is thus thrown across the center line." ^^ §219. Same— Striking lamp standard. It has been held in England that where a lamp standard erected about 14 inches from the curb by the plaintiff was broken by defendant's omnibus, which . skidded against it, the defendant could not raise the question of the plaintiff's right to erect or maintain the staiidard on the sidewalk, and that the fact that a vehicle which, in ordinary circumstances, confined itself to the roadway, knocked down a permanent struc- ture oil tlie sidewalk, was evidence upon which a jury might come to the conclusion that there was negligence on the part of the driver.*'' A lamp standard belonging to plaintiff and which stood on the pavementiin front of a music hall was broken by one of defendant's motor-buses skidding against itj On the day of the accident the roads were greasy, and the trial judge found that the driver was guilty of no personal negligence; that it was a well-known fact that in certain conditions motor-omnibuses were liable to skid, and that when they did so it was impossible to control them. The judge accordingly held that the defendant was liable for placing a nui- sance on the highway and for negligently using the highway, and entered judgment for the plaintiff. On appeal to the Kings Bench Division the judgment was allowed to stand.*' § 220. Same— Evidence of negligence. The mere skidding of an automobile is not an occurrence of such uncommon or unusual character, that, unexplained, it can be said to furnish evidence of negligence in the operation of the car.*^ «6 Chase v. Tingdale Bros., 127 Minn. Ill N. E. 712 (1916); Williams v, Hol- 401,, 149 N. W. 6S4 (1914). i ,,- brook, ^16 Mass. 259, 103 N. E. 633 27 Walton & Co. v. Vanguard Motor- (1913); Philpot. v. Fifth Avenue Coach bus Co. (K. B. Div.), 2S T. L. Rep. 13 Co., 142 App. Div. 811, 128 N. Y. Supp. (1908). 3S (1911); Rango v. Fennell, 168 N. Y. 28 Gibbons V. Vanguard Motorbus Co., Supp. 646 (1918); Klein v. Beeten, 169 25 T. L. Rep. 14 (1908)^ ■ , , Wis, 385, 172 N. W. ,136, S A. L. R- 29Loftus V. Pelletier, 223 Mass. 63, 1237 (1919). 234 LAW OF AUTOMOBILES "Skidding may occur without fault, and when it does occur it may Ukewise continue without fault for a considerable space and time.' It means partial or complete loss of control of the car under circumstances not necessarily implying npgligence. Hence plain- tiff's claim that the doctrine of res ipsa loquitur apphes to the present situation is not well founded. ^ In order to make the ddc- trine oires ipsa loquitur apply, it must be held that skidding itself implies negligence. This it does not do. It is a well-known physical fact that cars may skid on greasy or slippery roads with- out fault either on account of the manner of handling the car or on account of its being there." '" It has beeiji held that, where an automobile was trayeling at an ordinary rate of speed, the act of the chauffeur in applying the brakes to reduce the speed was hqt evidence of negligence; although the evidence showed that with the pavemnt in tiie condition that existed at the time in question, skidding was likely to result ifrom an application of the brakes. "If the chauffeur had not attempted to regulate the speed of the omnibus by the application of the brakes, there would be a question as to whether failure to reduce the speed was not evidence of , negligence." " §221. Collision with telephone pole in highway. Telephone companies given the right by statute to erect their poles along the margin of public highways are not thereby authorized to intrude their poles into the part of the highway set apart for the use of and used by the traveling public. By doing so they become liable for accidents occasioned thereby.** § 222. Leaving automobile unattended, in highway. It is not necessarily an act of negligence to leave an automobile unat-: tended in a public road or street, but it is his duty to exercise suclv care in doing so as a person of ordinary prudence would exercise in the circumstances.: Failure to exercise such care, whereby the machine, by force of gravity, or by some other cause reasonably to be anticipated, gets under way and inflicts injury, renders such person liable therefor.*' Where an automobile is left in a position where it cannot start of itself, but requires the wilful act of a third person to set it in motion, no negligence can be predicated against the owner of the 30 Linden v. Miller, — Wis. — , 177 32 Gilbert v. Southern Bell T. & T. N; W. 909 (1920). Co., — Ala. — , 7S So. 315 (1917). SlPhilpot V. Fifth Avenue Coach Co., 33 American Ex. Co. v. Terry, 126 Md. 142 App. Div. 811, 128 N. Y. Supp. 35 254, 94 Atl. 1026 (1915). (1911). RIGHTS AND; DUTIES ON THE HIGHWAYS 235 automobile because of the fact that he failed to take precautions against the interference of third persons; even though they be chil- dren.'* Thus, where the defendant's chauffeur left his autpmobile standing in the street, and, after turning off the power and apply- ing, the brake, went into a neighboring house on an errand, and during his absence two small boys started the machine which col- lided with and injured the plaintiff's horse and wagon, it was held that the defendant was not liable, because it was not negligence to so leave the automobile, and that the intervening act of third per- ' sons was the proximate cause of the injury.'" Where a chauffeur, after setting the brakes, left the car standing at the curb, and the car was caused to start by a boy rattling the brake, releasing it, and the plaintiff was struck by the car, it was held that the owner was not liable, even if negligent, as the boy's interference was the pi"oximate cause of the injury.'* Wliere an automobile was started by mischievous small boys while the driver busied himself in the rear of the machine about the goods with which it was loaded, the owner was held not to be liable for the resulting damage to the plaintiff's property. It was declared not to be negligence to leave an automobile in a position where boys can reach the starting lever without being seen, as one does not have to provide against the act of wilful wrongdoers, even though they are small boys.''' § 223. Same— Started by gravity. The defendant left his automobile standing in a street at a place where there was con- siderable grade, the descent being in the direction in which the machine was headed. The defendant stated that he had applied the emergency brake and cramped the front wheel against the curb before he left it. There was evidence given in behalf of the plaintiff that, without anyone meddling with the machine, it started by force of gravity down the street, acquired considerable spedd, and collided with him, inflicting the injuries complained of. The trial court directed a verdict for the defendant, but on appeal this ruling was reversed, the court in part saying: "We have seen that Union street at this point is of such a grade that an'automo- 34Keber v. Central Brewing Co., ISO 36 Rhad v. Duquesne Light Co., 2SS N. Y. Supp. 986 (191S); Vincent v. Pa. St. 4Q9, 100 Atl. 262 (1917). Crandall, 131 ApP- Div. 200, US N. 37 Frashella v. Taylor, 1S7 N. Y. Supp. Y. Supp. 600 (1909); Sorrusca v. Hob- 881 (1916). son, ISS N. Y. Supp. 364 (191S). 36 Herman v. Schultz, 40 Misc. 212, 84 N. Y. Supp. 292. 236 LAW OF AUTOMOBILES bile standing thereon must be secured in place with coiisider'abl'e care to prevent it running down the street by the force of gravity alone j ai;id that the machine had been brought to rest by respondent a very short time before it did start and run bver appellant. It also seems plain, as shown by the evidence, that, had the machine been properly secured, it would not, by the force of gravity alone, have started. In the light of these considerations we think tht jury might have concluded as reasonable men that the machine started by the force of gravity alone, and because of respondetit's negligence in not properly securing it when he left'it. While it may be conceded that these facts, standing alone, would not make a very convincing case against respondent, we think it cannot be said that reasonable minds might not differ as to the proper con- clusion to be drawn therefrom."^* ' § 224. Same— Leaving automobile on car track. The owner of an automobile who negligently permitted it to stand unattended on a street car track, where it was negligently struck by a street, car and forced against a man who was working at the curb, was liable for the latter's injuries.^^ § 225. Backing automobile. The sudden backing of an auto- mobile without warning is negligence.*" However, it has been held not to be negligence per se for an auto- mobile driver to fail to keep a lookout or to sound the hprn wh^n backing into the street." ' ' '' '. A motorist is not negligent as matter of law in backing his, auto- mobile when he cannot see over the back of it, if he takes! rea- sonable precautions before so doing by looking back on either side or standing and looking over the rear of the car,*^ One driving on a city street is not bound' to anticipate, that an automobile will be backed out of a garage without warning, and into collision with his vehicle, although he knows of the location 38 Oberg V. Berg, 90 Wash. 43S, 156 by the defendant, that the accident arose Pac. 391 (1916). The court adopted from a want of care." , and applied the following rule, which 39 Keifer v. Pacific , Gas, & El. Co., — it quoted from 1 Shearman & R., Neg. Cal. App. — , 172 Pac. 180 (1918). (Sth ed.), sec. 59: "When a thing 4« Williams v. Kansas City, — Mo. which causes injury is shown to be App. — , 177 S. W. 783 (1915); Matis under the management of the defend- v. Lewis, 158 N. Y. Supp. 873 (1916). ant, and the accident is such as in the *1 Texas Motor Co. v. Buffington, 134 ordinary course of things does not hap- Ark. 320, 203 S. W. 1013 (19i8). pen if those who have the management « Sheldon v. James, 175 Cal. 474, 166 use proper care, it affords reasonable Pac. 8 (1917). evidence, in the absence of explanation RIGHTS AND DUTIES ON THE HIGHWAYS 237 of the; garage! and his view of its entrance is obscured! by another vehicle.*' .1 § 226. iyian under automobile injured by another car col- liding' therewith. Plaintiff was at work under a car wliich was facing; north and standing near the east wall of a garage. Tlie dfefeitidarits' car was standing at the west of the car under which pMititiff was lying, and a short distance back of it., The defendants' employee started his Car, and, in attempting to pass the car where plaintiff was working, collided with that car, causing the wheef to strike plaintiff and injure his, side. ,The jury, however, rendered a verdict in defendants' favor, and the cbi^ft below denied a motion to set it aside. It was undisputed that there was^ plenty of room for defendant's car to pass by the other ca,r if the same had been carefully managed. "Inasmuch," said the court, "as the defendants offered no expla- nation .as to how the accident occurred, the reasonable inference to be drawn from plaintiffs testimony is that the acciident occurred through the defendants' negligence. While the plaintiff produced no other witness as to' the accident and the ^rial judge therefore perhaps properly left to the jury the question of whether, the plain- tiff "^s story is true and whether th^ accident occurred through 'de- fendants' negligence, yet,'m view of the fact that defendants failed to produce even their own employee to contra!dict the plaintiff's tes- timony, the verdict seems palpably founded on mistake or preju- dice. Judgment'is therefore reversed, new trial ordered."** , '■' ''■ " Law OF xiiE r6ad' '' §227, General consideration. The rights bf travelers bii tfie public highways are mutual and co-ordinate, and it is the duty of each to so use his right of passage as not to i cause injury or detri- ment to another having a like right.** One using- an automobile on the highways must use reasonable care in its operation,** and bear in mind that he does not have the exclusive right of usei"! He must 43 Mason-Seaman Tr. Co. v. Wine- W. 3; /Schaabs v. Woodburn, Sarven buigh, 72 Misc. 398,^^,130 N., Y. Supp., Wheel Co., 56 Mo. ,173, 177; Burnham; 178,(1911). , ., : , ' V. Butler, 31 N. Y. 480, 484; Daly v. *4Furst V. Buchalter, 171 N. Y. Supp. Case, 88 N. J. L. 295, 95 Atl. 973 (1915V 21 (1918). '^ ;' ,:,'!■-■ 46McCray v. Sharpe, 188 Ala. 375.', 66 *5 Hennessey v. Taylor, 189 Mass. 583, So.' 441 ,(1914); Simeoiie v. Lindsay, 6 76 N. E. 224, 3; L. R. A. (N. S.):345;' Pinnew. (Del.) 224, 65. Atl. 778.. O'Brien V. Blue Hill St. R. Co., 186 Mas?. Ante, § ISO. .' iN-" 446; Pigott V. Engle, 60 Mich. 221j 27 N. 238 ■ LAW OF AUTOMOBILES also do what is required by the statutes when the conditions therein referred to arise.*'' The operator of an automobile is bound to. exercise care in pro- portion to the varying dangers and risks of the highway,*' and com- mensurate with the dangers naturally incident to the use of such vehicle.*® He is obliged to take notice of the conditions before him, arid if it is apparent that by any particular method of pro- ceeding he is liable to work an injury, it is his duty to adopt some other or safer method, if with reasonable care and prudence he can do so.*" , "All travelers upon the public highway^ are bound to the exer- cise of ordinary care in the use thereof, both for their own protec- tion and the safety of others, and ordinary care may require greater care exercised, on the part of the automobilist and others driving vehicles of high power and great speed that make fearsome noises calculated to frighten unsophisticated country hprses and mules not city broke and accustomed to seeing tliem than that required, of other users of the highway." " . , i When on the streets of a city tie is bound to anticipate that he riiay meet persons at any point in the street, and he must keep a proper lookout for them, and keep his machine under such cOntrpl as will enable him to avoid a collision with any other, pierson using proper care and caution.** The operator niust keep a watch out for where he is driving,*' and, if stopped, he must not start his vehi- cle in imotion .before looking ahead to ascertain if the way is, clear.** In determining the degree of care that the operatlor of an a,uto- mobile shbuld use when on the highway, it is proper to take into « Fletcher V. Dixon, 107 Md. 420, 68 52 Johnson v. Cqey, 142 111. App. 147, Atl. 87S. ■ aff'd 237 111. 88, 86 N. E."678, 21 L..R. «Hannigan v. Wright, S Penhew. A. (N. S.) 81; IWes v. Thoihis, 77 N. (Del.) 537, 63 Atl. 234; Rochester v. Y. Suppl 276, 279.' ' . • • •: Bull, 78 S. C. 249, 58 S. E. 766. ; B8 Sutter vj Oriinibus Cable Co., 107 49 Carter v. Brown, 136. Ark. 23, 206 Cal. ; 369. ; S. W. 71. (1918), citing ;this work; Where a driver was looking back ^n& Simeone v. Lindsay, 6 Pennew. (Del.) his team swerved and injured a child 224, 65 Atl. 778; Jones v. Hoge, 47 who had just started across the street. Wash. 663, 92 Pac. 433, 125 Am. St. he was held guilty of negligence. EIze Rep.. 915, 14 L. R. A. (N. S.) 216; Hall v. Baumann, 2 Misc. 72. 5ee also, Mc- V. Compton, 130 Mo. App. 675, 108' S. Closkey v. Chautauqua Lake Ice Co., W. 1122; Bennett v. Lovell, 12 R. I. 166, 174 Pa. St. 34. ' 34 Am. Rep. 628. B4 ottendorff v. Willis, 80 Hun (N. 60 Davis V. Maxwell, 108 App. Div. Y.) 262; Phelps v. Wait, 30 N. Y. 78; 128, 131, 96 N. Y. Supp. 45. Thompson v. National Express Co., 66 "Butler V. Cabe, 116 Ark. 26, 171 S. Vt. 358. W. 1190, L. R. A. 1915C 702 (1914) RIGHTS AND DUTIES ON THE HIGHWAYS 239 consideration the places presence or absence of other travelers,''* the speed of the automobile, its size, appearance, manner of move- ment, and the amount of noise it makes, and anything that indi- cates unusual or peculiar danger." §228. Highway defined. The term "highway" has been de- fined to be "a public way open and free to anyone who ha:S occasion to pass along it on foot or with any kind of a vehicle." *'' Also, "a passage open to all the citizens of the state, to go and return, pass and, repass, at their pleasure." " It is defined by Webster as "a public road; a way open to all passengers." *' And such is the natural significance of the yvord when used in ordinary speec^.®" The term embraces every kind of public way, common to all citizens, whethei: a footway, a horseway, pr a cartway, or a. way by water. ^^ And as u^ed herein it includes a public square*** "Every thoroughfare which is used by the public and in common to . 9,11 the public, and which the public , has the right to use, is a highway." ^ , • A bridge is a "public highway," within a statute relating to the speed of automobiles.®* , A statute providing that, upon approaching an intersectiiig high- 66 Fletcher v. Dixon, 107 Md. 420, 68 New Hampshire: Opinion of the Atl: 875. Justices, 66 N. H. 629, 672, 33 Atl; 1076. 66Hantiigan v. Wright, S Pennew. New Jersey: j Star v. Camcien & A. (Del.) S37, 63 Atl.' 234; House of Cra- R. Co., 24 N. J. L. 592, 597. mer, 134 la. 374, 112 N. W. 3, 10 L. R. Virginia: Bailey v. Com., 78 Va. 19, A. (N. S.) 655, 13 Ann. Cas. 461; White 21. V. Rukes, — Old. — , 155 Pac. 1184 Federal: Wallamet Iron Co. v.JJatch, (1916)-. 19 Fed. 347^ 355. "Laufer V. Bridgeport Traction Co., S9Webster!s Diet., tit. "Highway.'' 68 Conn. 475, 37 Atl. 379, 37 L. R. A. , 60 State v. Paine Lumber Co., 84 TiVis. 533; Board of Commissioners' v. Castet- 205, 207, 54 N. W. 503. ter, 7 Ind. App. 309, 314, 33 N. E. 986; 61 Heyward v. Chisolm, 11 Rich. L. Harding v. Medway, 10 Mete, (51 Mass.) Rep;:;(S. C.) 253, 263. 465, 469; State v. Harden, 11 S. C. 360, 62 state v. Eastman, 109 N. C. 785, 13 368. S. E. 1019. ^^ Illinois: Morse v. Sweenie, IS 111. 63 nines v. Wilson, — Ga. App.j — , App. 486, 492. 102 S. E. 646 (1920). Michigan: People v. Jackson, 7 Mich. 64Baraboo v. Dwyer, 166 Wis. 372, 432, '446, 74 Am. Dec. 720. ' 165 N. W. 297 (1917). Minnesota: Carii v.' Stillwater S. R. * > & T. Co., 28 Minn. 373, 10 N. W. 205, 41 Am. Rep. 290. 240 LAW OF AUTOMOBILES i: way, a motorist shall have his. vehicle under control, etc., inclufjes a' railroad as well as other highways.** ;.! i,»,'■■>: • - j :^ ; ;; In deciding whether "street" was included within the term "highway," as used iii' a stattite reigufatitig' the use of automobiles, the Kentucky Court of Appeals said: "In view' of the langiiige of the iact,'we are'bf opinion that by the ilse of the words 'fiublic highway' the Legislature intended to include street, where the public highway is spoken of as being within the' corporate limits, of a city or town. A public highway is not necessarily a street, but a street is necessarily a public ' highway,' because used for public tr9.vel, and a public highway cannot pass through a ctty or town without running over a street. When a piiblic highway rfeaehes tlje corporate boundary of a city or town and cOnriects with a ■■'■"■ ■ ■ ■ V !. ■• ' '."!.(, >''->''l',. '-''[. ,., . , ,..1 , ,. : 6S Hinton v. Southern R. Co., 172 N. name for all kinds of public ways, in- C. 587, 90 S. E. 7S6 (1916). eluding county and township roads, 66Sheaff V. People, 87 111. 189, 29 streets and alleys, turnpikes and plank Am. Rep. 49; Bartlett v. Bangor, 67 roads, railroads and tramways, . bridges , Me. 460, 467; Fields v. Colby, 102 Mich. and ferries, canals and navigable rivers. 449, 4S4, 60 N. W. 1048; People v. In short, every public thoroughfare isia Kingnian, 24 N. Y. 559, 565; Elliott, highway." Southern Kansas R. Co. y. Roads & Streets (2nd ed.), p 2. Oklahoma City, 12 Okla. 82, 94, 69 Pac. 6'' taufer v. Bridgeport Traction Co., 1050, quoting from Elliott, Roads & 68 Conn. 475, 488, 37 Atl. 379, 37 Streets (2nd ed.), § 1; Union Pacific R. L. R. A. 533 ; Moye v. Reddick, 20 Ga. Co. v. Commissioners, 4 Neb. 450, 456. App. 649, 93 S. E. 256 (1917); White It may be public or private. Wild v. V. Chicago, St. L. & P. R. Co., 122 Ind. Deig, 43 Ind. 455,: 458, 13 Ant Rep. 317, 23 N. E. 782, / L. R. A. 257; Mc- 399; Elliott, Roads & Streets (2nd ed.)* Quillin, Mun. Ord., § 561; Elliott, Roads § 3. & Streets (2nd ed.), § 23. "A road or passage; a way open to Other definitions are: all passengers, by either land or water.'* "Every thoroughfare which is used "In law, any road or way, whether for by the public, whether it be a carriage foot passengers, beasts of . burden,, or way, a horse way, or a navigable river." vehicles, or all, over which all persons. Packet Co. v. Sorrels, SO Ark. '466, 472, as members of the public, have a tight 8 S. W. 683. See, Morgan v. Reading,' to pass." Cent. Diet., tit. "Highway." 3 Smedes & M. (Miss.) 366, 406. 68 Schier v. State, 96; Ohio 245, 117 "The term 'highway' is a generic N. E. 229 (1917). i RIGHTS AND DUTIES ON THE HIGHWAYS 241 street thereof',! in passing through the. city or town, from such point of connection, it becomes a street of the. municipality and subject to its authority, and continues a street and subject to such authoritjr, until some other part of the, corporate boundary of the city or town is reached, beyond which it again becomes a public highway other than a street. ,!, "It may further be remarked that, whenever the words , 'public highway' appear in the act, they are immediately, preceded by the word 'any,' the use of which is evidently,. to indicate that any kmd of a highway lawfully dedicated to, ptiblic use, whether it be a state road, county road, street, or, alley, is a "public highway' in, the meaning of the act."®' , It is not essential to the application, of the provisions of a stat- ute regulating the use of automobiles on "public highways . . . or places mtich used fQr travel," that a driveway which 4s a 'public highway be milch used.'"' ' '' ■ 1 §229. Turnpike defined. , I?i; an English Ga,se;,t^e Court de- fined, a turnpike-iin the following language: 'f A .turnpike ro^d means a road having toll gates or bars on it, which were .originally called, 'turns', lapd,, were first, cqnstructed-Eibpijt the, piddle of the seventeenth century. The distinctive mark of a turnpike , road is, the right of turning back anyone who refuses to pay toll." ''^ It is a public highway supported and maintained by tolls, while an ordinary highway is maintained by taxes.''^ When the term "public highway" is used in* its general sense in a statute regulating the use of autoniobiles thereon, it ihcludes toll roads.''* , , §230. Use of the highway. The primary and dominant pur- pose of the establishnient of highways is to facilitate travel and transportation. They belong from side to side and end to end to the public, that the public may enjoy the right of traveling and transporting their ^oods over them.''* SSForgy ,v^ Rutledge, 167 Ky. 182, 138 Mo. ^32, 341, 39 S.,W. 910, 36 L. R. ISo's.'W. 90 C191S).. , ., A. 457., TO Hodges V. Chambers, 171 Mo. App. 73 Weirich v. State, 140 Wis. 98, 121 S63, 154 S. W. 429 (1913). ,, N. W. 652, l7 Ann! Cas. 802,, 22'L. 'r. 7lNprtham Bridge Co. y. London. R. A. (N, S.), 1221 (1909;j. , , ' CS.) 1228. Maine: Towle v. Morse, 103 Me. 250, 68 Atl. 1044. ' Missouri: State v. Swagerty, 203 Mo. 517, 523, 102 S. W. 483, 10 L. R. A. (N. S.) 601, 120 Am. St. Rep! 671; O'Donnell v. O'Neil, 130 Mo. App. ko,' 109 S. W. 815; Hall v. Compton,, 130 Mo. Ai>p.- 675, 108 S. W. 1122. RIGHTS AND DUTIES ON THE HIGHWAYS 243 The use of the highways must be extended to meet: the modern innovations of rapid locomotion," To say that; a^ new and useful vehicle shall be banished from the highways, no matter hqw much the general good may require it, simply because high)vays were not so used in the days of Blackstone, would hardly coniport with the advancement and enlightenment at the present aige." When new means of locomotion come into general use aniohg travelers upon highways which are riot dangerous When prbp'erly managed and which do not interfere with the piroper usie of the highway in other modes, this cannot be deemed unlawful in itself. It is proper, however, that effective ' means be taken to prevent injury following from such new, and consequently strange. Use.** There is no longer any doubt that the owners of autbnjobiles have the same rights on the public highways as the owners of other kinds of Vehicles.*' These rights^ howeyerj must be exercised with New York: Corcoran v. New York, 188 N, Y. 131, 139, 80 N. E. 660; Na- son V. West, 31 Misc. S83, 586, 65 ,N. Y. Supp. 651; Knight v. Lanier, 69 App. Div. 454, 458, 74 N. Y. Supp. 999; Mason v. West, 61 App. Div. 40, 41, 70 N. Y. Supp. 478. Pennsylvania: Radnor Township v. Bell, 27 Pa. Super Ct. 1; Millikin v. Richhill Twp., 67 Pa. Super. Ct. 326 (1917). West Virginia: Deputy v. Kimmell, 73 W. Va. 595, 80 S. E. 919, 8 N. C. C. A. 369 (1914), citing this work. The ' proposition of law that one has a right to make use of the automobile as a vehicle of travel on the public highways is not to be questioned. Walkup 80 Chicago V. Banker, 112 III. App. 94, 99; Mason v. West, 61 App. Div. 40, 41, 70 N. Y. Supp. 478. 81 Moses V. Railroad Co., 21 111. 516, 523. A traction , engine was held to be a nuisance where it occupied a road al- most continuously to th^ inconvenience of the public, and peril to persons us- ing such road. Com. v. Allen, 148 Pa. St. 358, 16 L. R. A. 148, 33 Am. St. Rep. 830. 82Patton-W- Drug Co. v. Drennon, 104 Tejc. 62, 133 S. W. 871. "The automobile furnishes an im- proved method of travel. It is ,to be welcomed as a saver of time and. a pro-, tection to man's, favorite domestic ani- malj : the horse, against /long drives. It is said to be in use in all civilized countries, and it has come to ^tay. The law therefore does not denounce the use of an autornobile on a public highway; and the appellant is not guilty of neg- ligence because he used one on the streets of the city." Tyler v. Hoover, 92 Neb. 221, 138 N. W. 128 (1912). ^^ Delaware: Simeone v. Lindsay, ,6 Pennew. (Del.) 224, 65 Atl. 778. IlHnois: Christy v. Elliott, 216 111. 31, 48, 74 N. E. 1035, 3 Ann. Cas. 487, 1 L. R. A. (N. S.) 215, 108 Am. St. Rep. 196; Chicago v. Banker, 112 111. App. 94, 99. Indiana: Brinkman V. Pacholke, 41 Ind. App. 662, 84 N. E. 762; Mclrityre v. Orner, 166 Ind. 57, 62, 76 N. E! 750, 8 Ann. Cas. 1087, ,4 L. R. A. (fsT. S.) 1130, 117 Am. Sf- Rep. 359; Indiana Springs Co. v. Brown, 165 Ind. 465, 468, , 74 N. E. 615, 6 Ann. Cas. 656, 1 L. R. A. (N. S.) 238; Bogue v. Bennett, 156 Ind. 478, 482, ,60 N. E. 143, 83 Am. St. Rep. 212. Iowa: House v. Cramer, 134 la. 374, 244 'UAW of AUTOMOBILES' M. a due regard for tW rights of odiers 'using tile'hfgh^ivays.** 'AtiM as long ias'^uch caire is exerdsed the owners will not be liablie for any injury their use 'rhay cause.** , ', §232. Right ofiautompbiies on turnpikes. The right 'of, pne using an autbjsnpbile.as,^ , mo^ej of, conveyance to tray^^, upon a turnpike is ^injiil^^j; to .his right upon ,^ public highviray main^^^ed by taxation;. it is the same a,s the right of those using ptiqr.^ii(l less modern vehicles. However, it has beeii held /that a turnpike company has, the right to exc^lvide 9,utp^obiles frpm^ its highyvay )|vhere the pafety pf^e public demands jit)*^ . , ,' ij The fact toat autoippbiles were unknown at thi^ tinie of the pas- sage . of a. statute prescribing tlje tjjlls tp \)e charged f pr ^e . lis^ of turnpikes by various kinds of Jjvel^ic^|es^ does npt.ipdiq^t^ that ,t^ie^ Legislature intended to exempt the;^ from toll chq,rges when they ■ perform the same service formerly rendered by a vehicle named 376, 112'N.'W. 3, 13 Ann: Cas. 461', 10 L: R. A. (N. S.)' 6S5. Kentucky:' Gregory v. Slaughter, 124 Ky. 345, 99 S. W. 247, 30 Ky. L. Rep. SOO, 8 L. R. A. (N.'S.r 1228. Maine: Towle v. ' Mdrse, ' 103 Me. 250, 68' Atl. 1044. ■" '• ' ■"" MissoliH: State v. Swagerty, '203' Mo. 517, 523, 102' S; W. 4S34''10- L. iR. A. (N. S.) 601, 120 Am. St. Rep. 671; O'Donnell v. O'Neil, 130 Mo. App. 360, 109 S. W. 815; Hall, v. Compton, 130 Mo. .App; 675,, 108 S.wW. 1122. , New York: Corcoran v. Mew York, 18S! N.Y. 131, 139, 80 N. E; 660; Knight V. Lanier,, 69 App. Div. 4S4-, 458,. 74 N. Y. Supp..999; l^Jason.v. West, 31 Misc. 583, 586, 65 ,N. Y. Sijpp. 651,. Pennsylvania: Radnor Township v. Bell, 27 Pa. Super. Ct. 1, ^^ Delaware: Simeone v. Lindsay, 6 ^ Pennew. (Pel.) 224, 65 ^tl- ^78; Han- nigan y. Wright," ^ " Pennev^. (Del.) 537, 540, 63 Atl. 234. ' , ' ' ' \ "" ' Illinois: Christy v, Elliott, 216 111. 31, 48,' '74 N. E. 1035, 3 Ann. Cas.' 487, 1 L.''R.'A. (^f. S.) 215', 108 Am. St. Rep. 196. ' Indiana: Mclntyre v. Orner, 166 Ind. 57, 62, 76 N. E. 750, 8 Ann. Cas. 1087, 4 L. R. A. (N. S.) 11.30, 117 Am. St." Rep. 359; Indiana' Springs Co. v. Br6wn, 16S Ind. 465, 468, 74 N. E. 615, 6 Ann. Cas. 656,' 1 L. R. A.' (N. S.) 238. towa: House \. Cramer, 134 la. 374, 376, 112 N. W. 3, 13 Ann.^as'.' 461,'io L R. A. (N. S.) 6SS.. .., '^ '■■'■"' '., Maine; , Towle y. Morse, 103 Me.. 250, 68 J^^tl. 1044. , " ' ']^ ^ , \'^.^^ Missouri: Hall v. Compton, 130 Mp. App.,|^7S, 108 ,S,.,W;., 1122., ,.; , ,, fleya York: , Knight v. Lfinier;, 69 App. niy. 454, 458, ,74 N.i Y. Supp. ,999. i Pennsylvania: Radnor Township v. Bell, ,27 Pa. Super. Ct. 1. ,, , 86 Indiana Springs Co. v. Brown, 165 Ind; 465, 469, 74 N. E.ei5, 6 Ann. Cas. 656, 1 L.i R. A. (N. S.) 238; Maconiber v; Nichols, 34 Mich. 212, 217, '22 Am. Rep. 522; Hall. v. Compton, 140 'Mo. App. 675, 108 S. W. 1122; Nasbn v: West, 31 Misc. 583, 65 N. Y. Supp. 651. 8«fiertels v; Lawel Run Turhpikfe do., 31 Pa. "Co. Ct. 129. On account of the circuriistances ' under which this decision was rendered it is thought that but little weight should be given it. A turnpike company' cannot exclude automobiles from passage over its road. Scranton ' v. Laurel Run Tp. Co., 225 Pa. St. 82, 73 Atl. 1063 (1909). ■' RIGHTS AND DUTIES QN THE HIGHWAYS 245 in the statute. It was held tiiat the automobiles so used should be classed as the vehicles which they superseded and 'be ■ charged the same toll.*'' Likewise, one using an automobile has a right to cross a bridge owned and maintained as a part of the public highway by a toll bridge company. And it seems that if the bridge company is riot authorized by its charter to collect toll for the passage of dn auto- mobile it may cross without the payment of toll.** So it has been held that where ^a toll road franchise did not provide ior charging tolls for automobiles, tJie; company had no right to require such payment.*' §233. Right, of way on highways. Automobiles are subject to the general laws governing the use of vehicles on the public highways, and are not entitled to the right of way over other con- veyaLnces." Sometimes by stati^te or ordinance vehicles moving in a certain direction are given the right oiyvay over other vehicles. But this does not justify a driver who is entitled to the right of way in pro- ceeding and asserting his rights when he observes, or in the exer- cise of ordinary care should observe, that the statute or ordinance is not being obeyed. If he does so he cannot recover any dam- ages he may sustjain.^^ , , , , , . - 8'' Burton v. M. & B. Turnpike Co., movements." Riggles v. Priest, 163 Wis. 162 Ky. 787, '173 S. W. 144 (191S). 199, 157 N. W. 7SS (1916). ' SSMallory v. Saratoga Lake Bridge 91 Ray v. Brannan, 196 Ala. 113, 72 Co., S3 Misc. 446, 104 N. Y. SUpp. 102S. So: 16 (1916) ; Chicago & Alton R. Co. 89 Peru Turnpike Co. v. Peru, — Vt. v. Rockford, R. I. & St. L. R. Co., '72 -^,100 Atl. 679 (1917). III. 34; McCarragher^ v. Proal, 114 App. 90Lorenz v. Tisdale, 127 App. Div. Div. 470, 478, 100 NT. Y. Supp. 208; 433, 111 N. Y. Supp. 173. Taylor v. Union Traction Co., 184 Pa. "Automobiles have not the right oj St. 465, 40 Atl. 159. ' way upon public thoroughfares." Gold- "The mere fact that' one vehicle 'hits blatt V. Brocklebaliik, 166 111. App. ,315 the 'right' of ttjay' over others ' crossing ' (1911). its path does not release the vehicle thus 'Wo error was' committed in giving the favored from the duty of exercising due instruction as to respondent's duty to care not to injure M he cithers' at the observe the general and usual rules of plate of crossing. On the contrary, the the road. Such rules did not absolutely duty of due care to avoid collisiohs re- preclude him froin reasonably invading mains reciprocal, and the driver of each his left hand' side of the traveled way vehicle may, within reasonable limits; in passiiig the vehicle in front of him. rely upon the discharge of this duty by He ' was required to pass on the left, the other — including, among other things. There was ample opportunity for doing the reasonable observance of those mu- so and yet leave an abundance of room nicipal regulations with respect to speed for appellant to pass safely in case of and position, which are designed not his paying reasonable attention to hit only to facilitate traffic and travel, but 246 LAW: OF AUTOMOBILES Thus, the operator; of an automobile driviiig in a northerly direc- tion on a city street, who was entitled to the right of way at street intersections over vehicles moving easterly or westerly, was not justified on that account in negligently colliding with a person rid- ing a bicycle westerly at the crossing of two streets.®* , So, one traveling an the right side of the road when he is injured by another driving on the wrong side, has no cause ©f complaint unless he exercised reasonable care for his safety.'* : § 234. Duty to turn to the right. The rule is th^t persons in vehicles meeting on the highway shall each seasonably turn to the right so as to allow the other to pass without collision.^ also to make it safe for the public as far as is humanly possible." Ray V. Bran- nan, 196 Ala. 113,. U So. 16 (1916). "Plaintiff had the right of way, and while this did; not relieve him of the duty to ej:ercise due care, he was en- titled to assume that the drivers of vehicles proceeding in a northerly or southerly direction would respect this ordinance— yjintij he observed that it; was beiijg ( yiojated." Freeman v. Green, — Uo. App.— , 186 S. W. 1166 (1916). 92 McCarragher v. Proal, 114 App. Div;, 470, 100 N. Y. Supp. 208. MKennard v. Burton, 25 Me. 39, 43 Am. Dec. 249; Parker v., Adams, 12Met. (Mass.) 415, 46 Am. Dec. 694; Heffernan v. Barber,' 36 App. Diy. 163. I Alabama: Morrison v. Clark, 196 Ala. 670, 72 So. 305 (1916). Arkansas: Carter v. Brown, 136 Ark. 23, 206 S. W. 71 (1918). Delaware: McLane v. Sharpe, 2 Hark. 481; Lemmon v. Broadwater, — ; Del. — , 108 Atl. 273 (1919).. Indiana: Cook Brewing Co. v. Ball, 22 Ind. App. 656, 665. Iowa: Hamilton v. Young, -^ la. — 171 N. W. 694 (1919); Baker v. Zimmerman, 179 la. 272, 161 N. W. 479 (1917) ; Buzick v. Todman, 179 la. 1019, 162 N. W. 259 (1917). Louisiana: Loyacano v. Jurgens, SO La. Ann. 441. Moiine: Skene v^ Graham, — Me. ■ — , 95 Atl. 950 (1915) ; Ricker v. Gray, 118 Me. 492, 107 Atl. 295 (1919). Massachusetts: Rice v. Lowell Buiclc Co., 229 Mass. 53, 118 N. E. 18S (1918). i Michigan: Daniels vi Clegg, 28 Mich. 32; Kasprzak v. Chapman, 197 Mich. 552, 164 N. W. 258 (1917). Missopti: Roy v. Ijorth Kansas City Dev. Co.'; — Mo. App. — , 209 S. W. 990 ■ (1919) ; Edwards v. Yarbroiigh, — Mo. App. — , 201 S. W. 972 (1918). Ifew, Hampshire: Osgood v. Majcwell, -^ N. H. -p, 95 Atl. 954, (1915). Pennsylvania: Fcjote v. American Product Co., 195 Fa. St. 190, 193, 45 AU. 934, 49 L. R. A. 764. Texas: Auto Sales Co. v. Blandj — Tex. Civ. App. — , 194 S. W. 1021 (1917). Utah:' ..Cheney v. Buck, — Utah • — , 189 Pac. 81 (1920).. Washington: Paton v. Cashmere W. & S. Co., 104 Wash. 414, 176 Pac. 544 (1918). Vehicles meeting on bridge too narrow for them to pass upon. Melton v. Man- ning,^ — Tex. Civ. App. — , 216 S. W. 488 (1919). "Section 16 of Motor Vehicle iow re- quiring automobiles to turn to right in passing another vehicle applies regardless of character of vehicle but not regard- less t of character of .i:oad, under sec- tions 140, 145, ch. 121 R. S. and driver of automobile is required to turn ta right only„ when it is reasonably practicable to do sp.V Williams v. Louis, 204 111. App. 62 (1917). The English rule is to turn to the left, : Am. & Eng. Ency. of Law (2nd ed.) 579. RIGHTS AND DUTIES ON THE HIGHWAYS 247 In this country the long continued and universal custom for approaching vehicles or pedestrians on the highways to pass to the right, and to pass to the left where the approach is made from behind another vehicle or pedestrian, has become in effect a par-t of our common law. In most of the states, and especially in regard to automobiles^ this custom has been crystallized into statute law.' These rules are reiterated in the statutes, with not infrequent addi'- tional requirements as to giving wa:rning of approach, etc.** The statutes generally provide that travelers so meetiftg on the high- way shall turn to the right of the "center 6f the road," or fhe "traveled part of the road." These expressions are practically synonymous, and mean that part of the road which is wrought for* traveling, and is not confined to the most traveled wheel tracks.' However, it has been held that "traveled part" of the road, means the track actually' used, and not the entire width of the highway.*' Such a statute has been held not to apply to travelers who meet at right angles at the intersection of two highways ; the common law as to due Care being applicable in the absence of any\ other regulatory measure.® A statute requiring drivers of teams to seasonably turn to the right, etc., when meeting on the highway, has been held to apply to automobiles.® "A traveler may occupy and use any part of the road he desires when not needed by another whose rights are superior to his own. When he meets another traveler the statute requires him to turn to the rights if practicable, and to give the other an opportunity to pass, by turning to his right. If he is so near the; right-hand side of the road as to make it impracticable to turn to the right he is not required to do so, he may hold his position. Nothing ip the statute will justify him in turning to the left. If he does so he thereby violates its plain provisions." '' ^Raymond V. Hill, 168 Cal. ^7,3, 14.3 is held that a. motorist following -the Pac;- 743 (1914).^ ■ generally traveled part of the road, al- * Baker v. Zimmerman, 179 la. 272, though on the left part of same, was in 161 N. W. 479 (1917); Riepe v. Elting, the proper place. ' 89 la. 82, 86, S6 N. W. 28S; 26 L. R. 4Schnabel v. Kafer, 39 S. D. 70, 162 A. 769, 48 Am. St. Rep. 356; Daniels N. W. 935 (1917). V. Clegg, 28 Mich. 32, 42; Qumn v. 6 Wagner v. Kloster, -^ la. — , ' 17S O'Keeffe, 9 App.' Div. 68, 71; Faring N. W. 840 (1920). V. Lansingh, 7 Wend. (N. Y.) 185; Seger- 6 Bragdon v. Kellogg, 118 Me. 42, ibS Strom V. Lawrence, 64 Wash. ,245, 116 Atl. 433 (1919). P^c. 876 (1911). ^Cupples Merc. Co. v. Bow, — Idaho But see Nordby v. Sarlie, 35 N. D. — , 189 Pac. 48 (1920). 395, 160 N. W. 70 (1916), wherein ,i 248 LAWi OF AUTOMOBILES III! a case where it appeared that the defendant drove his auto- mobile on the left side of the street at about eighteen milfiSi an hour arid was looking back and italking to the occupants, on 'the rear seat, and did not notice the plaintiff driving his ihorse: and buggy meeting him until the plaintiff whistled when withini one hundred feet of the defendant, and the: defendant did not: stop until he had run to within ten feet of the horse, which caused the horse to take fright and run away, the defendant was' held to be negli- gent and liable for the damages thereby sustained by the plaintiff." Where a motorist turns to the left, instead of to theright, of a street intersection^ thereby colliding with another vehicle^ he is liable for the consequent damages, the other driver being free from negligence.® , . i If he: "fails to. turn to the right, and by reason thereof collides •with the other vehicle, which is on the proper side of the highway, he is guilty of negligence, and is liable for the injury inflicted upon the vehicle, injured." ^^ However, this rule dofes not require persons when meeting to turn to the extreme right of the road, but each is bound to give only enough of the road to allow the other to pass in safety.^^ If a motorist turns to the left he is required to exercise care and caution commensurate with the circumstances, having; in view the character and high power of his vehicle.^* , The law does not require unnecessary things, toi be done, hence if it is not necessary to turn to the right when i meeting, on the high- way in order to pass, the rule need not be observed. Thus, it was not necessary for the operator of an automobile to turn to the right when meeting a vehicle which , was being driven outside of the traveled part of the rpad and which, had sufficient room to pass."- . And the rule does not apply when one of the vehicles is stopped in the street on business." i, The fact that one turns to the left, or does not turn either to the right or left, when meeting another on the public highway in viola- tion of a statute, is not cdnclusive evidence of negligence on his part." SiHannan v. .St. Clair, 44 Colo. 134, 12 Bishard v. Engelbeck, 180 la. 1132, 96 Pac. 822. 164 N.W. 203 (1917). . , ' »MoIm V. Wark, 113 Minn. 190, 129 13 Needy v. Littlejohn,. 137 la.. 704, llS N. W. 383 (1911). N. W. 483. lOFlynt V. Fondren, — Miss. — , 84 Ufianliofer v. Crawford, 16 Cal. A<)p. So. 188 (1920). ,,Vp„. o,, moiiV 11 I, i «• iL ,,„ Ttir- \. fin 676, 117 Pac. 931 (1911). 11 Buxton v.. Ainswortli, 138 Mich. S32, i 101 N. W. 817 ; Quinn V. O-Keeffe,^ 9 App. " Needy v. Littlejohn, 137. la. 704, 1,15 Div. 68; Crampton v. Ivie, 124 N. C. 591. N. W. 483; Riepe v.. Eltjng,: 89 la. 82, RIGHTS AND DUTIES ON THE HIGHWAYS 249 It is frequently provided by statute that persons on horseback or vehicles meeting each other on the public roads shall give one- half of the same, turning to the right. By meeting 6ach other is not merely passing in opposite directions, but "coming together in such manner that there would be an actual collision, or an appar- ent dainger of one, if they should pursue their course withbut change of direction." ^® mi A statute requiring travelers meeting on the highwJly to "sea- sonably" turn to the right of the center of the way, means that they shall turn to the fight iii such season that neither shall be retarded in his progress by reason of 'the other occupying more than his portion of the road,^'' and that they must do so in season to prevent a collision." , , Whether the rule reqtiiring drivef s on the highways to keep td the right when meeting other vehicles, or in overtaking alnother vehicle, to pass to the left, is sta;tutory, of common law origin, or contained in a municipal ordinance, it is not a hard and fast rule to be adhered to in all circumstances. Circumstances may confront a person and often do, when care would require him to avoid or relinquish the side bf the highway to which he would otherwise be entitled. In such case he would be required to' exercise such due care, and, if he failed to do so, he would be liable for negligence, even though he had planted himself upon the side to which he would prdinarily be entitled. In all cases the ultimate question is: What was required by due care, under all the circumstanbes con^ fronting the driver at the time.^' If it is not practicable for one of the meeting drivers to turn to the right, it is his duty to stop instead of turning in front of the other vehicle.*' ' " ' Under a statute requiring the driver of an automobile, upon meet- ing, another vehicle bii the highway, to "reasonably tiitn" to tile right) etc., and containing othei- provisions relative to reasonable and fair conduct in passing, such driver is not guilty of negligence per se in failing to comply with one or more of such provisions, if, S6 N. W. 285, 26 L. R. A. 769, 48 Am. rence, 64 Wash. 24S, 116 Pac. 876 (1911). St. Rep. 3S6. ^ "Bragdonv. Kellogg,' us' Me. 42, 105 16 Baker v. Zimmerman, 179 la! 272, Atl. 433 (1919). 161 N. W. 479 (1917); Hubbard v. Bar- iSHerdman v. Zwart, 167'Ia. 5(30, 149 tholomew, '163 la. 58, 144 N. W. 13 N. W. 631 (1914). (1913). 20 Edwards v.Yarbrough, — Md.'App. "Morrison v. Clark, 196 Ala. 670, 72 — , ^Ol S. W. 972 (1918). ' ' ■ So. 305 (1916) ; Segerstrom v. Law- 2S0 . LAW OF AUTOMOBILES in, the circumstances, of a given situation,, he acts in a manner that appeals to him as being the safer and more reasonable course to pursue. The question of his negligence in such a case is for the jury; it being necessary only that he act as a reasonably, prudent man in view of all the circumstances." , ; , Where a statute requires drivers on the public highways to turn to the right of the center of the road on meeting another vehicle moving in the opposite direction, persons are riot permitted to con- tinue in the center of the highway because in their jy,dgment there is; sufficient room for the others to pass without collision .^-^ ; : When travelers are meeting in a highway, each may assume that the other will comply with tJie law by yielding half the way. But where one is driving outside the traveled way, the other cannot presume that he will turn to the right when it is obvious that he is not going to do so.^* It is held, in Washington, not to be negligence per se to drive on the wrong side of the road in passing another vehicle, although in violation of statute.^* It has been held that the rule, of the road requiring travelers, when meeting, to keep to the right, applies at street intersections.^* Add the contrary has been held, on the ground that in such case it cannot be said that they "meet," within the terms of the rule.^® Statutes and ordinances regulating the conduct of drivers in over- taking and passing other vehicles on the highway are inapplicable to vehicles meeting and passing on the highway.^'' Whether or not the rules of the road were violated in a given instance is ordinarily a question of fact and not of law.^* § 235. Driving on wrong side of highway. One who violates the law of the road by driving on the wrong side assumes the risk oifsuch experiment and is required to use greater care than if he had kept on the right side of the road. If a collision takes place under such circumstances, the presumption is against the party who aiBeggs V. Clayton, 40 Utah 389, 121 24 Hartley v. Lasater, 96 Wash. 407, Pac. 7 (1912). 165 Pac. 106 (1917). 22Haden v. McGoUy, 166 Mo. App. « Reitz v. Hodgkins, 185 Ind. 163, 675, 150 S. W. 1132, 6 N. C. C. A. 416 112 N. E. 386 (1916). (1912). 26Bueick v. Tofiman, 179 la. l3l9, 28Mprrispn v. Clark, 196 Ala. 670, 162 N. W. 259 (1917). 72 So. 305 (1916) ; Baker v. Zimmerman, 27 Morrison v. Clark,, 196 Ala. 67,0,, 72 179. la. 272, 161 ,N. W. 479 (1917); So. 305 (1916). Ternes v. Giles, 93, Kan,, 435, 144 Pac. 28 Marshall v. Taylor, 168 Mo. App. 1044 (1914). 240, 153 S. W. S27 (1913). RIGHTS AND DUTIES ON THE HIGHWAYS 251 was on the wrong side.''' But the presumption is ' prirtia facie, and ^^Arkansas: WpIIb v ShpnarH T'*^ Wnshinalnn- TTiernrk v Phinnpv SI 29 Arkansas: Wells v. Sbepard, 13S Ark. 466, 20S So. 806 (1918). California: Baillargeon v. Myers, — Cal. — , 182 Pac. 37 (1919) ; Saylor v. Taylor, — Cal. App. — , 183 Pac. 843 (1919). Delaware: Lemmon v. Broadwater, — Del. — , 108 Atl. 273 (1919). Georgia: McGee v. Young, 132 Ga. 606 (1909). Illinois: Weber v. Stevensoii Grocery Co., 194 111. App. 432 (191S). ' Iowa: Herdman v. Zwart, 167 la. SOO, 149 N. W. 631 (1914) ; Dice y. Johnson, — la. — , 17S N. W. 38 (1919) ; ' Giese V. Kimball, — la. — , 169 N' W. 639 (1918). Louisiana: Potter v. Glassell, 146 La. 687, 83 So. 898 (1920). Maine: Stobie v. Sullivan, 118 Me, 483, lOS Atl., 714 (1919); Bragdon v, KeUogg,118 Me. 42, lOS Atl. 433 (1919) Sylvester v. Gray, 118 Me. 74, 105 Atl 81S (1919)-; Ricker v. Gray, 118 Me. 492, 107 Atl. 29S (1919). Michigan: Winckowski v. Dodge, 183 Mich. 303, 149 N. W. 1061 (1914) ; Harris V. Bernstein, 204 Mich\ 68S, 171 N. W. S21 (1919). Missouri: Columbia Taxicab Co. v. Roemmich, — Mo. App. -^, 208 S. W. 8S9 (1919). Montana: Savage v. Boyce, S3 Mont. 470, 164 Pac. 887 (1917). New Hampshire: Brooks v. Hart, 14 N. H. 307. Neiii York: Clarke v. Woop, 159 App. Div. 437, 144 N. Y. Supp. 595 (1913). North Carolina: Ledbetter v. English, 166 N. C. 125, 81 S. E. 1066 (1914). Rhode Island: Angell v. Lewis, 20 R. L 391. Texas: Figueroa v. Madero, — Tex. Civ. App. — , 201 S. W. 271 (1918). Utah: Richards v. Palace Laundry Co., — Utah — , 186 Pac. 439 (1919) ; Staton v. Western Macaroni Mfg. Co., — Utah — , 174 Pac. 821 (1918). Washington: Hiscock v. Phinney, 81 Wash. 117, 142 Pac. 461 (1914); Seger- strom V. Lawrence, 64 Wash. 245, 116 Pac. 876 (1911); Zuccone v. Main Fish Co., 104 Wash. 441, r77 Pac. 314 (1918) ; Hartley v. Lasater, 96 Wash. 407, 165 Pac. 106 (1917),, quoting from this work. Wisconsin: John v. Pierce, — Wis. — , 178 N. W. 297 (1920); Dunkel v. Smith, 168 Wis. 257, 169 N. W. 567 (1918). Federal: Bauman v. Blapk & W.. T! Taxis^Co., 263. Fed. 554 (1920). Same ruile applies where both vehicles are moving in the same direction.' Bor- den's Condensed Milk Co. v. Mosby, 163 C. C. A. 153, 250 Fed. 839 (1918).; "The generol rti^le, is said to be that: Where a collision occurs between the horse or vehicle of a person on the wirong. side of the road and that of a person coining towards hini, the pre- sumption is that it was caused, by the negligences of the person, who was on the wrong side of the road, but, that his presence on that side may be explained and justified. In -Johnson v. Small, 5 B. Mon. (Ky.) 27, the plaintiff was held excusable for not hioving over from the left side of the road for that he could not have done so in tiine to avoid a collision; and in Clay v. Wood, J Esp. 44, it was adjudg'ed that a person whose property was injured while on the wrong side of the road might recover damages if there was ample room ior the party who caused the injury to pass in safety, and that issue was for the juty." Hubbard v. Bartholomew, 163 la. 58, 144 N. W. 13 (1913). It is only prima facie evidence of neg- ligence. Lawrence v. Goodwill, — Cal. App. — , 186 Pac. 781 (1919) ; Stohlman V. Martin, 28 Cal. App. 338, 152 Pac. 319 (1915). 252 / .LAW'OF AUTOMOBILES has the effect only; of casting the, burden of justifying/ his position upon the man who was on the wrong side.'" And the rxile has been laid down that a traveler who is injured as, a proximate result of his violation of the law, in driving on the wrong side of the road, cannot recover therefor.'^ One driving on the: wrong side of the road is required to exer^ cise much more care than when on the proper side,'^ and he is not entitleid to rely on a motorist coming from the opposite directibn no;t exceeding the legal rate of speed, '^ . . It has accordingly been held that a pedestrian injured by an automobile which is being driven on the left or wrong side of the public highway is prima facie entitled to recover.** ^ Consequently the plaintiff need hot allege that the presence of the. automobile oh the wrong side of the highway was not due to circumstances, consistent with proper caution on the part of .the driver; this being a matter of defense.'* Reasonable care when driving on the ^ wrong side of 'the road con- stituties a higher degree of care than is required when driving on the right side.'® ' , .\ One who was driving on the wrong side o,f the road when, , she was injured in collision between her vehicle and an automobile, and who knew that she was about to meet the automobile before the collision, was hield to have been guilty of contributory negli- gence.'''' ' ' ■''""' ' ■ ■ ' ' '."'■' ' ^^ so IVtorxi^pn y., Clark, 196 Ala., 670, 11 hide should be burning. He shfluljd pro- So. 305 ,C1916) ; Hercjman v. Z\yart,; J67 ceed slowly arid cautiously; and, at .the la. SOO, 1,49 N, W. 631 (1914);, Seger- first appearance of danger, he s^io.ulid sfiiQm.v. Lawrence, ,64, Wash. 245, 116 take proper steps tp avoid it, and, if nec- Pac. 876 (1911); Petersen v. Pallis, 103 essary, stop his machine, and even .the ,W;a;5h, 180, 173 Pac. 1021 (1918), citing motor, when it is necessary and practi- ,this work;, Hartley v. Lasater, 96 Wash. cable. He will b^ presumed, in case of 407, 1^5,;P,ac. ijp6 (1917), quoting irpm accident, to have seen what hp s|iould this work. - have seen* in the performance qf his, du- 31 Cupples Merc. Co. v., Bow, — Idaho ties." Keily v. Schmidt, 142 'La,.^ 91, 76 —, 189 Pac. 48 (1920). So. 2S0 (1917). ,'., , *2Heryf9^d v. Spitcaufsky, — Mo. , 83 Bragdon v. Kellogg, — Me.„T-, 105 App. —, 200 S. W, 123 (1918). Atl. 433, 6 A,,L.'.R. 669 (1919), "TAe chauffeur of an auto truck, driv- . 34 Grier v. Samuel, 4 Boy(;e, (27 Del.) ing over that portion of the, public high- 74, 85 Atl. 759 (l913). > way which is ordinarily used by vehicles 35 Grier y, Samuel, ,'^ Boyce (27 Del.) going in the opposite direction, must keep 74, 85 Atl. ,759 (1913), , , , ., a very vigilant watch ahead for velficles 36 Garside v. New yp,rk Transp. Co., and pedestrians. He should signal his 157, Fed. 521, 525. approach as a warning; and, when it is 37 Donovan v. Lamtjert, 139 111, App. dark, or nearly so, the lights on his ve- 532. RIGHTS AN^ DUTIES iONiTHIJ HIGHWAYS 253 Driving an automobile on a jda^jk night, on the left i^ideiof a street at a crossing, iwithout sufficient lights, in violation of statute and ordinances, was held. to; constitute gross negligence.'* i;Wherse>an ordinance provides that vehicles, except when passing other! vehicles ahead, shajl keep :as near the right-hand curb as pos- sible., and that in turning into another street,; at the right hand ^hall turn, thei corner as near the right-hand curb as practicable, the rights of I an autQmoJ>ile operator driving, in, viplation of the ordi- nances are inferipr to the rights of a traveler conforming in his use of the streets to its requil'ewents,*® ,; ,- , . ...Iiiia case in which it appeared that ;the, defendant. was driving his machine in violation of such an ordinance \yhen he collided with a bicyclist, 1 the . court, du; passing op an . instruction ; that, in -effect, Gfeargpd, the jury that neither the bicyclist nor defendant, at the time; and, place of the accident, ihadia superior right to iJie, use of the street, said : "Under the first section of tjie ordinance, it, lyjis the duty of the; respondent to keep as near the right-hand as pos- sible. ;, This he did not do. , Nor is it,.tJti|B.la\^, in, the light of the ordinance^, o^at neithier, , 'had ,a. superior right to the use of the streets, but ithatt their rights were equal' at the 'place' pf the; acci- dents Under the ordinance the boy^ad. a^ superior right to the vise of the right-hand side of the street." *" However,' such an ordinance does not prohibit a motorist from making use of the left side of the street in, all circumstances, i. e., where the other parts, of, the street are impassable.*^ Where a statute required autoniobiles to be driven as near the right 'curb as conditions would permit, a motorist might have been guilty of negligence in veering to the left side Pf the street and striking a buggy .^^ A, .traveler lawfully prpceeding on the right side of the highway, is justified in assuming that anpther; traveler coming in, the opposite direction on the wrong side of the highway will do all that a rea- sonably prudent person under all the circumstances would do to 38 Ballard v. Collins, 63, Wash, 493, IIS driving on sa^ street c^r tr,ack iiiiitji? center Pac. 1050 (1911). ., . ,, of the street, and that his so driving,. vif as 39 Morrison! V. Clark, 196 Alan 670, 72 not , negligence per se:,- OlBjrien v. Wash- So. 3QS. (1916). ^ ington W. P. Co., ,71 Wash. 688, 129 , 4*iHisicock v. Phinney, 81 Wash. 1J7, fac, 391, / ,. ! ,,..■• 142 Pac. 461 (1914). « Langford y. San Diego El. R.,Co., ...It has been AeW, thatian/orclin^nce re- 174 Cal. 729, ,164 Pac. 398 (1917), quiring all vehicles to keep as near to the *2 Buzick v. Todman, 179 la. 1019, right curb as possible was not intended 162 N.i W. 259 (1917). to prohibit the driver of a wagon from 254 LAW OF AUTOMOBILES avoid a collision." And if such other is on the right side; ' he has the right to assume that he will keep to the right.** The fad that the defendant was driving his automobile on the wrong side of the street when he ran over a boy, is important as bearing on the question of the contributory negligence of the boy.** If a motorist, in the exercise of reasonable care, can avoid a collision with a vehide being driven on the wrong side of the road, it is his duty to do so; the question being one of ordinary care.** Where, had the plaintiff who was driving in the traveled' way continued in such way, there would have been no collision, there was no presumption against defendant on account of his bdng' on the wrong side of the highway.*'' It has been held, however, that where there is no ordinance or statute requiring persons using the streets to keep or turn to the right of a street; it is not negligence as matter of law for one to drive on the left side.*' If the act of driving on the left side of the road, in violation of law, causes injury to afiotiier, the wrongdoer is liable therefor, pro- vided the injured person was not contributorily negligent.*' Courts will take judidial notice of the fact that it is the universal rule of the roaid in this country to drive on the right hahd side.'" § 236. Same^Backing northerly on west side to park car. ** Travers v. Hartman, STioycs (fiel.) ** Staten v. Monroe, '— Tex. Civ. App. 302, 92 Atl. 8S5 (1914). '!''- ' ' ■-^,, lib S. W. ' 222 (1912). ■'■ It is not essential, in the exercise of Drivitig Hlong the left-hand side of a ordinary care, that the driver of an auto- street is not, of itself, an actof >negli- mobile anticipate, that thie,driy'pi;;of,,an- gence. It becomes, so, if a,t all, only be- other automobile, with whom he comes cause of the surrounding circumstances or into collision, will violate the law of the because it has been foibidden by law, or road by driving on the wrong side. Trout by an ordinance of the city. Harris v. Auto Livery Co. v. Peopile's G. L. & 0. ^ Johnson, 174 Cal. SS, 161 Pac. 1155 Co., 168 111. App. 56 (1912). ■ (1916). :i *4 Richards v. Palsipe Laundry Co.,;^- 49Grier v. Samuel, 4 Boyce (27 Upl) Utah — , 186 Pac. 439 (1919); John v. 106, 86 Atl. 209 (1913). Pierce, — Wis. — , 178 N. W. 297 (1920). It is, likewise, evidence of due care 46 Devine v. Ward Baking Co., 188 111. that one was driving on the' proper side App. 588 (1914). of the road when the coUi^on occurred. A violation of the law of the road is Morrison v. Clark, 196 Ala. 670,^72 So. competent on the question of due care. 305 (1916) / Bourne v. Whitman, 209 Clarke v. Woop, 159 App. Div. 437, 144 Mass. 15S, 95 N. E. 404, 35 L. R. A. N.'Y. SupiJ. 595 (1913). (N. S.) 701. 46 Wing V. Eginton, 92 Conn. 336, 102 BO Jacobs v. Richard Carvel Co.,' 156 Atl. 655 (1918). N. Y. Supp. 766 (1916). '' 47 Baker v. Zimmerman, 179 la. 272, 161 N. W. 479 (1917). RIGHTS AND DUTIES ON THE HIGHWAYS 255 Laws and ordinances requiring vehicles to be driven on the right side of the street and close to the curb are to be reasonably con- strued. They do not prohibit a motorist from backing, into a lim- ited parking space next to the west curb while facing south."^ §237. Same— Creates civil liability only when cause of injury. Where the negligence complained of was the violation qi the law of the road, it is not only essential that the plaintiff show a violation of the law by the defendant, but he must also prove that the violation was the cause of his injury. The fact of dis- obedience of the law may establish the party's guilt as between him and the state; but until his unlawful act infringes the rights of individuals it is not a wrong as to them. It must be made td appear that the act complained of has some relation to them; otherwise the fact that a duty to the state was violated is imma- terial.«2 § 238. Traveler may justify driving on wrong side. A mo- torist may justify driving on the wrong, side of the highway; but the conditions by which he attempts to justify such course must result from causes beyond his control.^^ "Allegations of the complaint that defendants were traveling along their left-hand side of the highway ido not. make axase of negligence per se, because there are certain circumstances under which the law permits one to use that portion of the highway." ®* One may justify his driving on the wrong side i of the road by showing that the road on the other side was practically impassable or appeared to be unsafe.** 61 'Sheldon v. James, 175 Cal. 474, 166 Elliott on Roads & Streets (3d ed.) §1081. Pac. ^"(1917). "The driver of a vehicle^ is not' netes- 62Mori:ison v. Clark, 196 Ala. 670, 72 sarily flegligfemt when he drivesJito the So. 305 (1916) ; Taylor V. Thomas, 77 left of the center of the highway, ag he N. H. 410, 92 Atl. 740 (1,914). is at liberty Jio use any part of the high- 63 Morrison v. Clark, 196 Ala. 670,- 72 way except in the case of meeting another So. 305 (1916) ; Hirst v. Morris & Co., vehicle or "person j and then, under' the — Cal. Appj — , 187 Pac. 770 (1919) ; rule of the road, he is required tp keep Todd V. Orcutt, ^ Cal. App. — , 183 Pac; to the right. The fact, therefore, that he 963 (1919),-^ Conder v. Griffith, 61 Ind. travels: on the left side of the highway App. 218, 111 N. E. 816 (1916) ; Cook v. will not render him liable for injuries Jerome, 172 N. C. 626, 90 S. E. 767 suffered by others unless the course taken (1916). by him contributes to the injuries." Qil^s. "Emergencies may arise where, in order v, Ternesj 93 Kan. 140, 143 Pac. 491, 144 to escape from danger to one's self or Pac. 1014 (1914). to prevent injury to others, it will be not 6* Hagenah v. Bidwell, -^ Cal, App. only excusable but perfectly proper to —, 189 Pac. 799 (1920). temporarily violate the general rule.'' 66Quinn v. O'Keeffej 9 App. Div. 63., 256 / 1 1 : M UAW ;^0F. AUTOMOBILiES li 1 ^ Where an autoinobilist appiFoached an intersecting street. oii which' he wished to tmvel, and hei could not cross to the right side of such street because the center was! torn up in the proctessi of reconstruction, it was held- that he rightfully drove i along i the left sifie thereof.®* , , , ,, , ,, ,, ^-51/ In the absence of statute or ordinance providing a dinerent'rule, the ,le^t side: pf the street may be used by a truck to ^ischargp its load, by an ^,t^tomobi^e to allqw passengers ^to alight, or as a mattier of; convenience a funeral, may be formed on that side of the stree);. So, ,the driver pf a delivery wagjon may use any portion of the street necessary for him in the performance of his business or employ- ment.*'' And qne may turn mto the left side of the road in order to, stop at a place he desires to reach; but in so doing he ipust exer- ci«;e; .reasonaWp care and ,inuS(t not unnecessarily obstruct otlier vehicles passing on that side.®* A driver is justified in turning onto the left side of the road in order to avoid a collision.®*' The plaintiff cannot complain thiat i::J;he d'eftendant was oh the wrong' 'side of the road when plaintiffs own negligence forced him into that position to avoid eolMing> with him.«" " '■'•■<■ ' • •■■ -■■'■■ ■'.:. r, ' ' So, "whePg the defendant turned to the left and drove his.lauto- mobile on the wrong side of the street solely in ah effort to avoid i toUIsion' with plaihtiff's machine, which he was meeting and wliich was being driven oii the wrong side: of the street^ it waS held that he was not liable' for damage Resulting from kn iensuingiGollisSbn, dilfe to the fact thkt the plaintiff guided his car in the Isam^i direction at the same time.®^ t • :^ ! 1 ] ,,, . "It may b^ assumed , that turning to the left to avoid an obstruc- tion , or a; part of, the roadway dangerously out of repair^ pr an imminent collision on the right-hand side of the way, or any other fact reasonably tending to show a necessary choice of hazards in ah emergency, would be sufficient on appropriate averment and evi- dence to take the question of negligence to the jury," *^ 66 Raymond v. Hill, 168 Cal. 473, 143 (1913);' Ledbetter v. English, 166 'N: C. Pac.'MS (1914). 12'S',' SI'S. E.ilt)66 (1914)-: " " ' 6'" Barihdffer v: Crawford,' 16 Cal. 'App. eOBragdcirii v. ■KeIlogg,118 Me. 42, 105 676, 117 Pac. 931 (1911). ■'■' ' AH. 433 (1919) ; Noyes' V. Schoichiro *8 Peltier' V. Bradley D.&C. Co., 67 Katsuno, — Wash. — , 191 Pac. 419 Conn. 42,34'AU. 712, 32 L. R. A. 6S1; (1920). Palmer V. Barker, U Me.' 338; Hefferiian Sl'Skfene v. Graham, — Me. ^f'>95 V. Barber, 36 App. Div. 163. ' Atl. 950 (191S). • |.. S» Potter V. GlasSell; 146 La. 687, 83 62 Johnson v. 'Heitman, 88 Wash. 595, So. 898 (1920); Clarke ' v. Woop, 159 153 Pac: '331 (1915). - App. Div. +37,' 144 N. 'Y. Supp. 595 RIGHTS AND DUTIES ON THE HIGHWAYS 257 One driving onto the wrong side of the road does not thereby become a trespasser. In the absence of a justifiable excuse, he is in much the same situation as a stranger who goes onto the premises of one conducting business with the public for the purpose of obtaining information for his own benefit. "While under such circumstances the owner of the premises who carried on the busi- ness would owe such a stranger the duty of exercising some degree of care for his safety, since the stranger would not be a trespasser, yet he would not owe such stranger the same duty that he would owe to one whom he had specially invited to come onto the premises upon a rhatter of business, in which he, as the owner of the premi- ses, had a special interest." ®* § 239. When not meeting other vehicles. When there . are no other vehicles which can be interfered with, one is at liberty to drive on any part of the highway he may choose or may find most convenient or agreeable for the purpose of travel.®* In passing an obstruction in the highway it may be one's duty in the exercise of reasonable care to pass to the left of the same if that way appears less hazardous than the way to the right. But in a case where it was contended that the plaintiff was negligent in driving his automobile to the right of an excavation instead of to the left, where there was a wider space for passage, it was held that in considering the question of due care on the part of the plaintiff the jury might bear in mind the provisions of the statute requiring travelers when meeting on the highway to turn to the right.** While in this case it appeared that there were no vehicles in the immediate vicinity, and the plaintiff could have driyen to the left of the excavation' without disobeying the statute, it was plain that other vehicles might approach, and if they did it would -have been the plaintiff's duty to keep to the right. 63 Richards v. Palace Laundry Co., — Massachusetts: Lovejoy v. Dolan, 10 Utah — , 186 Pac. 439 (1919). Cush. 495, 497. 6* Alabama: Morrison v. Clark, 196 Michigan: Daniels v. Clegg, 28 Mich. Ala. 670, 72 So. 305 (1916). 32, 36. Iowa: Riepe v. Elting, 89 la. 82, 86, Missouri: Beckerle v. Weiman, 12 Mo. 56 N. W. 285, 26 L. R. A. 769, 48 Am. App. 354. St. Rep. 356; Hubbard v. Bartholomew, New Hampshire: Clifford v.^Tyman, 163 la. 58, i44 N. W. 13 (1913); Baker 61 N. H. 508, 510. ' V. Zimmerman, 179 la. 272, 161, N. W. Washington: Segerstrom v. LawrencS, 479 (1917). 64 Wash. 245, 116 Pac. 876 (1911). Kentucky: Johnson & Co. v. Small, 5 68 Baker v. Fall River, 187 Mass. 53, B. Men. 25, 28. 57, 72 N. E. 336. Maine: Palmer v. Barker, 11 Me. 338, 339. B. Autos. — 18 258 : LAW OF/AUTQMOBILES In the absence of statute or ordinance to the contrary, it is'flot negligence to drive in the middle of the street.®* ' §240. Forced to leave rdadwaiy by negligence -of other driver— Emergency. Where plaintiff was forced to drive off the macadamized portion of the highway by the negligent con,duct of defendant's driver, whether or not he was negligent in. failing to stop before his automobile collided with a pole was a question ifor the jury, and an instruction that it was his duty to stop if he could safely do so was properly rejected, because it disregardied a possi- ble finding that the plaintiff acted in an emergency.®'' § 241. Vehicles passing in the same direction. The driver of a vehicle, when Ije knows that another going in the same direc- tion- intends to pass him, is bound to exercise reasonable care to avoid injuring such other,®* arid, if necessary and practicable, give way so as to allow the other to pass in safety. One person is not compelled to travel behind another on the highway, and. one has not the exclusive right to precede another. The traveler in the rear niay pass to the front when he can do so in safety.®' And, asicle, from any statutory regulation, there is, no rule of law requiring the drie in the rear to pass on one side or the other. He m,ust pass on the side which is niost convenient under the circu^nstances.'"' In passing due care must be exercised.''^ The width of the beaten or traveled part of the road; the condition of the road as to smooth;, ness; obstructions in the road; whether or not the team in frpn^ appears high-spirited, are important features to be considered by one before attempting to pass another.'* , It is said that it is a rule of the common law that a traveler on the highway is not obliged to turn his vehicle aside for another traveling in the saihe direction, if there be convenient room for the other to pass upon either side, and a traveler may pass a vehicle ahead of him upon either side, provided he can do so with safety.''' B6 "Driving a vehicle Jn the middle of 510; Mochler v. Shaftsbury, 46 Vt. S80, a street is neither negligence in itself nor 586, 14 Am. Rep. 634. a fact from which negligence can be in - 70 Clifford v. Tyman, 61 N. H. 508, ferred, either under the common law or 510; Bolton v. Colder, 1 Watts (Pa.) under our statute." Linstroth v. Peper, 360. — Mo. App. — , 188 S. W. 1125 (1916). Tl Simeone v. Lindsay, 6 Pennew. 67 Henderson v. Diraond, — R. I. — , (Del.) 224, 65 Atl. 778. 110 Atl. 388 (1920). TZ Burnham v. Butler, 31 N. Y. 480, 68 Brennan V. Richardson, 38 App,, Div. 483. ' 463, 465 ; Hoppe v. Peterson, 165 Wis. 'S O'Donnell v. Johnson, 36 R. I. 308, "200, 161 N. W. 738 (1917). 90 Atl. 165 (1914).' 69 Clifford V. Tyman, 61 N. H. 508, RIGHTS AND DUTIES ON THE HIGHWAYS 259 And after attempting to pass it may be advisable or necessary to desist if the other's horses appear to be badly frightened. It may be the duty of the driver of the rear vehicle under the cir- cumstances to stop and give warning to the one in front that he intends to pass.''* In an action for darhages due to the plaintiff's horse, which she was driving to a wagon, taking fright . at the defendant's automobile, which approaiched from the rear, it was held that evidence that the plaintiff disregarded the law of the road by failing to turn to the right and allow the defendant to pass, after he had sounded a warning of his approach, was competent on the question of the plaintiff's care.''^ Generally, statutes require the forward vehicl^ to move to the right of the center of the traveled portion of the highway, so as to allow the other Vehicle opportunity to pass.''* It is necessary to comply with a statute requiring the vehicle that is passing the one overtaken to do so by turning to the left, although it is necessary to go entirely to the left of the center of the road.'''' This rule applies to an automobile overtaking-* and passing a steam roller.'" It is sometimes made the duty of drivers of liorse drawn vehi- cles to stop a sufficient length of time for an overtaking automo- bile to pass, if the condition of the highway makes it necessary that he do so.''® It is not negligence to turn to the right of a vehicle which is being approached from the rear if a situation of peril is presented in which to avoid a possibility of injury to life or property a reasonably careful man might well consider it the more prudent course to drive to the right.'" If the forward vehicle yields all of the beaten or traveled por- tion of the road, the passing vehicle is at liberty to make use of all of it." ^ , , , A statutory provision that when a person in a vehicle shall approach another from the rear on a public highway and desjres 74Young V. Cowden, 98 Tenn. S77, 586. 79Hoppe.v. Peterson, 16S Wis. 200, TBNadeau v. Sawyer, 73 N. H. 70, S9 161 N. W. 738 (1917). Atl. 369. 80 Squier v. Davis S. Bread Co., — 76Hoppe y. Peterson, 165 Wis. 200, Cal. — , 185 Pac. 391 (1919). 161 N. W. 738 (1917). 81 Hoppe v. Peterson, 165 Wis.' 200, 161 "Paschel v. Hunter, 88 iJ. J. L. 445, N. W. 738 (1917). 97 Atl. 40 (1916). 78 Moreno v. Los Angeles Tr. Co., — Cal. App. — , 186 Pac. 800 (1919). 260 LAW OF AUTOMOBILES to pass, it shall be the duty of the driver of the vehicle ahead to turn to the right' and give up half of the beaten track, and that the other vehicle shall turn to the left and shall not return to the beaten track within less than 30 feet of the team or vehicle passed, has no application, and should not be given in the instructions to the jury, in a case in which it appears that the forward vehicle turned entirel}^ out of the beaten path and stopped, and that the motorist never left the beaten path.** These rules are subject to change) of course, by statute and ordinance. § 242. Same— Rule does not apply to automobiles passing street cars. An ordinance providing that, "Every person riding, driving, propelling or in charge of any vehicle shall, in overtaking and passing other vehicles, in and upon any streets, pass to the left of said vehicle, and the person in charge of such vehicle so overtaken and passed shall give way to the right," was held not to apply to street carS, but to include only vehicles that are able to turn to the right or left, and that it does not authorize a motorist to go to the left of a street car he has overtaken.** Likewise, a statute providing that the operator of a motor vehicle overtaking on a public highway any horse or other draft animal or vehicle shall pass on the left side, etc., was held not to apply to the passing of street cars by motor vehicles.** § 243. Turning around in- street. An automobile may be turned in the street, subject to regulation by statute or ordinance, in order to proteed in the direction from which it came. It is not necessary for the chauffeur to wait until there is no other vehicle approaching that will have to lessen its speed on account of his turning. Of course, the required care must be exercised in such movement.*" § 244. Vehicles having right of way by law. The driver,s of vehicles owing a duty to the public must, in the discharge of that duty, take risks that would be inexcusable in a private citizen pur- suing his own private business. In the case of the repair wagons of an electric street railway, which were given right of way over 82 Zellmer v. McTaigue, 170 la. S34, 85 Ackerraan v. Fifth Ave. Coach Co., 1S3 N. W. 77 (191S). 175 App. Div. 508, 162 N. Y. Supp. 49 83 Harris v. Johnson, 174 Cal. 55, 161 (1916). Pac. 1155 (1916). 84 Chicago V. Keogh, 291 111. 188, 125 N. E. 881 (1920). RIGHTS AND DUTIES ON THE HIGHWAYS 261 other vehicles by ordinance, it has been said: "In the interest of life and property the prompt performance of the duties imposed upon those in charge of these vehicles is imperative, hence they are given the right of way to speed to their destinations without let or hindrance, and if, perchance, in discharging these quasi public functions, a collision occurs and injury results to an individual, without negligence on the part of the driver, no liability attaches to the owner of the vehicle." *® The drivers of such vehicles, however, are not absolved from the duty to exercise reasonable care for the protection of others.*'' The plaintiff, who was very deaf, was in the act of entering an automobile, which had been stopped in a street extending north and south, and in which defendant operated a double line of street railway, when defendant's repair wagon, being driven to the place where an electric wire had fallen, collided with the automobile in such a manner that plaintiff 's leg was caught and crushed between the two vehicles. At the time of the colHsiony plaintiff was stand- ing just outside the west rail of the car track with his left foot on the running board of the automobile in the act of mounting to the front seat. The repair wagon, with the horses in a gallop, was proceeding southerly along the west side of the street, with the right wheels between the west 'rail and the curb. The driver of the wagon saw that by continuing his course he would collide with the automobile, and he applied the brakes and slowed down, and attempted to avert the collision by turning to the left across the car tracks. In that way it appeared that he would have passed in safety, but for the fact that the steel tire of the right rear wheel of the wagon caught on the street car rail and slipped or skidded until the wheel interlocked with the rear end of the mud 86 yirginia R. & P. Co. v. Smith, 117 in passing to a fire, and defendant street Va. 418, 84 S. E. 641 (1915). railway company was required by ordi- To same ejject, Oklahoma R. Co. v. nance to stop its street cars in case of Thomas, — Okl. — , 164 Pac. 120 (1917). fire, 300 feet from the street intersection "Firemen going to a fire are given the on which fire apparatus would cross its right of way over street cars not only track, plaintiff was riding on a truck by ordinance but by common law as a to a fire, driven by another. Proper matter of necessity. They are not td be warnings were being given of the ap- regarded in the same light as pedestrians, roach of the truck, and plaintiff and the drivers of vehicles, and street car motor^ others riding upon said truck were justi- men, as none of these has a superior -fied in assuming that defendant's car right over the other." Duffy v. Kansas would be stopped as required by ordi- City R. Co., — Mo. App. — , 217 S. W. nance. Oklahoma R. Co. v. Thomas, 883. — Okla. — , 164 Pac. 120 (1917). The fire department of Oklahoma City 87 Newman v. Overholtzer Son's Co., was by ordinance given the right of way — Cal. — , 190 Pac. 17S (1920). 262 LAW OF AUTOMOBILES i guard of the automobile, which caused the front wheels of the wagon to swing towards the machine, producing the impact which caused the injury. The repair wagon, with certain other vehicles, was given the right of way over all other vehicles by ordinance, which also provided that, "the driver of every other vehicle upon becoming aware of the approach of any of said vehicles,' shall irmnediately withdraw to the extreme right of the street, come to a full stop and remain in a stationary position until all such vehi- cles have passed." It was held that the evidence showed nothing ' more than an unavoidable accident.** , . i In an action against the owner of a horse and wagon nwhose driver negligently caused the horse to jump in the path of a rapidly moving ambulance, causing the driver of the ambulance to swerve out of his course in order to avoid a collision and to strike plain- tiff's deceased, it was held that the jury, in measuring the conduct of defendant's driver, might consider the fact that by universal custom and consent an ambulance sounding its gong and approaeh- , ing at high speed is given the right of way.*' § 245. Regulation of traffic by police officers. The attempted regulation of street traffic by a traffic officer neither places nor releases legal obligations, but it may be of importance in deter- mining th€ question of negligence on the part of persons obeying or disregarding the officer's directions."* Some cities have ordinancies requiririg the driver or operator of any vehicle to obey the signals and orders of traffic officers at street crossings. Failure to conform to the signals or instructions of such an officer constitutes negligence.®^ The fact that a traffic officer signalled a motorist to proceed at a crossing, was no excuse for the latter cutting the corner where he had already started on his course on the wrong side of the street when signalled.'* Nor does such signal relieve the motorist of the duty to sound his horn, reduce his speed, or otherwise exer- V cise reasonable care for the safety of others." 88 Virginia R. & P. Co. v. Smith, 117 Rys. Co., 200 Mo. App. 317, 206 S. W. Va. 418, 84 S. E. 641 (1915). 2S7 (1918). 89 Boggs V. Jewell Tea Co., — Pa. St. 92 Wilson v. Johnson, 195 Mich. 94, — , 109 Atl. 666 (1920). 161 N. W. 924 (1917). 90Foster v. Parmelee Co., 179 111. 9SM:elvme v. RoUwage, 171 Ky. 607, App. 21. 188 S. W. 638 (1916). 91 American Auto Ins. Co. v. United CHAPTER IX REGISTRATION AND LICENSING— FAILURE TO COMPLY WITH LAW § 246. Effect on rights of parties/of oper- ating unregistered automobile. §247. Same — Contrary view. § 248. Same — Distinction between right when injured by another trav- eler and when injured by de- fective highway. §,249. Same — Burden of proof. § 2S0. Permitting use of unregistered au- ■ tomobile. § 2S1. Dealer's number on automobile operated by private owner. § 2S2. Automobile operated for pleasure, under dealer's registratioii. § 253. Effect on registration of death of owner. § 2S4. Failure to remove registration tags when car is sold. § 2SS. "Owner" or "custodian" to regis- ter automobile. § 256. "Operating" automobile under false registration. § 257. Registration in name of fictitious partnership or firm name. § 258. Registration in name of one of two joint owners. § 259. Term of exemption for nonresi- dents. § 260. Operating automobile without li- cense. § 261. License to operate does not author- ize carrying passengers for hire — Effect of violation of law. § 262.- Failure of applicant for license to disclose infirmity. § IbX License provision as to nonresi- dents not applicable to foreign corporation, when. § 264. Employing unlicensed chauffeur. § 265. Unlicensed person accompanied by licensed operator. § 266. Helper on truck, crajiking engiiie, not an operator. § 267. Automobile owned by corporation or partnership. § 246. Effect on rights of parties of operating unregistered automobile. In most of the states in which the question has been passed upon, it is held that the fact that an automobile was not registered as required by law, or was operated by an unlicensed person, does not affect the right of the driver or occupants as trav- elers upon the highway, and does not affect his or their right to recover for personal injuries occasioned by the negligence of others, or his o\ their defense in actions against them. This rule is placed on the ground that there is no causal connection between the viola- 263 264 LAW OF AUTOMOBILES tion of law and the injury complained of. 1 Connecticut: Kiely v. Ragali, — Conn. — , 106 Atl. 502 (1919). Delaware: Brown v. Green & Flinn, 6 Boyce (29 Del.) 449, 100 Atl. 475 (1917). Florida: Atlantic Coast Line R. Co. V. Weir, 63 Fla. 69, 74, 58 So. 641, Ann. Cas. 1914A 126, 9 N. C. C. A. 835n, 41 L. R. A. (N. S.) 307n (1912). Georgia: Central of Georgia R. Co. v. Moore, — Ga. — , 101 S. E. 668 (1919) ; Hines v. Wilson, — -Ga. App. — , 102 S. E. 646 (192P) ; Central of Georgia R. Co. v. Moore, — Ga. App. — , 102 S. E. 168 (1920). Iowa: Wolford v. Grinnell, 179 la. 689, 161 N. W. 686 (1917) ; Lockridge v. Minneapolis & St. L. R. Co., 161 la. 74, 140 N. W. 834 (1913) ; Phipps v. Perry, 178 la. 173, 159 N. W. 653 (1916). Kentutky: Moore v. Hart, 171 Ky, 725, 188 S. W. 861 (1916), citing this work. Maine: Cobb v. Cumberland Co. P. & L. Co., 117 Me. 455, 104 Atl. 844 "(1918). New York: Hyde v. McCreery, 145 App. Div. 729, 130 N. V. Supp. 269 (1911). North Carolina: Zageir v. Southern Ex. Co., 171 N. C. 692, 89 S. E. 43 (1916). North Dakota: Chambers v. Minne- apolis, St. P. & S. S. M. R. Co., 37 N. D. 377, 163 N. W. 824 (1917). Rhode Island: Marquis v. Messier, 39 R. I. 563, 99 Atl. 527 (1917). Tennessee: Black v. Moree, 135 Tenn. 73, 185 S. W. 682 (1916). , Texas: Mumme v. Sutherland, • — Tex. Civ. App. — , 198 S. W. 395 (1917). Vermont: Gilman v. Central Vt. R. Co., — Vt. — , 107 Atl. 122 (1919). Virginia: Southern R. Co. v. Vaughan's Adm'r, 118 Va. 692, 88 S. E. 305, L. R. A. 1916E 1222 (1916). Wisconsin: Derr v. Chicago, M. & St. P. R. Co., 163 Wis. 234, 157 N. W. 753 (1916). "It will be observed that this statute does not purport to subject an owner of a. motor vehicle to civil liability for injuries sustained while doing the pro- hibited act, and that there is nothing in the statute to indicate that it was in- tended tp afford greater protection to the public." ^ Hyde v. McCreery, 14S App. Div. 729, 130 N. Y. Supp. 269 (1911). ' An ordinance imposing a tax on ve- hicles is not a police regulation, and the use of the streets in violation thereof does not render such person a trespasser. Luckey v. Kansas City, 169 Mo. App. 666, ISS S. W. 873. Failure to register an automobile does not. prevent recovery for injuries caused by a defective street. Wolford v. Grin- nell, 179 la. 689, 161 N: W. 686 (1917). "We .find nothing in these statutes to indicate that the Legislature intended to deprive a person, who is injured while driving an unregistered car on a highway, of the protection of the law that is ac- corded to other travelers under the same circumstances. To bar such an injured person from invoking his rights of a traveler on the highway, it must appear that his violation of the law was a proxi- mate cause of the injury suffered. No such relationship exists here. The plain- tiff's violation of law had no proximate causal relation as defined in the law of negligence, and hence in no way contri- buted to cause the injury." Derr v. Chi- cago, M. & St. P. R. Co., 163 Wis. 234, 157 N. W. 753 (1916). In the case of Black v. Moree, 135 Tenn. 73, 185 S. W 682 (1916), it was said: "Our act of 1905 (chapter 173) dis- closes no purpose to make a failure to comply with its first section a ground of liability by the owner of an automobile for any further sum than a fine of not less than $25 nor more than $100. Sec- tion 6 of the act provides for this fine, and makes the failure to observe and comply with the provisions of the act a misdemeanor. Section 5 provides for a REGISTRATION AND LICENSING 265 "The general rule appears to be that the violation of an ordi- nance which directly contributes to the injury caused by the neg- ligence of another bars the right to recover, but where such viola- tion bears no causal relation to nor contributes to the injuries sus- tained, the rule has no application." " The mere fact that an automobile, the negligent operation of which causes injury to another, was not registered as required by statute, affords no basis for holding the owner liable for such injury, said statute prescribing no qualifications for drivers, nor requir- ing them to be licensed; and not requiring that automobiles should be numbered, nor that they should exhibit any signs for identifi- cation. "The failure to register would in this state of the law, constitute a mere condition, and not a_ contributory, cause." * In an action by a motor-cyclist /to recover for personal injuries received in a collision with an automobile on a public highway, and in which the court held that the fact that he was operating his motor-cycle without having obtained the license, required by stat- ute* did not bar his right of recovery, the court said: "The sec- tions cited constitute the revenue portion of the statute licensing and regulating the use and operation of ■ motor-cycles and auto- mobiles on the public highways. Had the respondent violated lien on the automobile to satisfy Such no effect either upon the question of lia- recovery as the court may award for in- bility for injuring another, or upon the juries to person or property caused by right to recover for injury, as it is dif- the running of any automobile in wilful ficult to perceive how it could be a prox- violation of the provisions of the act. imate cause of an injury.' Elliott on The provisions referred to are set out in 'Roads &, Streets (3d ed.) vol. 2 §1115." sections 3 and 4. It is manifest that in- See also, in this connection: Hinton v. juries to person or property could not be Southern R. Co., 172 N. C. 587, 90 S. E. caused by running in violation of any 756 (1916), in which it is held that an other section or sections. No other section "injured person though hitaself violating undertakes to regulate the speed and the the law at the time, is not prevented ftom precautions to be observed while running ; recovering for a wilful 'or negligent and, though a running of the automobile wrong and injury, inflicting upon him, might ocpur while its owner was in de- unless his own misconduct is the proxi- fault in respect of the observance of sec- mate cause of the injury." tions 1 and 2, it is, manifest, as before Unlicensed dog is not trespasser on the observed, that such runnijig in violation highway. Lacker v. Strauss, 226 Mass. of those sections could not by any pos- 579, 116 N. E. 236 (1917). sibility cause an injury to person or * Shimoda v. Bundy, 24 Cal. App. 675, property. In , a text-book of acknowl- 142 Pac. 109, 9 N. C. C. A. 834n (1914). edged merit it is said: 3 Armstrong v. Sellers, 182 Ala. 582, "'It would seem that ordinarily at 62 So. 28, 9 N. C. C. A. 837n (1913). 'east the failure to register could have * Rem, & Bal. Code, §,§ 5562-5566. 266 LAW OF AUTOMOBILES. some part of the regulative part of the statute, and his injury had resulted therefrom, unquestionably he could not recover, regard- less of the negligence of the appellants, as long as such negligence was not wanton. But the violation of the revenue part is an offense against the state, solely, and it alone may enforce the pen- alties. In other words, before the violation of the statute by the person injured will constitute a defense to the negligent act of the person injuring hirn, there must be shown some causal connection between the act involved in the violation of the statute and the apt causing the injury." * i , So, where the rider of a motor-cycle was injured in a coUisiqn , with an automobile in a city street, due to the negligence of the operator of the latter vehicle, it was held to be no defense th^t the motor-cycle was not registered with the city clerk as required by ordinaiice. The court in this case said: "That one who violated an ordinance wherein a penalty is fixed for noncompliance with its provisions, may be subjected to the penalties therein prescribed, but he cannot, in addition thereto, be deprived of his civil right to recover damages, perhaps in many thousands of dollars, sustained by reason of the negligence or wrong of another, when such viola- tion bore no relation to the injury and did not contribute in the remotest degree thereto." Speaking of the view adopted by the Massachusetts Supreme Judicial Court in relation to this subject, the court further said: "We are unable to appreciate the distinctions sought to be drawn, and unwilling to accept its decision as the law of this state when applied to the ordinance in question." * In an action to recover for damage to an automobile caused by a collision with a street car, it was held to be of no concern to the defendant whether the automobile was or was not registered in compliance with the laws of the state. Said the court: "If the automobile 'was not registered, the owner thereof may be guilty of a violation of one of the criminal laws of the state, but that fact in no way affected the general duty, which the defendant owes to the law, to so operate its cars as not to negligently injure the person or property of any person. The mere fact, if it be a fact, that the automobile was not registered had no causal connection what , ever with the injury of which the plaintiff complains, and that fact, if it be a fact, in no way contributed to the injury to the auto- 6 Switzer v. Sherwood, 80 Wash. 19, 6 Shimoda v. Bundy, 24 Cal. App. 675, 141 Pac. 181, 9 N. C. C. A. 830n, 83Sn 142 Pac. 109, 9 N, C. C. A. 834n (1914). (1914). REGISTRATION AND LICENSING 267 mobile." This court expressly refused to follow the Massachusetts ruleJ .' In an action by a motor-cyclist to recover for injuries received in a collision between an automobile and his motor-cycle, and whose machine was not registered as required by law, the Supreme Court of Alabama held that the fact that the niotor-cycle was not registered had no causal connection with the injury of the plain- tiff, and could in no way be available to the defendant; and that the fact that it was not registered in no way affected the general duty which the defendant owed the plaintiff, to so operate its auto- mobile while traveling on the public highway as not to negligently injure the person or property of another.' In Minnesota it is held that the operation of an automobile in violation of a statute' providing that, "no person shall operate or drive a motor vehicle on the public highways of this state unless such vehicle shall have been registered," etc., does not render such person a trespasser upon the highways. In part the court said: "His violation of the law may be evidence against him, and in some cases may wholly defeat recovery. But it is not every violation of the law that is even material evidence against him. The right of a person to maintain an action for a wrong committed upon him is not taken away because he was at the time of the injury dis- obeying a statute law which in no way contributed to his injury. He is not placed outside all -protection of the law, nor does he for- feit all his civil rights merely because he is committing a stat- utory misdemeanor. The wrong on the part of plaintiff, which will preclude a recovery for an injury sustained by him, must be some act or conduct having the relation to that injury of a cause to the effect produced by it." " "Where a passenger in an automobile is injured by reason of the negligence of a railway company in failing to keep its crossing in repair, the mere fact that the vehicle has not been register^vl in the office of the secretary of state, and a license obtained, and a license fee paid as required by law, will not .render the person so injured a trespasser, and bar her right of recovery against the railway company for negligence." ^^ 7 Birmingham R., L. & P. Co. v. Aetna 10 Armstead v. Lounsberry, 129 Minn. A. & L. Co., 184 Ala. 601, 64 So. 44, 9 34, ISl N. W. 542, 9 N. C. C. A. 828, N. C. C. A.836n (1913). L. R. A. 191SD 628 (1915). 8 Stovall V. Corey Highlands Land Co., n Hines v. Wilson, — Ga. App. — , 189 Ala. 576, 9 N. C. C. A. 834n, 66 ' 102 S. E. 646 (1920). • So. 577 (1914). 9 Minn. Laws 1909, p. 307, c. 259, § 8. 268 LAW OF AUTOMOBILES It has been argued that the absence of the registration number as a means of identification has a tendency to make the operator less careful; but this, it was held, is too remote to be relevant.*' A Connecticut statute provides that no recovery shall be had by the owner of a motor vehicle which has not been registered as required by law for any injury to person or property received by reason of the operation of said motor vehicle on the public high- ways.*' But in that state it has been hdd that, in, the absence of any statutory provision, the fact that the plaintiff's automobile was not registered did not affect his right to recover for injuries to himself and damage to his automobile caused by a defective high- way.** § 247. Same— Contrary view. In Massachusetts it is held that one who operates an automobile on the public highways with- out having registered the same as required by statute, is a tres- passer, to whom other users of the highways owe the duty only to refrain from injuring recklessly or wantonly. This rule extends, not only to the owner or operator of the ma- chine, but to the occupants as well.*® It is accordingly held that such person cannot recover for injuries caused by a defective highway.*^ It is there held that a passenger riding in an unregistered auto- 12 Shaw V. Thielbahr, -82 N. J. L. 23, 114 N. E. 207 (1916); Dean v. Boston 81 Atl. 497 (1911). ^ Elevated R. Co., 217 Mass. 495, 105 "What is gained by the display of a N. E, 616, 9 N. C. C. A. 833n (1914); license number is, not the avoidance of Gould v. Elder, 219 Mass. 396, 107 N. E. collisions, but the more ready identifica- 59 (1915); Crompton v. Williams, 216 tion of the machine, and its responsible Mass. 184, 103 N. E. 298, 9 N. C. C. A. owner." Shaw v. Thielbahr, 82 N. J. I,. 832n (1913) ; Holland v. Boston, 213 23, 81 Atl. 497' (1911). Mass. 560, 100 N. E. 1009 (1913); Love Instate V. Scheidler; 91 Conn. 234, v. Worcester Consol. St. R. Co., 213 99 Atl. 492 (1916) ; Shaw v. Connecticut Mass. 137, 99 N. E. 969, 9 N. C. C. A. Co., 86 Conn. 409, 85 Atl. 536 (1912) ; 830n (1912) ; Trombley v. Stevens-D Co., Conn. Pub. Acts 1909, c. 211, § 16. 206 Mass. 516, 92 N. E. 764, 2 N. C. 1* Hemming v. New Haven, 82 Conn. C. A. 860, 8 N. C. C. A. 1087 (1910); 661, 74 Atl. 892 (1909). Feeley v. Melrose, 205 Mass. 329, 91 16 Wentzell v. Boston Elevated R. Co., N. E. 306, 9 N. C. C. A. 832n, 27 L. R. 230 Mass. 275, 119 N. E. 652 (1918); A. (N. S.) 1156 (1910); Dudley v. Rolli V. Converse, 227 Mass. 162, 116 Northampton St. R. Co., 202 Mass. 443, N. E, 507 (1917); Koonovsky v. Quel- 89 N. E. 25, 1 N. C. C. A. 90n (19091. lette, 226 Mass. 474, 116 N. E. 243 16 Feeley v. Melrose, 205 Mass. 329, (1917); .Fairbanks v. Kemp, 226 Mass. 91 N. E. 306, 9 N. C. C. A. 832, 27 L. 75, 115 N. E. 240 (1917); Downey v. R. A. (N. S.) 1156 (1910). Bay State St. R. Co., 225 Mass.' 281, REGISTRATION AND LICENSING 269 mobile has not the rights of a lawful traveler on the highways, and that a railroad company owes him no duty to sound crossing whistles required by statute.^'' So, it is declared that the statute requiring the registration of automobiles "was enacted, not only as a police regulation to gov- ern the conduct of all persons in the state, but for the particular protection of travelers upon the highways, to guard them against the dangers that might arise from the operation of improper ma- chines to which the state would not grant the privilege of registra- tion, and to afford them means of redress in case of injury by enabling them readily to ascertain the name and address of the owner of an automobile from which they might suffer injury."^* The fact that the car bears the registration number of a former owner is immaterial, as such registration expired with the transfer of the machine.'^® So, where the property of a partnership upon dissolution vested in a new partnership, in which a member of the old partnership was a partner, registration of an automobile by the old firm was not sufficient when the machine was taken over by the new firm.*" The law protects such person, however, against the wilful or wanton acts of another.^^ And it has been held, in an action to recover for injuries arising out of a collision between automobiles in Massachusetts, that the mere fact that the plaintiff's automobile was not registered was not sufficient to charge him with contribu- tory negligence.^* The Legislature of Massachusetts at its 1915 session passed an act providing that a violation of the provisions of the statute relat- ing to the registration and equipment of automobiles, "shall not constitute a defense to actions of tort for injuries suffered by a person, or for the death of a person, or for injury to property, unless it is shown that the person injured in his person or property or killed was the owner or operator of the motor vehicle the opera- tion of which was in violation of such provisions, or unless it is shown that the person so injured or killed, or the owner of the "Chase v. New York C. & H. R. R. 20 Rolli v. Converse, 227 Mass. 162, Co., 208 Mass. 137, 94 N. E. 377, (1911), 116 N. E. 507 (1917). i«Holden v. McGillicuddy, 21S Mass. «! United T'r. Co. v. Hass, 91 Misc. 311, 563, 102 N. E. 923, 4 N. C. C. A. ^S 155 N. Y. Supp. 110, 1145 (1915). , (1913). 22 United Tr. Co. v. Hass, 91 Misc. 311, ISFeeley v. Melrose, 205 Mass. 329, ISS N. Y. Supp. 110, 114'S (1915). 91 N; E. 306, 9 N. C. C. A. 832n, 27 L. R. A. (N. S.) 1156 (1910).. / 270" LAW OF AUTOMOBILES - pi-operty: so injured, knew or had reasonable cause to know that said provisions were teing violated." '^ A like holding is found in Georgia, under a statute which makes it urjlawful for any person "to run, drive, or operate any automo- bile,; locomobile, or other vehicle or conveyance of like character, propelled by^ steam, gas, gasoline, electricity, or any power other than muscular power, * * * upoii or along any public road, street, alley, highway, avenue, turnpike, or any private road or way gen- erally used by the public of this state, except and until such person * *: * shall comply with the provisions of this act." Among the pro- visions' of the act is a requirement that every person owning any one of the said machines shall register the same with the secretary ^of statp., In this respect the cqurt. said: "The main purpose of the act of 1910 was to safeguard persons lawfully, using the highways frpiji the serious risks of injury by machines of the character therein, referred to, operate^ in defiance of law, the owners of which have furnished no means by which they may be identified and compelled to make proper compensation for injuries resulting from their neg- ligence. Furthermore, it was the evident intentiorl of the Legis-j lature to outlaw imregistered machines propelled by gas, gasoline, etc., and to give them, as to persons lawfully using the highways, no other right than that of exemption from reckless, wanton, or wilful injury; and, as against one lawfully using the highway, one ' traveling on an unregistered motor-cycle is a mere trespasser upon such highway, since he is violating the law made for; the. prptec- tion of others against him, and such another, la,wfully using the Jiighway, owes him no further duty than that of abstaining from injuring him by wantonness or recklessness." ** , §248. Same— Distinction between ri^,h>t when injured by another traveler and when injured by defective highway. It as been held in Maine that recovery could not be had for the deaths of two children who were riding with their granduncle in an unregistered automobile, the accident being due to a defective bridge. The defendant town, it was held, was not liable for injuries to persons not lawful travelers on the highways.*^ 23 Mass. L. 1915, c 87; Rolli v. Con- Bui see cases cited under first section vetse, 227 Mass. 162, 116 N. E. 507 of this chapter, and especially Wolford (1917). V. Grinnell, 179 la. 689, 161 N. W. 686 24 Knight v. Savannah El. Co., 20 Ga. (1917). App. 314, 93 S! E. 1? (1917). 86 McCarthy v. Leeds, 116 Me. 275, 101 Atl. 448 (1917). REGISTRATION AND LICENSING 271 This case was so decided on the ground that no duty is imposed on a municipal corporation to provide reasonably safe ways f 6r one who is not a lawful traveler, and that one riding in an unreg- istered machine, operated in violation of a penal statute, is not a lawful traveler. It must be distinguished from the case of Cobb V. Cumberland Co. P. & L. Co.,''® which permits sych a traveler to recover for injuries due to the negligence of another traveleir. The court in the Leeds case, after reviewing cases from four states, attempted to distinguish between what appeared to it to be two lines of cases, in the following language: "An examination of the decided cases, we think, clearly shows that, when the statute provides for the registration of automobiles and fixes a penalty for their operation upon the highways and streets of the state, unless registered, their operation upon the highways and streets, while unlawful, does not of itself bar the owner from recovering dam- ages for injuries sustained by reason of -defective highways, because the violation of law does not contribute to the injury; but if, in addition to the penalty provided by law, the statute prohibits the use upon the highway of an unregistered auto, the operation of the auto upon the prohibited streets and highways is such an unlawful act that, by reason of the prohibition, its operation' is a trespass, and cities or towns are not obliged to keep their ways safe fSr trespassers to travel upon in violation of law. The language of section 11 of the act of 1911 clearly and plainly prohibits their use upon the highways of the state unless registered, as required by the act, and unless so construed the purpose of the Legislature to protect persons lawfully using the highway will fail; and the plain and unambiguous language of section 1 1 would be disregarded, which is a violation of all rules of law for the construction of statutes." The Maine statute mentioned in this case provides as follows: "No motor vehicle of whatsoever kind shall be operated by a resi- dent of this state of Maine, upon any highway, tramway, public street, avenue, driveway, park or parkway, unless registered as heretofore provided." ^"^ In the notes will be found the provisions of the statutes of a number of states prohibiting the operation of unregistered automo- biles on the public highways, in all of. which states a view con- trary to that of Maine and Massachusetts has been adopted.^* ' 26 117 Me. 4SS, 104 Atl. 844 (1918). any person to run, operate, or drive any 27 Laws Me. 1911, c. 162, §11. automobile, loconiobile, or other motor ^^ Alabama: "It shall be unlawful for vehicle of like kind on the public roads 272 LAW OF AUTOMOBILES § 249. Same— Burden of proof. On the theory that presump- tions both of law and fact are always in favor of innocence, the burden of proving that the plaintiff in an action to recover for personal injuries was operating an unregistered automobile or was operatirig without a license at the time of the accident complained of, is on the defendant.*' Of course, if the plaintiff seeks to charge the defendant with such a violation of law, the burden is on him to prove that fact. It is consequently unnecessary, in an action to recover for injuries due to the common law negligence of the operator of an and highways of this state without firjt registering same." Code 1907, c. 168, § 6322. California: In the case of Shimoda v. Bundy, 24 Cal. App. 675, 142 Pae. 109 (1914), it appeared that>the plaintiff was injured by the negligence of the defend- ant while he (plaintiff) was riding a iho- torcycle which was not registered as re- quired by an ordinance, which provided that "it shall be unlawful for any person t(y use or operate any motorcycle upon or in any public street or thoroughfare, unless the owner thereojf shall have com- plied in all respects with this ordinance." For violation of the ordinance offender was made subject to punishment by fine or imprisonment, or both. The fail- ure pf the plaintiff to have his motor- cycle registered was held not to affect his right to recover. Florida: The Florida statute reqiiired the registration of automobiles, and made a failure to. do so a misdemeanor. Acts 1905, c. 5437, §§ 1-S. Indiana: This statute merely required the registration of automobiles, and sub- , jected to a fine any owner neglecting or refusing to do so. Burns' Ann. St. 1908, c. 130, §§ 10469-10476. Minnesota: "No person shall operate or drive a motor vehicle on the public highways of this state unless such ve- hicle shall have been registered." Laws 1909, p. 307, c. 259, §8. > New York: The Highway Law of New York in effect provided that no motor vehicle shall be used or operated upon a puJDlic highway unless the owner shall have caused it to be registered. Consol. Laws, l. 25; Laws 1909, c. 30. Tennessee: "Before any owner of any automobile * * * shall operate or permit to be operated any automobile upon any street, road, highway, ♦ * * sUch owner shall register such automo- bile with the secretary of state." A violation of any provision of the statute was made a misdemeanor. Acts 1905, c. 173. Washington: "No automobile shall be used or operated on any public highway * * * within thif state until the owner shall have complied with sections" of the act requiring registration. Rem. & Hal. Code, §5562. Wisconsin: "No automobile shall be operated or driven along or upon any public highway of the state, unless the same shall have been registered." St. 1915, § 1636-47. 29 Lyons v. Jordan, 117 Me. 117, 102 Atl. 976 (1918); Conroy v. Mather, 217 Mass. 91, 104 N. ,E. 487, 9 N. C. C. A. 838n,,52 L. R. A. (N. S.) 801 (1914); Feeley v. Melrose, 205 Mass. 329, 91 N. E. 306, 9 N. C. C. A. 832, 27 L. R. A. (N. S.) 1156 (1910) ; Trombley v. Stev- ens-P. Co., 206 Mass. 516» 92 N. E. 764, 2 N. C. C. A. 860, 8 N. C. C. A. 1087 (1910); Dean v. Boston Elev. R. Co., 217 Mass. 495, 105 N. E. 616, 9 N. C. C. A. 838n (1914). REGISTRATION AND LICENSING 273 automobile, to allege that the machine was registered, as required by statute.'" So, in an action to recover for damage to an automobile, the fact that the plaintiff did not prove that he had a state license to oper- ate the machine, as required by statute, was no ground for non- suit." If it affirmatively appears that a party to a suit, involving the use of an automobile on the highways, was operating an unreg- istered car, the opposing party is entitled to the advantage of such proof.'* § 250. Permitting use of unregistered automobile. In Massa- chusetts it is held that if the owner of an automobile, which is riot registered as required by statute, expressly or impliedly per- mits another to use it upon the public highways, and the latter . negligently injures some one, such owner is liable therefor, rcjgard- less of whether the operator is acting for the owner or is merely pursuing his own business or pleasure. Of course, if the automo- bile, although unregistered, is taken and used by another without the owner's consent, express or implied, the latter is not liable for injuries inflicted by its operation.'* The contrary has been held in another state, and no doubt will be held in all states taking a contrary view to that of the Massa- chusetts court on the question of unregistered automobiles being outlaws on the highways.'* In Massachusetts, the owner of an automobile who permits it to be used by another on the public highways when it is not regis- tered as required by statute, is responsible for injuries caused by its negligent operation, although it is being used solely in the business of such other person.'* § 251. Dealer's number on automobile operated by private owner. The plaintiff was the general owner of an automobile, which was driven by him at the time he suffered injury on account of an alleged defect in a public street, and the machine was not registered. He testified, however, that at the time in question it was controlled by his employer.; that his employer was a dealer 30 McNeil V. Webeking, 66 Fla. 407, N. C. C. A. 938n, 14 L. R. A. (N. S.) 63 So. 728 (1913). ,816, 12S Am. St. Rep. 355. 31 Shaw V. Thielbahr, 82 N. J. L. 23, 38 Gould v. Elder, 219 Mass. 396, 107 81 Atl. 497 (1911). N. E. 59 (1914). 32Conroy v. Mather, 217 Mass. '91, 34 Brown v. Green & Flinn, 6 Boyce 104 N. E. 487, 9 N. C. C. A. 838n, 52 (29 Del.) 449, 100 Atl. 475 (1917). L. R. A. (N. S.) 801 (1914); Doherty v. 36 Gondek v. Cudahy Pkg. Co., — Ayer, 197 Mass. 241, 83 N. E. 677, 9 Mass. — , 123 N. E. 398 (1919). B. Autos. — 17 274 , LAW OF AUTOMOBILES in autqmobiles, and ttiis.car was used as a shop car^ and bore the distinguishing numbers which had been assigned to his employer; that the numbei;s were put upon the car by his employer's con- sepf.; that the car was supposed to, be used by anyone in the shop who y(?9,nted to, , use it, and , that he had come to such an agree- ment with his employer. It was held that whether the car was really under the control of, the employer and carried the distin- guishing numbers which la,wfuly had been assigned to him, and so ]iyas to, be "regarded as registered" under the statute, should have been submitted to the jury with the other issues in the case.'® ■<] Wh^re the owner , of an automobile, in, good faith, placeciiit in the garage of ^ dealer fpr sale,, giving thft dealer full possessiop and control ovpr the same, a,nd the owner thereafter borrowed the car, and while operating it J^ith the dealer's registration nijm|)er at- tached thereto, it was ; damaged by a collision with; another machine, it was held, that he was not precluded from recovery by a statutory provision that, no recovery shall be had by the owner of a motor vehicle which has not been, registered for any injury to per- son or property received by reason of the operation of said motor vehicle on the public liighways; the dealer's number being lawt fully useii on any motor yeliicle owned "or controlled" by him^ i It was also declared that it would not be lawful for an owner merely to store his car in a dealer's garage for the purpose pf operating uiider the dealer's license or registration number. In this case, however, the car was law;fully in the control of the dealer.''' § 252. Automobile operated for pleasure under dealer's registration. It has been held that an automobile registered under a statutory provision "to purchase, demonstrate, sell, and exchange automobiles," being used for pleasure alone, was the same as if not registered, at, all.'* § 253. Effect on registration of death of owner. In Massa- chusetts the statute expressly provides that "application for the registration of motor vehicles- may be made by the owner thereof." The certificate issued thereon by the highway commission "shall contain the name, place of residence and address of thfe applicant * * * and contain such further information as the commission may determine." Further, "upon the transfer of ownership of any motor vehicle its registration shall expire;" but the owner may obtain a 36 Holland v. Boston, 213 Mass. 560, 38 Cobb v. Cumberland Co. P. & L. 100 N. E. 1009 (1913). Co., 117 Me. 4SS, 104 Atl. 844 (1918). 37 ^haw V. Connecticut Co., 86 Com. 409, 85 Atl. 536 (1912). REGISTRATION AND LICENSING 275 rebate, or may register in his name another ftiotor vehicle' for the! remainder of the year. It was held that, where the owner of an automobile died after application for registration was made, the widow of deceased had no right to operate the car under sUch registration, and that in doing so she was a trespasser on the highways, and the automobile a nuisancie.*' § 254. Failure to remove registration tags when, car is sold. Under a statute providing that upon the sale of any motor vehicle the delivery thereof shall not be deemed to have been made until the vendor shall have removed his number plates therefrom, one who secured a license and number plate to operate his car for' hire during the year 1916, and who failed to remove the plates when he sold the car, is conclusively preStimtfd, as far as the rights of the p'ublic are concerned, to be the owner and operator of the car at least for such year, and whoever was operating' the car with such number is presumed to be his agent.*" § 255. "Owner" or "custodian" to register automobile. A statute requiring the "owner or custodian" of any automobile to registef the same within a certain tiumber of days after "acquir- ing" it, has reference to persons having an independent arid perma- nent interest in an automobile, and does not include a servant, or a person having only temporary control thereof.*^ The word owner, as used in a statute prohibiting -recovery, for damages to an automobile unless it is registered by\ the owner, includes a person having a special interest in the car. '^ "We know that the word 'owner' is often used to designate the person hav- ing an interest in property under a special title, and it is our opinion that it was so used in the provisions of the statute relat- ing to motor vehicles. The word has different meanings, and must have its proper significance in each case in view of the subject, the object, and the provisions of the statute in which it is found. A bailor may have a general and a bailee a special ownership in the subject of the bailment." *^ The word "owner" includes one in 39 Fairbanks v; Kemp, 226 Mass. 75, This court has held that a person who 115 N. E. 240 (1917). hired a carriage for a limited time had a *0 Peters v. Casualty Co., 101 Wash. special property in it in the meaning of 208, 172 Pac. 220 (1918). a statute which provided' ' a remedy *1 Armstrong v. Sellers, 182 Ala. 582, against one who 'fshall drive against any 62 So. 28, 9 N. C. C. A. 836 (1913). vehicle and injure its owner." Camp v. 42 Brown v. New Haven Taxicab Co., ' Rogers, 44 Conn. 291, 298. 92 Conn. 252, 102 Atl. 573 (1917). 276 LAW OF AUTOMOBILES possession of a qar under an agreement to purchase the same by installment payments, the title to remain in the seller until the car is paid for in full. A statue providing for a distinguishing number or mark to be furnished to manufacturers and dealers^ instead of registering each vehicle owned or controlled by them, refers to vehicles which remain in their possession and control as manufacturers or dealers, and not to vehicles which have been sold either conditionally or unconditionally, followed by delivery of pos- session and unrestricted powers of control.*' §256. "Operating" automobile under false registration. Under the Connecticut Motor Vehicles Act, which provides that, "No recovery shall be had in the courts of this state, by the owner or operator, or, any passenger of a motor vehicle which has not been legally registered in accordance with sections 2 or 3 of this act, for any injury to person or property received by reason of the operation of said motor vehicle in or upon the public highways of this state," it is held that th^ owner of an automobile which he has falsely registered in a name not his own cannot recover for injuries caused by a motor truck being negligently driven against his auto- mobile while it was standing in the highway. "The word 'operation' cannot be limited, as the plaintiff claims it should be, to a state of motion controlled by the mechanism of the car. It is self-evident that an injury may be received after the operator has brought his car to a stop, and may yet be received by reason of its operation. The word 'operation,' therefore, must **Hurnanen v. Nicksa, 228 Mass. 346, stallments, he cannot use it upon the 117 N. E. 32S (1917); Downey v. Bay public ways until payment of the last State St. R. Co., 22S Mass. 281, 114 installment, for until then the legal title N. E. 207 (1916). ' remains in the vendor as the owner who "The words 'person in control thereof being under no obligation to do so may found in the earlier enactment obviously refuse to permit registration in his name, embrace a class of persons who may have But this result must follow if the con- no general or special property in the struction contended for is correct." motor vehicle' they are operating, while Downey v. Bay State St. R. Co., 225 the word 'owner' includes not only per- Mass. 281, 114 N. E. 207 (1916). sons in whom the legal title is vested, but The word "owner" "includes, not only , bailees, mortgagees in possession, and persons in whom the legal title is vested, .vendees under conditional contracts of but bailees, mortgagees in possession and sale who acquire a special property vendees under conditional contracts of which confers ownership as between sale who have acquired a special property themselves and the general public for the which confers ownership as between them purposes of registration. The Legislature and the general public for the purposes moreover could not have intended that of registration." Hurnanen v. Nicksa, where the purchaser buys a car the pur- • 228 Mass. 346, 117 N. E. 325 (1917). chase price for which is payable by in- REGISTRATION AND LICENSING 277 include such stops as motor vehicles ordinarily make in the course of their operation. It is also clear that the words 'received by reason of the operation' do not refer merely to injuries proximately caused by such operation. That cannot be so, because the whole purpose of section 19 is to prevent a recovery in cases where the owner, operator, or passenger of the illegally registered car would otherwise be entitled to one; and no such recovery could in any event be had if the operation of the illeg9,lly registered car was in a legal sense the proximate cause of the injury. In order to give any reasonable effect to section 19, it must be understood as requiring the owner, operator, or passenger of a motor vehicle, not registered in accordance with sections 2 or 3 of the act, to assume all the ordi- nary perils of operating it on the highway. In this case the plain- tiff's car was as much in the ordinary course of operation on the highway at the time of the injury as if it had been used for shop- ping, calling, or delivering merchandise. One so using the high- way necessarily incurs the risk of injury from the negligence of fellow travelers, as well while his vehicle is at rest as while it is in motion, and the injury complained of in this case was receive^ 'by reason of the operation of the plaintiff's illegally registered car on^ tlifijiighway, within the plain intent of the act." ** , L § 257. Registered in name of fictitious partnership or |irm mime. Under a statute providing that an application for the reg- istration of a motor vehicle may be made by the owner, and requiring the application to contain a statement of the name, place of residence, and address of the applicant, an application by an owner giving a fictitious partnership name, under which he had been conducting business for many years and was well 'known, was held to be a sufficient compliance. It was further held to be immaterial that such owner had not complied with a statute Re- quiring that individuals engaged in business under names otiier than their own shall file with the clerk of the city or town in which the place of business is situated, a certificate stating the full name and residence of each person by whom it is conducted. The court declared, however, that registration under a fictitious name adopted for the purpose of concealing identity would not be a compliance with the statute, "because the record would not show, nor the certificate contain, a descriptive statement by which the true owner could be ascertained." *' « Stroud V. Board of Water Com'rs, 184, 103 N. E. 298, 9 N. C. C. A. 831 90 Conn.. 412, 97 Atl. 336 (1916). (1913). *5 Crompton v. Williams, 216 Mass, 278 LAW OF AUTOMOBlt-feS ' So, 'where a corporation condiiieted its automobilie' business in a fictitious trade name, it wg.s sufficient for it to obtain a dealer's certificate of registration in the trade name, although the corjjora- tion was the "owner or person in control" of the machines within the statute.*® J §258. Registration in name of one of two joint owners. ^n Massachusetts it is held that registration of an automobile in the name of one of two joint owners thereof does not permit the law- ful operation of such machine on the public highways by the other joint owner!*'' § 259. Term of exemption for nonresidents. A statutory pro- vision that automobiles owned by non-residents and registered in some other stat6 may be operated upon the highways of this state for 10' days continuously, at the expiration of which time they shall be subject to registration in this state, was held to mean that "a car owned and registered in another state was not subject to registration in this state until it had been operated for 10 days continuously upon the highways of this state," An automobile registered in another state did not become subject to registration in the state in question by reason of its operation therein for several weeks in the aggregate between June and December of one year, unless during such time it was used for a period of more than ten days continuously.** Where a resident of Connecticut, during 16 days, operated his automobile on the highways! of Massachusetts, except for part of a day when he drove to Connecticut, and the daytime of another day when he drove to a place in Vermont to attend a fair, and a day and a half when the machine was in a garage in Massachusetts being repaired, he had operated his automobile on the highways of Massachusetts for a period exceeding IS days, in violation of a statute permitting a non-resident owner of an automobile who has registered the same in compliance with the law of his state, to operate the same on the highways of Massachusetts not exceeding IS days.*' §260. Operating automobile without license. A license to operate an automobile on the public highways, which is generally *6 Skene v. Graham, 116 Me. 202, 100 «» Dudley v. Northhampton St. R. Co., Atl. 938 (1917). 202 Mass. 443, 89 N. Ei 25, 1 N. C. C. A. «Shufelt V. McCartin, — Mass. — , 90n (1909). 126 N. E. 362 (1920). 48 Burns v. Bay State St. ^S!. Co., 77 N. H. 112, 88 Atl. 710 (1913). REGISTRATION i AND LICENSING 279 required as a prerequisite to its lawful operation, has to do with the personal fitness of the licensee as an operator,, and the operation of an automobile without a license, when one is, required by law, is evidence of negligent operation, but does not affect the rights of such person, nor of those riding with him, as travelers, nor bar their right of action or defense in personal injury. actions; such persons not being rendered thereby trespassers, upon the highways.^" ^^Connecticut: Kiely v. Ragali; — Conn. — , 106 AU. 502 (1919). Delaware: Brown v. Green & Flinn, 6 Boyce (29 Del.) 449, 100 Atl. 475 (1917). Illinois: Moyer v. Shaw Livery Co., 205 III. App. 273 (1917). Kansas: Anderson v. Sterrit, 95 Kan. 483, 148 Pac. 635, 9 N. C. C. A. 836 (1915). Kentucky: Moore v. Hart, 171 Ky. 725, 1,88 S. W. 861, (1916), quoting from this work. Massachusetts: Pigeon v. Massa^chu- setts N. E. St. R. Co., 230 Mass. 392, 119 N. E. ,762 (1918); Conroy v. Mather, 217 Mass,, 91, 104 N. E. 487, 9 N. C. C. a'. ,837, 52. L. R. A. (N. S.) , 801 (1914);' Holden v. McGillicuddy, 215, Mass. 563, 102 N. E. 923, 4 N. C. C. A'.' 25 (1913) ; Holland v. "Boston, 213 Mass. 560, 100 N. E. 1009 (1913X; Bourne v. Whitman, 2p9 Mass., ,155, 95 N.;E, 4Q4, 2 N. C. C. A. 318, 6 N. C. C. A. 3l) (1911). Minnesota: Airmstead v. LoUnslJerry, 129 Minn. 34, 151 N. W. 542, 9 N. C. C. A. 828, L. R. A. 191SD 628 (1915). Missouri: Stack v. General Baking Co., — Mo. — , 223 S. W. 89 (1920) ; Dixon V. Boeving, — Mo. App. — , 208 S, W. 279 (1919). New, Jersey: Shaw v. Thielbahr, 82 N. J. L. 23, 81 Atl. 497 (1911). Pennsylvania: Yeager v. Winton Mo- tor Carriage Co., 53 Pa. Super. Ct. 202 (1913). Rhode Islakdj Marquis v. Messier, 39 R. I. 563, 99 Atl. 527 (1917). Texas: American Auto. Ins. Co. v. Stowe, — Tex. Civ. App. — , 218 S. W. 534 (1920). Virginia: Southern R. Co. v.Vaughan's Adm'r,' US Va. 692, 88 S. E. 305, L. R. A. 1916E 1222 (1916). West Virginia: Hersman v. Roane County, ,,— W. Va. ,— , 102 • S. E. ,810 (1920), citing t.his work. : Allegations in a complaint for damages for personal injuries due to negligence, to the effect that the person operating an automobile for another "was not author- , ized by law to operaltethe same," vvill riot be stricl^ep put on motion at , Special Term as immaterial, as the operation of an automobile for another by an unli- censed chauffeur, where a licensed chauf- feur is' required, by statute, is prima fkcie evidence of negligence, ^nd (S;to be con- sidered by the jury in .qonnectioni -jvith other facts in the case in determining the question of liability. Austin' v. Rochester F. B. Co., 181 N. Y. Supp.'275 (1926). "The statute requiring chauffeurs to be, licensed was designed to protect the pub- lic against incompeteiit operators of c^rs, and the employment, of an unlicensed chauffeur has therefore a bearing upon the exercise of the care which the de- fendant owed toward the plaintiff ,in,the operation of its car. If a railroad com- pany permitted a man not having , an engineer's license to , operate a limited passenger train, whiqh came jnto colli- sion with another train, it would be, some evidence of the lack of proper care on the part of the company, to go to, the jury upon the question of its liability. If a physician conducting a private hos- pital permitted a person not licensed as a surgeon to perform an operation, re- quiring professional skill, upon a patientj from which malpractice resulted, it would be some evidence , of absence of due care on his, part, to go to the,; jury 280 LAW OF AUTOMOBILES It will be noticed that this rul6 prevails in Massachusetts, as well as in most of the other states where it' has been passed upon by the courts. The distinction made by the Massachusetts court between failure to comply with the law in respect of securing a . license authorizing the individual to operate an automobile, and failure to register the car as required by law, in its effect upon the violator, is that in the former the illegal element in the act of operating without a license is only the failure to have a license while operating it, while in the latter the essence of the offense coilsists in having such a machine in operation on a public highway, that the illegality is inseparable from the movement of the automo- bile at any time, for a single foot, and that in such movement the automobile is an outlaw.^^ However, the Massachusetts court has held, in a case where it was sought to show that the plaintiff, operator of a motor-cycle, had never been licensed to operate the same, that such testimony was irrelevant; that if the operator's conduct at the time of the accident did not contribute to the injures of which he complained, his previous inexperience was immaterial.*^ It is also held that such fact is not evidence of negligence on the part of the unlicensed operator, in case he injures some one.*' The fact that ap automobile was operated by a boy 14 years old who had not obtained a special license to operate the same, as required by statute of persons under 1 8 years' of age, will not prevent the owner of the car from recovering damages for injuries to it sustained by the negligent operation of another automobile on the public highway.** Failure to take out a license as required by statute does not affect upon the question of his liability. The the operation of the car. The violation evidence would not be conclusive, and of the ordinance, therefore, is prima facie might be wholly overcome by proof of evidence of negligence, to be submitted competency; but nevertheless, standing to the jury in connection with the other alone, it would call for an explanation facts in the case to determine the ulti- and constitute prima facie negligence. So mate liability." Austini v. Rochester F. in this case the failure to employ a li- B. Co., 181 N. Y. Supp. 27S (1920). censed chauffeur is some evidence of neg- 61 Bourne v. Whitman, 209 Mass. ISS, ligence, which may be overcome by sub- 9S N. E. 404, 2 N. C. C. A. 318, 6 N. C. sequent evidence showing, that, notwith- C. A. 317 (1911). standing the fact that the chauffeur was 6*Polmatier v. Newbury, 231 Mass. not licensed, he was thoroughly compe- 307, 120 N. E. SSO (1918)^ tent, and was not responsible for the col- 58 Uervin v. Frenier, — Vt. — , 100 lision. It is not an immaterial question, Atl. 760 (1917). like the failure to have a car license, S4 Mcllhenny v. Baker, 63 Pa. Super, which can have no possible bearing upon Ct. 385 (1916). REGISTRATION AND LICENSING 281 the right of the owner of an automobile to recover for damage to his machine incurred in a collision with a street car.** So, the operation of an automobile upon the public highways without a license so to do, does not affect the right of recovery of a passenger who was injured while riding in such automobile by the negligence of another.*® In Delaware the operation of an automobile without a license, in violation of statute, hafe been held to be negligence per se, but, in case of personal injury resulting to another by its operation, to be insufficient to charge the operator with liability for the injury if there was no causal relation between the violation of the law in this respect and the injury.*'' It seems that in Connecticut the owner of an automobile, dam- aged in a collision while being driven by a person whom the statute forbids to operate automobiles, cannot recover for such damages.** The fact that the chauffeur's badge was not in sight, as required by statute, at the time the automobile he was driving was damaged by another, will not affect the right to recover for such damage.** § 261. License to operate does not authorize carrying pas- sengers for hire— Effect of violation of law. A license to an owner to operate his automobile does not include authority to operate it for hire.*" "It is argued that the plaintiff was a trespasser on the street, in the same position as a trespasser on the private grounds of a rail- way company, and could not recover for mere negligent injury. The plaintiff, however, was not a trespasser on the street; he had a right to drive hip* automobile there just the same as any other person had ; the law forbade him to operate a motor vehicle on the street 'as a chauffeur.' By 'a chauffeur' is meant one who operates an automobile for hire. The law permitted him to drive that car upon the street when he got a license for the car. He was not per- mitted to carry passengers in it until he got his license as a chauf- feur. If he violated the law, he was guilty of a misdemeanor and punishable by fine. His act which authorizes such fine is not oper- 66 Crossen v. Chicago & J. El. R. Co., 58 Hughes v. New Haven Taxicab Co., 158 111. App. 42 ^1910). 87 Conn. 416, 87 Atl. 421 (1913). 66 Porter v. Jacksonville El. Co., 64 69 Latham v. Cleveland, C. C. & St. Fla. 409, 59 So. 400, 4 N. C. C. A. 379 L. R. Co., 164 111. App. 559 (1911). (1912). 60 Griffin v. Hustis, — Mass. — , 125 67 Lindsay v. Cecchi, 3 Boyce (Del.) N. E. 387 (1919). 133, 80 Atl. 523 (1911), rev'g 1 Boyce 185 (1910)^. 282 ' • LAW OF AUTOMOBILES ating his automobile on the street, but carrying passengers for hire. If he had never carried a passenger for hire he would never have violated the law. Butj if it be conceded that he was violating the law by merely driving upon the street without his chauffeiir's license, there was no causal connection between the absence of his registration certificate and the collision ; he would have collided just as he did if he had had that paper in his pocket. On principle he could not' be denied recovery on account of a violation of the law which had not even a remote connection with the injury he received. The principle announced by this court, as stated above, applies' to this case, ilt has been applied to such cases in nlost of the other states."" §262. Failure of applicaxit for license to disclose infirmity. The failure of^ an applicant, for a license to disclose the fact of a serious physicial infirmity does not affect the validity of the license, nor render the operator a trespasser on th^ highways.®^ § 263. License provision as to nonresidents not applicable to foreign corporation, when. .A, provision , of an autonjobile license statute exehipting nonresident owners from the require- ments of the act, has no application to a foreign corporation hav- ing a place of business within the state.^' § 264. Employing unlicensed chauffeur. One who employs for hire an unlicensed chauffeur or operator, in violation of a statute,^ is. in the same situation as the cha,uffeur. While he is not a tres- passer on the highways, his act in violation of the statutory pro- vision is evidence of negligence on his part.®* The contrary; however, has been held in Kentucky, where evi- dence of such violation of ' statute is declared to- be inadmissible.®* § 265. Unlicensed person accompanied by licensed operator, Un(ler a statute expressly permitting the operation of. automobiles by an unlicensed person, sixteen or more years of age, only when 61 Stack V. General Baking Co., — Mo. unless specially licensed so to do" but — , 223 S. W. 89 (1920). also that "no person shall employ for 62 0'Hare v. Gloag, 221 Mass. 24, 108 hire as a chauffeur or operator of a N. E. 566 (1915). '■ motor vehicle any person not specially 68 Gondek v. Cudahy Pfcg. Co., — licensed as aforesaid." Mass. — , 123 N. E. 398 (1919). 66 Griffin v. Hustis, — Mass. — , 125 64 The' Massachusetts statute, St. 1909, N.'E. 387 (191,9) ; Conroy v. Mather, 217 c. 534, §§ 10, 12, as amd. by St. 1910, Mass. 91, 104 N. E. 487, 9 N. C. C. A. c. 60S, and St. 1911, c. 37, not only pro- 838n, 52 L. R. A. (N. S.) 801 (1914)'. vides that "no person shall operate a 66 Moore v. Hart, 171 Ky. 725, 188 motor vehicle for hire or as a chauffeur S. W. 861 (1916). REGISTRATION ANO LICENSING ^ 283 such person is accompanied by a licensed, operator, it is held that a, cprnpliance with such requirement requires that the licensed oper- ator shall hein such close proximity to the unlicensed operator as to be able to furnish, with reasonable promptness, such advice and assistance as might be necessary for the safe operation of the auto- mohiile.^''' Whether or not this, requirement was satisfied by the presence of a licensed chauffeur on the rear seat of an automobile being driven by an unlicensed person, was a question of if act, for the jury upon all the attendant circumstances.®* In a case where the unlicensed operator is a person of skill and great experience, whose license had expired, only the. day before and who was expecting another license within a day or two, i the supervision and reasonable proximity required by the statute would not be as clo^C; as in ordinary cases. But the statute Contemplates a knowledge on the part of both persons of, the existence of a relation like that of operator without a license, and licensed chauf- feur or operator accompanying him, in a position to advise or assist with reasonable promptness, if necessary.®' . , This provision was evidently intended to provide an opportunity for persons to learn to use ^n automobile by running it under the supervision of a licensed person, and thus acquire skill by practice.'" § 266'. Helper on truck cranking engine, not an operator. Where one employed as helper on a truck, which was being driven by a duly licensed driver, and who was cranking the engine when the truck was stopped on a street railway track, where he was struck by an electric car, the fact that the truck was being operated contrary to law, in that a temporary number pflate was used without authority, did not affect the right to recover for his death. "It could not have been ruled as matter of law that the momentary act of the plaintiff's intestate in attempting to crank the truck at a time of imminent peril in order to get it off the track, made him an 'operator' under the statute; nor would such act warrant the jury in so finding." ''^ §267. Automobile OAvned by corporation or partnership. 67 Hughes V. New Haven Taxicab Co., 95 N. E. 404, 2 N. C. C. A. 318, 6 N. C. 87 Conn. 416, 87 Atl. 721 (1913) ; Bourne C. A. 317 (1911). V. Whitman, 209 Mass. 1S5, 9S N. E. 404, 70 Bourne v Whitman, 209 Mass. ISS, 2 N. C. C. A. 318, 6 N. C. C. A. 317 95 N. E, 404, 2 N. C. C. A. 318, 6 N. C. (1911). ' C. A. 317 (1911). 68 Hughes'V. New Haven Taxicab Co., 71 Labrecque v. Donham, — Mass. — , 87 Conn. 416, 87 Atl. 721 (1913). 127 N. E. 537 (1920). 69 Bourne v. Whitman, 209 Mass. 155, 284 LAW OF AUTOMOBILES Statutes provide for the registering of automobiles and motor- cycles by the owner or person in control, and forbid any person ' from operating them until he has obtained a license, which he must keep with him when operating the machine. A corporation or partnership owning a vehicle within the statute is required to register it in the corporate or firm name, but the liceiise should not be issued to the corporation or firm as such, but to the opera- tor, it being personal to him.'"* The operation of an automobile by one of two partners, owners of the machine, both of whom were licensed operators, but the machine at the time bearing the license number of the partner who was not present, was not a violation of a statute providing that the license number be posted on both the back and front of the automobile, and that the license shall contain the name of the licensee and the date and number of the license "under which the said vehicle is licensed." '" '* Emerson Troy Granite Co. v. Pear- ''SYeager v. Winton Motor Carriage son, 74 N. H. 22, 64 Atl. S82. Co., S3 Pa. Super. Ct. 202 (1913). CHAPTER X Regulatory Terms Defined §268. "Paved street." § 269. "The road." § 270. "Curb." § 271. "Meeting" on highway. §272. "As near the right-hand curb as § 273. "As close as practicable to the right curb." § 274. "Slowly moving vehicles." § 27S. "Traffic." § 276. "Intersecting highways." § 277. "Vigilant watch." §278. "Ride or drive." §279. "Absolute control at all times." § 280. Meaning of "steam" as applied to automobiles by statute. § 281. "Average rate of speed." §282 .-"Business portion." § 283. "Approaching." § 284. "Approaching a high embank- ment." § 28S. "Uniform rules." §286. "Traveler." §268. "Paved street." The term "paved street," as used in an ordinance limiting the speed of automobiles on any paved street, includes a planked street. "Paving" is a generic term, and may include, and when not otherwise limited includes, paving of any kind, whether of brick, stone, asphalt, wood, or planking. When used in its generic sense it is held to "include the placing of any substance on a street so as to form an artificial roadway or wear- ing surface, which changes the natural condition or surface of the street." ^ §269. "The road." Under a statute providing that when per- sons traveling in vehicles meet on a public highway each shall bear to the right so as to leave the other half of the road free, etc., the words "the road" mean the improved portion Of the road, where it is disclosed that it is of ample width to permit the pass- 1 Heath v. Seattle Taxicab Co., 73 Wash. 177, 131 Pac. 843 (1913) ; Ross v. Gates, 183 Mo. 338. "Nor is 'pavement' limited' to uni- formly arranged masses of solid material, as blocks of wood, brick, or stone, but it may be as well formed pf pebbles, or gravel, or other hard substance, which will make a compact even, hard way or floor. It includes macadamizing." S MacQuillin, Mun. Corp., p. 43S3n. Paving includes flagging. Re PhUlips, 60 N. Y. 16. 285 286 LAW OF AUTOMOBILES ing of automobiles thereon with safety. Hence, where it appeared that at the place in question the road was- iniproved to a width of 14 feet, with a dirt road at either side, an instruction that "the road" means the road that is traveled by the public from gutter to gutter, , was erroneous.^ ' /'■'>:'' . ' § 270. ' ' Curb. ',' Under ah ordinance requiring automobile driv- ers upon turning corners to leave a certain space between the curb and the automobile, it was held that a fence or ba,rrica,de , in the street, in front of a building in the course of construction, which required pedestrians to leave the sidewalk and go into the, street outside the fence or barricade, was properly taken as the "curb." * §271. "Meeting" on highway. A statute provided that the driver of an automobile upon meeting a team driven by a woman shall, upon the team exhibiting signs of fright, stop the automobile, and if such signs, of fright continue shall stop the motor. The plaintiff's wife was driving a team on a country road. An automo- bile driven by one of the defendants approached from the opposite direction. There was evidence that the horses exhibited signs of .fright, and that such fright continued: The driver of the automo- bile, befpife reaching, .the team, ;and I when close to it, turned' aside into a ,t;rail or byroad and stopped the automobile, but not the , mQtor, .and, awaited thp passing of the team. It v/asheld that the autonjpbile and the , team did, not meet within the meaning of the statute.* "Meeting" each other is not merely passing in opposite d^reptions but "coming together in such manner that there would be an actyal collision, or an apparent danger of one, if they should pursue theii; course without i change of direction." * § 272. "As near the right-hand curb as possible." An ordi- nance providing that, "A vehicle, except when, passing a vehicle ahead, shajijl keep as near , the 'right-hand curb as possible," is con- strued tq mean substantially what is meant by a statute requiring the driver of a vehicle to lieep safely to the right side of the highr way; tji,e intention of the reqiiirement being tQ cause yehicle?: to keep well to the right side of the street so that other vehicles approaching from the rear will have room to pass without crossing to the left side. 2 Elms V. Flick, — Ohio —, 126 N. E. lAffeld v. Murphy, 137 Minn. 331, 66 (1919).' ' ' 163 N. W. 530 (1917). 3 Domke v. Gunning, 62 Wash. 629, B Hubbard v. Bartholomew, 163 la. 114 Pac. 436 (1911). 58, 144 N. W. 13 (1913). See post, §928. REGULATORY TERMS DEFINED 287' "If it is possible to give this ordinance a' reasonable construction, such construction must be given it. Its eVitlent ■puri)dse"was to regulate and facilitate traffic upon the streets, to make it easy and expeditious instead of difficult. A literal construction and applica- tion would make traffic much more difficult, especially in' a crowded thoroughfare, and defeat the very pxirpose which pronjpted its. pas- sage. We will not assume that the city authorities intended to impose 'unnecesary burdens' upon persons traveling the streets. The ordinance must be madt? to 'harmonize with reason,,', There- fore it, is necessary that the 'naked letter of the' law must gently give way to its obvious , intendment,' 'As :clo5,e,as possible' cer- tainly was not meant literally by the ordinance makers;, otherwise it wpuld be necessary to declare the ordinance void ; altogether. It must be construed to mean substantially , what is. meant ;bj/ tlie; statute requiring the driver of a vehicle, to keep safely to the right side of the highway." ® , , ,, The following instruction Was held to properly state' the law under an ordinance requiring vehicles to keep as near as possible to the right-hand, curb: '?The ordinance requiring the driver to keep as near the jright-hand curb as possible is to be interpreted reasonably. It does not mean that the driver must literally hug the right-hand curb, but he should, keep a§ near a,s, reasonably pos- sible considering all the circumstances then existing. If the defend- ant was not as near the right-hand curb, as reasonably possible at the time the cpUision occurred and,lthis fact caused or contributed to the collision and the collision, ijifould not have happened ,if he had been as near the right-hand curb as reasonably possible, then the defendant would, be guilty of negligence in this, case, and Wfluldi be liable to plaintiff in damages."'' , , ;. § 273. ' ' As close as ppcticable to the right curb. " ; Uij(4er an ordinance requiring slow-moving vehicles to keep as close as prac- ticable to the right curb, the distance such a vehicle must keep from the curb depends upon convenience, the .nurnber , of vehicles, in the street, and the condition of the street. Whether or not one pushing a cg,rt was negligent in moving to the space betweep rails,, on a foggy night, after, looking and seeing rio approaching car, in order to avoid jolting of his load, was a question of fact.' 8 stack. V. General Baking Co., — Mo. 8]viauchle v. Panama-Pacific Int. Ex. — , 223 S. W. 89 (1920). , Co., — Cal. App. — , 174 Pac. 400' 'Bullis V. BaU, 98 V^ash. 342, 167 (1«8). ■ Pac. 942 (1917). ' 288 LAW OF AUTOMOBILES §274. "Slowly moving vehicles." A truck moving at 18 niiles an hour in a portion of a city where the maximum rate of spfeed permitted was 20 miles an hour, was not moving "slowly," within the meaning oi an ordinance requiring vehicles moving slowly in the street to keep as close as possible to the right curb.' §275. "Traffic." The word "traffic" as used in an ordinance relating to the use of streets by vehicles, and entitled "An ordi- nance governing and regulating traffic on the streets," suggests the general movement and intercommunication of the people carried oh upon the streets, including travel, the driving of vehicles, the -^hauling of movables, the transportation of passengers, and allthe multifarious activities which may properly avail themselves of the use of a public highway. The word has not relation alone to buy- ing and selling, and the use of the streets as market places and other matters of a kindred nature.^" As used in a statute regulating motor vehicles and permitting njunicipal corporations to govern "traffic," it relates to the business of transportation, rather than to the interchange of commodities.^^ §276. "Intersecting highways." The term "intersecting highways," as it is used in a statute which provides that the oper- ator of a motor vehicle "upon approaching any intersecting high- way or a curve, or a corner in a highway where the operator's view is obstructed, . . . shall slow down and give a timely signal with his bell, horn, or other device for signalling," and shall have the motor vehicle under control and operate it at such speed, ~ not to exceed 7 miles an hour, having regard to the traffic then on such highwa;y and the safety of the public, includes all space made by the junction of the streets, and space where one street comes , into another, although they do not cross. In so holding the Supreme Court of North Carolina in part said: "Webster defines the word 'intersect' as follows: 'To cut into or between,' and, secondly, 'to cut or cross mutually.' The ordi- nary meafting may be 'to cross,' but its true sense in the particular statute or writing must be ascertained by a full reference to the context in which the word appears. It would violate the ele- mentary rule of construction not to construe it in that way, for we are told that the words in a statute are to be construed with 9 House V. Fry, 30 Cal. App. 1S7, 1S7 H Allen v. Bellingham, 9S Wash. 12, Pac. 500 (1916). 163 Pac. 18 ^1917). lOWithey v. Fowler Co., 164 la. 377, 145 N. W. 923 (1914). REGULATORY TERMS DEFINED 289 reference to its subject matter and the objects sought to be attained, as well as the legislative purpose in enacting it;, and , its language should receive that construction which will render it harmonious with that purpose, rather than that which will defeat it. When uncertain, its general intent, as gathered from the statute, furnishes a key by whiclj its ambiguities may be solved, arid thus its words given that meaning which wiH harhionize with that intent. Cbndi- tioris with reference to the subject matter of the act, which it is apparent from its context it was necessary to provide for, may als9 be iGon^idered in ascertaining .yvhat is meant by that which is apparently ambiguous. . . . We are clearly of iJie opinion thgit the Legislature intended to use the word in the sense of 'joining' or 'touching,' or coming in Contact with, or 'entering into,' and did not intend that the word 'intersect' should be So restrict'ed in its meaning as hot to protect pedestrians and other' persons' using k public street, at a point or space where another street comes into it, although it does not cross it. We should, therefore, give the word its broader meaning, which will include all space made by the junction of streets, where' accidents are just a,s likely to occur as where the two streets cross each other." "^^ A street which extends to but not beyond another street inter- sects the sanie, and is an intersecting highway, ^' and conies within the riieaning of a statute regulating the operation of automobiles when approaching the place where streets cross or intersect." "Thei-e would be just as much reason for holding that one of the streets ended at the farther margin of the other street as there would be in saying that it ended when it touched the first miargin of the street. The highway was in a condition lo be used by pedes- trians and others entirely across the other highway upon which the automobile was beilig: driven. The latter highway extended across the margin, of the former highway;: and the case is plainly within the spirit and reason of the law." ^* A well defined path used by pedestrians and crossing a public street and village common does not form an "intersection of high- ly Manly V. Abernathy, 167 N.C. "Hayes v. State, 11 Ga. App., 371, 220, 83 S. E. 343 (1914). ^ 75, S. ,E. 523 (1912). , ,, .,i IS I,^|Hfrence y. Goodwill, — Cal. App, Intersecting way need not cross., .Com, — , lj86 Pac. 781 (1919)., , V. Cassidy, 2p9 Mass'. 24, ;9S N. E.^, 214, i^Muth^r v. CapRS, — Cal. App.—, (1911). 177 Pac. 882 (1919). , , , , ,, , .. B. Autos. — 19 290 LAW OF AUTOMOBILES ways," within the meaning of a statute requiring motorists to sound warning signals upon approaching' such intersections.^® §277. "Vigilant watch." A requirement that autoists shall keep a "vigilant watch" for all aiiirna;l-drawn vehicles, includes not only the task, of looking ahead for animal-drawn vehicles, but while approaching them to keep a sharp lookout for exhibitions by sudl animals, of fright or uneasiness, which, if disregarded, might en- danger the lives or safety of human beings.^'' "A vigilant watch means, in the common acceptation of the term, an exceedingly careful watch." ^* §278. "Ride (Or drive." The words "ride or drive," as used in a statute providing a penalty for "riding or driving" faster than a common pace in the compact part of any town, are not limited in their application to persons riding or driving animals. Any- thing ridden or driven comes within the purview of the act. The words apply to the operation of automobiles, and it is not material that automobiles were unknown to the legislators at the time the; act was passed.^' . A similar d^ci^ion was rendered by an English court under a statute prohibiting the "furious" driving or riding of any horse, carriage, etc. A bicycle was held to be a carriage, and the person on the bicycle was said to be driving it.^" The Connecticiat statute provides, that the word "driver" shall be ponstrued to include any person riding or propelling a bicycle or tricycle or directing a motor carriage.*^ On the other hand, the word has been held to refer to any occupant of a vehicle.** § 279. "Absolute control at all times." "Absolute control at all times," as used in a statute regulating the use of automobiles on the public highways, means such control as makes the operation of the car safe, in view of, and as determined by, its apparent sit- 16 Aiken v. Metcalf, 90 Vt. 196, 102 The word "drive" may be applied to a Atl. 330 (1917). road or driveway. People v. Green, '2 IT Roberts v. Trunk, 179 Mo. App. How. Pr. (N. Y.) 440, 445. 358, 166 S. W. 841 (1914). 81 Conn. Gen. St., 1902, §2038. TThe 18 Theobald v. St. Louis Transit Co., person in control of the motive poyver 191 Mo. 395, 439, 90 S. W. 354, 366. of an automobile is said to be "driving" "State V. Thurston, 28 R. I. 265, 66 it. Com. v. Crowninshield, 187 Mass. Atl. 580. 221, 226, 72 N. E. 963, 68 L. R. A. 245. 20 Taylor v. Goodwin, 4 Q. B,. Div. M State v. Goodwin, 169 Ind. 265, 82 228. N. E. 459. See also post. REGULATORY TERMS DEFINfeD 291 uation and surroundings. "A car is in absolute control, while run- ning at a reasonably high, rate of speed on a smooth, straight, unobstructed road. To be under absolute control, it need not be susceptible of instant stoppage." ** §280. Meaning of "steam" as applied to automobiles by statute. Some statutes require operators of automobiles on tlie highways, at the indication of a horse becoming alarmed, to go "as far as practicable to the side of the road and remain stationary Until the horse or horses have passed a safe distance, in the mean- time making as little noise as possible with the steam." By the use of the words "with the steam" it was not intended to limit that provision of the act to what are ordinarily termed steam automo- biles, but to refer to all automobiles used on the highway.** §281. "Average rate of speed." A statute providing that no' person shall drive an automobile at a greater average rate of speed thaji 20 miles an hour, does not prohibit the driving of an automo- bile at a greater rate of speed than 20 miles an hour.*^ §282. "Business portion." The '^business portion" of a city, within the meaning of a statute fixing the maximum rate of speed for autohiobiles, applies not only to the central business area thereof, but to all business districts, where there are more than one. The difficulty of ascertaining whether a portion of a city is a busi- ness district, does not render the statute unreasonable, or violative of the "due process" clause of the constitution.** §283. "Approaching." Where vehicles are referred to as approaching each other it does not necessarily mean that they are moving from opposite directions. Thus, where a statute required the driver \of an automobile approaching any vehicle draym, by horses to exercise reasonable diligence to prevent the frightening of such horses, it was held that an automobile coming up behind a vehicle drawn by horses was "approaching" it within the meaning of the law.*'' "The words 'approach' and 'approaching' mean to draw near; to come near to in time or place or character. As used in the Motor 28Go£f V. Clarksburg Dairy Co., — 3SS, 125 N. W. 198 (1010). W. Va. — , 103 S. E. S8 (1920). 26People v. Dow, 155 Mich. 115, 118 24 Fletcher v. Dixon, 107 Md. 420, 68 N. W. 745. Atl. 875. ZTGifford v. Jennings, 190 Mass. 54, 26Lemke v. Ady, — la. — , 159 N. W. 76 N. E. 233. 1011 (1916) ; Neidy v. Littlejohn, 146 la. 292 LAW' OF AUTOMOBILES ' Vehicle Act it speaks for itself, and obviously was intended to mean that the operator of an automobile, when going towards an intersection of two highways, a view of either of which by one traveling on either is obstructed 'for a short distance to the' point of intersection, should, if he has been traveling at a greater rate of speed th3,n 10 miles per hour, reduce his, speed tp ID milgst per hour at su^ch distance f rom , the pWt of intersection . as will enable him so to regulate or control the operation of his machine as that, in case of the sudden or unexpected appearance of , another auto- mobile from the other highway on the highway on which he.:i|S traveling, he can the more readily ayoid, a. coHisipp, bet\^een the two machines." ^* , > § 284. "Approaching a high embankment." It has been held that, where the plaintiff testified that at the place where defendant's automobile passed his buggy, frightened his mule,, and caused it to junip from tlie road and to throw the occupants fron> the buggy, tliere was a fill three feet high, it, was proper to charge the jury as to that portion of a statute which declares that "upon approach- ing a high embankment," the person operating an automobile -Shall have it under control and ,operate it at a speed not greater than six miles an hotir, although there was other testimony which 'estim- ated the height of the bank at only one or two feet.*® ' ' §285: "Uniform" rples. In a statute th^, purpose of whic^, inter alia, was "to provide uniform rules regulating the running and speed" of automobiles, thie word "uniform" means having the same effect upon all persons coming within the operation of the general statute, to wit, all the territory throughout the state and in every county thereof.'" § 286. " Traveler. " One driving an autpmobik on a public highway is a "traveler,^' within the meaning of a statute making, a town iiabl^. to one traveling on a highway for injuries caus,^4, J^Y defects therein rendering it unsuitable for travel.'^ ^ . , 28 Lawrence y. Goodwill, — Cal, App. SOjon^s v. Stokes, 14S Ga. 74S, 89 —, 186 Pac. 781 '(1919). "■' ■''■'■''' S. feflOTS (1916)'." ' " ' ' ' 29 Strickland V. Whatley, 142 Ga. 802, 31 Richmond v. Bethlehem, — N. H. 83 S. E. 856 (1914). — , 104 Atl. 773 (191?' CHAPTER XI. INJURIES TO PEDESTRIANS. §287. Mutual rights and duties generally. §^88. Each must anticipate use of high- way by the other. §308. §289. Duty of operator generally. §309. §290. Samfe — At crossings. §291. Diverting automobile to front or rear of pedestrian. §310. § 292. Compelling pedestrian to yield way. §311. §293. Duty of pedestrian generally. §312. §294. Duty to look and listen for auto- §313. mobile. §314. §295. Stop, look and listen rules does not apply. §315. §296. Need not continuously look and listen. §316. §297. Duty to look to the rear. §317. §298. Care required not the same as when crossing street car or rail- §318. road tracks. §299. May assume motorist will exer- §319. cise due care. §320. §300. May use any part of highway. §321. §301. When ordinance or statute gives vehicles right of way between §322. crossings. §323. §302. Pedestrians required by statute to cross at crossings. §303. Pedestrians having right of way at crossings. § 324. §304. Duty of mere licensee. §32S. §305. Last clear chance doctrine. §306. Same — Illustrations. §326. §307. Evidence of probable conduct of pedestrian when confronted with §327. danger. SPECIFIC ACTS OR OMISSIONS Overtaking and colliding with pe- destrian. Same — Overloaded machine — dark night — slippery road — high speed. Same — Pedestrian in charge of animals. Leading horses into street from yard. ^ Automobile not seen by pedestrian. Same-^In village street. Neither seen by the other. Pedestrian emerging from in front of team. Pedestrian emerging from close in front of street car. Pedestrian emerging from behind vehicle in middle of block. Emerging from behind crowd in middle of block. View of both obscured by team. Automobile obscured by wagon. Automobile obscured by street car. Automobile turning suddenly around street car. Driving past standing street car — Pedestrian crossing in front of car. Automobile, zigzagging, obscured by standing vehicle. Pedestrian emerging from behind wagon — ^Automobile on wrong side. Driving between curb and row of parked automobiles. Carrying umbrella in rain — ^Not seen by motorist. , 293 294 LAW OF AUTOMOBILES § 328. Automobile on wrong side on dark, rainy night — Pedestrian carrying umbrella. § 329. Pedestrian not seen by driver on rainy night — High speed, § 330. Pedestrian becoming confused or excited on approach of auto- mobile. §331. Falling from fright at automobile approaching without warning. §332. Autoniobile swerving — ^Pedestrian moving back and forth to avoid it. § 333. Stepping back from place of safety in front of automobile. § 334. Alighting backwards from stand- ing truck. §335. Alighting from truck in country road and crossing in front of J automobile. § 336. Stepping back from approaching automobile in front of street car. §337. Pedestrian walking in roadway be- tween crossings. § 338. Same — Falling on ice in avoiding machine. § 339. Walking in street to avoid material left by contractor — Liability of latter. § 340. Crossing diagonally carrying sack of grain. § 341. Driver carrying armful of pies, crossing street from rear of wagon. §342. Walking close in front of automo- bile. §343. Crossing congested street. § 344. Crossing , street after seeing auto- mobile. §345. Pedestrian having seen automobile — Res ipsa loquitur.? §346. Pedestrian standing in street. § 347. Pedestrian waiting in street for street car to pass. § 348. Elderly woman struck near curb while stooping over. § 349.' Pedestrian crossing roadway of bridge. § 350. Struck on driveway to public building. §351. Struck while sitting on bridge ap- proach railing. §352. Woman lying prostrate in street. § 353. Tripping over towing rope. §354. Pedestrian crossing in plain view. §355. Pedestrian on crosswalk in view. § 356. Automobile 450 feet distant when pedestrian started to cross street. §357. Excessive speed of autornobile. §358. Striking pedestrian at high speed in daylight. § 359. Failure to give warning or slacken speed. § 360. Struck by automobile turning or just after turning corner, §361. Struck on crosswalk from rear by automobile turning corner. § 362. Motorist disregarding signal of traffic officer — Duty of pedes- trian. § 363. Skidding, automobiles — Due to ex- cessive speed. . §'364. Same — Turning corner, § 365. Same — ^Turning from wet car track. § 366. Same — Turning quickly in emer- gency. § 367. Same — Due to collision of auto- mobiles. § 368. Slippery, crowded street. §369. Autqmobile running onto sidewalk — Res ipsa loquitur. §370. Fire automobile forced onto side- walk by negligence of street cai motorman. §371. Struck on sidewalk by overhang of truck. §372. Struck on sidewalk by overhanging tire. §373. Struck by locking rmg from pass- ing automobile. §374. Automobile running without lights. INJURIES TO PEDESTRIANS 295 § 375. Approaching crossing at high' speed and without lights. §376. Both pedestrian and motorist blinded by street car headlight. §■377. Struck by backing automobile. § 378. Truck backing without warning on wrong side of street. § 379. Struck on sidewalk by machine backing out of yard. § 380. Failure to look for backing auto- , mobile. § 381. Cutting corner. § 382. Automobile starting when cranked. § 383, Automobile deflected against pe- destrian by collision with stand- ing automobile. § 384. Attempting to pass in rear of pe- destrian. § 38S. Automobile changing course to- wards pedestrian. § 386. Automobile speeding to cross in front of team. § 387. Automobile moving out of drive- way between buildings. § 388. Automobile turning rapidlly into alley. § 389. Inexperienced operator. § 390. Iron bars extending from rear striking pedestrian in making turn. § 391. Street car employees struck while in street. §392. Motorist blinded by light — Injury to street car conductor adjusting trolley. §393. Spectator at race injured by auto- mobile leaving course. § 394. Same — Spectator a trespasser. § 395. Officer employed at races struck by machine which left track. § 396. Pedestrian crossing race track at fair. § 397. Motorist struck while stopped in highway putting up top. § 398. Strlick while placing tire in tire holder on rear of car. §399. Pedestrian intoxicated. § 400. Matters properly shown in defense. § 287. Mutual rights and duties generally. Pedestrians and automobile drivers have, aside from statute or ordinance changing the rule, equal rights in the use of the public highways.^ Each ^Alabama: Barbour v. Shebor, 177 Ala. 304, S8 So. 276, 1 N. C. C. A. 120 ( 1912 ) citing this work ; Terrill v. Walker, 5 Ala. App. S3S, S9 So: 77S (1912). Arkansas: Texas Motor Co. v. Buf- fington, 134 Ark. 320, 203 S. W. 1013 (1918). Cclifornia: Brown v. Brashear, 22 Cal. App. 13S, 133 ,Pac, SOS, 8 N. C. C. A. S8S (1913) ; Mayer v. Anderson — Cal. App. — , 173 Pac. l74 (1918). Delaware: Brown v. Wilmington, 4 Boyce (27 Del.) 492, 90 Atl. 44 (1914) ; Grier v. Samuel, 4 Boyce (27 Del.) 106, 86 Atl. 209 (1913). Georgia: O'Dowd v. Newnham, 13 Ga. App. 220, 80 S. E. 36 (1913). Illinois: Kerchner v. Davis, 183 111. App. 600 (1913) ; Wortman v. Trott, 202 111. App. S28 (1916). Indiana: Craft v. Stone, -^ Ind. App. — , 124 N. E. 473 (1919). Iowa: Livingstone v. Dole, 184 la. 1340, 167 N. W. 639 (1918); Wine v. Jones, 183. la. 1166, 162 N. W. 196 (1917) ; Rolfs V. MuUins, 179 la. 1223, 162 N. W. 783 (1917). ] Kentucky: Melville v. RoUwage, 171 Ky. 607, 188 S. W. 638 (1916) ; Weidner V. Otter, 171 Ky. 167, 188 S. W. 33S (1916); Bruce's Adm'r v. Callahan, 185 Ky. 1, 213 S. W. 557 (1919). Louisiana: Roder v. Legendre, 147 La. — , 84 So. 787 (1920). Massachusetts:' Huggon v. Whipple & Co., 214 Mass. 64, 100 N. E. 1087 (1913) ; Emery v. Miller, 231 Mass. 243, 120 N. E. 655 (1918). Michigan: Schock v. Cooling, 175 Mich. 313, 141 N. W. 675 (1913) ; Wilson t% LAW Of automobiles must use the highways with deference to the rights of the other, * and in the exercise of reasonable care to avoid injuring the other and for his own safety.' V. Johnson, 195 Mich. 94, 161 N. W. 924 (1917). Missouri: Bongner v. Ziegenheim, 165 Mo. App. 328, 147 S. W. 182 (1912); Dignum v. Weaver, — Mo, App. — , 204 S. W. 566 (1918). Nebraska: Smith, v. Coon, 89 Neb. 776, 132 N. W. 535 (1911). New Jersey: Fox v. Great A. & P. Tea Co., 84 N. J. L. 726, 87 Atl. 339 (1913) ; Pool V. Brown, 89 N. J. L. 314, 98 Atl. 262 (1916). New York: Polsjky v. New York Transp. Co., 96 App. Div. 613, 88 N. Y. Supp. 1024; West v. New York Transp. -Co., 47 IVJisc. 603, 94 N. Y. Supp. 426. Pennsylvania: Schoepp v. Gerety, 263 Pa. St. 538, 107 Atl. 317 (1919). Tennessee: Leach v. Asman, 130 Tenn. 510, 172 S. W. 303 (1914). Texas: Vesper v. Lavender, — Tex. Civ. App. — , 149 S. W. 377 (1912). Virginia: Coire v. Wilhelm, ; — Va. — , 98 S. E. 27 (1919). Washington: Hillebrant v. Manz, 71 Wash. 250, '128 Pac. 892, 4 N. C. C. A. 10 (1912). West Virginia: Deputy v. Kimmell, 73 W. Va. 595, 8 N. C. C. A. 369, 80 S. E. 919, 51 L. R. A. (N. S.) 989 (1914), citing this work. Pederal: Patterson Tr. Co. v. Schlu- gleit, 164 C. C. A. 283, 252 Fed. 359 (1918); Lane v. Sargent, 133 C. C. A. 231, 217 Fed.- 237. They have equal right to use of cross- walk. Miller v. New York Taxicab Co., 120 N. Y. Supp. 899 (1910). "The plaintiff and defendant had equal and reciprocal rights in the use of the highway, and each was bound to so make use of his owQ right as not to interfere with that of the other." Aiken v. Met- calf, 90 Vt. 196, 97 Atl. 669 (1916). A pedestrian has the same right in the use of the street as a vehicle has, espe- cially at or near crossings, but he has no right to obstruct traffic. Locke v. Greene, 100 Wash. 397, 171 Pac. 245 (1918). 2 California: Park v. Orbispn, — Cal. App. — , 184 Pac. 428 (1919). Georgia: O'Dowd v. Newnham, 13 Ga. App. 220, 89 S. E. 36 (1913). Kentucky: Brucg's Adm'r v, Callahan, 185 Ky. 1, 213 S. W- S57 (1919). Massachusetts: Emery v. Miller, 231 Mass. 243, 120 N. E. 655 (1918). •Federal: Patterson Tr. Co. v. Schlu- gleit, 164 C. C. A. 283, ^52 Fed: 359 (1918). . - , ^ , ^Alabama: Barbour v. Shebor, 177 Ala. 304, 58 So, 276, 1 N. C. C. A. 120 (1912), citing this work. California: Brown v. Brashear, 22 Cal. App. 135, 133 PaC' 505; 8 N. C. "C. A. 585 (1913) ; Wiehe v. Rathjen Merc. Co., 34 Cal. Appi. 302, 167 Pac, 287 (1917). Delaware: Grier v. Samuel, 4 Boyce (27 Del.) 106, 86 Atl. 209 (1913).i Indiana: Rump v. Woods, 50 Ind. App. 347, 98 N. E. 369 (1912). Iowa: Wine v. Jones, 183 la. 1166, 162 N. W. 196 (1917) ; Rolfs v. Mullins, 179 la. 1223, 162 N. W. 783 (1917). Kansas: Coughlin v. Layton, — Kan. — , 180 Pac. 805 (1919). Louisiana: Walker v. Rodriguez, 139 La. 251, 71 So. 499 (1916); Roder v. Legendre, 147 La. —,84 So. 787 (1920). Michigan: Schock v. Cooling, 175 Mich. 313, 141 N. W. 675 (1913). Rhode Island: Greenhalch v. Barber, — R. I. — , 104 Atl. 769 (1918). Texas: Vesper v. Lavender, ^ Tex. Civ. App. — , 149 S. W. 377 (1912). INJURIES TO PEDESTRIANS 297 The person having the management of the automobilfe and the traveler on foot are 'both required to use such reasonable care as the circumstances of the, case demand, and exercise of greater care on the part of each being required where there is an increase of danger.* "The right of the plaintiff as a pedestrian to free and unob- structed passage also has not been abridged by modern conditions of travel. 'There is no law or principle of law, or of reason, which confines foot-passengers to particular crossings. Such a restriction would be very inconvenient and annoying. The street should be kept in such condition that foot-passengers may be able to cross, with a reasonable degree of safety, using proper care themselves, at any and all places.' " ^ Washington: Hillebrant v. Manz, 71 Wa.sh. 2S0, 128 Pac. 892, 4 N. C. C. A. 10 (1912); McClure v. Wilson, — Wash. —,186 Pac. 302 (1919). Under this ride of law the sidewalk is a part of the street. Murray v. Lieb- mann, 231 Mass. 7, 120 N. E. 79 (1918). "With us, all have'an equal fight to the use of public ways and each must so use them as to have due regard to the rights as well as the safety of others. People driving machines propelled by power, whether animal or mechanical, must have due regard to the safety of pedestrians. In brief, the right of the pedestrian to proceed along the streets and highways of the city and of the country, is just as high as that of the person in a vehicle drawn by , horse power or propelled by steam, gasoline or electricity," Carradine v. Ford, 195 Mo. App. 684, 187 S. W. 28S (1916). * White Swan Laundry Co. v. Wehr- han, — Ala. — 79 So. 479 (1918), cit- ing this work; Brown v. Wilmington, 4 Boyce (27 Del.) 492, 90 Atl. 44 (1914) ; Livingstone v. Dole, 184 la. 1340, 167 N. W. 639 (1918) ; Baker v. Close, 204 N. Y. 92, 2 N. C. C. A. 289 (1912), aff'g 137 App. Div. S29, 121 N. Y. Supp. 1079. "It is true that in a general sense the pedestrian and the automobi^st have equal rights in streets that are set apart for the use of vehicles as well as the accompiodation of foot travelers, and each has rights that the, other is bound to respect, and it is also true that the auto- mobile must use only the carriage way of the street, while the pedestrian, except at street crossings, uses generally only the sidewalk. But the pedestrian, in the use of the street at a regular crossing, has the same right to its use as Vehicles, and is under no legal duty to give way to automobiles. The automobile can go around him as well as he can go around it, It can get out of the way of the pedestrian about as easily and quickly as he can get out of its way, although it is usually the case, and rightfully so, that the pedestrian endeavors to keep out of the way of vehicles at street crossings; but, if he does not, this does not excuse the driver of the vehicle who runs him down, unless it be that the driver was free from negligence, and the pedestrian by his own want of care was to blame for the collision." Weidner v. Otter, 171 Ky. 167, 188 S. W. 335 (1916). 6 Foster v. Curtis, 213 Mass. 79, 99 N. E. 961, Ann. Cas. 1913E 1)'^ (1912). 298 LAW OF AUTOMOBILES "The beggar on his crutches has the same right to the use of the streets of the city as has the man in his automobile." * Owing to the disparity in their respective capacities to inflict injury, however, the requirements imposed by law upon the pedestrian, in the exercise of reasonable care, are not the same as those imposed upon the automobile driver. In the operation of an automobile in the streets of a city, reasonable care requires that the driver shall keep a constant lookout in anticipation of pedestrians; while a pedestrian is not bound to be constantly look- ing and listening to ascertain, if automobiles are approaching, under penalty that if he fails to do this and is injured, he must be pre- sumed, from this fact alone, to have been negligent J "The driver's comparative personal safety in case of collision with a pedestrian is not to be overlooked in measuring his duty to exercise commensurate care for the safety of others." * Where a motorist and a pedestrian are equally advantageously situated for discovering the presence of each other, and each dis- covers the other's presence at the same time, it has been held that one cannot be found negligent without also finding the other neg- ligent; each being where he had a right to be.' Where an ordinance gives pedestrians the right of way over ^Millsaps V. Brogdon, 97 Ark. 469, "The degree of care exacted of both 134 S. W. 632, 32 L. R. A. (N. S.) 1177 users of the highway is the same; the (1911). amount of care must of necessity vary T Weihe v. Rathjen Merc. Co., 34 Cal. in order that the degree may not. The App. 302, 167 Pac. 287 (1917); O'Dowd driver of a motor vehicle — a d?,ngerous V. Newnham, 13 Ga. App. 220, 80 S. E. instrumentality capable of inflicting fatal 36 (1913); Weidner v. Otter, 171 Ky.' injuries — is charged with a greater 167, 188 S. W. 335 (1916) ; Melville v. amount of care than the pedestrian, in RoUwage, 171 Ky. 607, 188 S. W. 638 order that he may be bound to the (1916). same standard of ordinary care.'' Weihe "Each was bound to exercise due care; v. Rathjen Merc. Co., 34 Cal. App. 302, but the degree of watchfulness which 167 Pac. 287 (1917). this rule imposed upon them was not the In Iowa it is held that one is not re- same. The defendant was driving a quired to keep any more constant look- machine, which on account of its speed, out than the other. Rolfs v. MuUins, weight, and quietness was capable of 179 la. 1223, 162 N. W. 783, (1917). doing great damage, and the law puts' 8 Patterson v. Wagner, 204 Mich. S93, upon one so situated a greater and more 171 N. W. 356 (1919). constant caution. He was bound to exer- SFeyrer v. Durbrow, — Wis. — , 178 cise care commensurate with the dangers N. W. 306 (1920). arising from a lack of it.'' Aiken v. Metcalf, 90 Vt. 196, 97 Atl. 669 (1916). INJURIES TO PEDESTRIANS 299 street crossings, the necessity of constant observation and avoid- ance of injury is thereby placed on the driver of an automobile when approaching a crossing. A pedestrian using a crossing has the right to assume,. in view of such ordinance, that an automobile will approach at a lawful rate of speed, and that its driver will give some warning signal of its approach, and that the driver will heed his superior right at the crossing and avoid running him down, though this may necessitate a change of course or an actual stop- ping." § 288. Each must anticipate use of highway by the other. The motorist is bound to exercise reasonable care in anticipating the presence of piedestrians upon the highways, whether city streets or rural roads, as well as to exercise reasonable care to the end that he does not injure them after he is aware of their presence.^^ The pedestrian, like the driver of an automobile, in the exercise of ordinary care for his own safety and for the safety of others, is required to anticipate the presence of persons and vehicles upon the highway; but it cannot be said. that the duty which is upon the pedestrian is as urgent as that devolving upon the driver of an automobile; for the foot-passenger's action or inaction in the premises is- far less important to the other users of the highway. "The impact of the body of a pedestrian, absorbed' in his own meditations, upon a passer-by, might be measurably uncomfortable, but it would seldom be hazardous to either life or limb, whereas the impact of an automobile in motion while the driver is asleep might cause as certain death as if the injured person had been wil- fully pursued and wantonly crushed." ^^ § 289. Duty of operator generally. The operator of an auto- mobile is required to keep a careful and prudent look out for pedes- trians in order to avoid colliding with them.^* This is true irre- 10 Johnson v. Johnson, 85 Wash. 18, 83 So. 685 (1920) ; Meenach v. Crawford, 147 Pac. 649 (1915). — Mo. — , 187 S. W. 879 (1916), citing 11 Texas Motor Co. v. Buffington, 134 this work; Pool v. Brown, 89 N. J. L. Ark. 320, 203 S. W. 1013 (1918) ; O'Dowd 314, 98 Atl. 262 (1916). V. Newnham, 13 Ga. App. 220, 80 S. E. One driving in the streets is bound 36 (1913). to look' out for pedestrians not only at 12 O'Dowd V. Newnham, 13 Ga. App. the crosswalks, but in all parts of the 220, 80 S. E. 36 (1913). ' street. Stringer v. Frost, 116 Irid. 477, ISjarzana v. Neve Drug Co., — Cal. 9 Am. St. Rep. 875; Winters v. Kansas — , 179 Pac. 203 (1919); Mequet v. Al- City Cable R. Co., 99 Mo. 509, 517, 17 giers Mfg. Co., 147 La. — , 84 So. 904 Am. St. Rep. 591; Moebus v. Herrmann, (1920); Reed v. Sievers, 146 La, 391, 108 N. Y. 349, 352, 15 N. E. 415, 2 Am. 300 LAW OF AUTOMOBILES spective of the conduct or intentions of drivers of other vehicles;^* Where pedestrians may appear at -any time in the highway the duty of the operator to watch for them is constant, and to look too late to avert an accident is to not look at all.''^ He should never lose sight of the danger to which a pedestrian may be exposed by the operation of his machine, or the injury which may be inflicted by failure on his part to operate it with due regard for the safety of others.^® .' . . He is bound to see persons in the street ahead of him when his vieW is unobstructed. fF And when he sees a pedestrian far enough St. Rep. 440; Moskovitz v. Lighte, 68 Hun (N. Y.) 102, 104; Deputy v. Kim- mell, 73 W. Va. S9S, 8 N. C. C. A. 369, 80 S. E. 919, SI L. R. A. (N. S.) 989 (1914), citing this work. "The rule which fixes the rights of drivers of ordinary vehicles in the use of street crossings cannot be relaxed in favor of automobiles. Baker v. Close, 204 N. Y. 92, 2 N. C. C. A- 289 (1912), aff'g 137 App. Div. 529, 121 N. Y. Supp. 1079. "The care that the operator of an automobile must exercise is not confined to street crossings, but exists at all places; varying in its application with the .^pot and vehicle traffic conditions that arise from time to time in the use of the highways and streets. In short, the de- gree of care in their operation must be at all times and places commensurate with the danger to other travelers at- tending the use of these vehicles, and carries with it at all times and. places the duty of lookout, warning, and rea- sonable speed. These rules impose a high degree of care on the operators of these machines, but it is not too great when the injury and damage they are capable of inflicting and the number of fatal accidents which accompany their use are taken into consideration. An automobile is not an inherently dangerous vehicle, but in the hands of a careless or reck- less operator — and there are many of them — it becomes exceedingly dangerous; and so, for the protection and safety of pedestrians, as well as other persons using and having the right" to use the streets and highways, in ordinary vehicles; it is necessary that a higher degree of care should be exacted from those ^ using motor vehicles than froiri persons using vehicles propelled by horses." Wiedner V. Otter,' 171 Ky. 167, 188 S. W. 335 (1916)." "It is the. duly of the operator of an automobile, when approaching a street crossing used by pedestrians, to keep a lookout, to give reasonable and timely warning of the movement of the machine by the usual and customary signals, and to operate it at a reasonable rate of speed, considering the amount of foot and vehicle traffic at the crossing, and the jury should be instructed as to all these duties when the facts show that there was a lack of warning or lookout, or that the machine was operated at an unreasonable speed." Weidner v. Otter, 171 Ky. 167, 188 S. W. 335 (1916) ; Mel- ville V. RoUwage, 171 Ky. 607, 188' S.W. 638(1916). 1* Patterson Tr. Co. v. Schlugleit, 164 C. C. A. 283, 252 Fed. 359 (1918). 18 Shields v. Fairchild, 130 La. 648, 58 So. 497 (1912). 16 Texas Motor Co. v. Buffington, 134 Ark. 320, 203 S. W. 1013 (1918) ; O'Dowd V. Newnham, 13 Ga. App. 220, 80 S. E. 36 (1913). IT Warner v. Bertholf, — Cal. App. .— , 181 Pac. 808 (1919) 1 INJURIES TO .PEDESTRIANS 301 away to: bring bis machine under control and avoid injuring him, it is his duty to do so." ' : , i The operation of an automobile upon the crowded streets of a city necessitates exceeding carefulness on the part of the operatoi;'. Moving quietly as it does, without the noise which accompanies the movements of a street car or other ordinary heavy vehicle, it is necessary that caution should be continuously exercised to avoid collisions with pedestrians unaware of its approach. The speed should be limited, warnings of approach given, and skill and care , in ijts' management so exercised as to anticipate such collisions as/ th6 nature of the niachirle and the locality might suggest as liable to occur in the absence of such precautions.^^ Where a motorist proceeds on the wrong side of the street cl,qse to the curb, it has been held that he is bound either to give a signal of warning to any pedestrian who might attempt to cross the street or to run his car at so slow a rate that it would be undejr such control as not lo injiire such pedestrian.^" The measure of duty imposed by the la,w upon the operator of an automobile is to be viewed and determined as cornmensurate with the risk entailed through the jproJDable dangers attending the, particular situation.^^ "It is conceded on all hands that a motor vehicle is a dangerous instrumentality, and that its operation upon a public highway must be attended with great caution and prudence, especially \vith ref- erence to pedestrians, as a collision between a motor vehicle aind 18 Anderson v. Wood, 264 Pa. St. 98, muist correspond with the capacity l-o, in- _ 107 Atl. 658 (1919). jure, and accordingly the automobilist is ISLampe y. Jacpbsen, 46 Wash, 533, under a much higher degree of care i to 536, 90 Pac. 654; Deputy v. Kimmell, ,73 Iqpk ovit for the pedestrian thait, the pe- W.'Va. S95, 8 IST. C. C. A. 369, 80 S. E. destrian is to look out for the automo- , 919, 51 L. R. A. (N. S.) 989 (1914), bilist. The pedestrian cannot merely by quoting 'from this worl^. the manner in which , he ■ uses the .^ti^et 20 Bradley v. jaeckel, 65 ISlisc. 509, 119 harm the automobilist, but the automo- N. Y. S'upp. 1071 (1909). bilist may by his manner of using the 21Weidner V. Otter, 171 Ky. 167, 188 street kill the pedestrian; aiid so, geri- S. W. 335 (1916); Bongner v. Ziegen- erally speaking, the pedestrian is only hein, 165 Mo. App. 328, 147 S. W. 182 required to look after his own safety, and (1912) ; Baker v. Close, 204 N.. Y. 92, not the safety of others, while the auto- 2 N. C. C. A. 289 (1912),aff'g 137 App. mobilist must look out for the safety of Div. 529, 121 N. Y. Supp. 1079. the pedestrian rather than his own." "It is :a familiar rule in' the law of Weidner v. Otter, 171 Ky.-167, 188 S. W. negligence that the care to be eiercised' 335 (1916). 302 LAW OF AUTOMOBILES a, pedestrian would not endanger the vehicle but in all probability be destructive of the life or limbs of the pedestrian." ** He is bound to anticipate the presence of pedestrians on street crossings, add govern his conduct accordingly.*' "While the driver of an automobile is required to anticipate the presence 6i pedestrians at all times upon all public highways, still, if in traversing a straight stretch of road or street he saw no one in sight, he would not be expected to exercise the same degree of. caution (though his lookout should be none the less vigilant) as would be necessary were he passing along a thoroughfare thronged with vehicles and pedestrians, or about to pass a much-used street crossing." 2* If a pedestrian is aware or gives indication of being aware of the approach of an automobile as he is passing in front of it, the driver is under no obligation to then warn hini or begin to stop until he sees that thgre is some likelihood of the pedestrian not getting out of the way.** In a Crowded street the automobile should be kept under con- trol so as to avoid, or at least minimize, the dangers of collision. It has been declared that, "Common experience and observation show that the only adequate method of control is to run the machine slowly."*® The circumstances of many pedestrians being in a street at a given place, along with the many other street uses, and of pas- sengers transferring from one car line to another, must be taken notice of by the driver of an automobile, and recognized by him in the operation of his machine.*'' The rainy condition of the weather imposes upon operators of automobiles the duty to exercise greater vigilance to avoid striking pedestrians.** The fact that a pedestrian is walking in the part of the street 22 CoUett V. Standard Oil Co., 186 Ky. 26 Lorah v. Rinehart, 243 Pa. St. ,231, 142, 216 S. W. 356 (1919). 89 Atl. 957 (1914). ZSCoppock V. Schlatter, 193 111. App. 27 Johnson v. Kansas City Home Tel. 255 (1915). , Co., 87 Kan. 441, 124 Pac. 528. (1912); 24 0'Dowd V. Newnham, 13 Ga. App. Patterson Tr. Co. v. Schlugleit, 164 C. 220, 80 S. E. 36 (1913). C. A. 283, 252 Fed. 359 (1918). 26 Rubick V. Sandler, — Mo. App. — , 28 Hartwig v. Knapwurst, 178 111. App. 219 S. W. 401 (1920). 409 (1913). INJURIES TO PEDESTRIANS 303 used by vehicles does not relieve the operator of his duty to exer- cise due care for his safety.*' Although the operator may have done everything in his power to avoid injuring a pedestrian after it was possible for him to see the pedestrian, this does not relieve him of liability if prior neg- ligence on his part rendered it impossible to avoid the injury after becoming aware of the pedestrian's presence.*" It is the law in some states that when the operator of an automo- bile sees a pedestrian in the street ahead, whether in the business or residential section, he is required to slow down, and to give reasonable warning of his approach, taking every reasonable pre- caution to insure the safety of such person.*^ An instruction fol- lowing these provisions is not erroneous because the pedestrian struck was on the curb.'* In an action by a pedestrian to recover for injuries incurred when she was struck by a motor truck at a street crossing, where the proof shows the width of the street and the distance of the truck from the crossing when plaintiff started across, and thus shoisfs the opportunity that was open to the truck driver to avoid running plaintiff down, an entirely sufficient legal basis is laid for the inference of negligence consisting Qf the omission or neglect to have his truck under proper control.** § 290. Same— At crossings. Motorists are bound to anticipate the presence of pedestrians on street crossings, and to govern their conduct accordingly. They must give pedestrians so situated reasonably warning of their approach, or be ready to do so if necessary to the exercise of the required degree of care.'* Whether or not a chime of small bells attached to an automo- bile was sufficient to give proper warning, as required by statute, was held to be a question for the jury in the given case.'* "Vehicles have the right of way on the portion of the highway set aside for them, but at crossings all drivers, particularly of motor vehicles, must be highly vigilant and maintain such control MGnecco v. Pederson, 165 App. Div. 32 CoUinson v. Cutter, — la. — , 170 23S, ISl N. Y. Supp. lOS, 154 N. Y. Supp. N. W. 420 (1919)., 12, (1915). 83Rothfeld v. Clerkin, 98 Misc. 192, ■ 30 Com. V. HorsfaU, 213 Mass. 232, 162 N. Y. Supp. 1056 (1917). 100 N. E. 362, Ann. Cas. 1914A 682 34 Coppock v. Schlatter, 193 111. App. (1913): , 255 (1915). SlLevyn v. Koppin, 183 Mich. 232, 86 Coppock v. Schlatter, 193 111, App. 149 N. W. 993 (1914). 255 (1915). 304 LAWi OF AUTOMOBILES that, on the shortest possible notice, they can stop their cars so as to prevent danger to pedestrians; on the other hand,- between crossings drivers are, not held to the same high standajrd of care, although, of course, they must be constantly on the . Ipoli^put , for the safety of othiers." *^ . - §291. Diverting automobile to front or rear of pedestrian. A driver need not stopi' if hfe can with reasonable certainty pass iri front or in the rear of a pedestrian. By thus diverting the move- ment of his car, at? a* public crossing, he is under a definite duty of having it under control. If an accident cannot be avoided without stopping, he onusts stop, his car. A driver is not per se ■ 'negligent when he deflects his machine to pass around a pedestrian in the act of crossing, and he cannot, im the exercise of due care, be charged with neglect in not anticipating the unexpected thing to happen. It naturally follows that, he must anticipate the expected thing to happen. An illustration of the forn;ier would be the negligent act of a person of. mature mind; of the latter, thg negligent act of a child.''^ ,'.i'-'." It is negligence for the driver of an automobile, having ample Space to pass a pedestrian on a highwaj^, to so guide his vehicle as to strike the latter in passing.** § 292. Compelling pedestrian to yield way. The driver of an automobile is not using the liighway w;ithiri his rights, nor is he in the exercise of due care, if he takes advantage of the force, weight, and power of his machine as a means of compelling pedes- trians to yield to his machine superior rights upoii the public high- way designed for the use of all members of the public upon equal terms.' ••■"'•' • _'■''■ ' ' "Instances are almost a matter of daily occurrence where appar- ently the drivers of automobiles operate ^heir machines as if they have been granted a right of way over the public highways and as if it is nothing . more , than the duty of the pedestrian to yield precedence to the automobile, and to stop and wait until the auto- mobile has passed before attempting to proceed in crossing a street or otherwise using the highway. If there is anything in the argu- ment of priority, man was created before the automobile, and, to 36 Silbers(tein v. Showell, F. & Co., — 37 Silberstein v Showell, Fryer & Co., Pa. St. — , 109 Atl, 701 (1920); Virgilio — Pa. St. — , 109 Atl. 701 (1920). V. Walker, 254 Pa. St' 241, 98 AU. 815 38 Schock v. Cooling, 175 Mich. 313, (1916). 141 N. W. 675 (1913). ' INJURIES TO PEDESTRIANS 305 paraphrase a quotation from Holy Writ, man was not created for the automobile, but the automobile was created for man." '^ § 293. Duty of pedestrian generally. The duty of a pedes- trian is to exercise ordinary or reasonable care for his safety.*" This is the degree of care which ordinarily prudent and careful persons observe in like or similar cifcumstarices, to look ovit for and learn of the approach of vehicles, and to avoid coming in collision with them.*^ 39 0'Pqwd V. Newnham, 13 Ga. App. 220, 80 S. E..36 (1913)'. 40 Fisk v. Poplini — Cal. App. — , 189 Pac'. ^22 (1920); Wiezorek v. Ferris, 176 Cal. 353, 167 Pac: 234 (1917); Major Taylor & Co. v. Harding, 182 Ky. 236, i66 S: W. 285 (1918); Pool 'v. Brown, 89 N. j; L. 314, 98 Atl. 262 (1916); Crowl,v. West Coast Steel Co., — Wash. — , 1§6 Pac, 866 (1920) ; Tooker v. Per- kins, 86 Wash. 567, ISO Pac. 1138 (1915). "All exacted from one in traveling along or across 'a street, at the crossing or efec- ^yjiere, is, that he exercise ordinary care for his own safety, and what constitutes such care depends on the character of the street, the extent of its use by ve- hicles, and the kind using it, whether crossing at the regular crossing or else- where, and the like;" Wine v. ' Jones, 183 la. 1166, 162 N. W. 196 (1917). "Where a person who is ■ not careless, but whp is properly walking along or across a, street, is injured by an automo- bile rapidly and negligently driven upon him before he has reasonable opportunity to escape, the party so driving the auto- mobile is liable in damages for injuries projdmately caused by the negligence." Goldring V.I White, 63 Fla. 162,' 58 So. 367 (1912). ' "It is, of course, elementary doctrine that every person using a street which other persons and vehicles have a right to and do use must in its use exercise care for his own safety. But this does not mean that in crossing a street at a place set apart for the passage of foot travelers the pedestriiri must constantly be on the lookout to keep from being run B. Autos. — 20 over by automobilists, who have no greater rights in the street than he has. All that the pedestrian is required to do in crossing a street at an established crossing is to exercise such care as a per- son of ordinary prudence would exercise for his own safety in crossing a street at such a crossing, considering the amount and kind of vehicle traffic thereat." Weid- ner v. Otter, 171 Ky. 167, 188 S. W. 335 « Owens V. Burt M. C. Co., — Cal. App. — , 186 Pac. 821 (1919); Baldwin's Adm'r v. Maggard, 162 Ky. 424, 172 S. W. 674 (1915); Core v. Wilhelm, — Va. — , 98 S. E. 27 (1919)'. "It simply requires that he shall exer- cise for his own safety the measure of care that a priident man would exertise in the same circumstances. But as cir- cumstances vary so do the practical re- quirements of the rule vary. What is prudence in one ca^e may be negligence in another, recklessness in another, and downright foolhardiness in still anothei:. The farmer on a back and unfrequented highway is not held to the same degfree of vigilance when he crosses the road to his barn as is the man who attempts to cross a busy city street crowded with traffic. The circumstances and dangers are always to be taken info account in determining what is due care or the evi-' dence of' it." Aiken v. Metcalf, 90 Vt. 196, 97 Atl. 669 (1916). He must have due regard for the rights of others, and for the custbms of the road. Warruna v. Dick, 261 Pa. St. 602, 104 Atl. 749 (1918). 306 LAW OF AUTOMOBILES The required care varies with and is. to be measured by the situ^ ation tonfronting him, depending largely upon place and the con- dition of the street; whether the street is crowded with traffic or comparatively free therefrom; whether he enters the street at a place customarily used by foot-passengers, and perhaps upon many other conditions that may arise in a given instance.** A pedestrian must make reasonable use of his senses of sight and hearing, and must give heed to ordinary indications of danger, and must not walk blindly into danger, unless he expects to stand the consequences.** He should look and listen to ascertain if vehicles are approaching, and must be on the alert after he starts across a busy street until he has crossed the entire roadway.** The "law of the road," generally speaking, is not applicable to a pedestrian.*^ It may be applicable, however, in an action by a pedestrian to recover for injuries inflicted by an automobile, where the accident was caused in whole or partly by an act of the oper- ator in violation of the law of the road; as for instance, by turn- ing to thq right to pass an overtaken vehicle.*® , It is not necessarily negligence for a pedestrian to faiil to stop and allow an automobile tp pass, even though stopping would have avoided the collision.*'' If a pedestrian, when about to leave the sidewalk to cross a street, sees an automobile, carefully operated, approaching at such a distance that the operator has ample time to slacken speed or stop or change his course to avoid striking him, and he knows that if both he and the automobile continue in their respective courses and at their respective rates of speed their lines of progress will cen- *2 Coughlin V. Layton, — Kan. — , 180 The law of the road requiring travelers Pac. 805 (1919); Leach v. Asman, 130 in vehicles when meeting on the highway Tenn. SIO, 172 S. W. 303 (1914); Lewis to turn to the right in order to pass V. Seattle Taxicab Co., 72 Wash. 320, does not apply to the meeting of a ve- 130 Pac. 341, 4 N. C. C. A. 10 (1913); hide and pedestrian. Meservey v. Lock- Micltelson v. fischer, 81 Wash. 423, 142 ett, 161 Mass. 332, 37 N. E. 310; Yore v Pac. 1160 (1914). Transfer Co., 147 Mo. 679, 687; Savage *8 Folwell V. Demack Motor Car Co., v. Gerstner, 36 App. Div. 220. 144, La. 783, 81 So.' 313 (1919) ; Tolmie 46 Brown v. Thayer, 212 Mass. 392, 99 V. Woodward Taxicab Co., 178 Mich. N. E. 237 (1912); Foster v. Curtis, 213 426, 144 N. W. 8SS (1914). Mass. 79, 99 N. E. 961, Ann. Cas. 1913E 44Lorah v. Rinehart, 243 Pa. St. 231, 1116 (1912). -89 At]. 967 (1914). 47 Sorenson v. Bel! — Utih — , 1^0, 4BApper'son v. Lazro, 44 Ind. App. 186, Pac. 72 (1917). 87 N. E. 97 (1909). INJURIES TO PEDESTRIANS ,307 trally converge, essentially resulting in a collision, and he proceeds without again looking apd without varying his course or speed, and is struck by the automobile, which varied neither its Qourse nor rate of speed, the question of the pedestrian's contributory negligence is for the jury, and not the court, because the pedestrian had jiist as much right to proceed as the motorist, and had the right to assume that the motorist would exercise reasonable care to avoid a collision with him.** Where an elderly woman, who was struck by a truck at a cross- ing, continued on her way after having seen the truck coming "fast" towards her about 50 feet away, it was held that she was not contributorily negligent as matter of law, but that the question .was for the jury.*' . However, if the pedestrian knows or ought to know that an approaching automobile is bemg negligently operated, he cannot assume that the operator will exercise reasonable care, but must take precautions in view of such negligence to guard against being injured. . > A pedestrian has as much right to run upon a street or high- ** Marsh v. Boyden, 33 R. I. 519, 82 Atl. 393, 2 N. C. C. A. 410, 40 L. R. A. (N. S.) 582 (1912). "We are persuaded that the cause is, indeed, an exceptional one where plain- tiff's right of recovery should be denied as matter of law for his contributory negligence, when it appears he was run upon and injured in the highway by a conveyance which is not required to travel in a particular place, as street cars on tracks, which, of course, of themselves suggest danger as always present." Bongner v. Ziegenheim, 165 Mo. App. 328, 342, 147 S. W. 182 (1912). "It has been very pointedly stated by the Court of Appeals, and I think it is so generally understood by the bar, that in these street crossing cases the question of the pedestrian's cotitributory negli- gence is generally one of fact. Of course, there are certain extreme cases, where a pedestrian steps directly in front of a, vehicle and in effect runs into it, in which the court is justified in determining the question of the pedestrian's negligence as a matter of law. These cases, however. are rare. The rule governing the obliga- tion of pedestrians in crossing city streets was stated by Judge Cardozo in the case of Rnapp V. Barrett, 216 N. Y. 226, 230, 110 N. E. 428, 429, as follows: 'A wayfarer is not at liberty to close his eyes in crossing a city street. His duty is to use his eyes, and thus protect himself from danger. Barker v. Savage, 45 N. Y. 191, 6 Am. Rep. 66. The law does not say how often he must look, or precisely how far, or when, or from where. If, for example, he looks as hs starts to cross, and the way seems clear, he is not bound as a matter of law to look again. The law does not even say that because he sees a wagon approach- ing, he must stop till it has passed. He may go forward unless it is close upon him; and whether he is negligent in going forward will be a question for the jury. If he has used his eyes, and has miscaku- lated the danger, he may still be free from fault.'" Rothfeld v. Clerkin, 08 Misc. 192, 162 N. Y. Supp. 1056 (1917). *9 Rothfeld V. Clerkin, 98 Misc. 192, 162 N. Y, Supp. 1056 (1917). 308 LAW OF AUTOMOBILES ' ' way as he has to walk, provided he exercises reasonable care' in so doing.®" §294. Duty to look and listen for automobiles. It has Jbeeri judicially declared that it is not ordinarily negligence j!»er 5e for a pedestrian to start across a street without looking or lisl;ening, fdr approaching automobiles.*^ So, he is not necessarily negligent because he fails to look in the direction from which harm comes.** He is not necessarily negligent for failure to look a second time.*' It has been held that the fact that a pedestrian walked 16 feet into the street without looking in the direction from which an automobile c&me that struck her, was not, as matter of law, incon- sistent with a finding of due care on her part.** , ] A pedestrian was not chargeable with contributory negligence a:s matter of law because he failed to see an automotile headligh]t which was plainly visible when he looked in the direction from whence it came; the machine having approached at high speed, arid the pedestrian havmg walked some 12 feet into the street with the intention of boarding a street cai*, and following several others who were intending to board the same car.** Where there was .evidence that before starting to cross a street at a crosswalk, a. pedestrian looked in either direction and "every- thing looked clear," and he started to cross and was struck by an automobile, the driver of which had his head turned, and was in conversation with an occupant of the car, and giving little, if any, attention to travelers in front of him, the case was for the jury both as to the negligence of the driver and the contributory neg- ligence of the pedestrian.*^ 50 0'Dowd V. Newnham, 13 Ga, App. be said to be neg^gence per se under all 220, 80 S. E. 36 (1913). circumstances, and whether a person is 51 Barbour v. Shebor, 177 Ala. 304, 58 at fault in failing to look and listen is a So. 276, 1 N. C. C. A. 120 (1912), citing question. of fact to be submitted to the this work; Adier v. Martin, 179 Ala. 97, jury and shown Ijy proof of the circum- 50 So. S97 (1912) ; Ratcliffe v. Speith, 95 stances surrounding each particular case." Kan. 823, 149 Pac. 740 (1915) ; Vesper v. Bohm v. Daltpn, 206 111. App. 374,(1917). Lavender, — Tex. Civ. App. — , 149 ^2 Johnson v. Kansas City Home Tel, S. W. 377 (1912); Adair v. McNeU, 95 Co., 87 Kan. 441, 124 Pac. 528 (1912). , Wash. 160, 163 Pac. 393 (1917). 83 Redick v Peterson, 99 Wash. 368, A pedestrian at a street crossing is not 169 Pac. 804 (1918). required to look both ways and listen, 64 Cole Motor Car Co. y. Ludorff, — , but only to exercise such reasonable care Ind. App. — , HI N. E. 447 (1916). as the case requires. Baker v. Close, 2D4 85 Klokow v. Harbaugh, 166 Wis.. 262, N. Y. 92, 2 N, C. C. A. 289 (1912), 164 N. W. 999 (1917). aff'g 137 App. Div. 529, 121 N. Y. Supp. 86 Lynch v. Fisk Rubber Co., 209 Mass. 1079. 16, 95 N. E. 400, 2 N. C. C. A. 298 "The jailure to look and listen cannot (1911). ' INJURIES TO PEDESTRIANS 309 • There is no rule of law requiring a pedestrian, when approaching a street crossing, to look both ways before stepping off the curb. He is only required to exercise such reasonable care as the sur- rounding circumstances require.*'' But it has also been held that, "It is the duty of a foot-passenger to look both ways before starting to cross a street, particularly when the street over which he intends to pass is a busy thorough- fare in the heart of the business district of a great city." ** When he starts to cross a street at a thick business part, and especially at a place other than a regular crossing, it is his duty to look.s9 "The law does not say how often he must look, but he must exercise that care which an ordinarily prudent person would exer- cise in making a similar attempt in crossing the street." ®" "Looking up and down the main traveled streets before attempt- ing to cross at a point other than at the usual place cannot be said, as matter oflaw, to suffice as the measure of care exacted." ®^ His failure to take some particular precaution, as, for example, to look across the end of a standing street car for vehicles approach- ing from the other side, before passing beyond its fender, does not constitute contributory negligence unless it contributed to his injury.** A pedestrian was held not guilty of contributory negligence per se in failing to look for an automobile approaching on the wrojig side of the street, he having no reason to anticipate danger from that direction.®' It has been held that a pedestrian who, in crossing a street, neg- lected to look to the north after he had passed the line of south- bound traffic, was guilty of contributory negligence.** S'' Benjamin v! McGraw, — Mich. — , man, but the law does not undertake to 175 N. W. 394 (1919). further define this standard. The law 58 Davis V. Breuner Co., 167 Cal. 683, does not say how often he must look; or 140 Pac. S86 (1914). precisely how far, or when or from "He is required to be alert and watch- where." Aiken v. Metcalf, 90 Vt. 196, ful, and to look up and down the street 97 Atl. 669 (1916). in order to know whether approaching 61 Livingstone v. Dole, 184 la. 1340, vehicles are likely to intercept his Ime 167 N. W. 639 (1918). of travel." Mayer v. Anderson, — Cal. 68 Johnson v. Kansas City Home Tel. App. — , 173 Pac. 174 (1918). Co., 87 Kan. 441, 124 Pac. ^28 (1912). 59 Lowry v. Smith, 199 Mo. App. 163, 63 Park v. Orbison, — Cal. App. — , 198 S. W. 437 (1917). 184 Pac. 428 (1919). 60 Bauman V. Black's W. T. Taxis Co., 64 chiappone y. Greenebaume, 189 263_Fed. SS4 (1920). App. Div. 579, 178 N. Y. Supp. 854 "When a pedestrian is about to cross a (1919). street he must use the care of a prudent 310 LAW OF AUTOMOBILES The plaintiff, in an action to recover for personal injuries, due to his being struck by the defendant's automobile, testified that when he passed the property line of the street in question he looked up and down the street and saw no automobile; that he then crossed the sidewalk, a distance of 14 feet, and started across the street, looking straight ahead; that when he was 6 or 8 feet from the curb he was struck by defendant's automobile. The only other witness to the direction in which plaintiff was looking was the driver of the car, who stated that plaintiff was looking away from the car an instant before it struck him. The automobile was running in excess of the speed limit allowed by ordinance, and failed to sound a warning of its approach, as required by ordinance. The case was tried before the court without a jury, and there was judgment for defendant, based on plaintift''s contributory negli- gence. On appeal judgment was affirmed, the court holding that, although the defendant violated the ordinance, and was therefore guilty of negligence as a matter of law, this fact did not preclude a finding that the plaintiff's negligence was the efficient and proxi- mate cause of his injuries, which barred his right of recovery.^* Between 5 : 30 and 6 o'clock on a March evening, in the city of Seattle, the plaintiff, a boy 15 years of age, was struck and injured by defendant's automobile when he had proceeded only two or three steps from the curb, when attempting to cross an intersecting street at or near the regular crossing for pedestrians. The place was at the intersection of two busy and crowded streets in the down- town business section of the city. Plaintiff stepped into the street without looking either to the right or left, and with- out taking any other precaution for his safety. In holding that the contributory negligence of the plaintiff barred his right to recover as a matter of law, the court said: "When about to attempt a street crossing at such a place where danger is imminent and constant, pedestrians must take some precautions to guard against it. Something must be done to insure safety, and the failure to do so is such negligence as will prevent recovery in case of injury. If respondent had looked at all, or taken the slightest heed to his surroundings, the sufficiency of his look or act would have been for the jury; but, where absolutely no precaution is taken, there^ is nothing for the jury to consider upon this point, and the law decides against recovery." ^* § 295. Stop, Look and Listen rule does not apply. It has 6B Davis V. Breuner Co., 167 Cal, 683, 66 Jones v. Wiese, 88 Wash. 3S6, 153 140 Pac. S86 (1914). Pac. 330 (191S). INJURIES TO PEDESTRIANS 311 been held that a pedestrian about to cross a street is under no positive duty to stop, look and listen/'' as the rule of stop, look, and listen, applicable to persons about to cross railroad crossings, has no application to a pedestrian 'crossing a street.®* "There is no positive duty on the part of pedestrians about to cross a street to stop, look, and listen, and the question of negli- gence, under the usual rule of ordinary care that devolves upon foot travelers, must be examined in the light of all the attending circumstances, one of which may be knowledge of the existence of a statute or an ordinance pfescribing fixed regulations for observe ance by automobile drivers." *® § 296. Need not continuously look and listen. In the use, of the public ways, a pedestrian is not bound to be continuously looking and listening to ascertain if automobiles aire approaching, under the penalty that upon failing to do so, if he i9 injured, his negligence must be conclusively presumed.'" B^ Mann v. Scott, — Cal. — , 182 Pac. 281 ,(1919). 68BacheIder v. Morgan, 179 Ala. 339, 60 So. 81S, 7 N. C. C. A. S, Ann. Cas. 191SC 888 (1912); Terrill v. Walker,' S Ala. App. S3S, 59 So. 775 (1912) ; Dugan V. Lyon, 41 Pa. Super. Ct. 52 (1909); Mickelson v. Fischer, 81 Wash. 423, 142 Pac. 1160 (1914); Tiffany & Co. v. Drummond, 168 Fed. 47, 93 C. C. A. 469 (1909). "The rigorous rule applicable to steam railroad crossings is necessarily relaxed at the usual street crossings, and the foot- man is not required, as matter of law, to look both ways and listen, but only to exercise such reasonable care as the case requires, for he has the right to assume that a driver will also exercise due ca.'e and approach the crossing with his ve- hicle under proper control." Jessen v, Kesner, 1S9 App. Div. 898, 144 N. V. Supp. 407 (1913). "/ instruct you, members of the jury, that a pedestrian in crossing a city street is not bound to stop, look and listen, but is bound only to use ordinary dare, and what is ordinary care depends upon the circumstances of the case." Johnson v. Bloedel, 102 Wash. 293, 172 Pac. 1171 (1918). 69 Koehl V. Carpenter, — Cal. App. — , 191 Pac. 43 (1920). '"> Indiana: Harker v. Gruhl, 62 Ind. App. 177, 111 N. E. 457 (1916). Kansas: Williams v. Benson, 87 Kan. 421, 124 Pac. S31 (1912). 'Massachusetts: Hennessey v. Taylor, 189 Mass. 583, 76 N. E. 224, 3 L. R. A. (N. S.) 345. Michigan: Bouma v. Dubois, 169 Mich. 422, 135 N. W. 322 (1912). Missouri: Ginter ,v. O'Donoghue, — Mo. App. — , 179 S. W. 732 (1915); Bongner v. Ziegenhein, 165 Mo. App. 328, 147 S. W. 182 (1912). Pennsylvania: Anderson v. Wood, 264 Pa. St. 98, 107 Atl. 658 (1919). Washington: Hillebrant v. Manz, 71 Wash. 250, 128 :^ac. 892, 4 N. C. C. A. 10 (1912). Federa}: Patterson Tr. Co. v. Schlu- gleit, 164 C. C. A. 283, 252 Fed. 3S9 (1918) ; Taxi Service Co. v. Phillips, 187 Fed. 734, 108 C. C. A. 482 (1911), aff's 183 Fed. 869. Failure to look is not negligence per se. Johnson v. Scott, 119 Minn. 470, 138 , N. W. 694, (1912). 312 LAW OF AUTOMOBILES This statement of the law has been challenged in an Indiana case, in which the court held that so instructing the jury was to charge as matter of law that ordinary care does not require a person while crossing a public street to be continuously looking to ascertain whether autottiobiles or other vehicles are approaching, while this must depend upon the circumstances, and it niust gen- erally be left to the jury to say what acts' constitute ordinary care and what do not.''^ And in California the law has been declared as follows: "It was a duty devolving upon plaintiff, as the act of an ordinarily pru- dent man, immediately before placing himself in a position of danger, to look in the direction from which danger was to be antici- pated. This was a continuing duty, and was not met. by looking once and then looking away. In the exercise of ordinary care it is the duty of a pedtestrian to look to the right and to the left when- ever he has voluntarily put himself in a position which may be one of peril coming from either direction." '"^ If the automobile is at such a distance when he sees it that under ordinary circumstances he could cross in safety, he is not negligent in proceeding to cross.''' Even although he sees an automobile approaching near him on the street which he intends to cross, he is not contributorily negli- gent - in failing to continue to observe its movements until he reaches a place of safety.''* The observance of reasonable care, however, is imperative upon him during all the titne that he is crossing.''^ Although a pedestrian did not look for approaching vehicles, if, when he was struck by an automobile, he was in a place which would have been safe had the automobile been operated in com- pliance with an ordinance, his failure to look did not preclude recovery.''^ A pedestrian who started to cross a street at night from an island of safety after looking in the direction from which traffic was After he has once entered upon a street ''^ Moss v. Boynton Co., — Cal. App. crbssing in a prudent manner, he is not — i 186 Pac. 631 (1919). bound as matter of law to be continu- ^^ Carradine v. Ford, 195 Mo, App. ously looking or listening for the ap- ^84,' 187 S. W. 28S (1916). "4 Carradine v. Ford, 19S ~Mo. App. proach of automobiles. Patterson Tr. Co. V. Schlugleit, 164 C. C. A. 283, 252 Fed. 684, 187 S. W. 285 (1916).' 76 Sheldon v. James, 175 Cal. 474, 166 359, 364 (1918). p^, 8 (1917) ''I Rump V. Woods, SO Ind. App, 347, 76 Mosso v. Stanton Co., 85 Wash. 499, 98 N. E. 369 (1912). ' 134 Pac. 941 (1915). ' INJURIES TO PEDESTRIANS 313 approaching, was not negligent per se in not continuously looking in that direction; she being struck while crossing by a machine without lights, giving no warning, and moving at 20 to 30 miles an hour." A pedestrian who saw a truck approaching 60 feet away and continued without again looking, and was struck by the truck, which changed its course, whereas if the truck had continued on its course he would have been beyond danger after proceeding S or 6 feet, was not negligent as matter of law.''* § 297. Duty to look to the rear. A , pedestrian is not neces- sarily guilty of negligence because of his failure to look to the rear for approaching automobiles while walking in the highway; and whether he is negligent on a particular occasion depends upon the circumstances at the time.''^ , "A pedestrian arriving alt a street intersection which he desires and attempts to cross is not necessarily guilty of contributory neg- ligence because he does not look behind him for approaching auto- mobUe^." »" Where there was room for an automobile, overtaking a pedes- trian in the road\yay, to pass between the cars ahead and the jjedestrian, it was held that the jury were justified in finding that the latter was not negligent in not looking back just before she was struck.'"' Where a pedestrian was crossing a street diagonally in the middle of a block, it was held that she was under no legal duty to look behind her or to anticipate without having received any warning that an automobile driver was intending to pass her by going to the left of the center of the street.*^ TVHealy v. Shedaker, 264 Pa. St. 512, took the automobile lights for the lights 107 Atl. 842 (1919). of a street car. This as bearing on the TS O'Neill V. Ewert, 189 App. Div. 221, question of plaintiff's due care. Belleveau 178 N. Y. Supp. 506 (1919). v. Lowe Supply Co., 200 Mass. 237, 86 TS Lament v. Adams Express Co., 264 N. E. 301. Pa. St. 17, 107 Atl. 373 (1919), quoting 80 Cusick v. Miller, 102 Kan. 663, 171 from this work. Pac. .599 (1918). In an action by a boy to recover for 80a O'Connor v. Zavaritis, — Conn, injuries received when he was struck by' — , 110 Atl. 878 (1920). an automobile, the plaintiff was entitled 81 Fox v. Great A. & P. Tea Co., 84 to show that the automobile approached N. J. L. 726, 87 Atl. 339 (1913). . from the rear, when he and two other Quoted with appr,0V9l in Lamont v. boys were walking in the highway on a Adams Express Co., 264 Pa. St. 17, 107 dark evening, and that they took turns Atl. 373 (1919). in looking to the rear, and that they mis- 314 .LAW OF AUTOMOBILES In an action in which it appeared that the plaintiff and his wife alighted from a street car and started to, walk in a southerly di- rection, where pedestrians habitually walked in the street, and that when they had proceeded about 100 feet the plaintiff was struck by an automobile which approached from the rear, the court said: "Neither can it be said as a matter of law that plaintiff was neg- ligent in not looking back up the street to observe whether there were vehicles approaching before proceeding southerly. It cannot be said that, had he observed thte approach of the automobile before he and his wife started to move in a southerly direction, they could not have reasonably and prudently started on their course along the very portion of the street traversed by them up to the time of the collision. It certainly was not their duty to turn about constantly and repeatedly to observe the approach of possible vehicles from the rear where the drivers of such vehicles could plainly observe them in time to give warning, or turn out and avoid a collision." '^ Pedestrians in a country highway are under no obligation to look back to see whether they are in danger of being struck by all auto- mobile from behind.*' One who alighted from an automobile and started to cross the highway to the right of the machine without looking to the rear, and was struck by a machine overtaking and passing the standing machine on the right, could not recover on account of contributory negligence.** § 298. Care required hot the same as when crossing street car or railroad tracks. Cases involving the ^conduct of persons about to cross a railroad track at grade are to be distinguished from those involving the conduct of pedestrians crossing a street in which automobiles are operated. A railroad track is a place of known danger. A train caniiot turn aside, but is limited in its operation to the bounds of the track, and has of necessity, when properly operated, a paramount right upon its track.*'' 82BlackwelI v. Renwick, 21 Cal. App. 166 111. App. 315 (1911); Kerchner v. 131, 131 Pac. 94 (1913). Davis, 183 111. App. 600 (1913). 88 Raymond v. Hill, 168 Cal. 473, 143 Indiana: Craft v. Stone, -^ Ind. App. Pac. 743 (1914). —,.124 N. E. 473 (1919). 84 Deal V. Snyder, 203 Mich. 273, 168 Kansas: Williams v. Benson, 87 Kan. N. W. 973 (1918). , 421, 124 Pac. S3l (1912). i& Alabama: Barbour v. Shebor, 177 Missouri: Bongner v. Ziegenhein, 165 Ala. 304, 58 So. 276, 1 N. C. C. A. 120 Mo. App. 328, 147 S.'W. 182 (1912). (1912). New York: Baker v. Close, 204 N. Y. Illinois: Goldblatt v. Brocklebank, 92, 2 N. C. C. A. 289 (1912), aff'g 137 INJURIES TO PEDESTRIANS 315 The rule applicable to a pedestrian approaching a railroad cross- ing does not apply to a pedestrian crossing a public street. The look and listen rule, and the constant vigilance rule are not im- posed upon him when he is required to look out only for auto- mobiles and other street vehicles.*® So, the amount of care exacted of a pedestrian is not the same in regard to anticipating and looking out for the approach of auto- mobiles, which may use any part of the street and easily be guided to one side or the other of him, as is required of him in discover- ing the approach of a street car, which runs on a fixed track, and which can rely upon no alternative but to stop in order to avoid colliding with a pedestrian on the track. Then, too, the tracks themselves are a warning of danger.''' "In other words, in those cases where injury is inflicted by a conveyance which may occupy one portion of the street at one time and some other portion at another time; and the injured person is not forewarned as by the danger incident to car tracks, the matter of plaintiff's contributory negligence is usually for the jury. There may be cases where the use of a public street by heavy and swift conveyances presents a condition of constant tur- moil so threatening to the safety of pedestrians that a court would be justified in declaring one negligent in attempting to cross with- out looking and listening, but nothing of that kind appears here." '* § 299. May assume motorist will exercise due care. A pedes- trian, using the public highways, and exercising ordinary care for his own safety, may assume, until he has knowledge or notice to the contrary^ that the drivers of automobiles will exercise reason- able care to avoid injuring him, and that they will observe the law. App. Div. 529, 121 N. Y. Supp. 1079.; 684, 187 S. W, 285 (1916); Sullivan v. Pennsylvania: Lament v. Adams Ex- Chauvenet, — Mo. App. — , 186 S. W. press Co., 264 Pa. St. 17, 107 Atl. 373 1090 (1916) ; Bongner v. Ziegenhein, 165 (1919), citing this work. Mo. App. 328, 147 S. W. 182 (1912) ; Wasftington: Adair v. McNeil, 95 Ginter v. O'Donoghue, — Mo. App. — , Wash. 160, 163 Pac. 393 (1917) ; Lewis v. 179 S. W. 732 (1915) ; Lamont v. Adams Seattle Ta;xicab Co., 72 Wash. 320, 130 Express Co., 264 Pa. St. 17, 107 Atl. 373 Pac. 341, 4 N. C. C. A. 10 (1913). . (1919), citing -.this work; Humes v. Wisconsin: Klokow v, Harbaugh, 166 Schaller, 39 R. I. 519, 99 Atl. SS (1916); Wis. 262, 164 N. W. 999 (1917). Core v. Wilhelm, — Va. — , 98 S. E. 27 86 Aiken v. Metcalf, 90 Vt. 196, 97 Atl. (1919). 609 (1916). 88 Bongner V. Ziegenhein, 165 Mo. App. ST Carradine v. Ford, 195 Mo. App. 328, 147 S. W. 182 (1912). 316 LAW OF AUTOMOBILES He is not negligent in acting upon this assumption and regulating his conduct accordingly.*® One crossing a public street may reasonably expect that danger from vehicles will arise only from persons driving in conformity with the law of the road;®" and he has the right to assume that automobiles will not be run at a dangerous or unlawful rate of speed, but that they will be operated at such a rate of speed and with such care as reasonable prudence requires in view of all the conditions and circumstances,®^ and that he will be given timely warning of their approach.®^ He may assume that an automobile will not pass a street car moving in the same direction on the left in violation of ordinance.®' He may also assume that the motorist will observe the customary rules of the road.®* One in plain view of an automobile approaching 100 feet away, ^^ California: Wiezorek v. Ferris, 176 Cal. 3S3, 167 Pac. 234 (1917) ; Harris v. Johnson, 174 Cal. SS, 161 Pac. 11S5 (1916); Owens v. Burt M. C. Co., — Cal. App. — , 186 Pac. 821 (1919) ; Park V. Orbison, — Cal. App. — g 184 Pac. 428 (1919) ; Off V. Crump, — Cal. App. — , 180 Pac. 360 (1919). Kansas: Williams v. Benson, 87 Kan. 421, 124 Pac. S31 (1912) ; Johnson v. Kansas City Home Tel. Co., 87 Kan. 441, 124 Pac. S28 (1912). Massachusetts: Buoniconti v. Lee, — Mass. — , 124 N. E. 791 (1919), Hyde Park V. Gay, 120 Mass. 589. Michigan: Wilson v. Johnson, 19S Mich. 94, 161 N. W. 924 (1917). Missouri: Dignum v. Weaver, — ■ Mo. App. — , 204 S. W. 566 (1918); Franke V. St. Louis, 110 Mo. 516, 5^28. New Jtrsey: Pool v. Brown, 89 N. J. L. 314, 98 Atl. 262 (1916). Ne^ York: Baker v. Close, 204 N. Y. 92, 2 N. C. C. A. 289 (1912), aff'g 137 App. Div. 529, 121 N., Y. Supp. 1079; Jessen v. Kesner, 159 App. Div. 898, 144 N. Yl Supp. 407 (1913) ; Newson v. New York Central R. Co., 29 N. Y. 383. 'Pennsylvania: Oelrich v. Kent, 259 Pa. St. 407, 103 Atl. 109 (1918); Lewis v. Wood, 247 Pa. St. 545, 93 Atl. 60S (1915). Texas: Ward v. Cathey, — Tex. Civ. App. — , 210 S. W. 289 (1919). Vermont: Aiken v. Metcalf, 90; Vt. 196, 97 Atl. 669 (1916). West Virginia: Deputy v. Kimmell, 73 W. Va. 595, 8 N. C. C. A. 369, 80 S. E. 919, 51 L. R. A. (N. S.) 989 (1914) ^ ' Wisconsin: Klokow v. Harbaugh, 166 Wis. 262, 164 N. W. 999 (1917). "Such person must, of course, himself use reasonable ' care to observe the con- duct of the other person so far as such conduct may affect his own safety at the time." Harris v. Johnson, 174 Cal. 55, 161 Pac. 1155 (1916). 90 Trzetiatowski v. Evening American Pub. Co., 185 111. App. 451 (1914). 91 Rump V. Woods, 50 Ind. App. 347, 98 N. E. 369 (1912) ; Arseneau v. Sweet, 106 Minn. 257, 119 N. W. 46; Cool v. Peterson, 189 Mo. App. 717, 175 S. W. 244 (19li). 92 Wine v. Jones, 183 la. 1166, 168 N. W. 318 (1918). 93 Harris v. Johnson, 174 Cal. 55, 161 Pac. 1155 (1916). 94 Aiken v. Metcalf, 90 Vt. 196, 97 Atl. 669 (1916). INJURIES TO PEDESTRIANS 317 may assume that the operator will have his car under control and avoid injuring him.®* A pedestrian may rely upon the pTesumption that -while^ he occupies a given place in the street,' with sufficient room on either side for the passage of automobiles, he will not be run into by one of them, and he is not necessarily guilty of negligence if he fails to keep a lookout for the approath of such vehicles in these cir- cumstances .'^ n i.He need not anticipate, as matter of law, that an autombbile may approach on the wrong side of the street.*'' When an automobile was moving southerly on a street, seventy- two feet away from where aj)edestrian had started easterly across the same street, and when beyond the, middle of the street the pedestrian stopped and looked back towards the, sidewalk and was immediately struck' by a lamp on the automobile, it was held that he had reached a point where he had a right to, suppose the automobile would avoid him, and consequently was not guilty of contributory negligence.®* ^ ,,, ,; if he knows that an automobile is being operated on the high- way in a riegligent or unlawful manner, a special duty then arises to use such additional care as reasonable prudence would dictate in view of the increased danger.®' But the rule which requires one to avoid the consequences of another's negligence, does not apply until such person sees the danger or has reason to apprehend it.i "If a footman undertakes to cross a street at a point where it is frequently used by automobiles or pther vehicles,: he has a right, SSHfckman v. Cohen, 90 N. J. L. 322, upon the street from the exercise of or- 100 Atl. 695 (1917). dinary care for his own safety; but, in 96 Lewis V. Seattle Taxicab Co., 72 the absence of knowledge on liis part of Wash. 320, 130 Pac. 341, 4 N. C. C. A. such excessive or unlawful speed, the 10>{1913)- ■ , ; court or jury trying the case may con- s'' Strauss V;! Schneider; 184 App. Div. sider the presumption; of due care and 26S,j171N. Y. Supp. 424 (1918); Brad- conformity to the law in determining ley v. Jaeckel, 65 Misc. 509, 119 N. Y. whether, under the circumstances of any Supp. 1071 (1909); Hall v. Dilworth, 94 particular case, such pedestrian exercised Misc. 240, 157 N. Y. Supp. 1091 (1916). ordinary care Jor his own safety, or was 98 Benoit v. Miller, — R. I. — , 67 Atl. guilty of negligence which, proximately 87 (1907). ' contributed to his injury." Cole Motor 99 Rump V. Woods, 50 Ind. App 347, Car Co. v. Ludorff, — Ind. App. — , HI 98 N. E. 369 (1912). N. E, 447 (1916). "The wrongful . conduct of 'one who 1 Wadley v. Dooly, 138 Ga. 275, 75 runs an automobile at an unlawful rate S. E. 153 (1912). ' of speed will not excuse a pedestrian 318 LAW OF AUTOMOBILES without looking and listening to presume that the drivers of auto- mobiles and vehicles are obeying the law of the road, and that they have so reduced or gauged their speed, and are so conducting them- selves, as to meet the obligations which the circumstances demand of them at such place. Of course, if a person, in crossing a street or public highway, sees, in dangerous proximity, an approaching team, automobile, or other vehicle, and that its speed is such as to render the attempt to cross in front of it dangerous, and under such cir- cumstances walks in front of it and thereby suffers injury, such person would be guilty of contributory negligence." ^ § 30Q. May use any part of highway. A pedestrian may go upon any part of a public highway!, whether a country road or a city street, and, if the street is not so dangerous that ho reason- ably prudent person would attempt to cross it,' he may cross a city street at any place.* In doing so, however, he is bound to exercise care commensurate to the increased danger incident to being at a place where pedestrians do not usually go,* and, con- sequently, where drivers need not take the same precautions in 2 TerrUl v. Walker, S Ala. App. S35, 59 So. 775 (1912). 3 Ginter v. O'Donoghue, — Mo. App. — , 179 S. W. 732 (1915). ♦Arkansas." Breashears v. Arnett, — Ark. — , 222 S. W. 28 (1920). Illinois: Vos v. Franke, 202 111. App. 133 (1916). Indiana: Craft v. Stone, — Ind. App. — , 124 N. E. 473 (1919). Iowa: Wine v. Jones, 183 la. 1166, 162 N. W. 196 (1917). , Kansas: Williams v. Benson, 87 Kan. 421, 124 Pac. 531 (1912). NeW-^ Jersey: Fox v. Great A. & P. Tea Co., 84 N. J. L. 726, 87 Atl. 339 (1913). Pennsylvania: Lamont v. Adams Ex- press Co., 264 Pa. St. 17, 107 Atl. 373 (1919) ; Anderson v. Wood, 264 Pa. St. 98, 107 Atl. 658 (1919). Texas: Bartley v. Marino, — Tex. Civ. App. — , 158 S. W. 1156 (1913). Washington: Harder v. Matthews, 67 Wash. 487, 121 Pac. 983 (1912). "Pedestrians have the same rights as drivers of vehicles to use and traverse a highway at all points and are not re- stricted in crossing streets at the inter- section of two streets or avenues; such fact, however, might have some hearing upon the question of contributory negli- gence." Meenach v. Crawford, — Mo. — , 187 S. W. 879 (1916). 6 Gordon v. Stadelman, 202 111. App. 255 (1916) ; Livingstone v. Dole, 184 la. 1340, 167 N. W. 639 (1918); Wine v. Jones, 183 la. 1166, 162 N. W. 196 (1917) ; Lamont v. Adams Express Co., 264 Pa. St. 17, 107 Atl. 373 (1919) ; An- derson v. Wood, 264 Pa. St. 98, 107 Atl. 658 (1919); Davis v. Osborn, 62 Pa. Super. Ct. 291 (1916); Harder v. Mat- thews, 67 Wash. 487, 121 Pac. 983 (1912). "We have laid down the rule that those who cross streets elsewhere than at regu- lar crossings owe a greater vigilance to themselves. ■ By this we did not mean, of course, to absolve drivers from negligence. They are not free, because the regular crossings have been passed, to rush along without regard to people afoot." Todd V. Lewis, 92 Wash. 213, 158 Pac. 1006 (1916). INJURIES TO PEDESTRIANS ' 319 anticipation of their presence that they are required to take at regular crossings.* In crossing a street between intersections, a pedestrian must take into account the equal right of vehicles and their probable presence in the street. He cannot lawfully obstruct traffic by stand- ing in the street unnecessarily, nor arbitrarily require vehicles to move out of his way. His use of the street must be regulated according to the corresponding rights of others.'' "When a pedestrian attempts to cross a street between estab- lished crossings, as vehicles are rapidly approaching, and injury results, he will be chargeable with such carelessness as will pre- vent a recovery of damages; but where, having observed the traffic and using due care, he deems it safe to attempt to cross, he is under no fixed duty to look back, though the circumstances may be such that in the exercise of due care it might become his duty to do so and be negligence to disregard it. But when he reaches a safe place, and, without any act on his part contributing to the cause, a driver suddenly changes the .direction of his car, striking the pedestrian, the latter cannot be held guilty of contributory neg- ligence as matter of law.' Regardless of the part of the street in which the pedestrian may be, if the driver sees, or in the exercise of reasonable care would see, the pedestrian in time to avoid a collision with him, and does not do so, he is liable for resulting injuries. ' Generally he must give way for approaching vehicles.^" He has no right to impede traffic by walking or standing on a public high- way.^^ Greater care is necessary when the street is congested, and when he crosses diagonally between crossings.^^ Especially is this true if his view is obstructed.^' "He has the right to cross the street at any point, in the absence of an ordinance governing^ the matter, and to walk towards the side- walk diagonally from a street car, though then ordinary ca^e on his part may call for additional vigilance." ^* 6Anderson v. Wood, 264 Pa. St. 98, 195 Mo. App.310, 191 S.W. 1122 (1917). 107 Atl. 6S8 (1919). " Warruna v. Dick, 261 Pa. Sl 602, TBruce's Adm'r v. Callahan, 18S Ky. 104 Atl. 749 (1918). 1, 213 S. W. SS7 (1919). 12 Sheldon v. James,, 175 Cal. 474, 166 SKennelly v. Waropoyak, — Pa. St. Pac. 8 (1917). — , 109 Atl. 608 (1920). 13 Moss v. Boynton Co., — Cal. App. 'Anderson V. Wood, 264 Pa. St. 98, — , 186 Pac. 631 (1919). 107 Atl. 658 (1919). 14 Leach v. Asman, 130 Tenn. SIO, 172 10 White V. Metropolitan St. R. Co., S. W, 303 (1914). 320 LAW OF AUTOMOBILES "Pedestrians have in general^ and under reasonable restrictions as to exercise of care by thena, a right to travel anywhere upon a public highway, and it is negligence for a driver of a vehicle upon a public highway to recklessly run upon a pedestrian who is stand- ing or walking with his back toward him." ^^ The Supreme Court of California has said: "As to foot-passen- gers, the old common law rule declaring the King's highway to be 'fair and free' has not been modified in this state by any positive enactment. So that it still remains the law that foot-passengers have the right to use and traverse the highway at all its points^ being chargeable only for the exercise of a due amount of care, which due amount of care, in its quantum, is measured by the use which the pedestrian actually makes. Thus in this state, even in populous streets of cities, pedestrians are hot restricted to the crossings in traversing a street, but may cross it at aily point. And the same is true of their right to walk along the roadbed of a highway." ^* Where the pedestrian had escaped from the path where the auto- mobile should have been driven, his being in the middle of the block wa,s not contributory negligence,^'' Where a pedestrian deliberately chose to walk in the roadway of a street, and when an automobile approaching from bdiind him at 12 or 15 miles an hour gave a. warning signal he became some- what confused and zigzagged ,3,cross its path, and the automobile was turned first to the left and. then to the right to avoid . the pedes- trian, when it struck him, and the machine was stopped IS to 25 feet from the place of collision, it was held that judgment of non- suit was properly entered.^* It has been held, in an action for the dea,th of a boy who was struck by an automobile, that the fact that the accident happened 15 Raymond' V. Hill, 168 Cal. 473, 143 trian to traverse a public highway be- Pac. 743 (1914). tween the regular crossing places, never- 16 Raymond v. Hill, 168 Cal. 473, 143 theless, when one does so, he is bound , Pac. 743 (1914). to a high degree of care, and if i a pedes- 17 Vos V. Franke, 202 III. App. 133 trian goes further and deliberately selects (1916). the roadway of a city street for the pur- 18 Virgilio v. Walker, 254 Pa. St. 241, pose of walking longitudinally, thereon, he 98 Atl. 81S (1916). is obligated to still greater care; io -fact, "While conditions have not, as yet, one placing himself in such danger must arisen in any case brought before us be most vigilant to look after his' own where we have felt called upon to rule safety." Virgilio v. Walker, 254 Pa. St. that it was negligence per se for a pedes- 241, 98 Atl. 815 (1916). INJURIES TO PEDESTRIANS 321 at a point between crossings was proper for the consideration of the jury on -the issue of negligence.^' §301. When ordinance or statute gives vehicles right of way between crossings. Where by ordinance yehicles are given the right of way over pedestrians between street intersections, it is negligence as matter of law for a pedestrian to cross a street between intersections. However, it does not foliow that he can- not recover for injuries occasioned by an automobile collidinig with him while he is in the act of crossing in violation of the orcji- nance, as such violation may not have contributed directly to cause his injuries, and it might be that the motorist coiild have avoided the accident by the exercise of due care after discovering the pedestrian's peril.*" § 302. Pedestrians required by statute to cross at crossings, lih New Jersey a statute provided: "Any person crossing a street at any place other than the crosswalk shall db so at his own risk. Nothing in this regulation, however, ■ shall relieve the drivers of vehicles from being constantly vigilant, exercising all reasdnable care to avoid injuring either persons of property." Under this provision it was held: "(1) That as against owners of vehicles not themselves driving, the pedestrian who crosses a street at a place other than a crosswalk is barred from maintaining an action for damages caused by collision; (2) thiat as against drivers, whether tliey iare owners of the Vehicle or servants of the owner, the pedestrian is not barred of his action. It is quite clear that the statute did not mean to exempt drivers of vehicles from exeircisinjg all reasonable care, or to relieve them from their legal liability prior to the statute. It may be well to add that the provision now in question no longer form^ part of the statute." *^ § 303. Pedestrians having right of way at crossings. An ordinance giving pedestrians the right of way over crossings at street intersections in no wise impairs the duty of' pedestrians to exercise ordinary care to aVoid collisions with vehicles. It means no more than "that, when two or more persons moving in differ- ent directions approach a crossing at the same time or in such manner that if both or all continue their respective courses there is danger of collision, then' the one having the preference is entitled I'Thies V. Thomas, 77 N. Y. .Supp. Wash. — , 186 P^c. 866 (1920). 276,281, 21 Schreiner V. Grinnell, 80 N. J. L, 37, 20Crowl V. West Coast Steel Co., -^ . 97 Atl. 781 (1916). B. AutOB.— 21 322 LAW OF AUTOMOBILES to the fir^t^ use of such crossing, and it is the duty of others tp give him reasonable opportunity to do so." ** ; . It was held that an ordinance providing that, "Pedestriaijs are given the right of way over the crossings at street intersections and upon approaching a crossing or intersectirig ways and also upon traversing the crossing or intersection, the person in control of ^n automobile or other motor vehicle * * * shall sound a signal * * * to give warning to other vehicles and to pedestrians of his approach * * * arid shall riot move at a greater speed than is reasonably safe and proper haying regard to the rights of pedestrians and to the traffic arid use of intersecting ways," merely stated the common law relative to the subject. In this ca:se the law was stated as follows: "If, owirig to the different methods of locomotion and travel, the law recognizes a right of precedence in the use of a crossing, it does not mean that the persons having such right may loiter upon or obstruct thp crossing to the exclusion of others or to the interruption, of street traffic, but rather that, when two or more persons moving in differ- ent directions approach a crossing at the same time or in such manner that if both or all continue their respective courses there is danger of collision,, then the ^one having the preference is entitled to the first use qf such crossing, and it is the duty of others to give him reasonable opportunity to do so. So if we assume that plain- tiff as a pedestrian had already entered upon the crossing as the defendant approached it in an automobile, or if she was traveling in that direction and so near that defendant could not take the crossing \ieiorfi her without exposing her to danger, then it was his duty to stop, or to so reduce his speed as to permit her to pass in safety. On the other hand,, if he had his car under proper con- trol and as he approached the intersection saw plaintiff crossing Locust street from the north to south and saw that she had pro- ceeded far enough in that direction to permit him as a reasonably prudent person to drive over the crossing behind her, there is noth- ing in the rules of the common law or in the statute or ordinance which f6rbade him to do so, nor was he bound to anticipate that plaintiff, having safely crossed his line of approach, might sud- denly change her mind or become panic stricken and turn back into collision with his car." ** Where an ordinance gives pedestrians the right of way on street crossings, it is not necessary that a pedestriarj show that he was «2 Rolfs V. Mullins, 179 la. 1223, 162 23 Switzer v. Baker, 178 la. 1063, 160 N. W. 783 (1917). N. W. 372 (1916). INJURIES TO PEDESTRIANS 323 exactly on the crossing, when he was struck by an automobile, in order to claim the "protection of the ordinance.** § 304. Duty of mere licensee. Where a licensee entered, the roadway inside defendant'* depot, without looking or listening for an approaching vehicle, and was struck by an incoming motor truck, it was held that the jury should have been instructed that he was negligent.** § 305. Last clear chance doctrire. The following instruc- tion, applying the last clear chance doctrine in an action to recover for the death of a pedestrian, was approved : "In connection with the alleged negligence upon the part of the deceased and upon the part of the defendant there is another rulie of law which has a twofold application, commonly kiiown, as the doctrine of 'last clear chance.' In the application of this doctrine I instruct you that if you believe from the evidende that the de- ceased was negligent in failing to see the approaching ; automobile and move out of the way so that it could pass in safety, or negli- gently attempted to cross the road in front of the on-coming auto- mobile, such negligence on his part would not defeat the plaintifiE's right to recover, if the said defendant in driving said automobile actually saw that he was in danger and should haye apprecia^ted the fact that he was in danger, if you so find, in time to have avoided running into him, by the exercise of reasonable care and negligently failed to exercise such care. The other application of the doctrine is that if you believe that the deceased was neglige;it in failing to see the approaching automobile and move out of the way so that it could pass in safety, or negligently attempted to cross the road in front of the on-coming automobile, and if you believe that his negligence had, prior to the instant of injury, ter- minated or culminated by placing him in a situation of danger such that the exercise of ordinary care oh his part alone would hot thereafter have avoided the injury without the co-operation of ordinary care on the part of said defendant, and that she, by keeping a reasonably vigilant lookout, could have seen and appre- ciated the exposed condition of the deceased in time to have avoided the injury, by the exercise of reasonable care, and negli- gently failed to keep such lookout or to exercise such care, then «4 Yanase v. Seattle Taxlcab & Tr. Co., 26 Becker v. Fargo, 158 App. Div. 810 91 Wash. 415, 157 Pac. 1076 (1916). (1913). 324 LAW OF AUTOMOBILES the deceased's prior negligenee would not bar the plaintiff's right of recovery." 26 The doctrine of last clear chance has no application where b,pth parties were equally guilty, and the negligence of both concurred at the very time of the injury to produce that: result;*'' but it does apply where a motorist sa:w a pedestrian standing in the street' and sounded his horn when 200 or 300 feet from him, atid then did not see the pedestrian again until he stepped in front of the automobile too late to avoid striking him.*' If the, injury was more immediately, caused by the motorist's omission, after becoming aware of the pedestrian's danger, to use ordinary care for the purpose of avoiding injuring him, the mot- oris,t is liable.*' ^ The fact that a pedestrian, suing to recover for injuries occur- ing when he was struck by a truck, contends that he was free from contributory negligence, does not preclude him from also relying on the humanitarian doctrine, the two positions not. being ihconsistent.'" An allegation that defendant negligently drove his automobile, thereby striking arid injuring the J)laintiff, a pedestrian, was held sufficieht to let in the humanitarian doctrine.'^ A petition allegiiig that defendant, being the owner and in charge df and operating an automobile, "carelessly and negligently and at an excessive, dangerous and unlawful rate of; speed, to wit,: not less than 20 miles an hour, and without soundirig a horn or giving other signal of his approach, and without using care or diligence to discover the peril in which plaintiff was placed by reason of said reckless, dangerous and unlawful speed of said automobile, and Ayithout using care or diligence to lessen the speed of said.automo^ bile, after seeing the peril in which plaintiff then was and after discovering same, permitted and caused said automobile to run upon and over the curb and sidewalk on said Page Avenue, upon which plaintiff then was,, and caused ^?iid automobile to collide 26 Stephenson v. Parton, 89 Wash. 653, , 29 Hess y. Kemmerer, 6S Pa., guper., Ct. ISS Pac' 14? (1916).' 247 (1916). 27 Mayer v. Anderson, — Cal App. — , 30 Wittenberg v. Hyatt's Supply Co., 173 Pac. 174 (1918) ; Wynne v. Wagoner — Mo. App. — , 219 S. W; 686 (1926). Undertaking Co., 274 Mo. S93, 204 S. W. 31 Frankel v. Hudson, 271 Mo. 495, 196 IS (1918). S. W. 1121 (1917). 28 Stephenson V. Parton, 89 Wash.' 653, . , , 1S5 Pac. 147 (1916). INJURIES TO PEDESTRIANS 325 with and strike plaintiff," was held to sufficiently state a cause of action under the humanitarian or last clear chance doctrine;^^ §306. Same— Illustrations. In an action by a pedestrian to recover for personal injuries incurred in a collision with an automobile, the plaintiff's testimony tended to show that he started to cross from the easterly to the westerly side of a street, not on the regular crosswalk; nor directly across, but diagonally; that he was a little more than half way across when struck by djefendant's, automobile coming from behind ; th?it it. was a busy street, as many as 2Q0 people being within a short distance; that he did not see the car before it struck him, and he saw no other vehicles or Ijorses on the street; that in crossing he looked straight ahead, There was evidence that the chaySeurdid not soujad any warping ; that instead of keeping to the left ^ide of the j^treet and passing behiiid thp, plaintiff, he, attempted to cross to the right side and pass between plaintiff , and the curb to .which plaintiff was going, without attempting to stop; that it was the left guard th^t struck plaintiff; that the car kept on for some distance after the collision before it was stopped; that the distance from the point where the car started to turn from the left to the right side pf the street to the point where the plaintiff was struck was 26 feet at least. It was held that the case was for the jury under the last clear chance doctrine, and judgment for plaintiff was affirmed.** Where a woman was driving an enclosed automobile, with a large glass front, with a female cqmpanion sitting beside her, while two other female companions were on the front seat facing to the rear, a:nd the view of the driver was thus partly obstruclted, though persons and obstructions in the street could be seen ^ivhen not directly in front of the car, and the car struck, the plaintiff, who, with, a female conipanion, . was crossing the street, and had reached the center thereof when the collision occurred, and had not seen the machine, which was going at a speed sufficiei^it to knock her down, pass over her legs vi^ith both the front and rear wheel, and run a distance of 6 feet beyond her before it was stopped, it was held that a case for the jury was made but under the humanitai;iari rule, and judgment for the plaintiff was affirmed. It was held that the operator was not exercising the care imposed 32 0ttofy V. Mississippi Valley Tr. Co., 83Benn v. Forrest, 213 Fed. 763, 130 197 Mo. App. 473, 196 S. W. 428 (1917). C. C. A. 277 (1914). 326 LAW OF AUTOMOBILES by a statute'* providing that a motorist upon a road or street "much used for travel shall use the highest degree of care that a very careful person would use under like or similar circumstan- ces"; it being shown that the street in question was a business one, crowded with people and vehicles.** . The doctrine had not application where a boy jumped from the rear of a wagon and ran so close in front of an automobile that it could not be stopped before one of the fenders struck him<'^ §307. Evidence of probable conduct of pedestrian when confronted with danger. Testimony by an experienced chauf- feur that a pedestrian, suddenly becoming aware of the approach of a moving vehidle, will, almost invariably, jump backwards, was held not to be competent for the purpose of explaining why the chauffeur attempted to drive in front of a pedestrian who was crossing the street, rather than behind her. "What others may have done when confronted with a sudden danger could not possi- bly establish a custom by which the plaintiff would have been bound." «' SPECIFIC ACTS OR OMISSIONS § 308. Overtaking and colliding with pedestrian. In dis- cussing the duty of an automobile operator when overtaking pedes- trians in the highway, and especially with reference to a statutory requirement that such- operator "use every reasonable precaution to insure the safety of such person," the California Supreme Cpiirt has said: "No person who has ever ridden or driven an automo- bile can be unaware of one fact, and that is that pedestrians, and women particularly, are liable to sudden panic upon the une:x- pected approach of this terrifying machine. In the exercise of every reasonable precaution which the law enjoins, it is well within the spirit of the law to say that the driver of an automobilie approaching pedestrians and particularly women, must have his car under such control as that it inay be promptly stopped. The sounding of the horn and the noise of the muffler cut-out are eachi and both well enough in their way, but they do not enibraCe and conclude all of the duties of the driver of the automobile." '* 84 Mo. Rev. St. 1909, §8523. 38 Raymond v. Hill, 168 Cal. 473, 143 SBAronson v. Ricker, 18S Mo. App. Pac. 743 (1914). S28, 172 S. W. 641 (191S). See also, Randolph v. Hunt, — Cali 86Bishard v. Engelbeck, 180 la. 1132, App. — , 183 Pac. 3S8 (1919). ■ 164 N. W. 203 (1917). S'Holroyd v. Gray Taxi Co., — Cal. App. — , 179 Pac. 709 (1919). INJURIES TO PEDESTRIANS 327 It is held that a pedestrian, upon being overtaken by an auto- mobile on a country highway, is not required to leave the used portion of the road.*' The motorist is not relieved of the duty to sound warning of his approach because the light from his lamps may apprise the pedes- trian of the approach, of his machine, especially if he is driving outside the traveled portion of the highway. Nor does the fact that the motorist cannot see distinctly through his windshield, because of the glare of his lights, or for other cause, rdieve him of liability for striking a pedestrian whom he is overtaking.*" The plaintiff was injured in a collision with the side of defend- ant's automobile, and testified, that he was wallsing on the right-" hand side of the road, which was 30 feet wide and macadamized in the middle portion, with borders of sand; that he was walking on the edge of the roadway with one foot on the sand and the other on the macadam; that he heard something or "felt the air," and, turning his head to the left, saw defendant's automobile about half a yard behind him; that instantaneously, and without moving ' from his position, ^he was struck by the car and thrown to the groimd, his arm being broken at the shoulder by the fall. His testimony was partly corroborated in effect by that of his only witness! The testimony of defendant and his witnesses tended to show that he was operating his automobile at a reasonable speed and with due warnings, along the center of the road, and the car was passing the plaintiff safely at a distance of three feet to his left, when, in a state of bewilderment, plaintiff jumped sidewise against the miid guard across the intervening space. It was held that the case was for the jury, ^nd judgment for plaintiff was affirmed.*^ The plaintiff, a man, 63 years of age, was walking along a pub- lic road, where it was graded to a height of 4 or 5 feet. Defend- ant's automobile turned into the roa'd about 100 feet behind him, m^oving 6 or 8 iniles an hour, and, without slackening speed or sounding any warning, struck the plaintiff, who was close to the right side of the graded roadway, and knocked him off the road- way into the gutter. Just before striking plainti^, the machine had turiied to the right to pass another machine going in the oppo- site direction, which placed the former machine on the right side SSEames v. Slark, — Kan. — , ih Pac. 4i Biogini v. Steynen, 124 Md. 369, 92 S40 (1919). Atl. 806 (1914). 40 Woodhead v. Wilkinson, — Cal. — , 18S Pac. 8S1 (1919). 328 LAW; OF AUTOMOBILES of the road. The plaintiff did not know of the machine's approach until he was struck. He was in plain view of defendant's chauf- feur after the car turned into the road. Th^re was evidence that the car could have b^en stopped withiri 12 or IS feet, but it, did not stop until that distance or more after the collision.. There- was evidence that the brakes on the car were, npt applied beforei the pqllision. Plaintiff was struck by the right end of the bumper on the car. A statute required the operator of tlie automobile to use the highest degree of carp thaj; , a very careful person would; use, under like or similar circumstances, to prevent injury or death to persons on the rog,d. , , .> , ,; - In affirming judgment for pla,intiff, the qpui^tin part said: "The vigilant watch doctrine applies here, and there, is,, no good: reason why the driver did not see plaintiff as soon as the car turned. the corn|er,,-an,d he acknowledged that he did thjen see him, but thinks he was not more than about SO ifeet from him. The driyer also saw the other car coming, an,d could readily haye-jtold that the twp cars would meet and pass on the narro\y roadway about, the point where plaintiff was. Certainly a very careful driver using the highest degree of care, seeing this old man in the pathway, of his car with another car about to. pass to his left and the ditch tp hiis right, would not fail to give warning signals of. his approach, and, after giving such signals and seeing thg man was giving no hejed and was apparently, oblivious to his peril, would not cpntinue ^ith his ^peed unchanged till striking him." *" In an action to recover for .injuries caused .by being struck by an automobile, the. plaintiff's yiersion pf^ the accident was thai he and another man were walking along a public road whjen they heard the horn of defendant's automobile, which was beliind them and going in the same direction; that when they became aware of the presence pf the automobile the other man turned to the right, and the plaintiff turned to the left to let it pass; that the plaintiff was overtaken by defendant's car, struck anci injured. The act of plaintiff in turning to the left instead of to the, right was in vio- lation of statute. The defendant offered evidence to prove that, when he saw the two men upon the highway, he sounded his horn and reduced the speed of his car; that he saw them turn and iook at his automobile, when one turned to the right; the other, the plaintiff, after he had turned to the right, then turned to the leSft and ran across the highway towards the defendant's automobile; 42 Young V. Bacon, — Mo. App. — , 183 S. W. 1079 (1916). INJURIES TO PEDESTRIANS 329 that when he discovered this action of the plaintiff the defendant again reduced the speed of his car and attempted to pass the' plain- tiff upon his left side, but the plaintiff continued to run to the left until he was directly in front of the automobile, whfen he was struck and injured. It was held that the fact alone that plaintiff violated the statute mentioned by turning to the left of the road did not defeat re- covery by plaintiff; and that to defeat recovery it must have appeared that the violation of the statute was the proximate cause of the accident. Judgment for plaintiff was affirmed.** § 309. Same— Overloaded machine— dark night— slippery road^high speed. Deceased was walking along the worked por- tion of a highway, this part being 19 feet wide and used alike by vehicles and pedestrians^ there being no sidewalk. It was dark and the road was slippery from a recently formed ice crust. He was killed by being struck by an automobile owned by defendant, which was traveling in the same direction. The automobile was a seven-passenger car, containing nine adult persons, four occupying the front seat, and was not equipped with nonskid chains. There was testimony that if was going thirty miles or more per hour. Held, that the case was for the jury, and that it was error to set aside a verdict in favor of the plaintiff.** § 310. Same— Pedestrian in charge of animals. Evidence that, defendant overtook and collided with a pedestrian who was leading horses on the right of the center of the highway, at night, himself to the left of the horses, but who moved in a direct path, not veei-ing tb one side or the other, was held to support a verdict in plaintiff's favor, in an action to recover for the death of the pedestrian.** The plaintiff was driving a cow and dalf along a country high- way. Her attention was directed to the cow and calf, and this the defendant, who was approaching her in an automobile, knew; and he also knew that she was ignorant of his approach. He sounded his horn, but he stated that he knew she did pot hear hini.' He approached her from the rfear, and it appeared from his own tes- timony that when he first saw her she was 75 yards ahead of him, with her back to him, and she continued thus until the moment he collided with her. It was held that under the circumstances the 48Feehan v. Slater, 89 Conn. 69^, 96 46 Powers v. Loririg, 231 Mass. 458, 121 Atl. 159 (191S). N. E. 425 (1919). 44 Dodge V. Toth, — Conn. — , 110 Atl. 454 (1920). .330 LAW OF AUTOMOBILES plaintiff owed defendant no duty to look or listen for the approach of his machine.*' § 311. Leading horses into street from yard. In an action to recover for the death of a teamster, there was evidence that tide intestate, holding to the bridles 'of his team, walking backward and leading the team forward, led the team into the street from a business yard ; that as "he got it just about in ,the gutter" de;- fendant's auto truck came down, hugging the inside edge of iJie gutter, and without hitting the horees, "pried him off the end of the pole, turned him under the truck and the right hind wheel went over his head," the court sustained a verdict for the plaintiff, saying: "It does not appear whether the intestate looked in the direction from which the truck came before taking his position,' but as he stood at the head of the horses he was lawfully upon the highway and had the right to assume that he would not be run into, and how far his failure to look either forward or backward evinced carelessness was for the jury." *' § 312. Automobile not seen by pedestrian. The plaintiff in a personal injury action testified that he was a teamster by avo- cation, engaged in that calling before and after the accident; that he was a man of mature years, familiar, with the use and dangers of highways, his sight good, and" possessed of all his faculties; that in the afternoon of a bright, clear day h6 was crossing one of the main thoroughfares of the city of Detroit upon which there was at the time no rush or confusion of travel, with two com- panions, the three walking abreast, he being on the side next to an approaching automobile, coming on its proper side of the street, with a clear view in that direction for half a mile; that he looked in that direction and saw nothing, although his companions on the side farthest away did see the car aiid avoided it; that under those conditions he walked right on into the , path of the approaching vehicle and was thrown down by it, after which he arose and walked to a hotel, although he testified that his heart, kidneys, liver, stomach, and lungs had been misplaced, disordered, seriously and permanently injured, and the synovial membrane surrounding, his knee joint was torn apart. It was held that his testimony showed the presence of con- tributory negligence, instead of its absence, as the plaintiff in this 46 Dozier v. Woods, 190 Ala. 279, 67 « Burns v. Oliver Whyte Co., 231 So. 283 (1914). Mass. S19, 121 N, E. 401 (1919). INJURIES TO PEDESTRIANS 331 state had the burden of showing; and judgment in his favor was reversed and a new trial ordered.** The plaintiff, who was walking ahead of her companion, reach- ed the sidewalk on Beacon street in Brookline at a point where the street was thirty feet in width. She testified that she stood on the edge of the sidewalk about five or ten seconds and looked in bdth directions; that she waited for two automobiles going in opposite directions to pass, again looked towards Coblidge corner then towards Washington square, and not seeing any automobile coming from either direction, , stepped off the sidewalk and took five or six steps, was struck, knocked down, and rendered un- conscious; that she heard no warning signal and did not see the automobile which struck her; that it came from the direction of Coolidge corner. She further testified that, in looking towards Coolidge corner, from the place where she attempted to cross the street, her view was obstructed on account of the grade and a curve in the street which prevented her seeing a distance of more than SO feet. The jury viewed the locality in the vicinity of the accident. The accident occurred a:bout 7:30 o'clock in the evening of April 23, 1916. It could have been found that the automobile was traveling at the rate of not less than 25 miles an hour when it struck the plaintiff, and that she was thrown 10 or IS feet. Held, that the question of contributory negligence was for the jury, and verdict for plaintiff was upheld.*' Where the plaintiff, a mute boy of 18 years, was crossing a public street diagonally, at such an angle that defendant's auto- mobile, proceeding along the street, approached him almost from _the rear, and the plaintiff was reading something in his hand, and there was evidence that he continued his course at the same rate of speed, and that the automobile struck him without varying from its course or slackening speed, and that the boy was in full vieVF while crossing the street, and that the accident could have been averted by reducing the speed of the automobile or swerving it to the right, judgment for the plaintiff was affirmed.*" Where the testimony was conflicting as to whether the defendant sounded the bell on her automobile before colliding with the plain- tiff, as the latter crossed a public street, and the plaintiff testified that she looked before starting across the street, and that the street was clear of traffic for a block, and no automobile was in 48Tolmie v. Woodward Taxicab Co., Mass. ISS, 119 N. £.650 (1918). 178 Mich. 426, 144 N. W. 8SS (1914). 80 Diamond v. Cowles, 174 Fed. S71, 48 Chaplin v. Brookline Taxi Co., 230 98 C. C. A. 417 (1909). 332 LAW OF AUTOMOBILES sight, the questions of negligence and contributory negligence were for the jury, although plaintiff was slightly deaf. *^ The plaintiff testified that, after he came up from a subway landing to the surface of the street, he-walked across the sidewalk to the curb, intending to board a street surface car then coming slowly to a tisual stopping place, and that only after he Jiad stepped from the curb and taken a step in the street he saw the def eiidant's motor car "looming" upon him, close upon him, probably 10 feet distant, corning within 2: or 3 feet of that curb, and that he heard neither horn nor signal. He did not testify that he never saw the motor car, but that he did not see iti until after he left .the, curb. He testified that the space from the exit of the subway to the curb was 6 or 7 feet, and that he looked into the , street when he came from the subway to the street level, and again, as he passed over to the curb, and again as he left the curb. It was 8 p. m^ of a rather dull day in February. There were street lights shining, somewhat obscured by the structure of the elevated railroad, and. there were lights in the windows of the neighboring shops. Th§ plaintiff was not permitted to Show whether there were other motor cars then in the street; :■.,,■.', i ,, ; , It was held that this evidence was, not so incredible as to 'author- ize a judgment: of nonsuit, the court saying: "It is common ex- perience that motor cars often travel so silently and so swiftly, that but for their signals of approach they woiild come upon even ,;the vigilaiit. It must be remembered that plaintiff, did not testify that he did not see the motor car at all,j but only that, although he looked during his passage from subway exit to the taking qf : one step from the curb, he did not see it during that period of his. travel. I think that such testimony could not be pronoiinced in- herently incredible^ as a matter of law. Such testimony is not, to be compared with that of plaintiffs, who^ e. g., testify that, looking from safe viewpoints of unimpeded vision, they did not see oncom- ing railway trains so near as to deter any man of ordinary prudei^qei from crossing their rights of way." *^ . ; If a pedestrian: testifies that he looked and did not see an ap- proaching automobile which he must have seen had he looked, such testimony is unworthy of consideration.*^ 81 Birch V. Abercrombie, 74 Wash. 486, 53 Sullivan v. Smith, 123 Md. 546, 01 133 Pac. 1020, SO L. R. A. (N. S.) 59 Atl. 456, 8 N. C. C. A. 379n (1914). (1913).' , ; : - 62 O'Neil V. Kopke, 170 App. Div. 601, 156 N. Y. Supp. 664 (1915). INJURIES TD PEDESTRIANS 333 § 313. Same— In village street. In an action by a pedestrian to recover for injuries due to being struck by an automobile while in the act of crossing a street in a country town, the facts, and the law applied thereto, appear from the following language of the court: Without going very deep into the mathematics of the situation, it may be asserted that the distance to be covered by the plaintiff before he reached a place of safety across the street — about 90 feet — would be traveled in from 20 to 25 seconds. He was about to cross a vacant street in a quiet country village. No automobile was in sight to the south, in which direction he had a clear view of about IS rods. Not another traveler was in the roadway. We cannot say that a prudent man would not have assumed that he could safely cross without looking again. He was not bound as matter of law to anticipate that within the 20 seconds an automobile driven at dangerous speed and in utter disregard of his presence in the street would come out of the unseen distance and run him down. It must be borne in mind that this plaintiff had passed beyond the middle of the street, and had al- most reached the grass on the other side. From this fact the jury might reasonably infer that a prudent man would give his chief attention to cars approaching him from the north and relax somewhat his watchfulness for cars approaching from the south. Take it all in all, the question of contributory negligence was for the jury. As is usual in such cases, it is easy enough to look back at' this accident and see how a little more watchfulness on the plaintiff's part would have saved him. But this is not conclusive against him. He is to be judged by the situation as it appeiared or ought to have appeared to him at the time. The mere fact of the collision is not necessarily inconsistent with the theory of due care on his part.** §314, Neither seen by the other. In an action to recover for injuries caused by being struck by an automobile, it appeared that no one actually saw the accident. The plaintiff testified that be- fore crossing the street in the village in question, he looked and saw a trolley car at a distance, which would not render it unsafe for him to proceed; that he saw no other vehicles approaching; that he started across the street in a diagonal direction, but, before reaching the other side, the automobile, which he had not seen, struck him. The defendant testified that he did not see the plain- 84 Aiken v. Metcalf, 90 Vt. 196, 97 Atl. 669 (1916). • 334 . LAW OF AUTOMOBIt-ES tiff until the very instant of theyCoHision. :The view between the automobile and the plaintiff was unobstructed. It was held that the evidence showed negligence on the part of the defendant." § 315. Pedestrian emerging from in front of team. Plaintiff endeavored to i cross a public street, 30. feet wide, at an intersect- ing street, from the southeast of the southwest corner. . It appeared that there was a wagon and team standing about 6 feet south of the crossing next to the east curb; that she passed. in front of these horses, and stopped and looked both ways of the street;: that a wagon was coming north on the car track, and she waited for it to pass and again looked north and south ;^ that she saw no vehicles approaching and proceeded to cross; that defendant's automobile, running from the south at a high rate of speed, struck her as she stepped from in frpnt of the standing horses and threw her almost the width of the intersecting street. There was evidence that the automobile was moving at an excessive rate of speed; that no warning was sounded as it approached the intersecting street; and that the machine ran ISO feet after striking plaintiff before it was stopped. , ,1, , It was held that the issue of contributory negligence was for the jury; and jui^gment in plaintiff's favor was affirmed.'® § 316. Pedestrian emerging from close in front of street car. The plaintiff proceeded to cross an east and west street from the north side, and passed directly in front of a standing street car on the north, or west-bound, track. His vision of approaching west- bound vehicles was entirely cut off by the car, and as he emerged from its far side, he was hit by defendant's automobile, which had come up behind the car, and was passing it in a westerly direction. It was held that he was properly nonsuited, the court in part say- ing: . "The conduct of the chauffeur may have been negligent, but so was that of the plaintiff in crossing a narrow city street, when he knew that he had: no knowledge and no means of ^ knowing the conditions that were hid from his vision by the standing trolley car. The elemental rule of care required that the plaintiff should make some observation that would be reasonably . effective for his own safety. A delay of a fraction of a minute or a slight detour to the west in passing in front of the standing car would have offered some opportunity for an effective observation" as to possible BB Gouin V. Ryder, — R. I. — , 94 Atl. 56 Kurtz v. Tourison, 241 Pa. St. 425, 670 (191S). • 88 Atl. 6S6 (1913). INJURIES TO PEDESTRIANS 335 danger from the only source from which it might be appre- hkded."" ■ § 317. Pedestrian emerging from behind vehicle in middle of block. It is the duty of the driver of a vehicle, when passing other vehicles on city streets or other busy highways, to look out for pedestrians emerging from behind such vehicles, and to use care commensurate with the dangers reasonably to be anticipated to avoid iriiuririg them.** A pedestrian who started hurriedly across a street, ISO feet from a crossing, near a standing wagon which obscured her view, and, walking from behind the wagon', stepped in front of an ap- proaching automobile without seeing it, and who was ndt seen by thie operator until she was struck, was guilty of contributory negligence which barred recovery by her for the resulting injuries, although the automobile was being driven at 2S miles an hour.*' Where one who started diagonally across a 30-foot street in fhe middle of the block, suddenly stepped into view from behind an automobile, with his back towards vehicles that might be expected from that direction, and who did not look for an approaching auto- mobile nor hear the noise it made or a shout of warning that was given, was contributorily negligent, and no recovery could be had for his death.^' § 318. Emerging from behind crowd in middle of block. In a case in which it appeared that the plaintiff was struck, just after emerging from behind a crowd, by defendant's automobile, moving at a moderate speed on the prbper side of the street, but which sounded no warning in passing the crowd, it was held that the plaintiff was contributorily negligent and could not recover, it appearing that the accident occur reel in the middle of a, block, and that plaintiff did not at any time look in the direction from, which the automobile approached.®^ § 319. View of both obscured by team. Where a pedestrian -was struck by an automobile, moving at 25 or 30 miles an hour, just after it emerged into view after passing a team and wagon B7 Conrad v. Greene, — N. J. L. — , 94 60 Fulton' v. Mohr, 200 Mich. 'S38, 166 Atl. 390 (1915). N. W. 8S1 (1918). BSWinckowski |V. Dodge, 183 Mich. 61 Todd v. Lewis, 92 Wash. 213, 1S8 303, 149 N. W. 1061 (1914). Pac. 1006 (1916). B8 Harder v. Matthews, 67 Wash. 487, 121 Pac. 983 (1912). 336 LAW OF AUTOMOBILES on the wrong side, at a customary crossing for pedestrians, it was held that a verdict in the plaintiff's favor, in an action to recover for the death of the pedestrian so caused, was justified.®* § 320. Automobile obscured by wagon. The plaintiff was crossirig.a public street from the sguthj^ast corner ,qf an intersect- ing street, in a southwesterly direction, and had reached a po^^t about the center of the street when he was struck by defendant's automobile, being driven north on that street. The street was 3^Q feet wide between purbs, and at the time in question a large garbage wagon, equipped with a high box, was standing on the street abiout 5 feet west of the east curb, and about IS feet south of the. intersecting street mentioned, a,nd a wagon was going south, a little west of the center of the street. There, was no warning signal given of the approach of the autoinobile to the street inter- section. There was testimony that the machine was running noise- lessly; thdt it was moving at 25 to 30 rniles an hour; that not- withstanding the efforts of the chauffeur to stop the automobile, it did not come to a stop until it had run a distance of 70 to 75 feet beyond the point of the accident. The plaintiff testified that, just before starting into the street he looked both ways and did not see the autpmobile until it struck him; and another witness stated that plaintiff was looking north when he was struck. In affirming judgment for the plaintiff the court held that the defendant's contention that if plaintiff looked he must have seen the automobile might prevail if the garbage wagon had not ob- structed his view to the south.^' The plaintiff left, his automobile at the curb on the westerly side of Bloomington avenue, in Minneapolis, about 55 feet southerly of its intersection with Lake street. Bloomington runs north and south and L,ake east and west. He then started on foot diagonally across the. street in a southeasterly direction, A water wagon was coming from the north on the westerly side of the avenue a few feet west of the center line. Still farther to the north, on the same side of the street, the defendant was coming with his auto. The defendant turned to his left to pass the water sprinkler which. was in operation. At this. m,oment the plaintiff was hastening across the street in front of the approaching water wagon and he and the auto came in contact just easterly of the center line of the street. 62 Miller v. Tiedemann, 249 Pa. St. 234, 63 Goldblatt v. Bfocktebank, 16!6 111. 94 Atl. 83S (1915). App. 315 (1911). INJURIES TO PEDESTRIANS 337 It was held that while a verdict for the plaintiff may have been proper, one in favor of defendant would not be disturbed.^* § 321. Automobile obscured by street car. A pedestrian may cross in front of a street car without first ascertaining whether ah' automobile moving in the same directioii as the car and concealed by it, is approaching at a negligent rate of speed, without being chargeable with negligence per se. And after passing safely in front of the car and being confronted by an automobile moving at an excessive rate of speed, and but a few feet distant from him, he is not held to the same accountability in choosing a way of escape as one is when not confronted by imminent and unexpected danger.®" §322. Automobile turning suddenly around street car. Where the defendant drove his automobile at a negligent, rate of speed' around the rear, and in the same direction, of a street car where he found the plaintiff directly in his path and so close to him that he could not by any sort of diligence stop his automobile in time to prevent a collisibn and the consequent injury to the plaintiff, he was held responsible for such injuries.®^ Whether or not it is negligence for a motorist to, drive around a standing street car, striking a pedestrian in so doing, depends upon the degree of care required in the, operation of his machine, and this in turn depends upon the dangerous character of the machine, its size, weight, the speed at which it is operated, the noise it makes, the condition of the street, etc.*'' § 323. Driving past standing street car— Pedestrian cross- ing in front of car. The injury to the plaintiff's decea,sed oc- curred, at the intersection of Jefferson and Park avenues, in the city of St. Louis, The former runs north and south, and the latter east and west. The sidewalks on Jefferson avenue east and west of Park avenue are 12 feet wide and the roadway is 66 feet between the curbs; and the sidewalk on the north side of Park avenue, east of Jefferson, is 35 feet wide, and that on the north side, west of Jefferson, is IS feet in width. Upon each of those avenues there is a double track street railway, with switches connecting all of said tracks, nqrth, south, east and west. The distance from the eastern rail of the north-bound track on Jefferson avenue, north of 64 Benson v. Larson, 133 Minn. 346, 66 Gregory v. Slaughter, 124 Ky. 34.5, 1S8 N. W. 426 (1916). 99 S. W. 247, 124 Am. St. Rep. 402, 8 66 Citizens Motor Car Co. v. Hamilton, L. R. A. (N. S.) 1228. 32 Ohio Cir. Ct. R. 407 (1909), aff'd 83 67 Bellinger v Hughes, 31! Cal. 'Apo. Ohio St. 4S0 (1910). 464, 160 Pac. 838 (1916). B. Autos.— 22 338 LAW OF AUTOMOBILES Park avenue to the east curb, is 25 feet and 7 .inches, and the distance from the south line of Park avenue east of Jefferson to the north line pf Park east of Jefferson is 120 feet, and the roadway on Park avenue east of Jefferspij is 50 feet wide. The court stated the plaintiff's evidence as follows; "Her evi' dence tended to prove that, on the evening of November 22, 1911, about 8:30 o'clock p. m.^ it being rather dark and raining, one of the cars of the United Railways Company, on the east track of the Jpfferson avenue line, approached Park avenue frpm the south, and crossed the same, and stopped with the rear end thereof resting upon the crosswalk on the north side of Park avenue; that said stop. was made for the purpose of receiving upon and discharging pas- sengers from said car ; that the distance between the east track, on Jefferson avenue to the east curb tl^ereof was 25 feet and 7 inches, if I correctly understand the plat filed in the case, and not 17 feet and 9 inches, as stated by counsel for respondent. Under those con- ditions, while Meenach was walking across Jefferson avenue from the west to the east side thereof, just in front of said street car, the defendant drove his automobile through said space at about 10 miles per hour, or about 15 feet per second, without sounding the horn or giving any other signal of its approach, and that, too, while passen- gers were getting upon and alighting from said car, within said space of 25 feet, less the distance occupied by the side of the car projecting over the east rail of said track." A statute of the state required that "in approaching or passing a car of a street railway, which has been stopped to allow passen- gers to alight or embark, the operator of every motor vehicle shall slow down, and, if it be necessary for the safety of the public, he shall bring said vehicle to a full stop," and "upon approaching a pedestrian who is on the traveled part of any highway and not upon a sidewalk, every person operating a motor vfehicle shall slow down and give a timely signal with his bell, horn, or other device for signalling." It was held that the case should have been sub- mitted to the jury, and that it wa,s error to peremptorily instruct in favor of the defendant.*' Where one Was strutk by an automobile which passed a street car on the left, in violation of an ordinance, it was immaterial that there was an obstruction in the street on the right of the car at that point; there being no evidence that the street was obstructed at other points.®' 68 Meenach v. Crawford, — Mo. — , 69 Link v, Steeles, 20? 111. Appi 48 187 S. W. 879 (1916). (1917). INJURIES TO PEDESTRIANS 339 Failure of a motorist to comply with the rules of the road in passing a street car does not lessen the duty of pedestrian to exer- cise reasonable care.'"' §324. Automobile, zigzagging-, obscured by standing ve- hicle. While a large auto truck some 7 or 8 feet high was stand- ing at the curb in front of a store on the north side of Lake street in the city of Minneapolis and about SO feet east of the intersection of that street with Lyndale avenue, plaintiff came out of a store and proceeded west along the sidewalk 12 or 15 feet beyond the truck and then started diagonally across Lake street tpward the southeast corner of the intersection of the two streets. As she stepped from the sideWalk to the street, she looked toward the east and saw nothing upon the street in that direction except the truck ; she then looked toward the west, and, when she had passed into the street about 5 feet outside the truck, again looked toward the east and saw the automobile at a short distance coming directly toward her at a high rate of speed. It swerved toward the curb as if to pass behind her, and she hurried forward; it then swerved to- ward the center of the street, and she was struck by the headlight or fender on the left side of the machine. When she looked east- ward the first time, the automobile was apparently hidden from view by the truck. Held, that plaintiff was not contributorily niegligent as matter of law, and verdict for plaintiff was upheld.'^ §325. Pedestrian emerging from behind wagon— Automo- bile on wrong side. The appellant started to cross a street, 30 feet wide between curbs and extending north and south, at a point which was in a direct line with the southerly side of a street which intersected but did not cross the one he was on. At that time, according to the appellant's testimony, there was a top wagon standing, backed up to the curb, which wagon extended into the street about 12 feet. To the south of the wagon stood an autOT mobile, leaving ample space between the two vehicles for a cross- ing by persons desiring to cross the street at that point. While on the, sidewalk and before starting to cross, the appellant looked to the north and observed a team pf horses pulling a wagon, with a colored driver, sitting on a high seat, driving the tearn slowly in the center of the street, in a southerly direction, about SO or 60 feet away. The appellant then started to cross through the open space referred to, his view to the north for the distance of 12 feet 70 Becker v. West Side Dye Wks., — 71 Xheisen v. Durst, 138 Minn. 353, 165 Wis. — , 177 N. W. 907 (1920). N. W. 128 (1917). 340 LAW OF AUTOMOBILES -being shut out by the top wagon standing there, and, whesn he reached a line of vision to the north, he again looked that way and only observed the same team of horses with the colored driver, which were then about 30 or 40 feet away. He then looked to the south and saw nothing approaching and then took a step forward, about 3 feet, when he was struck by the respondent's aut'omolaile, which came from the north, and which the appellant says he did not see at the time he lookied in that direction. There was also testimony to the effect that the driver of the automobile gave no signal or warning of any kind of the approach of the automobile. It was held that the questions of negligence and contributory negligence were for the jury.''^ 72 "The driver of the automobile was under a, legal duty, to use reasonable care to. avoid colliding 1 with other yehieles or persons in the public highifray. His duty was to be on the alert to observe persons who were in the street or about to cross the street and to use reasonable care to avoid colliding with theiii. He was under a duty I to have his autornobile under proper control. He was und,er an obli-, gation to take notice of the' conditions existing in the public street and to propel his car in a manner suitable to those conditions. He was under a duty to-, observe the condition which, existed at the crosswalk, in that for a distance of 12 feet the view of a person crossing from the east to the west side of Halsey street was obscured by the top wagon. The uncontradicted fact in the case is that the driver of the automobile gave no audible signal or warning of his ap- proach to the obscured part of the cross- walk. From that fact alone the jury might. properly have found that, the driv- er's failure to. sound a warning of the apprpach of his automobjle to the cross- ing was negligent conduct. Furthermore, from the testimony, the jury might have found that the chauffeur was negligent in driving too close to the obscured part of the crosswalk, or that, in the exercise of reasonable care, he might have avoided the accident by steering his car to the right. The testimony shows that, when the appellant looked to . the north before he took the step to cross the street, the team wagon was within ,30' feet of the spot where he was: standing. The appel- lant saw no automobile, and that might, very well, have been so; for if the auto- mobile was behind the team wagon which was proceeding in the center of the high- way, or was to , the right 6i the wagon, the automobile would have been .con- cealed from the view of the appellant. If, while the appellant was looking to- ward the south to guard againSt any dan- ger to be apprehended in that direction, the automobile suddenly spurted from behind the team wagon, it is not, an un- fair inference that the appellant, when he took the step forward to continue cross- ing the street, was^ suddenly overtaken by an unexepected peril. "Bearing in mind that Halsey street is only 30 feet wide, that the top wagon of the department store obstructed within 3 feet of the center of the highway the appellant's view to the north, that the 3 feet of space between the extreme west- erly end of the top wagon and the center of the street was apparently insufficient to allow a vehicle to pass between the team and the top wagon when the ve- hicle reached that part of the street, it cannot be said as a matter pf law that a prudent person, in the exercise of rea- sonable care, similarly situated as the appellant was, would not have acted as the appellant did. That was necessarily a jury question. The appellant was un- INJURIES TO PEDESTRIANS 34 1 i § 326, Driving between curb and row of parked automobiles. A motorist who drives between the curb and a row of automobiles parked in the street must do so with reasonable care in view of his surroundings, so as not to endanger persons who may tie passing from the place of parking to the sidewalk. Where the distance between the automobiles and the curb was ■]J^ feet, it was held that driving an automobile within two and a half to three feet of the rear of the parked machines was sufficient to raise an inference of negligence.'" § 327, Carrying umbrella in rain— Not seen by motorist. "The plaintiff had alighted from a trolley car and was proceeding to tlie railroad station at Westerly, R. I. In order to reach said station: it was necessary; for her to traverse an intervening grass plot Mosso v. Stanton, 75 Wash. 220, 134 Mo. App. 310, 191 ^. W. 1122 (1917). Pac. 941 (1913). *Daneschocky v. Sieble, 19S Mo. App. 470, 193 S. W. 966 (1917). B. Alltos, — 23 354 LAW OP AUTOMOBILES 'of which he was driver, and left the rear of same with IS pies on his arm, started across the street, and was struck by defendant's automobile. It Appeared that the automobile was on the trolley tracks and directly behind a trolley car, whith was proceeding in a westerly direction. The plaintiff testified that when he first saw the auto- mobile it was about 100 feet away,, and that he had walked from the rear of his wagon, the distance variously estimated at 9 and 1 S feet, and had passed over one track and was just on the insidp track when he was struck by the automobile. For the appellant, the driver of the automobile, testified that he was driving on the trolley tracks behind the trolley' car at 8 or 10 liiiles an hour; that he saw plaintiff ' leave the reiar of his wagon and start across the street; that at that time the automobile was 1 SO feet away ; that he gave no signal of the approach of the auto- mobile to warn the plaintiff. "We think that it was a question of fact for the trial judge to determine whether the defendant, under the surrounding circumstances, by the exeirci^e of reasonable care could have avoided running into the aged plaintiff. The trial judge found that the defendant could have avoided the accident by the use of reasonable! oare. The speed at which the car was driven under the surrounding circumstances and the failure of the driver of the automobile to sound a warning to the aged plaintiff were the basis of the court's finding that the defendant was negligent. We think the facts properly justified this inference." Judgment for plaintiff was affirmed.' § 342. Walking close in front of automobile. It has been held to be contributory negligence as a matter of law for one to blindly walk in front of a moving vehicle without looking to see if a safe passage could be made and without using any care to avoid injury.® If he steps in front of an automobile, being lawfully operated, in such close proximity to the niachine that, in the exercise of the required degree of care, the operator cannot avert a collision, he cannot recover.^" "A party may not step immediately in front of a rapidly moving automobile with notice that it is approaching, no more than he can SHeckman v. Cohen, 90 N. J. L. 322, So. 276, 1 N. C. C. A. 120 (1912) ; Steph- 100 Atl. 695 (1917). enson v. Parton, 89 Wash. 6S3, ISS Pac. SCurro V. Barrett, 1S6 N. Y. Supp. 147 (1916) ; Epstein v. Ruppert, 129 Md. 289 (191S). 432, 99 Atl. 68S (1916). 10 Barbour v. Shebor, 177 Ala. 304, 58 INJURIES TO PEDESTRIANS 3S5 do so in front of a rapidly moving locomotive, and hold another for the consequence of his rash act. A man using a public highway or crossing a railway track must use reasonable care by the exer- cise of his senses to prevent his own injury, and if he fail to do so the consequences must fall upon him, a,l though the negligent act of another caused his injuries." ^^ Where one stepped from a walk in the center of a street in front of an approaching taxicab, by which he was struck and injured; and there was no evidence that the taxicab was negligently oper- ated, he could not recover, and the case should not have beeft sub- mitted to the jury.^^ §343. Crossing congested street. The plaintiff in a personal injury case testified that he was knocked down and injured by de- fendant's automobile when he was about two-thirds across a public street at a crosswalk; that the accident occurred during daylight; that when he reached the street in question there were four lines of teams, two gping north and two moving south' that he worked his way througli the two going south; that there was a break,^ as he remembered it, in the third row, which was going north; that the rear end of a large load(^d dray was on the crossing, and the driver was trying to start the horses ; that just as the team moved the plaintiff, who was looking straight ahead to get through, "just stepped one step," with his left foot, his right foot being to the rear, when the automobile ran on to the instep of his right leg and held the foot; that it struck him and knocked him to the street. The court declared itself "of the opinion liiat the questions whether in deciding to cross the street and the method of carrying out that decision the plaintiff was in the exercise of due care, whether the driver of the automobile was negligent, and generally whether the accident was attributable to the negligence of either, or of both, or of neither of the parties, were questions for the jury;" and a verdict for the plaintiff was susta.ined.''' Where there was evidence that at a place of great congestion of traffic in a city street the plaintiff, seeing an approaching taxicab of the defendant 20 to 25 feet away, under circumstances which led him to form a judgment that there was ample time to, pass in front of it, started to cross froiii one side of the street to the other, and , , 11 Lewis V. Wood, 247 Pa, St. 545, 93 18 Huggon v. Whipple & Co.,, 214 Mass; Atl. 60S (1915). 64, 100 N. E. 1087 (1913). 1« Lamer v. New York Tr. Co., 149 App. Div. 193, 133 N. Y. Supp. 743 (1912). 356 LAW- OF AUTOMOBILES, was struck and injured, it was held that whether the plaintiff was justified in his conduct and whether defendant's driver was negli- gent, were questions for the jury. ^* Deceased attempted to cross a busy street, 58 feet wide;' from a point opposite the line of a street that intersected)' but did not cross it. A loaded wagon was standing near the curb, and after passings it and getting fairly into the street, he was struck i by de- ffendant's! automobile, with force sufficient to, lift him from his feet and throw him on the street pavement, fracturing his skuUi^ He died from his injuries about 48 hours afterwards. There was testi- mony tending to show that the automobile was moving at 121 to 15 miles on hour ; that dec^a.sed was struck by the front of the. car, near its center, and that it moved 40 or .^0 feet after the collision before it was stopped. The court charged the jury that in a crowded street the operator must use the required care to avoid a collision; that one crossing a public roadway must look and listen to ascertain if vehicles are coming; that he must be on his guard after he starts across the street, and must continue on the alertj while crossing the entire roadway; that the question whether, con: sidering the congested condition of the street, the automobile was being run at a negligent rate of speed, was for the jury to deter- mine; that the. jury might take into consideration, in judging of the speed of the car, the distance it traveled before it came to a stop after striking the deceased. On, appeal these instructions were approved, and judgment for the plaintiff was affirmed. In regard to the last iiistruction mentioned, vi^., that the jury might consider the distance the automobile traveled after the col- lision, the court said: "The very ptirpose in running slowly is to enable the driver to bring the. automobile quickly to a halt in case;pf emergency. The test of control is the ability to stop quickly, and easily. When this result is not accomplisheii, the inference; is ob- vious that the car was running too fast, or that' proper effort to control it was not mad'e. If dangei;ous and powerful machines, iSijch as automobiles, whose weight, when in motion, gives them great momentum, are to be permitted to use the public highways, prud- ence "requires that they be kept under good cpntrql so that they, may be promptly brought to a halt, if need be." " . , § 344. Crossing street after seeing automobile. It is not negligence per se in all instances for a pedestfian to cross in front 1* Griffin v. Taxi Service Co., 217 iSLorah v. Rinehart, 243 Pa. St. 231-, Mass. 293, 104 N. E. 838 (1914). 89 Atl. 967 (1914). INJURIES TO' PEDESTRIANS 357 of an automobile which he sees approaching;^® and he is not neces- sarily guilty of negligence for failing to avoid a collision with an automobile that he saw approaching. He has a right to assume that it 'will approach at a lawful rate of speed, and he may calculatfe upon passing in front of it upon that assumption." It is not negligence per se for a pedestrian to start across a street after seeing an automobile 100 feet away, coming toward him. So, where the plaintiff, about to cross a* street, noticed defendaiit's automobile approaching at t)jat , distance, and while standing to allow a street car to pass was struck in the back by the mud guard of the automobile, judgment dismissing her complaint on the ground of coritributory negligence was reversed.^* Where a pedestrian, before going into a street at a crossing, saw and heard an automobile approaching about 130 feet distant, and then continued in the street without again looking for the machine, and was struck by it at a point about 35 feet from where he was when he saw it, it was held that he was contributdrily negligent and could not recover.^' Plaintiffs were struck by a taxicab, driven by an employee of defendant, as they were crossing a public street. When th6y had taken a step or two into the street plaintiffs saw the taxicab approaching, and when they had proceeded to within about nine feet of the curb, the taxicab was about eighty feet away. They were struck just as they were stepping from the street to the curb. The driver did not see them before the collision. The trial judge, before whom the case was tried without a jury, found that, granting that the driver was negligent, the plaintiffs were contributorily negligent. Accordingly he entered, judgment for defendailt, which was affirmed on appeal.^" Where the plaintiff saw the defendant's automobile, which was traveling at a moderate rate of speed and started across the street without looking for it again, and ran^ into the automobile which caused the injuries complained of, a finding for the plaintiff was reversed.*^ 1« Williams v. Benson, 87 Kan. 421, i»McCormick. v. Hesser, 77 N. J. h. 124 Pac. 531 (1912). 173, 71 Atl. SS. I'^Kessler v. Washburn, 1S7 111. App. 20Laughlin v. Seattle Taxicab & Tr. 532 (1910). ' Co., 84 Wash. 342, 146 Pac. 847 (1915). 18 Schneider v. Locomobile Co., S3 21 West v. New York Transp. Co., 47 Misc. 3, 144 N. Y. Supp. 311, 4 N. C. Misc. 603, 94 N. Y. Supp. 426. C. A. 8 (1913). 358 LAW OF AUTOMOBILES §345. Pedestrian having seen automobile— Res ipsa lo- quitlir. The doctrine was held not to apply in a case where an elderly lady was struck by a truck while she was attempting to cross a street at an intersection; she having seen the truck coming at a "fast" rate, pf speed.** : • § 346. Pedestrian standing in street. It was held that a pedestrian who was standing in the highway conversing with one iVho had stopped his teamio talk to him had a right to assume that the operator of an autorhobile would take notice that he was there, and w'ould exercise care not to iiijure him; and that he was hot guilty of contributory negligence in so standing in the road.** A motorist who runs down a person standing in the street after having seen him at sufficient distance to easily avoid him, is guilty of negligence, where such person did not change his position while the automobile was approaching.**^ ' One standing, in the street between an automobile standing near the curb and traffic passing on that side, was not per se negligent in failing to observe approaching vehicles.** A guest who had alighted i from an automobile, passed around behind and to the other side of it, and was standing for a moment with has foot on the running board, while the driver, was in frdnt looking there for some trouble with the machine, was not contrib- utorily negligent as matter of law.*® It cannot be said, as matter of law, that one who was struck by An autoniobile while he was standing in a country highway about noon looking at a punctured tire on a truck on which he had been riding was negligent; there being sufficient room for die machine to pass him.*' ' ^ As the plaintiff was walking north on the west sidewalk in a 2«Rothfield V. Clerkin, 98 Misc. 192, 2B Regan y. Los Angeles Ice & C. S. 162 N. Y. Supp, 1056(1917).^ Co., — Cal. App. — , 189 Pac. 474 2SKathmeyer v. Mehl, — N. J. L. — , (1920). 60 Atl. 40, 41 (190S). 26 Walden v. Stone, — ^.o. App. — ', In the case of Stephenson v. Earton, 223 S. W. 136 (1920). ' ' '' 89 Wash. 6S3, ISS Pac. 147 (1916), quot- ^T'ln other words, the law does not ing from 2 R. C. L. p. 1184, it was said: require an ordinarily prudent person to ; "If a person is standing in the highway, eicpect , such carelessness. On the con- a driver must notice him and take care trary, he has a right to expect, and to not to injure him, and a failure to see rely on the expectation,, that the dilver a pedestrian in the street may amount to of the automobile will avail himself of negligence." the opportunity to pass by in safety." 21 Stephenson V. Parton, 89 Wash. 6.')3, Humes v. Schaller, 39 R. I. S19, 99 Atl. 155 Pac. 147 (1916). SS (1916). INJURIES TO PEDESTRIANS 359 public street, she came to a temporary feiice blocking the sidewalk. She found a two-horse dray facing south, drawn up against that portion of the sidewalk, and she started to go around the horses and dray to reach the sidewalk beyond the blocked off portion, as she saw other people doing. When she reached a point "just beyond the horses' heads" she heard an automobile horn and saw defend- ant's car about 60 feet away, Coniing toward her at moderate speed. She testified that she looked before she stepped from the sidewalk and looked again as she stepped around the horses' heads, arid that when she saw the macjiine it seemed to her that it would pass her "all right." When she saw the car she stood perfectly still where she then was, against the front wheel of the dray. After the for- wa,rd part of the car had gone by without hitting her, the car swerved, and she was struck by the mud guard over the rear wheel or by the canopy. No one in the machine saw the plaintiff, or knew of the accident until told of it. Held, that the case was fpr the jury in respect of both the questions of negligence and contributory negligence, and a verdict for plaintiff was sustained.** § 347. Pedestrian waiting in street for street car to pass. It is not negligence per se for a pedestrian to stop in the street by the side of a standing street car to await its passage, in obedience to a signal from a traffic officer, given immediately before or as he stopped.*' There was evidence appellant was standing in the street, at a crossing, waiting for a street car, which had stopped, to move out of the way; that respondent, approaching in his automobile, at the rate of five or six miles per hour, saw appellant 25 or 30 feet away; that respondent gave no signal, and did not slow down, but pro- ceeded directly toward appellant until he saw a collision with him was imminent; that, without checking his automobile or giving any signal, he proceeded until he struck appellant. Another view sup- ported by the evidence is that, though he saw appellant 25 or 30 feet away, he approached within 10 feet of him without warning him or slowing down, and, seeing a collision to be imminent, attempted to turn out into the street; that appellant and his com- panion attempted to escape, and in their excitement went in the same direction the automobile had taken and were struck. Also, the evidence warrants the conclusion that respondent saw appellant in the street in time to have stopped, but did hot do so; also that 88 Gray v. Batchelder, 208 Mass. 441, 188 S. W. 638, 13 N'. C. C. A. 1117 94 N. E. 702 (1911). (1916). «9MeIvme v. RoHwage, 171 Ky. 607, 360 LAW OF AUTOMOBILES responjient, after turning out, if he did, and after appellant attempted to escape, could then have stopped before striking him, but proceeded into the street some 18 feet from the point where it is said he first turned out, caught up with appellant, and injured him. There was evidence that respondent violated a statute requiring motorists to slow down and give a,tiniely signal when approaching a pedestrian who is in the traveled part of the street, Held, that the case as to both negligence and contributory negligence was for the jury, and judgment of nonsuit was set aside.'" § 348. Elderly woman struck near curb while stooping over. Especially in view of a statute providing that every person oper- ating a motor vehicle, upon approaching a pedestrian upon the traveled part of a way and not upon a sidewalk, to slow down and give a timely signal, it was held that, wbere an elderly woman who had looked and seen no automobile approaching before she stepped into the street, arid who was picking up a key about two feet from the curb when struck, active attention to her own safety did not require her to anticipate and gUard against the danger that an automobile, driven at such a rate of speed, as to reach a point in the highway opposite her within 1 S' seconds, would run her down rather than avoid collision with her by using other parts of the highway .'"^ § 349. Pedestrian crossing roadway of bridge. The plain- tiff was crossihg a public bridge on the w^Ik set apart, for pedes- trians. The bridge was 1,000 feet long aiyi 68 feet wide^ and con- tained two street railway tracks. The roadbed and sidewalks were not separated by barriers, Desiring to cross the roadway to the other side, she looked both ways of the bridge, and started, across. She testified: "I got very near the first car track and saw a car and a truck, then I loqked up and down and saw an automobile, and I ran back to get out of its way, but it was coming at. such terriffic speed'that I couldn't make it. When I saw it, first it was about lOQ or 1 50 feet away, behind a two-hqrse truck wagon. I got out of the way of the truck wagon but couldn't get to the curb before th,e auto hit me." Many teams, street cars, and autdmobiles crossed the bridge, and, it was very much used at the hour of the day plaintiff was injured. However, it was not unusual for persons SOFrankeJ v. Hudson, 271 Mo. 495, 31 Kaminski v. Fournier, — Mass. r-, 196 S. W. 1121, 13 N. C. C. A. 978 126 N. E. 279 (1920). ."(1917). INJUlllfiS TO PEDESTRIANS 3 6 1 to pass over the roadway from one side to the other. Her testimony was corroborated by other witnesses, and there was evidence that the aiitomobile was moving 30 miles an hour. It was held that the case was for the jury, and judgment in favor of plaintiff and against the owner of the automobile was affirmed.'* § 350. Struck on §351. Struck while sitting on bridge approach railing. About 7 o'clock of a September evening, plaintiff, while waiting for a trolley car, was sitting on a wooden wing or approach to a 82 Ley V. Henry, SO Pa, Super. Ct. 83 Hodges v. Chambers, 171 Mo. App. 591 (1912). 563, 154 S. W. 429 (1913). 362 LAW OF AUTQMOBILES , ; ' public bridge across a panal. He wa,s about ^ix and a half ;f pet from the traveled part of the road, which extended nea:E- and almost parallel with the canal^, and which at this, point turned onto the: bridge, almost at right angles. The defendant's automobile was being driven along this road, and, in attempting to turn onto the bridge, ran into the frame approach at the point where plaintiff was sitting, and the mud guard of the machine pinned him against the approach, injuring him.' The plaintiff testified that the auto- mobile was' "traveling fast; it was coming Very fast;"' Another witness, who did nbt see the atrtomobile, but heard it approaching while sitting in his house a short distance away, said it was coming at a rate of speed greater than that of machines as they approached the bridge; and a third witness, who was in the same house at the time of the collision, testified that he heard it coming at an unusual speed, followed by a crash. The machine carried lights siif&cient for the driver to see where he was going, and the width of the turn was 2.5 feet. It was held that an iiiference could fairly be draWri from the evidence tha:t the car was negligently -opiiera ted; that the collision was due to such negligence; and that the case, including the question of the plaintiff's contributory negligence, was for the jury. Judgment of nonsuit was therefore reversed.^* § 352. Woman lying prostrate in street Decedent was rid- ing in a buggy being driven in a city street, and jumped out, when! the team became unmanageable and ran away. She was injured to some extent and lay in the street. A moment or two later, def endr ant drove his automobile down the same street and over decedent, crushing her skull and carrying, a piece therof a distance of 30 feet from the body. A person who was aware of the presence of decedent lying prostrate on the street made every effort to cause defendant to stop, and though aware of such efforts defendant failed to heed them,: Held, to support a judgment against the defendant.'* § 353. Tripping over towing rope. It is not negligence; per se to tow one automobile with another through the public streets.'® On may lawfully tow through the streets and highways an auto- mobile attached to the towing machine by a rope, provided he exercises ordinary care while so doing. And where the plaintiff 3* Haring v. Connell, 244 Pa. St. 439, 36 Wolcott v., Renault Selling Branch, 90 All. 910 (1914). 175 App. Div. 8S8, 162 N, Y. Supp, 496 36,Bur5aw v. Plenge, — Minn. — , 175 (1916). N. W. 1004 (1920). .. ' ' INJURIES TO PEDESTRIANS 363 sought recovery for injuries received when she tripped over a tow- ing rope, it was held error to instruct that the burden was on defendant, who was towing a car to warn others of the obstruction; since it depended upon the surrounding conditions whether or not warning was necessary. In such a case the plaintiff was bound to use ordinary care for her own safety.*'' Shortly after dark the plaintiff was proceeding along the side- walk of a public street, when his way was obstructed by an auto- mobile, which was crossing the sidewalk into a garage. When it had crossed, he attempted to pass in front of another automobile, which was following about 12 feet behind the first, and tripped over a rope about 18 inches above the walk, which was used to tow the second machine by the first, and which, in the darkness, he did not see. Plaintiff was accompanied by ai^other man, and both fell over the rope. The men were in plain view of the chauffeuf of the first machine when it crossed the walk, but were given no warning of danger. Held, that the chauffeur should have anticipated that the men would attempt to cross between the machines, and was negligent in failing to warn them of the rope. Accordingly, judgment dis- missing the complaint was reversed.** The defendant was moving two dead automobiles with one live one, the machines being attached single file, and about 12 feet from each other, when tJie plaintiff, in attempting to pass between two of the machines, tripped on the rope connecting them and was injured. The court stated the evidence as follows : *'A11 agree that the automobiles were being moved at a rate of from 3 to 4 miles an hour; that there were lights on the first or live car which also had the cover or 'hood' up, and there were no lights on the two dead ones, and neither of those had a cover or 'hood' up, and that the cars were attached by means of the rofJes which were about one inch thick. The witnesses all agree also that there were no curtains up on the first car. From this point the evidence is somewhat con- flicting. The preponderance of the evidence, however, or that which the jury had a right to say constituted the preponderaflce, is substantially as follows: As the 'three men were proceeding easterly on the south side of Second South street with the cars at the point before stated the plaintiff was in the act of crossing said street from the north to the south; that he saw that the three auto- mobiles were being moved and saw the three men in them; that he attempted to pass between the live car and the one next to it when 31 Steinberger v. California EI. Garage 88 Rapetti v. Peugeot Auto Import Co., Cov, 176 Cal. 386, 168 Pac. 570, 17 N. C. 97 Misc. 610, 162 N. Y. Supp. 133 (1916). C. A. 926 (1917). 364 ,iAW OF AUTOMOBILES the chauffpuri in, the dead or Secorid one spoke to him and wairned him from doing so; th^tihej then stepped back and waited until the second car had passed him when he attempted to pass immediately behind that car and between, it and the second dead one; that the man in the last car saw plaintiff in the act. of attempting to pass between the last two cars and he 'blew his horn, and told him to get 'back; ' that plaintiff, nevertheless, proceeded to^pass between the two dead cars, and in doing so his leg came in contact with the rope which was about 18 inches from the ground,, and he then stepped on to the rope, and after doing so fell to the south, and the front wheelj of thprear car passed over his limbs, or, at least, one of them; that all the cars were brought; to a f till stop within a distance of 6 or ,8 feet after the plaintiff fell and before the rear wheel of the: last car had reached him. The street at the point of the accident was well lighted, some of the witnesses ;said better than any; other part of the city, wjth street arc lamps, by, electric signs, and by other ;electric lights which were maintained by the business houses along the south side of the street. WitJj respect to. the time of the accident plaintiff's witnesses testified that it occurred after 7 o'clock; p. m., while defendant's witnesses were positive and gave some con-, vincing reasons showing that the accident occurred, a little, before 7 o'clock.", ■ L : , It was held that whether or, not this niethod of moving the raafthines was not a subject for expert testimony; that the degree of care required of defendant was merely ordinary or reasonable in the circumstances, and whether the defendant exercised that degree of care was a. question for the, jury; that it could not be said as. matter of law that the defendant was negligent in not providing ,ai signal for those, in charge of the machines to, communicate with each other Ji that the statute requiring automobiles to be equipped iwithi frpnt and rear lights did not apply to'ithe towed cars. A finding; for the defendant was affirmed.'® There was evidence tending to show that the accident, in question occurred after dark oil a busy street;^ that plamtiff, while on the curb, noticed defendant's motor truck approaching at a slow rate of speed; , that after .the truck passed, seeing another approaching at: slow speed, he proceeded to pass between them, and when half way across was tripped by a sagging towing rope which i^yas. stretched between the two trucks at a distance of 25. to 30 feet; that he was caught, by the rope and run down by the second truck SSMusgrave v. Studebaker Bros. Co., 48 Utah 410, 160 Pac. 117 (1916). INJURIES TO PEDESTRIANS 365 which was operated by defendant's employees ; that there were two men on each truck and notice was given by horn signals and front lights on the trucks; that there was no light on the rope; that the rope and brick pavement were both of a yellowish color which, in the uncertain light, niade the rope inconspicuous. Held, that the ca;se was for the jury, and verdict for the plaintiff was sustairied.*" In a case where it was shown that t^he defendant, who was steer- ing a disabled automobile which was |i)eing hauled through the streets by another automobile by means of a rope about ten feet long connecting the two, gave plaintiff permission to cross the rope while the automobiles were stopped temporarily; and as plaintiff was in the act of stepping over the rope the forward automobile started up a few inches, raising the rope and tripping her so that she fi^ll arid was injured, it was held that it could not be said that thfe defendant was negligent in failing to warn the chauffeur of the forward machine that the plaintiff was about to pass where no facts were shown which could have led the defendant to anticipate that the f orwaird machine would move; and further, that the chauffeur of the forward machine was not negligent in moving the automobile when he was ignorant that such a movement would be likely to injure anyone." A case was stated by the court, as follows:; At noon on May 10, 1915, Charles A. Wolcott attempted to cross Fifty-Third street near Eighth avenue in New York City. When he reached the middle of the street an automobile turned from Eighth avenue arid came toward him. The chauffeur signaled with his horn. Mr. Wolcott stopped and the car passed him within 2 or 3 feet. It was going slowly at the rate of three oir four miles, an hour. Befiind it 10 or 12 feet distant was a second car, appToaching at the same speed. As soon as the first car had passed, Mr. Wolcott endeavored tb run across in this space. The second car, howevpr, was attached to the first by a rope which ran about a foot and a, half above the ground. Mr. Wolcott stumbled over this rope, fell, and was killed. He was warned of the first car, and heeded the warning; but, although he stood close to it and was seen by the chauffeur to be in the act of crossing the street, no timely warning was given that the space between the two cars wag obstructed. His attention was attracted to the second car. Under the circumstances he might well fail to notice the tow rope. Standing where he did it would have been hidden from view until he was about to start. There was nothing 4n *<) Kelly V. Wernef Co., 69 Pa. Super. « Titus v. Tangeman, 116 App. DiV: Ct. 342 (1918). 487, 101 N. Y. Sup^. 1000. ^ ' 366 LAW OF AUTOMOBILES the condition or operation! of the second car to show him that it was not under its own power. . It was hfld that the case was for th.6 jury.** § 354. Pedestrian crossing in plain view. In a personal in- jury action there was evidence that the plaintiff started to, cross a street from the westerly side, about 15 feet from the corner of an intersecting street, diagonally to the easterly side; that as he started to cross he looked toward the intersecting street and saw nothing; that when he reached the middle of the street he looked a^ain and saw a car rounding the corner, and that the car was then going in a straight line along the center of the street he was cross- ing ; that thinking he had time to reach the opposite curb he con- tinued on his course for two or three feet, and yirhen within two or three feet of the easterly curb he was struck by the car; that when he first saw the car after it turned into the street it was moving S or ,6 miles on hour, but that its speed increased until at the time it struck the plaintiff it was running 8 or 10 miles an hour; that instead of keeping a course along the center of the street the c^r turned toward the easterly curb, swinging in toward plaintiff and running him down. It was held that the questions of negligence and contributory negligence were for the jury, and that it was error to dismiss the complaint.*^ Plaintiff had attended ,a. county fair, held in the city of her resi- dence, and on her way home it was necessary for her to cross from the south to the north side of an east and west street. At this time the sidewalks were crowded with people, and vehicles of all sorts were in the street; it being between S and 6 o'clock in the afternoon, and people were returning from the fair. The plaintiff started across the street, and when near the north curb was struck by defendant's automobile, driven by a chaiiffeur. The distance between the curb lines was about 2 7 feet. She testified that before starting she looked both east and west; that there appeared to be ah opening and she started; that she saw a carriage drawn by horses near the north side, but saw no automobile, and heard no horn or outcry. It appeared that she walked briskly tp the center of the street, and then started to run. The driver of the automo- bile testified that plaintiff was near the center of the street and *«WoIcott V. Renault Selling Branch, *S f-ftzgerald v. Russell, 155 App. Div. 223 N. Y. 288, 119 N. E. SS5 (1918), 854, 140 N. Y. Supp. 519 (1913). rev'g, 175 App. Div. 858, 162 N. Y. Supp. 496. INJURIES TO PEDESTRIANS 367 about 35 or 40 feet west of him when he first saw her, and that she was going in a northwesterly direction; that his view of her was unobstructed; that he blew his horn and she then sta^-ted to run, and he turned his machine to the right; that he saw she was going on m front of him, and he whirled his machine to the left, and threw on the emergency brake, and shouted "look out;" that he was, then about 5 or 6 feet from her; that she could have stopped after he blew his horn and let him pass; that he could stop his machine when under control in 15 or 20 feet; that when running at 25 miles an hour he could stop in 20 feet by throwing on the emergency brake and shutting off the gasoline; that he was going about 9 or 10 miles an hour; that the north side of the front of the machine struck the plaintiff. The evidence fairly established the rate of speed of the automobile at 1 5 miles an hour. In affirming judgment for plaintiff the court declared that, "The conduct of the driver of the machine shows such a reckless disre^' gard for Others having the right to the use of the street that some kind of an accident was almost inevitable under the conditions and circumstances then surrounding him;" and held that the question of whether plaintiff was in the exercise of due care was properly submitted to the jury.** The respondent, 58 years of age, a longshoreman, about 6 o'clock one December morning was struck and knocked down by one of the appellant's taxicabs, at a point about 3 feet from the curb, at the northwest point of intersection of JackSoji street and Fifth aVenue, in the city of Seattle. Jdckson street runs east and west;: the avenue runs north and south, and is 42 feet in width between the curb lines. A doubletrack electric car line is operated upon both the street and the avenue. Main street is one block north of Jackson street. The respondent, with a companion, was walking west on Jackson street. When he was at the east rail of the east car track,. he saw the light of the taxicab at Main street. He con- tinued west along the avenue without further observation of the car, and was struck at the point indicated. He and his companion and another witness who saw the accident said that the driver of the taxicab did not sound his horn or give other warning of his approach. The taxicab continued south on Fifth avenue, and, in making' a sharp turn into Jackson street, struck the respondent as above stated. There were no street cars and no other vehicles in the vicinity. The streets were well lighted, and the taxicab had its 44 Jenkins v. Goodall, 183 111. App. 633 (1913). 368 LAW OF AUTOMOBILES lights on. There was nothing to prevent the driver of the- taxicab from seeing the respondent for at least a half block from the point of contact. The driver said that there was irain upon his wind shield, and that he could not see through it, that he looked around it when about 30 feet distant from the point of contact, sawi the respondent, and sounded his horn, that the respondent stopped, and that he did not see him again untilhe was practically upon him. The respondent said that he did not stop, and that he heard no horn or other warning. The driver said that it rained that morning after he left the garage a few minutes before the accident: This statement was disputed by the respondent and his witnesses. After seeing the taxicab a block away, the respondent : proceeded in a uniform course, without hesitation or vacillation. It was held that the questions of negligence and contributory negligence were for the jury, and a verdict for the respondent Was upheld. The court held also that the verdict might be sustained on the last clear chance doctrine. It said: "If the respondent was proceed- ing in a way that wduld have indicated to a reasonably prudent man that he was unconscious of the approach of the taxicab, and the driver saw him, or in the exercise of reasonable care ought to have seen him, and observed his state of mind and discovered his peril in time to avoid striking him, and failed in this duty, he was guilty of negligence, and his negligence was the proximate cause of the injury; while the negligence of the respondent, if any, was a remote cause." " Where, before starting across a village street, the plaintiff testi- fied that he looked for approaching vehicles and saw only a street car, some distance away-; that he then started across, and upon reaching the vicinity of the gutter on the opposite side he was struck by defendant's automobile, which he did not see, it was held error to direct a verdict for defendant; that whether, at the time plaintiff looked, the automobile was covered by the street car, or suddenly came around some near-by corner after he started across, did not conclusively appear; and that, frorn plaintiff's testimony, some pre- surhption of negligence arose on the part of the defendant.** § 355. Pedestrian on crosswalk in view. In an action ; to recover for the death of an elderly lady, whose sight was yery defective, but whose hearing was good, and who was struck by defendant's automobile while attempting to cross the street, in the 46 Chase v. Seattle Taxicab & Tr. Co., « Gouin v. Ryder, — R. I. — , 87 Atl. 78 Wash. S37, 139 Pac. 499 (1914). 185 (1913). INJURIES TO PEDESTRIANS 369 exerfcise of care, there was evidence from which it could have been found that the defendant drove his automobile over a crosswalk in a thickly settled village at, a speed of 15 miles' an hour; that when more than 100 feet away from the crossing he saw the plain- tiff's intestate standing on the crosswalk apparently waiting for him to pass; that he gave no warning signal and did not look in her direction again until just as she was struck by his automobile. "Upon this evidence it was a fair question for the jury whether due care was exercised by the defendant; whether he ought not to have given some warning or taken further observation to make sure that his first impression of the situation was the correct one." Nonsuit was accordingly held to be error.*'' § 356. Automobile 450 feet distant when pedestrian started to cross street. Where the plaintiff testified that when he started to cross a, street, 35 feet wide, the defendant's automobile, which struck him while crossing the street, was 450 feet away, the qyestion of contributory , negligence was for the jury.*' § 357. Excessive speed of automobile. A witness testified that the defendant's automobile at the time it struck a pedestrian, was moving 10 or 12 miles an hour. The defendant testified that with his car running 6 miles an hour he could have stopped it within 7 feet of . the point when he realized deceased was in danger, that his brakes were in perfect working order, that hig clutch was out and the car coasting as, he struck deceased, that he never let the clutch in again after the collision, that he applied the brake at once, and did not release it again until after deceased had fallen. There was testimony to show that, even though defendant applied: the brakes as claimed, the car's momentum after it hit the deceased carried it, most of the time shoving him before it on the pavement, a distance of approximately 50 feet. Held, that there was evidence of excessive speed to submit to the jury.*' §358. Striking pedestrian at high speed in daylight. Where the undisputed facts Were that in clear daylight and with nothing to obstruct his view, the defendant collided with an elderly woman in the rniddle of a prominent highvvay, carried her body for forty feet, ran over her, and then proceeded tw.enty-five feet farther before stopping his car, although he admitted that he «Hamel v. Peabody, 78 N. H. S8S, *» WUson v. Johnson, IPS Mich. 94, 97 Atl. 220 (1916). 161 N. W. 924 (1917). **Wald V. Packard Motorcar Co., 204 Mich. 147, 169 N. W. 9S7 (1918). B. Autos.— 24 370 LAW OF AUTOMOBILES should have stopped his automobile within ten feet while running at top speed, the case was for the jury and judgment for plaintiff was sustained."" § 359. Failure to give warning or slacken speed. The plain- tiff was struck and seriously injured by defendant's automobile one afternoon while crossing a public street. The road was straight and level; and no other person or vehicle was nearby. The testi- mony asitohovF the collision occurred was contradictory. O^ the evidence most favorable to the plaintiff the jury could find that he was crossing Adams street diagonaEy; that the defendant saw him tftore than one hundred and fifty feet ahead, yet proceeded a,t a speed of twenty-five or thirty miles an hour and gave no warn- ing of his approach except by blowing his horn when he was about five feet froni'the plaintiff; and that the car struck plaintiff with such momenturti that thereafter he was unconscious idr nine days and delirious for several weeks. A statute provided that, "Upon Epptoaiching a pedestrian who is upon the travelled part of any way arid not upon a sidewalk, * * * every person operating a motor vehicle shall slow down and give a timely signal with his bell, horn or other device for signalling." Verdict for plaintiff was upheld.*^ ' Where a truck driver approached a street crossing without slackening speed or giving signal, as required by statute, and there was evidence that he could have slackened speed or stopped before colliding with the plaintiff, a pedestrian, after he knew or by care- ful lookout would have known Of plaintiff's peril, the case was for the jury.** It appeared from the defendant's own evidence that he saw the plaintiff step off the'sidewalk to cross over the street "ten or twelve feet ahead of the automobile," while another witness placed the distance as "about twenty-five or thirty feet." The jury on all the evidence could find that notwithstanding this knowledge of the situation, and with the plaintiff in plain sight the defendant neither gave any warning of the car's appToaqh nor slackened speed, but kept on urider such momentum that when the plaintiff was struck he was carried on its front for about fifty feet before the car came to a stop. Judgment for plaintiff was upheld.®^ ,, 50 Reese v. France, 62 Pa. Super. Ct. 62 Ballman v. Lueking Teaming^ Co.,. 128(1916). — Mo. — , 219 S. W. 603 (1920). Bl Creedon v. Galvin, 226 Mass. 140, S3 French y. Mooar,, 226 Mass. 173, 113 US N. E. 307 (1917). N. E. 23S (1917). INJURIES TO PEDESTRIANS 371 § 360. Struck by automobile turning or just after turning corner. In an action to recover for the death of plaintiff's intes- tate, there was evidence that he was proceeding east on the south side of a street; that the defendant's automobile was on the same street proceeding in the same direction; that when the deceased was in the act of crossing an intersecting street, at the regular crossing, and had reached the. east rail of the street car track in that street, he was struck by the left lamp or fender of defendant's machine as the latter was turning south from the east and west street into the north and south street; that the automobile "was running diagonally southeast at the time of the collision. Several witnesses saw the collision, but no one saw the circumstances lead- ing up to it. An order of the trial court directing a verdict for the defendant was reversed, the court in part saying: "The circumstances shown would warrant a finding that when he (deceased) entered upon such crossing the automobile was on Locust street, still going east, and was behind hirn,. It had been going very slowly behind a delivery wagon. It quickened its pace just before turning into Fifth street. A witness testified that it was going 5 or 6 miles an hour at the time of the collision. It was therefore moving faster than the ordinary pace of a pedestrian. Deceased was' in plain view of the driver." The court further held that the question of contributory negli- gence was likewise fpr the jury; that the fact that deceased was half wa,y -across the street before the collision was a circumstance against the theory of contributory negligence; that from that point he was presumably in more danger of vehicles coming from the south; that the fact that the automobile came from behind, that it was turning in from the other street, that it was widening the zone of danger by moving diagonally southeast, were circumstances favorable to the decedent on the question of contributory negli- gence.** . Where a pedestrian, just after stepping from curb ait a crossing, was struck by an automobile which turned the corner from the intersecting street, the case was for the ' jury, he not being neg- ligent as matter of law because he did not look along the intersect- ing street before stepping on the crossing.** There was eyidencie that the plaintiff^ while passing along a crosswalk was run into by the defendant's automobile and thrown 54Holderinan v. Witmer, 166 la. 406, 56 Hempel v. Hall, — Md. — , 110 Atl. 147 N. W. 926 (1914). 210 (1920). 372 LAW OF AUTOMOBILES to the ground, that such automobile, proceeding at a lapid rate, suddenly turned the corner, approached the plaintiff without any warning, and that she only saw it when it was a few feet from her, too late to get out of the way. Held, that a verdict for the plain- tiff was justified." ■ The plaintiff was standing in a street about 45 feet from a corner, talking with an acquaintance, when the defendant drove his automobile at a rate in excess of ten miles an hour around the corner, where there was an embankment that obscured his view, and continued at such speedj without sounding any warning of his approach, until his machine struck the plaintiff, whom he could have seen for a distance of 45 feet. A statute*'' provided that in towns or villages automobiles shall not be driven faster than 10 miles an hour, and that in turning corners of intersecting strieets where the view is obstructed the speed shall not exceed 6 miles an hour. Held, that the evidence supported a finding of negligence on the part of the defendant." ' §361. Struck on crosswalk from rear by automobile turn- ing corner. The accident iii question happened near thte inter,- section of Second and Spring streets, in Los Angeles, after dark when traffic was congested. Plaintiff, holding an umbrella above her, and accompanied by her husband, undertook to cross Spring street from the northeast corner of said intersection. She pro- ceeded westerly on the crosswalk until more than half way across, when defendant, driving an automobile northerly on the east sjde of Spring street, and having passed the center of Second street, turned west, in a semicircle, and came up behind and collided with plaintiff with the right-hand front part of his machine. He was moving 6 or 8 miles an hour, and gave no warning of his approach. There was evidence that upon stepping from the, sidewalk plain- tiff looked south for approaching vehicles, and when she was about the center of the street looked north, these being the respective directions from which traffic should approach, and her husblgind kept a constant lookout. Held, that the case was for the jury, and judgment for plaintiff was affirmed.*® § 362. Motorist disregarding signal of traffic officer— Duty of pedestrian. In an action growing out of a crossing: accident 68 Boyle V. Holland, — R. I. — , 100 B9Kuhns v. Marshall, — Cal. App' — , Atl. 466 (1917). 186 Pac. 632 (1919). ST Mo. Rev. St. 1909, §§8519, 8S2S. 68 Heartsell v. Billows, 184 Mo. lApp. ' 420, 171 S. W. 7 (1914). INJURIES TO PEDESTRIANS 373 when plaintiff was struck by an automobile the driver of which disregarded the signal of the traffic to stop, the following instruc- tion was upheld: "The accident happened at a crossing where pedestrians had a 'right to be. The semaphore was up to stop traffic and in obedience a number of cars did stop. It was the duty of the driver of the automobile to stop, but it was also the duty of the man crossing to observe, use his eyesight, and if he could see that the defendant was not going to stop he was not war- ranted in stepping in front of a moving car. You must deter- mine whether or not it was negligence in him to assume the auto- mobile would stop, if it did not stop." *" §363. Skidding automobiles— Due to excessive speed. While standing on the sidewalk at a street corner, plaintiff was knocked down and run over by defendant's automobile. The defendant had 10 years' experience in driving his car. The car in question was new, of 48 to SO horsepower, in perfect condition, and equipped with the latest anti-skid, and safety appliances. De- fendant was going west on a wide street, in which were two car tracks, during daylight, with his car straddUng the north rail, and when about 100 feet from the cross street he sought to turn his car so as to utilize the street between the car track and the curb, which space was about 18 feet wide and paved with asphalt. The weather was muggy and the road was slippery. In turning from the track the front wheel crossed the rail in safety, but the rear wheel caught and the whole body of the car skidded at right angles to the track, mounted the curb, and, as described by, defend- ant, "both, side wheels were up and the car was standing in its proper direction. It really made what looked like a flying jump." While in this position, the car moved forward about 7 feet, knocked the plaintiff down, ran over her, aiiid was stopped by running against a heavy iron fire plug. Defendant stated that he was goiiig "very slow," at 8 or 10 miles an hour, and that he had the car under perfect control when he turned from the track. The driver of a wagon testified that the defendant "came along the car track, and shot in ahead of me — he was going at a pretty good rate." There was judgment for plaintiff, which was affirmed on appeal, the court holding that, "Every reasonable deduction to be drawn from the defendant's own testimony leads to but one conclusion, that the accident was entirely due to the speed of the car when jt 60 O'Brien v. Bieling, — Pa. St. — , 110 Atl. 89 (1920). 374 LAW OF AUTOMOBILES left the car rail to occupy the wet asphalt." Continuing the court said: "His experience and the conditions he faced required him to exercise special care at that time. He did not slacken his speed, and his idea of what was perfectly safe, and very slow, was dem- onstrated to be an unsafe standard of his duty. The ratp of 8 to 10 miles an hour is generally a prudent one, but conditions may, and frequently do arise where it is an imperative duty to come to a full stop. The jury were fully warranted in concluding that when the defendant left the car track, with his heavy car going at the admitted speed, to occupy a wet asphalt roadway, he was negli- gent to a degree bordering' on recklessness. An inanimate body of the weight of a heavy automobile, will not take, a 'flying juipp' over a curb onto a pavement unless propelled by exceptional force."" '\' ' ' . The plaintiff's intestate was walking along the sidewalk on the easterly side of a public street, in the exercise of due care, when an automobile driven by one of the defendantsi ran uppn the sidewalk behind him and struck him with such force thai he died almost ' immediately. There was evidence that the street was wide, straight, leyel, and dry; that no other vehicles were in the, highway, and it was a clear morning; that the automobile was being driven 18 to 25 miles an hour; that after going upon the sidewalk the car ran 30 or 40 feet, with no diminiition of speed, before it struck Ihe deceased; that there was some trouble with the engine that caused it to "skip" when; running at low speed, but that this did not interfere with the operation of the brake or of the steering gear. There was evidence from which the jury could find that if, the automobile had been under proper control it could have been stopped after its tires exploded — which occurred when it struck the cu^b— and before it reached deceased; and that it was due in whole, or in part to excessiye speed that the automobile skidded agiainst the J curb and caused the tijes to burst and the car to leave the , roadway. A veridjct for the plaintiff was sustained.®* .. §364. Same— Turning corner. Where a truck driver collided with a pedestrian when his truck skidded in turning a corner from a street paved with cobble stones into a wet asphalt-paved street, and he did not keep as near the curb as possible in turning, as required by ordinance, the question of his negligence was for the jury.®^ 81 Van Winckler v. Morris, 46 ' Pa., ,, 6* Anderson v. Schorn, 189 App. Div. Super. Ct. 142 (1911). 49S, 178 N. Y. Supp. 603 (1919). 62 Roach V. Hinchcliff, 214 Mass. 267, 101 N. E. 383 (1913). INJURIES TO PEDESTRIANS 375 § 365. Same— Turning from wet car track. A boy about S years of age was standing on a sidewalk when an automobile operated by defendant suddenly left the roadway and, running; with great force upon the sidewalk, struck and forced him against a building, causing injuries from which he died. There was evi- dence that the machine was being driven in a street railway track;, that water was running in the track, and the surface of the street in the vicinity was wet and slippery; that, without slackening but with increased speed, defendant turned to get off the track; that the car skidded on the rails and passed upon the sidewalk. The type of car and the testimony of the expert called by plaintiff war- ranted a finding, that by reason of their diameter the tires adhered tenaciously to the groove of the track, and, if an attenipt were made to turn out, the tendency of the car, even with a dry track, would be to twist around and run onto the sidewalk, while with a wet rail the tendency to move laterally," and of the rear wheels to cling to the track, would be greatly increased. The defendant testified that he had been running an automobile about 8 months, and never before on the street where the accident occurred. - It was held that the case was for the jury; that the jury properly were permitted to pass upon the question whether f rorri his experi- ence as shown by his testimony the defendant's conduct in the operation of the car in running in the groove of the track, and in applying increased power when trying to turn therefrom, was that of the ordinarily prudent driver acting under like conditions." ®* § 366. Same— -Turning quickly in emergency. Defendant's motor omnibus was proceeding along a road, which was in a greasy condition, at a rate of 8 or 9 miles an hour. Plaintiff, who' was a small boy, and another boy, stepped off the pavement into ■ the street at a distance of 4 or S feet in front of the omnibus. In order to avoid running over the boy the driver steered the omnibus to one side, threw off the power, applied the brakes and locked the rear wheels, with the result that the omnibus skidded and the side thereof struck the plaintiff. The jury found that there was no negligence on the part of the driver, but disagreed on the question whether or not the omnibus constituted a nuisance. On appeal it was held that there was no evidence of negligence, and none that the omnibus was a nuisance. 6* Williams v. Holbrook, 216 Mass. 239, 103 N. E. 633, 8 N. C. C. A. 380 (1913). 376 LAW OF AUTOMOBILES In this respect it was said by Vaughan Williams,' L. J.: "There is no evidence in this case to lead us to suppose that there would have been any skidding by this motor omnibus in ordinary cir- cumstances, or that the skidding was due to the construction of the omnibus, or to its user upon a greasy road. The boys ran into the road in front of the omnibus, and the driver, in order to save the life of the plaintiff, had to put on the brakes suddenly and violently. The skidding was entirely the result of that violent application of the brakes, which would have been entirely unnecessary but for the position in which the boy had placed himself. It was only in order to avoid injuring the plaintiff that the drivjer put on the brakes. In these circumstances it seems to me that there was no evidence that this omnibus was a nuisance, and that the ques- tion ought not to have been left to the jury." ^* § 367. Same— Due to collision of automobiles. Defencjant M, was driving his automobile in a westerly direction on the north side of a city street, and defendant K. was following a, short dis- tance behind, and on the south side of the street. There was evi- dence in behalf of plaintiff that M. was driving about 5 or 6 miles an hour; that K.'s car was a large, heavy one; that just before reaching an intersecting street K. quickened his speed,, and when he reached the intersection he was running v^ry fast; that when M. reached the intersection he first bore a little to the north and then turned to the south, this to avoid the street railway track; that neither gave any warning of his approach to the crossing; K. knew that M. was in front, but M. did not know that K. was following him; that when M. turned towards the south thfere was a collision of the automobiles, which caused M.'s machine to be thrown about 30 feet, and K.'s machine to skid to the sidewalk, striking and killing the plaintiff's intestate, who was standing on the sidewalk. ^ K. testified that as he neared the crossing he slowed up; that M. turned as if to go north on the intersecting street, and that he (K.). turned to the left or south to get by him; that when he had run almost even with M.'s machine, the latter suddenly turned and struck the front wheels of his machine with such force as to knock the steering wheel out of his hands^ which caused him to loose con- trol of the machine. There was judgment against both defendants, and M. appealed. 65 Parker v. London General Omnibus (1909), aff'g 100 L. T, 409, 73 J. P. 283, Co., 101 L. T. 623, 74 J. P. 20, 26 T. L. 25 T. L. 429. 18, S3 Sol, Jo. 867, 7 L. G. R. IIU INJURIES TO PEDESTRIANS 377 It was held that if there was any defect in plaintiff's proof,, the testimony of K. was sufficient , to make out the case agajnst M.^^ §368. Slippery, crowded street. To drive a motorcycle at 15 miles an hour, on a slippery street, which was crowded with traffic, was held to justify a finding of negligence.^''' §369. Automobile running onto sidewalk— Res ipsa lo- quitur. The defendant, driving his automobile, approa!ched the inteirsection of two streets, about the time that one G. started diagonally across the intersection on a fast walk or run to board a street car. Defendant realized that a collision with G. was imminent, and in an endeavor to avoid it he swung his machine to the right. The collision was not avoided, however, and defendant apparently lost his head, and, failing to apply his brake, the car proceeded in a semicircular route towards a corner of the street. One of the front wheels ran over the curb, and the car ran into a pole located inside of and close to the curb. The decedent was leaning against the pole and was crushed against it by the front end of the automobile. Suit was brought to recover for his dfeath. There was judgment in favor of plaintiff, which was affirmed. The jury found that negligence of G. was a coiftributing proximate cause of deceased's death. It was held, however, that this fact would not relieve the defendant from liability if he also was respon- sible for the death ; that in such circumstances an action would lie against either wrongdoer.^' The fact that a pedestrian on a sidewalk is struck by an auto- mobile which has run upon the sidewalk, raises a presumption that the automobile operator was negligent, and places the burden on the defendant of proving want of negligence.®^ The defendant's motor truck was proceeding easterly on a pub- lic street, and at a point 47 feet west of the curb line of an inter- secting street, and 12 to 18 feet north of the south curb line of the street on which it was traveling, its- left front wheel struck a frog or switch in the street railway track which caused it to be deflected from its course, and it ran onto the sidewalk where it collided with and injured the plaintiff, who was standing on the sidewalk on the southwest corner of the streets. There was evidence that the truck was moving 7 or 8 miles an hour; that its speed was not reduced as it approached the switch in the track; ^that the driver «6Matlack v. Sea, 144 Ky. 749, 139 68 Mehegan v. 'Faber, 1S8 Wis. 645, 149 S. W. 930, 2 N. C. C. A. 305 (1911). N. W. 397 (1914). 67 Zarz.:na v. Neve Drug Co., — Cal. 69 Trauerman v. Oliver's Adm'r, — Va. — , 179 Pac. 203 (1919). — , 99 S. E. 647 (1919). 378 LAW OF AUTOMOBILES of the truck was not looking ahead, but to one side, and had dnly one hand on the steering wheel; that the driver saw plaintiff when she went onto, the sidewalk when sh^ saw his t^rujj^k approaching, and that he made no further observation in this, respect until he struck her; that a truck of the kind in question, traveling 4 or S miles an hour can, be stopped within 5 or 6 feet, and that, when niovihg 7 or 8 miles an hour it may be stopped in 10 or 12 feet. The driver testified that he was familiar with the place in ques- tion; that he had noticed the flange before that the truck collided with; and that he struck it with such force that he was unable to hold the wheel. It was held that the doctrine of res ipsa lo/Jmiwr applied, zxid that when it was shown that the truck ran onto the side walk and struck the plaintiff a prima facie case of negligence on the part of the defendant was established, which required that the defendant, in order to free itself of liability, to prove itself free from negli- gence; that, although the defendant had no control over the object that deflected the course of the truck, the evidence tended to show that negligence of the driver was the cause of the injury ; and that the case was for the jury on the question of the negligiencie of both parties. Judgment for plaintiff was accordingly affirmed.'''' But where an automobile ran upon the Sidewalk, and it was alleged that a motor bus of defendant, negligently operated, was the cause of the automobile being run onto the sidewalk, it was held that the burden was on plaintiff to prove negligence in the defendant.''^ , , Where it was shown that an automobile swerved from the street, ran upon the sidewalk, pushed a stone carriage block some dis- tance from its place, and struck a pedestrian, the question of the driver's negligence was for the jury.'* Where an electric automobile was deflected from its course by the hub of a passing touring car striking its front wheel, causing it to run upon the sidewalk, where it struck and injured a pedes- trian, and there was no evidence that the driver of the electric automobile was negligent, the owner of such car was not liable for injuries to the pedestrian.''* '« Brown v. Des Moiiies S. B. Wks., 72 Jacob v. Ivins, 162 C. C. A. 501, 174 la. 715, 1S6 N., W. 829 (1916).' 250 Fed. 431 (1918). To same effect is Ivins v. Jacob, 245 ts Bishop v. Wight, 137 C. C. A. 200, Jed. 892 (1917). 221 Fed. 392 (1915). 71 Ackerman v. Fifth Ave. Coach Co., 175 App. Div. 508, 162 N. Y. Supp. 49 (1916). /' INJURIES TO PEDESTRIANS 379 Where an automobile truck was deflected from its course and rendered unmanageable by one of the front wheels running into a rut worn in the pavement of the street next to a ^trept railway switch, which, owing to its peculiar construction, threw passing wagon wheels onto the adjacent pavement with unusual force, arid the plaintiff was struck and injured by the truck, which ran about loo feet after striking the rut and stopped on the sidewalk, arid there was evidence that fhe rut was 4 feet long and 6 inches deep and was on both sides of the rail, it was held that a case was made for the jury as against the owner of the truck and the street railway company. It was held that, while there is no absolute duty on the part of one using the highway to observe defects and obstruction^ therein, the duty exists of making such observation as the circum- stances of the case reasonably require; and that the jury would have been entitled to take the view that some reasonable observa- tion of the roadway just ahead of the driver of the truck was required in the exercise of reasonable care, in view of the heavy and severe use of city streets, and the damage that may be done by such a ponderous machine when moving without control, and the common knowledge that ruts are liable to be, and constantly are worn in eve^y pavement and hence are to be expected.''* A finding for the plaintiff was properly sustained where it appeared that the plaintiff was on the pavement in the act of step- ping into the street, having one foot on the curb, when the defend- ant by reckless mismanagement, or by inexperience, caused his automobile to run upon the curb where the plaintiff was standing, inflicting the injuries complained of.'* A chauffeur may testify that just before an accident he dis- covered that something was wrong with the steering gear, although he could not, at the time of which he testified, see the gear. And he may also testify as to the way the presumed detect manifested itself to him.'* § 370. Fire automobile forced onto sidewalk by negligence of street car motorman. Where the motorman of a street car ran his car suddenly onto a street crossing in front of a fire aiito^ mobile, which he knew or should have known was approaching at a high rate of speed, forcing the automobile onto the sidewalk. TlGeise v. Mercer Bottling Co., 87 reunited States Cas. Co. v. Anderson N. J, L. 224, 94 Atl. 24 (191S). El, Car Co., 1S7 N. Y. Supp. 710 (1016). 75 May V. Allison, 30 Pa. Super. Ct. SO. ' 380 LAW OF AUTOMOBILES where it struck and injured a pedestrian, the motorman was negH- gent." § 371. Struck on sidewalk by overhang of truck. The plain- tiff was struck while, walking along the sidewalk of a city street, by the defendant's motor truck, ^yhich was driven so close to the curb that the overhang caught the plaintiff and injured her. Held) that the, case was for the jury, and verdict for the plaintiff was sus- tained.'" § 372. Struck on sidewalk by overhanging tire. The: sidewalk where the plaintiff was standing engaged in conversation with a friend when he was struck and injured by the slightly overhangv ing spare tires carried on the defendant's automobile in an upright position upon the running board, formed part of the highway, in the concurrent use of which each party owed to the otlier the duty of due care. And he had the right to assume that drivers of vehi- cles using the part of the way wrought for carriage travel would exercise ordinary precaution to avoid contact with persons on the sidewalk standing within the curbing.''* §373. Struck by locking ring from passing automobile. There were facts warranting the jury in finding that the plaintiff while in the exercise of due care was struck, and received pecuniary harm, by a locking ring of the defendant's automobile, which had rolled across the street to the sidewalk upon which the plaintiff was traveling; that the locking ring was of metal and of the circum- ference of an ordinary autoniobile wheel; that the locking ring is split; that on the locking ring there is a point which fits into a hole in the rim; that inside of the locking ring there is another ring which fits over the shoe; that the locking ring locks the inner ' ring into the shoe when the tire is pumped up ; that the function of the rings is to hold the shoe on the wheel in place; that immedi- ately preceding the accident the operator heard the noise of a tire blow-out and heard the usual noise and felt the usual irregularity of motion there is when a tire has gone flat; that upon hearing the blow-out the operator did not look to see if the tire was flat until a flat tire was indicated by the usual noise and irregularity which is attendant upon that condition; that the operator knew the min- ute he had a blow-out that the rings might come off if he continued "King V. San Diego El. R. Co., 176 ''» Murray v. Liebmann, 231 Mass. 7, Cal. 266, 168 Pac. 131 (1917). 120 N. E. 79 (1918). TS Ford V. Cunningham Piano Co., 71 Pa. Super. Ct. 380 (1919). . INJURIES TO PEDESTRIANS 381 to run the machine; that; he could have stbpiped his car almost instantly; that the tire would not have become sufficiently flat to have released the rings had the car been stopped immediately after the blow-out occurred, and that the operator did not stop at the time of the blow-out but went at least twenty feet thereafter. Held, that the jury were justified in finding that the operator was negligent in not stopping the car in season to have prevented the release of the rings. Further the court said: "The contention of the defendant that the injury was too remote and that the neg- ligence of the defendant was not the direct and proximate cause of liie plaintiff's injury, is unsound. It is sufficient that it appears that the riegligence of the defendant would probably cause harm to some person even though the precise form in which it in fact re- sulted could not have been foreseen." *" § 374. Automobile running without lights. In an action by a pedestrian to recover for personal injuries, his evidence in substance v/as as follows: That a little after midnight he was walk- ing on the road towards his home; that he was on the right side of the road near the gutter; when he had reached a dark place in the road he heard the noise of a machine; he turned around, but saw no light, and heard no hOrn blow, and he concluded that the ma- chine was not coming towards him; he then turned to continue his jouriiey, and as he turned he was struck by the machine; he was near the ditch on the side of the road, and was knocked into the ditch by the machine; that the machine ran over him, and one of his, feet was caught in the right hind wheel; that he extricated it with m,uch difficulty and pain ; that he was helped to his house by themen in the nfiacj^ine; that a physician was called, and he was fpund to be severely and painfully injured, and was confined to his bed for two weeks; that there were no lights upon the machipe; that ttie men wanted to leave him in the road, but he begged them to take him to his home. ' It was held that a verdict in plaintiff's favor was justified, al- though the testimony for defendant was sharply contradictory of the plaintiff's evidence." The plaintiff, a boiler maker, 31 years of age, about one o'clock' at night, started to cross a triangular space, formed by the junction of three streets, with the intention of boarding a street car. He looked for automobiles as he left the curb, but saw none. When he reached a point about 25 feet from the curb, he was struck by 80 Regan v. Cummings, 228 Mass. 414, 81 Stewart Taxi-Service Co. v. Roy, 117 N. E. 800 (1917). 127 Md. 70, 9S Atl. 10S7 (191S). 382 LAW OF AUTOMOBILES defendant's automolaile, moving about IS miles an hour, 'without lights; and without warning being given of its approach... The streets were lighted, but it was too dark to see far in any direction. Hield, that the jury were justified in finding defendant negligent; and judgment for plaintiff was affirmed.'* Evidence that a collision between defendant's automobile iind the plaintiff occurred after dark; that defendant was driving, along the street at 25 or 30 miles an hour, without any front lights on his car, holding the wheel with one hand, and,, instead of ■ looking ahead, gazing to one side; that when his automobile struck the plaintiff she was caught upon the fender of the car and dragged IS or 20 feet; and the defendant admitted that he felt "the impact and something dragging, got out, and found it was" the plaintiff, was held to justify a finding of negligence on the part of dafend- ant,«« § 375. ApproachiHg crossing at high speed and without lights. Where there was evidence that a driver drove a truck, when it was still very dark of a morning, past a street car and across an intersection of streets, at a speed of 25 miles an hour, without a light and without giving a signal, and collided with a pedestrian at the crossing, the jury's finding of. negligence was held to be sustained. "When a driver approaches a street inter- section with view obstructed he must be on the lookout for cross traffic, and must have his vehicle under such control that he may stop it as occasibn requires." ** § 376. Both pedestrian and motorist blinded by street car headlight. Where a pedestrian and a motorist were blinded by the headlight on a street car, and the pedestrian was injured in a collision with the automobile, the motorist was negligent if he had time to stop and did riot avail himsfelf of the opportunity.** §377. Struck by backing automobile. A pedestrian is not negligent in crossing a street behind a standing automobile, and can recover for injuries caused by the sudden backing of the machine, without warning,, against him.'® He need not anticipate that an a,utompbile which has just passed him will be backed, just aif ter paissing.*'' 82 Johnson v. Quinn, 130 Minn. 134,' sSKilgore v; Birminghiiln 'R.,' L. & P. IS3 N. W. 267 (1915). !; Co., ^ Ala. —, 73 So. 996 (1917). M Meier v. Wagner, 27: Gal. App. S79, ■ SSEnstrom v. Neumoegen, 126 N. Y; ISOPac. 797 (191S). Supp, 660 (1911). 8* Geiger V. Sanitary Farm Dairies, — 87 Westervelt v. Sehwabacher, 104 Minn. — , 178 N. W. SOI (1920). Wash. 418, 176 Pac. S4S (1918). INJURIES TO PEDESTRIANS 383 The plaintiff stepped into a public street, in front of a railroad station in a large city, upon the approach of a street car which she intended to board. Without warning, the driver of defendant's automobile, which was standing near, Suddenly backed the ma- chine with great force against and over the plaintiff, who had stopped and was standing in the street. Held, that the driver Was guilty of gross negligence, and that the question of the plaintiff's contribjitory negligence was for the jury;*' , . i One was not negligent in standing beside his autompt)ile,, which was parked close to the curb of a busy, downtown street, where , cars were being parked and engines, started every moment or, ^p, although he heard the spinning of defendant's engine, just before the latter's machine was started, and was backed against him.*? § 378. Truck backing without warning on wrong side of street. A truck backing over a ci'osfeing without warning, mov- ing in a direction contrary to the general traffic, striking a pedes- trian who was walking at an ordinary speed 10 feet from the curb, in clear daylight, permits an inference of negligence on the part of the driver. As to the question of the pedestrian's contributory negligence, he testified that on reaching the curb he looked both ways, and waited for vehicles coming from the north to pass; that the street was then clear, and he walked forward at ordinary speed, and heard no sound; that he was struck on the right side by the truck, coming between him and me curb behind him; that he thought the truck must have backed aroijnd the cornei-. It, was held that a judgment of nonsuit was improper, the court in part saying: "It is, said that the plaintiff must be charged with seeing what he should have seen. There is no proof as to the direction frpm which the ,truck came, and it is physically impossible that yvhen the plaintiff started to cross it was so far away that th^ threatened danger was not apparent., It must haye been south of the crossing. It must have been close by. It must have been, in motion. We do not think any of these conclusions inevitable. lif the plaintiff were walking at 3 jniles an hour, it would take pver two seconds to go from the curb to the point where the plaintiff was struck. In these two seconds a body moving at 10 miles an hour would pass over some 30 feet; if at IS miles an hour, some 44 feet. There is nothing impossible in his story, therefore, that he saw nothing moving toward him on the avenue from the south." '" SSShamp V. Lambert, 142 Mo. App. — Mo. App. — , 220 S. W. 699 (1920). S67, 121 S. W. 770 .(1909). 90 Wirth v. Burns Bros., 229 N. Y. 148, 8»Suddarth v. Kirkland Daley M. Co., 128 N. E. Ill (1920). 384 LAW OF AUTOMOBILES § 379. Struck on sidewalk by machine backing out of yard. A pedestrian who, before starting to cross a private driveway, leading from a yard and garage, looked so indifferently as not to see an automobile being backed out of the yard towards the side- walk, was not negligent as matter of law; the question of his con- tributory negligence being for the jury.'^ § 380. Failure to look for backing automobile. A pedes- trian, crossing a street diagonally between crossings, who failed to look toward a backing automobile, which struck him, aind which was making sufficient noise to attract the attention of per- sons on the opposite side of the street, was properly found guilty of contributory negligenfce, although the machine was backing northerly on the west sidfe of the street, and the street was con- gested* with traffic.'* .., : , §381. Cutting corner. The fact that deceased, a traffic officer not then on duty, signalled defendant to proceed at a street cross- ing, did not justify him in cutting a corner, where he had already started on such course on the wrong side of the street when the signal was given. Neither was he justified by the fact that he was passing another vehicle going in the same direction on the left as the law required.'* §382. Automobile starting when cranked. The plaintiff) a pedestrian, was struck and injured by the defendant's automobile, which started and "ran away" when cranked. As to the care which he ekdrcised in examining the car before he cranked it, to see that it was in a condition that it would not run away upon' being cranked, the defendant testified: "I looked along the car, walked ai-Qurid back to the left side, turned the button on, walked to the front and cranked the car. I glanced around the car and every- thing seemed satisfactory. I looked around the rear to see whether the lights were in good condition. I didn't make a minute exami- nation .whether the brake was on; it had beeii standing thei-e for two hoiirS." The automobile had been standing for two hours on a Saturday evening, on a frequented and crowded street. Held, that the question of whether defendant exercised due care was fpt the jury, and verdict for the plaintiff was sustained.'* 91 Ottaway v. Gutman, — Mich, — . 93 Wilson v. Johnson, 19S Mich. 94, 174 N. W. 127 (1919). 161 N. W. 924 (1917). 92 Sheldon v. James, 175 Cal. 474, 166 94 Gensemer v. Dittes, 26 Pa: Dist. 16S Pac. 8, IS N. C. C. A. 880, 2 A. L. R. (1916). 1493 (1917). INJURIES TO PEDESTRIANS 385 § 383. Automobile deflected against pedestrian by collision with standing automobile. An automobile of one of the defend- ants was being driven along a public street at night, when it coU lided with an unlighted automobile left standing in the street by another of defendants, which deflected it from its course, and it ran down and injured the plaintiff, who was on the walk at the point of intersection of two streets. The driver of the automobile testified that his machine was moving at 6 or 8 miles an hour; that he did not see the machine until he struck it; that he did not think he could have seen a person at the same place; that there was a street car not far away which had a "very powerful head light," which blinded him so that he "could riot see anything at all." There was other testimony that the automobile was moving 25 miles an hour. The standing machine was not lighted, which was in violation of statute. It was held that it was negligence for the driver of the moving automobile to proceed when he could not see objects ahead of him, and that a verdict was justified in favbr of the plaintiff and against all .defendants.** § 384. Attempting to pass in rear of pedestrian. The plain- tiff was crossing an east and west street, in the daytime, from the northerly side, in a diagonal direction, in the middle of the block, and when she had reached about the center of the street she was struck in the shoulders and knocked clown by defendant's motor truck, which was proceeding easterly. Before she stepped from the curb a horse and wagon going west passed her close to the curb. There was no other vehicle in the street at that time than the motor truck. There was testimony that when first seen the truck was traveling 20 miles an hour; that it ran 12 or 15 feet after striking plaintiff; that the driver prior to the impact had one hand on the steering wheel, and with the other was arranging some bags behind him, so that his face was only partially turned in the direc- tion he was going; that the truck was zigzagging along the street, barely avoiding a collision with the horse and wagon; and that it continued its erratic course until plaintiff was struck. It was contended that it^ was self-evident that the plaintiff Was contributorily negligent; that if she had looked she could have seen the truck and avoided the injury. In holding that the case was for the jury, the court in part said: "The plaintiff was walk- ed jaquith V. Worden, 73 Wash. 349, 132 Pac. 33,. 48 L. R. A. (N.' S.) 827 1913). B. Antos.— 25 \ 386 LAW OF AUTOMOBILES iiig in a diagonal direction across the street. The ^agiC^^ was about 7 feet distant when the truck bore down upon 4er- and, 'a's it appears', she AVas' struck by the latter's right mud guard, indi- catiiig Conclusively that she had almost, if not entirely, passed in safety the path in which the truck was then traveling. To what extent the wagon obstructed the plaintiff's view of the truck does not appear, except from inference, but it is obviouS that wheil she passed the line of obstruction she was visible to the chauffeur, had he been reasonably vigilant, and that at the rate of speed his truck was moiving it must have been some distance away from the place where she was struck. If the plaintiff was in the center of the street -at the time she was struck, as testified to by the defendant's chauffeur, then It follows, as a logical sequence, that the truck wis seven feet northerly of the center of the street going east, on the left side of the road in that direction. This circumstance admits of the reasonable inference that it>was the attempt of the chauffeur to piass behind the plaintiff and the manner in which he was pro- pelling the car thait constituted the sole cause of the plaintiff's injury. The plaintiff was under no legal duty to anticipate any action on jthe part of the chauffeur that would. imperil Jier^ safety. She had an equal right in the Street. , She was under rip duty to Iqbk, behind her.qr to anticipate without having rieceived an}? warn; ing that the vehicle was , inteiidipg to pass her on that side of the street;.'" 8^ ' ;' ' ■' ';,'■''!' ]'/.'"" " . ^^ §385. Automobile changing course towards pedestrian^ Late in ihe afternoon , pf Npvember 16, 1913, the plaintiff, was walking across and toward the: west side of Fourth street in'theicity of San Diego. After passing the middle of the street he saw defendT ant's car coming , toward him at a distance of not more than: ISO fe^t. and a^t.the rate of about 12 miles per hour. Observing that t;he, automobile, wa,s changing its direction,, the plaintiff took a step backward, checl^ed himself, and then , started backward again. Thereupon the; automobile turned again toward ,,the plaintiff ^gfld sfrvi^k him. It knocked him about; 8 feet, ran upon his leg and broke it, then reversed and backed; away. ; ,, ,, Held, that this eyidence;was piufficjent tp, ;support i a, verdict for f^e plaintiff.''' ! , . ; i r • , §386. Automobile speeding to cross in front of team/ The plaintiff, a boyi 16 years of age, was walking easterly across a public street, at the crossing for pedestrians on the north side of the street 96 Fox V. Great A. & P. Tea Co., 84 9' Potter v. Back Country TY. Co., 33 N. J. L. 726, 87 Atl. 339 (1913). Cal. App. 24,' 164 Pac. 342 (1917); '" INJURIES TO PEDESTRIANS 387 along, which he was walking, when he was struck and injured by the defendant's automobile, going noirth, on the east iside; ; of the street plaintiff was crossing. A wagon was going the same direction as plaintiff, just south of him, and it obscured his vision iii that direc- tion. There was evidence tending to shq^ that iithe speed of the automobile exceeded 15, miles an hour; thfit rthe; driver was, iinable to stop the machine in time to avoid the team and wagon, Qwiiig to the wet street, and therefor he increased his speed to pass,, in front of.it; that the automobile would have, struck the team had not the driver suddenly stopped the team, and turned the horses to, the north; that plaintiff, in ignorance of the approaching automobile, pro- ceeded on his way and just as he passed beyond the, horses, was struck and injured. The accident occurred in the business sectioti of the city where the rate of, speed of the automobile was declared by statute to be prima facie evidence that it was junreasonable. Held, that the evidence showed the defendant to be, guilty of negli- gence both under and independent of the statute. Judgment for plaintiff was accordingly affirmed.** § 387. Automobile moving' out of driveway between build- ings. The deceased came out of the office of an automobile com- pany and was crossing a driveway, which extended westerly from the pavement through a factory building, when he was run down and killed by defendant's auto truck being driven out the drive- way. The sidewalk was 6 feet wide, with its outer edge about 1 1 feet from the street curb, and the buijding set back four and a half feet from the sidewalk. The driveway was sdven teen ' and a half feet wide where it came out of the building, and frofn there its width expatided with curves each' v^ay to '43 feet at the curb. Thete Was a slight decline from the building to the street. The deceased had started to walk across the driveway in a northeasterly direction, and made some pair or motibh to the occupaiits in his automobile, which he had left in front of the building, indicating that they should corne bri, when the Watchman at the entrance" of the driveway said, "You can't come in here," attracting deceased''^' attention arid apparently causing him to halt or turn, at which moriieiit the truck, weighing three tons, krhck him, the front wheel passing oVer his neck, and stopped with his body lying between the front' and rear wheels. There was evidence that he was facing away from the truck,' ,g,nd. did not know of its presence untijli too late to avoid being, struck. There was , evidence that, decea;sed di(i ; not lipok ,up the 98 Schumacher v. Meinrath, 1 177 111. App. 530, 8 N. C. C. A, 372n (,1913). 388 Law of Automobiles driveway; that there was room for the truck to pass him on the right; that the driver saw him in time to stop the truck before striking him; that the truck could have b^en stopped within a foot or two; that the truck, according to the testimony of the driver, was moving 4 miles an hour; that it stopped seventeen and a half feet fi-om the point where the driver said he applied the brake and did everything in his power to stop, and that when he applied the brake the truck was moving only 2 or 3 miles an hour. The testi- mony was conflicting as to the sounding of the horn by the driver. It was held that the case was for the jury, and judgment for plain- tiff was affirmed. The court in part said: "Eaton was run over in the street where he had a right to be, a pedestrian practically on the sidewalk and on a part of the street which, but for a driveway into private property, was a safety zone from vehicles. Price was driving from private property through a covered passageway across the sidewalk to get out upon the street. He had an equal right upon the street, but was riding upon and driving a heavy, powerful auto truck from which, so far as physical danger to himself was involved, he could contemplate with complacency the ordinary hazards of thp street, even including the common automobile. Though • coniparatively safe himself the; serious responsibility and duty rested upon him, according to the size, character, power, and manner of movement of the vehicle he was driving to operate it with commensurate vigilance, and use every reasonable precaution to avoid causing injury — not to simply take chances on what others might do to avoid him. "Touching the question of Eaton's contributory negligence, it appears he was not crossing a public street, but was upon one inside its curb line, crossing a private driveway which led into the street, and was on or near the sidewalk, a portion of the street especially set aside for pedestrians. It was of course his duty to exercise such care and caution as ordinarily prudent persons would under like circumstances. He was going diagonally away from the building through which this drive>vay ran in a straight line for about 40 feet and certainly not obliged g.s a matter of law when out on the street to loqk back to see whether he was in danger of being run over by a conveyance from behind." ^ § 388. Automobile turning rapidly into alley. The plaintiff while crossing a street in a northwesterly direction towards an alley observed an automobile approaching from the west, at 10 or 12 1 Tuttle V. Briscoe Mfg. Co., 190 Mich. 22, ISS N. W. 724 (1916). INJURIES TO PEDESTRIANS 389 miles an hour. On reaching the east curb of the alley he noticed that the automobile was about to turn into the alley and instead of continuing his course in a northwesterly direction across the alley, he stepped to a point on the sidewalk near a fence on the property line about two and. a half feet east of the alley curb, where he was struck by the machine and crushed against the fence. It was held that the defendant was guilty of negligence in turning into an alley, across the sidewalk, without having his machine under control, so as to avoid striking persons passing along the street or crossing the alley; and that the fact that plaintiff could have avoided injury by stepping in another direction or by having continued in his original course did not render him contributorily negligent.^ § 389. Inexperienced operator. Where, in an action by a pedestrian, an old lady of 60, to recover for injuries received when she was struck by the defendant's automobile, there was evidence that the defendant was a beginner in the management of an auto- mobile; that at the time of the accident his attention was con- centrated on a reverse curve, which he was executing, and not on what was ahead of him; that he did not see the old lady until he was right on her; that he was moving, slowly, and the street was dry, and he could have stopped within a foot or two, but, instead, he ran some 8 feet after having knocked the old lady down, and even then succeeded in stopping his machine only by running it to the curb, it was held that the cause of the accident was defendant's inattention to what was ahead of him, in combination with his lack of skill in the management of his machine. Judgment for plaintiff was accordingly affirmed.' § 390. Iron bars extending from rear striking pedestrian in making turn. The plaintiff was standing on a roadway, where he had a right to be, with his back to a passing motor truck, loaded with iron bars which extended 12 feet back of the rear of the truck. The truck was moving at 10 to IS miles an hour, and without check- ing its speed, and without sounding any horn or other warning, it was turned into a foundry adjoining the roadway so soon after passing plaintiff that the iron, in swinging out with the turn of the ' truck, struck and injured the plaintiff. The driver was accustomed to delivei* iron at this place, and he stated that he had never before caused the ii-on to strike timbers piled at the side of th6 roadway 2Kuchler v. Stafford, 185 III, App. 199 3 Navailles v. Dielmann, 124 La. 431, (1914). SO So. 449 (1909). 390 LAW OF AUTOMOBILES as it did on this occasion, ilt-was.heldi that the casei was for the jury, and judgment for plaintiff was sustained.* §391, Street car employees struck while in street. TJie conductor of an interurban electric car fell from his car while attempting to replace the trolley wheel on the wire, the car being stopped at a regular place for taking on and letting off passengers, and was struck and injured by defendant's autoniobile truck, which was proceeding past the car, in the same direction, at about three miles an hour. When the car stopped seyera:! passengers entered; but the truck was then crossing the tracks of a st^am railroad just lo the rear of-the car, and when it attempted to pass the car there were no passengers entering or leaving the car, and the conductor was on the platform workijtjg with the trolley. The dri,ver,.<^f the truck testified that the truck shoved plaintiff along the pavenlent for 6 or 8 feet before it was stopped, and other witnesses placed the distance as much as 20 feet. The jury were instructed in the language of a statute®, as follows: "In approaching or passing a car of a street railway, which has been stopped to allow passengers to alight or embark, the operator of every motor vehicle shall slow down, and if it' is necessary for the safety of the public,, he shall bring said vehicle to a full stop not less than .ten feet from said street car." There was judgment for the plaintiff, which was affirmed on appeal, the court in part saying: "If he fell from the car, as the great weight of evidence indicates, whether defendant 'is chargeable with negligence depends upon whether the circum- stances were such as to justfy the driyer of the truck in undertaking to pass the car, and whether in passing: the car he exercised that degree of care and caution, in the operation of his machine, which, under the circumstances, appeared to^be reasonably necessary for the safety of those in a position where they might suddenly come in front of the truck as it passed the, car entrance. Several passengers entered the car after it stopped, but this was while thetrucjt was back at the railroad, tracks. When the truck approached the car, no one was either entering or leaving it, and no one wa,s upon the street. The driver saw the cpijciuctpr attempting to put the, trolley , in place, and might reasonably have assumed, as seems to |haye been the fact, that the car was no Iqnger waiting for passengers to alight or embark, but was merely waiting for the conductor to recqnnect it with its source of motive ppwer. It cannot be held, that the statute makes an attempt to pass, under such circumstances, negli- 4Pacific H. & S. Co. v. Monical, 203 SMirin. Gen. St. 1913, §2632. Fed. 116, 123 C. C. A. 348 (1913). , INJURIES TO PEDESTRIANS 391 gence per se. But, in attempting to pass, the driver is required to exercise such care as, under the circumstances, shall appear to be reasonably necessary to guard against injuring any one then in a position to move suddenly either toward or from the car. Consider- ing the distance which the truck ran after striking plaintiff, in con- nection with its slow speed and all the other facts and circum- stances, it was a fair question for the jury whether the driver was exercising propdr care in the management of his machine at the time of the accident, and the evidence is sufficient to sustain their verdict." , The court expressly held that the statute in question was intended for the benefit of the car crew as well as for the passengers.® §392. Motorist blinded by lights Injury to street car con- ductor adjusting trolley. It was held that a Motorist was negli- gent who continued to drive his car in a public street aifter being rendered unable to see ahead on account of light frbin street lamps being reflected into his eyes by his wind shield; causing him to drive against a street car conductor who was standing behind his car adjusting the trolley, crushing him against the back of the car and killing him. In part the court said: "His own story demon- strates his lack of care. No man is entitled to operate an autoriio- bile through a 'public street blindfolded. When his vision is tempor- arily destroyed in the way which the defendant indicated, it is his duty to stop his car, and so adjust his wind shield as to prevent its interfering with his ability to see in front of him. The defendaiit, instead of doing this, tbbk the chance of finding the way clear, and ran blindly into the trolley car behind which the decedent was standing. Having seen fit to do this, he cannot escape responsibility if his reckless conduct results in injury to a fellow being." '' § 393. Spectator at race injured by automobile leaving course. One who became a voluntary spectator at an automobile race to witness arid enjoy the contest, and \yho was injured while near the highway on wliich the race was being held, by one of the cars swerving from the track and dashing among the spectators, coiild hot recover frpna the municipality which permitted the race to be held on one of its highways, althougli such use of the highway was illegal; he not making use of the highway for the purpose pf travel.' . , 6 Kling V. Thompson-McDonald Lbr. 8 Bogart y. New York, 200 N. Y. 379,. Co.,'i27 .'AJinn. 468, 149 N.. W. 947, 8 93 N. E. 937 (1911), rev'g 138 App. Div. N. CJC'. A. 5^6 (1914).' ■'"' ■' 888'. ' ' ""' '' ' ' ' ' ' ' ' 7 Hammond v. Morrison, 90 N. J. L. See also, Frazure v. Ruckles, 63 Ind. IS, 100 Atl. 154 (1917). App. S38, 113 N. E. 730. 392 ' LAW OF AUTOMOBILES In a California case the court seemed inclined to the view, although it was not necessary for it to decide, that a person who, as a spectator, voluntarily attends an automobile race, for speed and endurance, upon a public highway, and takes a reasonably safe position to witness the event, cannot recover for an injury inflicted by one of the racing automobiles which did not result from ,want of care in its management by the driver or from any known or visible defect in the car, but did result from the unavoidable breaking of some part of the automobile.® The state of New York held a fair on grounds belonging to it, the attractions of which it advertised widely to induce people to attend and to which it charged an admission fee. One of the chief attrac- tions was a SO-mile automobile race, held on a one mile elliptical track, SO feet wide, and in some places wider, with two straight courses and two curves, each course and each curve being one- quarter of a mile in length. Oil either side of the track was a wooden fence,^ made of posts 8 inches thick, set in the ground 8 feet apart; with a strip of board one inch thick on top and two boards one inch thick between the top and the ground. It was built to turn l\orses, not automobiles. Spectators were expected by the management to stand, and on the occasion in question did stand, next to the fences to view the race. While the race was on the grandstand was crowded, as was the space next to the fence. As a car was rounding a curve near the crowded part of the grounds there Was a report like an explosion, and the car left the track, tore tl^rough the fence as if it had been cobweb, and plowed through the crowd of spectators, crushing out eleven lives and maiming many people, and ran 60, to 70 feet before it stopped, a substantial wrepk. At a previous automo]3ile race held by the state a car had gone through the .fence in this manner, and further protection was afforded where it was thought to be most needed, but no change ,was made at the place in question. There was a large crowd on t;his day, as the management had expected. Accidents had been fre- quent on other mile tracks of circular or elliptical shape. All experts agreed that if an accident happens to a car going very fast around a curve on a circular track it is almost certain to leave the track on the outer side and run on, Crushing everybody in its course, until friction or obstacles stop' it. On this occasion the average speed was a mile a minute. The car was caused to leave the tract by the explosion of the tire on the right front wheel. There were several practical methods in actual use at other tracks for the pre- 9 Johnson v. Reliance Automobile Co., 23 Cal. App. 222, 137 Pac. 603 (1913). INJURIES TO PEDESTRIANS 393 vention of such accidents. Ilie plaintiffs broiight action against the state under a statute permitting the same, and imposing upon the state the same liability which is imposed by law upon private individuals. . It was held that the state was liable for holding or permitting to be held on its own grounds, under the circumstances disclosed, such a fast race, with powerful cars, on an unprotected track, without the exercise of reasonable care to provide against accidents well known to be likely to happen, and judgments in favor of plaintiffs were affirmed. On the question of contributory negligence the court said: "There was no contributory negligence on the part of the decendents or the living claimants. They attended an ex- hibition, given by the state on its own ground, upon its invitation and after paying the admission fee charged. The grand stand was full. They stood by the fence, and where else could they stand and see the race which they had paid to see? ^ What everybody did in the presence of the managers anybody could do." ^^ The plaintiff, a boy between 15 and 16 years of age, was viewing an automobile race which took place on certain public highways. He took up a position where there was a sharp turn in the road followed by the automobiles, and at the mouth of a road which branched off at this point. While so situated the defendant's car was driven along this part of the course, and in making the turn it skidded a considerable distance, striking and injuring the plaintiff The evidence justified a finding of negligence on the part of defend- ant's driver, but it was held that the plaintiff was precluded from recovery by his contributory negligence I It appeared that plaintiff was somewhat familiar with the use of automobiles, and knew their tendency to skid when rounding a curve at a high rate of speed; that he had observed during the progress of the race that every car as it passed round this curve had skidded more or less, and he estimated that he had seen this happen during this race about a hundred times; that the place of view he selected was one of the most dangerous in case a car skidded or was deflected from its course while making the turn; that plain- tiff knew of this danger from his own experience, and had been cautioned by his father not to stay at the mouth of the road in question, because the position was dangerous; that he was crossing the mouth of this branch road when he observed defendant's car approaching at a high rate of speed about 400 or 500 feet distant; that he proceeded across the road withotit paying 10 Arnold v. New York, 163 App. Div. 2S3, 148 N. Y. Supp. 479 (1914). 394 LAW OF AUTOMOBILES any further attention to the car, which skidded in trying tor round the curve and struck him when he was about half way i across the road. The plaintiff's negligence was held to me affirmatively established.^^ The secretary and treasurer of a corporation, engaged in the auto- mobile business has no authority by virtue of his office to enter an automobile in a race for speed and endurance; and where, without being authorized so to do by the corporation, he enters a car in such a race, in the name of the corporation, and during the race the car leaves the road and injuries a;spectator,'the corporation, is not liable, it having no knowledge that the car was so ehtered.^^ Where the plaintiff was a voluntary spectator at an automobile speed contest, which was carried on in an unlawful, manner, in that the course was run on a public highway at an unlawful rate of speed, and the plaintiff was injured by an automobile becoming iunmanage- able and leaving the course and colliding with her, it was held that it was error, upon the trial of an action by the plaintiff against! the city and the persons conducting the race, to direct a verdict for the plaintiff on the ground that the speed contest, and the use of the highway for that purpose, was illegal and a nuisance. It was further held that whether the contest as conducted was in fact a nuisance, whether the defendants or any of them were guilty of negligence in the management of the race, and the contributory negligence, if any, on the part of the plaintiff, were questions of fact for the jury." ' In an action to recover for injuries incurred when one of a num- ber of automobiles taking part ia a race in a public street, swerved from its course and struck a bystander^ it was held that' the city in which the race was held was not liable for "allowing the race to be run, and not providing police and protection." i* Whether a boy, 10 years old, of average intelligence, who, while attending automobile races, occupies a dangerous place aftel? repeated warnings of the danger, is guilty of such contributory negligence as will prevent his recovering damages for the injuries he sustained by being run over by one of the racing automobiles, was held to be a question of fact, to be determined by the jury." 11 Baldwin v. Locomobile Co., 143 rev'g 109 App. Div. 821, 96 N. Y. Supp! App. Div. 599, 128 N. Y. Supp. 429 'S4. (igil) See also Frazure v. Ruckles, 63 Ind. 12 Johnson V. Reliaince Automobile Co., ^PP' ^^^' "^ ^- ^- ^^°-. !:■■ 5 , 14 Rose V. Gypsum City, — , Kan, — , 23 Cal. App. 222, 13^ Pac. 603 (1913). ' j^^ p^^ j^g ^gj^j : ■ ' 18 Johnson v. New York, 186 N. Y. 15 Scott y. Kansas State Fair- Ass'n.f 102 139, 78 N. E. 715, 116 Am. St. Rep. 545, Kan. 653, 171 Pac. 634 (1918).. INJURIES TO PEDESTRIANS 395 § 394. Same— Spectator a trespasser. Where the plaintiff entered enclosed grounds at a place where the fence was down^ito view automobile races, knowing that he was in a place reserved for those paying admission fees, and not having been invited -therein, and he was struck and injured by one of the racing cars, which left the track at a curb, he was a trespasser and could not recover.^® §395. Officer employed at races struck by machine which left track. The plaintiff was acting afe a watchman or special police officer for. the management of a fair, and was stationed ,within the fence separating the race track from the grand stand anci grounds to prevent persons from going on the track. At the time in question there were 4 or S motorcyclists practicing for a race, and as two of them were approaching plaintiff's position, one of them drove so close to the other and crosse,d so close in front of him that the latter was caused to lose control of his motorcycle, which collided with and injured the plaintiff. Held, that the act of, the first mentioned cyclist in causing the other to lose control of his machine when there was sufficient room, was negligent, and that his employer was liable for plaintiff's injuries. It was further held that plaintiff was not cpntributorily negligent in standing inside the track." § 396. Pedestrian crossing race track at fair. The plaintiff attended a fair, within the grounds of which was a circular race track about 2,Q00 feet in circumference. On 'the inside of the track theire was being held a street carnival and many people were crossing the track to and from the carnival. While plaintiff and others were crossing the track, the defendant, who had been driving his automobile' on the track, ran against and injured the plaintiff and another. The automobile was moving at 25 miles an hour, no signal was given of its approach, \ and no attempt was made to ^acken its speed until it was within 10 feet of the plaintiff and several others who were crossing at the same time. There was no obstructiop, to the, driver's view, and plaintiff did not see thfe car until it was some 8, or 10 feet from him. Judgment for plaintiff was affirmed.^* 16 Aughtrey v. Whiles, 106 S. C. 4.16, 91 without any attempt on the part of the S. E. 303 (1917). driver to check the speed until within 10 IT Maskell v. Alexander, 91 Wash. 363, feet of them. Under these circumstances 157 Pac. 872 (1916). ' the accident was almost inevitable. With a IS "Thus we have a car rushing at a clear space intervening between the driver high rate of speed into a group of people; and the group of people on a track that 396 LAW OF AUTOMOBILES § 397. Motorist struck while stopped in highway putting up top. It appeared that on the night of July 4, 1916, at about 9 o'clock, the respondent was returning to the city of Seattle from the north in an automobile upon a paved public highway; The pavement was about 16 feet in width. When respondent came to within 3 or 4 miles of Seattle, the rain began to fall, and he turned out to the side of the road preparatory to putting up the top to his car. He drew up behind another automobile which was already stopped for the same purpose. Another automobile following dtew > up behind the respondent. These three cars were headed in the same directioh^-toward Seattle. They were on the right-hand side of the road, with two wheels on the pavement and two off. About this time another car, coming from toward Seattle, drew up on the opposite side of the road, also for the 'purpose of putting up the top to the car. As soon as the respondent stopped, he proceeded to put up the top to his car, standing at the front of his car, on the right-hand side of the paved road and next to his car, arranging the front part of the top. While he was doing this, the appellant's car .'Struck him on the legs, knocked him against the front fender of his ,car, and injured him. The respondent testified that while at work he stood as close as possible to his car, and did not look around for, an approaching car. Held, that respondent was not negligent as matter of law, and he was permitted to recover. In part the court said: "The respondent, no doubt, as contended by the appellant, was requierd to use ordinarily reasonable care for his safety, and if his testimony is to be believed at all, he did so when he was standing close to his car attending to his business, and was not putting himself in the way of danger. The respondent clearly had the right to stop his car at the place he did, and he clearly had a right to dcdupy a portion of the paved way in attend- ing to whatever was necessary to be done about his car; and it was was well lighted, the defendant undoubt- speed was about 45 miles an hour. Even edly knew of their presence, and his fail- the rate at which the defendant testified ure to blow the horn or check the speed he was going was excessive. We think of the car tends to show that the proxi- that under all the circumstances there mate cause of the accident resulted from was ample evidence to go to the jury the careless and negligent conduct of the as to the negligence of the defendant in defendant. It is a miracle under theee both of these cases. Under the rule the circumstances that the plaintiffs escaped court will never direct a verdict, when with thfeir lives. It is true the defendant the evidence is such that reasonable men claims that he was only going 25 miles rnay reasonably differ as to the inference an hour; but there was testimony, as -,ve to be drawn therefrom." Mankin v. have stated, showing that the rate of Bartley, 266 Fed. 466 (1920). INJURIES TO PEDESTRIANS 397 the duty of persons coming up to him to so control their cars as not to injure him, especially where there was room to avoid injury as there evidently was in this case." ^' § 398. Struck while placing tire in tire holder on rear of car. The plaintiff was struck and injured by defendant's auto- mobile while he was placing a tire in the holder for same on the rear of his machine, which he had stopped in frbnt of^a garage outside the direct line of traffic; the defendant's car approaching from the -rear. When struck, he had been in a stooping position about half a mirlute, and before assuming that position had been watchful for vehicles approaching in either direction. In affirming judgment for |Jie plaintiff, the court said: "While it was his duty to take proper precaution for his safety, we cannot say he was negligent merely because of his' failure to continue to look for possible danger, when the nature of his work required attention in the opposite direction, and especially is this true as both his car and himself were outside the direct line of traffic, with ample fi-ee space for other vehicles to pass along the street in safety. He was not bound to anticipate that a driver of a passing car would negli- gently collide with his machine. That his position in stooping a,t the rear of his car might have caused his body to extend beyond the line of the car, as contended by defendant, is immaterial, as both plaintiff and his car were injured as a result of the contact. His position, accordingly, was not the proximate cause of his injury." ^" , § 399. Pedestrian intoxicated. Intoxication on the part of a pedestrian, struck by an automobile in a public highway, has been held not to be negligence per se, but to be for the jury on the question of his negligence.^^ §400. Matters properly shown in defense. It is proper to show in defense o^ an action by a pedestrian to recover for.injyries caused by being struck by an aytpmobile that the plaintiff appeared so suddenly that the operator cpuld, not have avoided striking him even though he had been driving at the rate of speed perroitted by law. It is also competent to show that plaintiff had the appear- ance of one waiting for a street car and was not about to cross the street, and that had he remained where he was, apparently waiting for the car, he would not have been in danger.*^ I'DeitChler v. Ball, 99 Wash. 483, 170 "Griffin v. Wood, — 'Conn. — , lOS Pac. 123 (1918). ■■.I,. ' Atl.:3S4 (1918). aOReisinger v. McConnell, — \Pa. St. 22 Lewis v. Steele, 52 Mont. 30Q, 157 — , 109 Atl. 280 (1920). Pac. 575 (1916). CHAPTER XII INJURIES TO PERSONS BOARDING OR ALIGHTING FROM 'STREET CARS ,§40,1, General; , duty of motorisf.,, § 402;. Rigfits, , and duties! generally of pedestrians. , , , , § 403 . Driving past street car stored to ■ take on or let off passengers. §, f^04. ;^f^iisfprrir(g, .from , on^ car to an- • . other during rush hour. ■ ■ ' ALIGHTI.VG PASSENGERS ' § 405. Failure to look for approaching ' 'autoinoBfle. §406. Struck by automobile befoire see- '' ' ing it. •' ■' - § 407. Officer stepping from' front end of car. , . . §408; In act lof stepping ; from car. ' ' §409. Struck just dfter alighting. § 410. Cro:sing in front of car to left ; , ; ' sidewaflk. , ■ ■ . : f i f i . ■ , ' , ' §411. Struck within .safety zone. §412. Jumping from moving car. ' § 413 . , Acpident at regular stoppmg place ,not at street crossing.,; § 414. Automobile ' ■ following car and passing same when stopped, persons' about td' BOARId CAlis §,41S,-, Waiting at crossing for car. .§,416. i Same— Automobile on wrong side ; ; : , of strpet. §417. Starting on wrong side of ' street ' and striking pedestrian as she steps from curb; § 418'.' Failure to look after leaving curb. § 419.' Struck jUst before boarding ' car. § 420. Turning back on approach of au- t o m o b i 1 e whicli unlawfully passes car. §421. Drivmg pver "crosswalk between interurban csi ' and person in- tending to board car. § 401. General duty of motorist. It is the duty of an autb- mobile operator' approaching a street car, which has stopped at a regular- stop'pjiiig place, to exercise \)'ery great care in passing to avoid injuring persons aligliting from 6r seeking to board the car.^ The duty is the same to avoid injuring a pedestrian who is attempting to board a moving car.* ' A stattit'e requiring ^vehicle overtaking another on the highway to pass to the l^ft, if at all, of the latter vehicle, has been held to have no application to an automobile passing a streiet'car from which a passenger had alighted; the conduct of the automobile 1 Kearns v. Widman, ^ Conn. — , 103 All. 661 (1919); Kauffman v. Nelson, 225 Pa. St. 174, 73 Atl. 1105 (1909). 2 Wellington v. Reynolds, 177 Ind.'49, 2 N. C. C. A. 300, 97 N. E. 155 (1912). 398 PERSONS BOARDING AND LEAVING, STREET CARS 399 driver being governed by . the standard . of reasonable care, in: the circumstances, and not by such rule of the road.' § 402. Rights and duties generally of pedestrian. It has been held that it is the duty of a person alighting from a' street CEtr to look where he' is going, and not ' to rush blindly into danger ; arid that lie is not relieved from the charge of contributory negligence if, without looking, he took two steps from the car, and then, sud- denly seeing an appiroaching automobile; stopped, and ' was run down and injured.* On the other hand it is said that the fact that a pferSon, in step- ping from a street car, does not look to see whether ah autoinobile is approaching, does not charge him with hegligenfce as niatter of law;* that a passenger aboiut to get off of a stationary street car at a customary stopping place is not, as matter of law, bound to first look out foif approaching vehicles; and that a prudent person under ordinary conditions of traffic may assume that the Car' itself, iri coming to a stop at a customary stopping place, will be a warning to an approaching yehiqle not to pass close to the car,, and may assume that if any vehicle does pass the ca'r, it yvill give him a lA'ide enough berth for standing room on the ground and to clfear himself from the car.* The rights of such person in the street arie equal to those of a motorist, even when he alights at a switch between crossings.®' In crossing the street to board a car, a pedestrian must use tare commensurate, with the dangers of , the sit^ajtion. ^Thp^e inclyde the dangers wtfch he does or should apprehend.'' " ' , ' A person h^s a right to use the street in pursuit of a lawful intention to bosird a street car, and the contention that it is his duty, after having once itssiired himself that no vehicle is approach- ing, not to, walk along and with the street car without at all times keeping a lookout for vehicles approaching from. behind, was held to be erroneous.* The question of negligence of "a person, who is struck by an auto- mobile when about to board a street car, must be considered in ,the , »Marsh v. Boyden, 33 R. I. 519, S2 6 Wennell v. Dawson, 88, Conn. , 710, AtJL. 393, 2 N. C. C, A.. 410,, 40 L. R. A. 92 All. 663,, 8 N. C, C..'a. S83n',(1914) ; (N. S.) 582 (1912).' iNayior v. Havilandj '88"Conn.' 25(5, ' 91 ,4Kauffman v. Nelson, 225 Pa,. St. 174, Atl.;186, 8 N. C. C. A, 584 (1914)., . 73 Atl. 1105 (1909). , ' 6a Schafer v. Rose, 183 N. Y. Supp. He must exercise due care. Cowell v. 161 (1920). Saperston, 149 App. Div. 373, 134 N. Y. 1 Qrombie v. O'Brien, 178 App! Div. Supp. 284 (1912). - 807, 165 N. Y. Supp. 858 (1917). SLiebrecht v. Cra,ndall, 110 Minn. 454, 8 Warner v. Bertholf, — Cal. App. — i 126;N. W. 69 (1910). 181 Pac. 808 (1919)., 400 LAW OF AUTOMOBILES :\ ' \ light of the attendant circumstances, one of which may be\the existence of a statute or ordinanfie prescribing certain regulations for observance by motorists.^ , Although a person who has alighted from a street car sees j^n autornobile apprpaching, he has the right to assume that the driver will not collide with him, unless the machine is so close that it cannot be stopped in the, exercise of ordinary care.^" A passenger, following other pasengers who have alighted from a street car at an established stopping place, is not contributorily negligent as matter of law in failing to look to right and lef^to disepver approaching vehicles before leaving the car step.^^ Where^ a street car passenger looked both ways upon alighting, in the evening at dusk/ and did not see an approaching, autoniobile by which he; was struck while proceeding to the sidewalk, it was held that he was not contributorily negligent, it appearing that the auto- mobile lam,ps were not lighted and that the automobile was of a dark cofclor, rendering it difficult tP see except when passing through lighted areas.^* When there is a statute or ordinance forbidding motorists to pass a street car which has stopped to let off or take on passengers, a passenger may assume that the law will be complied with, and failure to look for an approaching automobile while alighting or after alighting frpm a standing street car and before the car has started, iri view of such law, is not negligence.*' § 403. Driving past a street car stopped to take on or let off passengers. A statute** which provided that, "In approaching or passing a car of a street railway, which has been stopped to allow passengers to alight or embark, the operator of every motor vehicle shall slow down, and if it is necessary for the safety of the public, he shall bring said vehicle to a full stop not less than ten feet f rpm said street car," has been held to relieve those boarding or leaving street cars of the necessity; "if any therefore existed," of looking out for approaching automobiles, and to place "the burden of the lookout" upon the automobile driver.*^ it has been held that a statute providing that, "The driver of a carriage or other vehicle passing a carriage or other vehicle travel- 9 Mann v. Scott, — Cal. — , 182 Pac. l«Taxicab Co. v. Emanuel, 125 Md. 281 (1919). r 246, 93 Atl. 807 (191S). 10 Marsh v. Boyden, 33 R. I. 519, 82 18 Frankel v. Norris, 252 Pa. St. 14, Atl. 393, 2 N. C. C. A. 410, 40 L. R. A. 97 Atl. 104 (1916). (N. S.) 582 (1912). 14 Minn. Gen. St. 1913, §2632. 11 Brewster v BaAer, 129 App. Div. 1* Johnson v. Young, 127 Minn. 462, 724, 113 N. Y. Supp. 1026 (1909)'. , 148 N. W. 940, 8 N. C. C. A. 580 (1914). PERSONS BOARDING AND LEAVING STREET CARS 401 ing in the same direction shall drive to the left of the middle of the traveled part of a bridge or way, and if it is of sufficient width for the two vehicles to pass, the driver of the leading one shall not wil- fully obstruct the other," is applicable in case of an automobile passing a street car. Where, therefore, one who alighted from the right side of a street car and was struck by an automobile going in the same direction as the street car, and which was driven to the right of the car, it was held that such violation of the statute by the automobile driver was evidence of negligence on his part.^® In Massachusetts it is held that the violation of such a statutory provision is evidence of negligence.^'' • "The driver of an ^automobile, in passing a street car on the side opposite the car gates, which car has stopped at the regular place to receive and discharge passengers, is bound to anticipate the probable sudden appearance of persons around the rear end of the car, and must give signals of his approach and have his automobile under control, as precautionary measures to avoid injury to them." " One about to board a street car which has stopped for the pur- pose of allowing him to enter, may assume that an approaching motorist will comply with a statute or ordinance requiring motor- ists who have overtaken a street car which has stopped to take on or let off passengers, to stop while the car is so engaged. This fact must be considered in pasing upon the question whether such pas- senger exercised the care required of him. "There is. a conflict in the testimony as to the operation of the automobile just preceding and at the time of the accident, but there is no dispute but that the street car was at a full stop, the car door open as an invitation to passengers, and that the plaintiff was in the act of approaching to enter the car just as the defendant's automobile, starting from a point of rest, attempted to cross the path which plaintiff was taking, and which defendant was forbidden by the statute and the ordi- nance to' enter. There was therefore evidence from which the court might properly find that the injury resulted from defendant's negligence." Judgment in favor of the plaintiff in this case was affirmed." An ordinance prohibiting the driving of any vehicle within six feet "on the right hand side" of the running board or lower step of any street car which is stopping for the purpose of taking on or , 16 Foster v. Curtis, 213 Mass-. 79, 99 See ante, §142. N. E. 961, Ann. Cas. 1913E 1116, 42 18 Johnson v. Johnson, 137 Minn. 198, L. R. A. (N. S.) 188 (1912). 163 N. W. 160 (1917). ITHartnett v. Tripp, 231 Mass. 382, 19 Zimmermann v. Mednikoff, 165 Wis. 121 N. E. 17 (1918). 333, 162 N. W. 349 (1917). B. Autos.— 26 402 ;; ) LAW OF AUTOMOBILES Mi discharging passengerg,.was held to have no application tq driving on thCi left side of such a car.^" :iln a statute providing that when^ a trolley car is stopping, etc.; an automobile shall not pass the same unless it has a clearance of eight feet, etc., the word "stopping" was construed to mean stopped.*^ ,!i ; .■ , , ,iiln an action for injuries received through, being; striuck by dei fendant's .automobile as plaintiff was alighting from a. street car an instruction on the liability of operator passing a street tar sta- tionary for purpose of discharging passengers is erroneous where the point at which the street car stopped was one at which it was pro- hibited by ordinance from stopping.*^ Evidence tending to show that defendant without signal drove his automobile at a high' rate of speed by ^nd close to a standing street car, from which passengers were alightingj striking and injur- ing plaintiff as he stepped from behind the car, was held to support i verdict for the plaintiff .^^ ^ . . .. The plaintiff, a man 60 years of age, and deaf, was a passenger on a trolley car, which stopped at a usual place to take on and let off passengers. He proceeded to alight from the front dooF, ahead of other passengers, and had taken two or three steps in the street towards >the sidewalk when he was struck by the defendant's auto- mobile, approaching from the directioh in which the car was going,' being driven at 18 to 35 miles an hour past the car, in violation- of a statute^* which provides: "When a motor vehicle meets or over- takes a street passenger car which has stopped for the purpose of taking on or discharging passengers, the motor vehicle shall not pass said car, on the sides on which passengers get on or off, until the car has started and any passengers who have alighted shall have gotten safely to the side. of the road." The automobile passed within about two feet of the' side of the car. As he was about to alight, plaintiff looked and saw the automobile about 100 or 200 feet away. One of his witnesses stated that it was lonly^ 30 'feet distant when plaintiff stepped from the car, and that it was rurming rapidly. The motorman testified that he warned plaintiff of the approaching automobile when he was aboiit to step from the car. The trial court held that plaintiff was contributorily negligent' as matter of law, and entered^ judgment of nonsliit. On appeal it was i'O Santina v. Tomlinson, — Cal. App. 23 Johnson v. Johnson, 137 Minn. 198. — , 171 Pac. 437 (1918). 163 N. W. 160 (1917). • i 21 Horowitz V. Gottwalt, — N. J. L. 24 Pa. Laws 1909, p. 265. — , 102 Atl. 930 (1918). 22 Horn V. Berg, 210 111. App. 238 ■ (1918). PERSONS BOARDING AND LEAVING STREET CARS 403 held that this was error; that defendant was clearly neghgentji and that the plaintiff was not negligent as matter of law. ■ - ^ 111 reversing judgment the court said: "He (-plaintiff) was required to exercise reasonable care in leaving the street car and proceeding across the street to the sidewalk, but he was not: required to disregard other precautions for his safety and continue looking toward the direction from which the automobile was approaching, as it was from 100 to 200 feet distant when hfe saw it, and, there- fore, had a right to rely upon the assumption that the driver of the machine would obey the coimmand of the statute and not attempt to t)'ass the street car while it was at test. Acting upon that assump- tion under the circumstances is not an evidential fact of contribu- tory negligence. The evidence shows that there was ample room on the 'opposite side of the street car for the automobile to passj and where it could have passed without violating the statute. When the plaintiff saw the machine approaching as he was about to alight from the street car, he could assume that if it continued it would not do so in violation of the statute by passing the car on the side on which passengers were alighting, but woiild pass on the Opposite side, which the driver clearly had the right to do. The plaintiff was alighting from the front platform, and at any time after he saw the machine, 200 ieet distant, until it was within 10 feet of him, it could have changed its course and passed on the opposite side of the street car. Besides looking in the direction of the automobile, the plaintiff had other important duties to performs to protect himself from danger. While descending the steps he had necessarily to give his attention to them and to the place on the ground on which he was to alight. An equa.lly imperative duty as he was leaving the car arid moving across the street required tjie plaintiff to look to the rear of the car for approaching autoriiobiles and other vehicles. Had he disregarded this duty and been struck by a horse-drawn vehicle and injured, his negligence would have prevented a recovery. The evidence tends to show he was perform- ing this duty when he was struck by the defendant's machine. He testified: 'I looked to the rear of the car. I seen sonie men cross- ing the track there.' Two ; passengers had crbsed to the sidewalk before the plaintiff was struck by the riiachihe. The plaintiff, therefore, did not knowingly step in front of a rapidly moving' ckr, and did not see the car immediately before it struck him," *^ ^ § 404. Transferring from one car to another during rush hour. The plaintiff was transferring from the south-bound car 28 Lewis V. Wood, 247 Pa. St. S4S, 93 Atl. 60S (1915). 404 LAW OF AUTOMOBILES to the north-bound car. The front end of the north-bound car was about three feet north of the rear end of the south-bound car. This was a street intersection and a transfer point. It was the "rush" hour, ajid passengers were permitted to get on the front end of the cars. The plaintiff alighted from the south-bound car, walked past the rear end of that car and past the front end of the other car, signaling as she went to the motorman to wait for her. She looked straight ahead as she crossed the tracks, which would be east, and she looked up at the motorman, which would be south. Just as she stepped over the east rail of the north-bound track, she was hit by the defendant's automobile and injured. It was in the, night, and at the "rush'' hour, at a "busy" corner. The space; to the east of the north-bound car was narrow. Well knowing this, and being well ac- quainted with conditions there the defendant drove his car, without sounding his horn, into this narrow space between the east curb and the troUey car. He drove slowly, he said, but he drove so close to the trolley car that the United Traction Company inspector, who was assisting passengers on arid off the car, was forced to "squeeze in" so that the automobile would not hit him. The defendant said that he stopped at the rear end of the north-bound car and waited until the conductor had closed the rear door and given signals to go ahead. But he did not wait until the car moved ahead, nor until the passengers were out of the way. Held, that defendant was grossly negligent and that plaintiff was not contributorily negligent.*® ALIGHTING PASSENGERS § 405. Failure to look for approaching automobile. One who alights from a street car and starts to cross the intervening space between the car and the street curb without looking both ways of the street before starting, and is struck by an automobile, is not negligent as matter of law, but the question is one of fact to be determined from all the circumstances.*'' Where one alighted from a street car and was struck by a taxicab moving at a rapid rate of speed before he reached the sidevvalk, and it appeared that one side of the taxicab passed within two feet of the curb, "while the other side passed with 18 inches of the side of ^SSternfeld v. Willison, 174 App. Div. See also, Williams v. Grealy, 112 Mass. 842, 161 N. Y. Supp. 472 (1916). 79, 82; Moebus v. Herrmann, 108 N. Y. 27 Maryland Ice Cream Co. v. Wood- 349, 2 Am. St. Rep. 440; Shapleigh v. burn, 133 Md. 29S, lOS Atl. 269 (1918); Wyman, 134 Mass. 118; Stringer v. Frost, G^rside v. New YorK Transp. Co., 146 116 Ind. 477, 2 L. R. A. 614, 9 Am. St. ,Fed. 588, ,157 Fed. 521. Rep. 875. '- PERSONS BOARDING AND LEAVING STREET CARS 405 the car, it was held not to be error to. refuse to instruct the jury that if the plaintiff failed to look for an approaching vehicle before start- ing to cross from the street car to the curb, such failure was contrib- utory negligence, and that, if he did look, saw the approaching- taxicab, and nevertheless tried to cross in front of it, then a recovery would be barred. Referring to the situation as shown by the facts, the court in part said: "From this physical situation it follows that, unless plaintiff was bound to look back down the street before he stepped from the car to the pavement (and this is not claimed), it may well be that when he saw the cab coming, if he did see it, he found himself in a place of apparent peril where a prudent man might have thought the safest thing to do was to attempt to reach the curb. The same considerations would apply to the supposition that he did not look." " Plaintiff's son, aged 19, and a companion, on one July evening, about 8:10 o'clock, contemplating taking a west-bound street car, walked into the street at the crossing as the car approached. Before the car arrived the latter turned and went back to the sidewalk without the former's knowledge. Defendant was then approaching from the east along; the right side of the street, driving his auto- mobile. The street car stopped a short distance beyond the crossing and several passengers alighted. Plaintiff claimed his ^on imme- diately put one foot on the step of the standing car, but when, on looking backward, he observed his companion on the sidewalk, he turned and started to walk there and was immedately struck and run over by defendant's automobile, which he had not previously seen. Defendant admitted he was looking at the car and saw people getting off and on, and also striking and injuring the boy near the crossing. He claimed, however, that his approach was' at a speed not to exceed five miles an hour, with his machine under perfect control and decreasing speed ; that after all passengers desirous of so doing had apparently alighted, and the car had started and moved a short distance westerly, and when his machine was 10 or 12 feet from the crossing, the boy swung off the car backwards some 8 to 10 feet beyond the crossing, when he was struck and ^nocked down almost instantly ; that defendant stopped immediately before running over him, but not until the front wheel reached his right foot. There was testimony that the boy was picked up, 6 or 7 feet from the crossing and about 4 feet from the street car. There was evidence that the automobile approached at a much higher rate 28 Taxicab Co. v. Parks, 202 Fed. 909, 121 C. C. A. 267 (1913). 406 ' ; LAW OF /AUfTOMOBILES of speed. The boy admitted that he could have seen the approach^- ing automobile had he;looked when turning around.; The triajl court instructed the juryt that the boy was charged with notice that -vehicles of different kinds; including automobiles, were liable to be passing, and that it was his duty to keep a lookout for such vehicles for his own safety. This instruction was held to be error, in view of a statute*® providing that,i "In. approaching or passing a car of a street railway, which has been stopped to allow passengers to alight or embark, the operator, of every motor vehicle shall slow down, and if it is necessary for the salfety of the (public,! be i shall bring said vehicle to a full stop not less than ten feet from said: street car;''' it being held that the boy was- not obliged to keep a lookout for auto- mobiles, t and i that the mention of other vehicles by the instruction introduced an irrelevant issue in the case likely to confuse and mis- lead the jury. iln reversing judgment for defendant, and granting a new trial, the court, in considering the statute in question, said: "The purpose of the statute was, by creating a zone. of safety, to^ protect the many who use street cars as against the comparatively few who, in driving automobiles, might rendetiingrdss to and egress from the former dangerous. It modified the i doctrine i of reciprocal rights in the streets in all cases falling within its terms, and obviates the neces- sity, wifaay theretofore existed; on the part of those boarding' or leaving .standing cars, of looking out for approaching automobiles. In such case they have the right to presume that persons using so dangerous an agency will perform their duty and obey the statute, andy in the absence of reasonable -ground to think otherwisej i they are not guilty of negligence in assuming freedom from a! danger which can come only irom such violation. Whatever the rule may heretofore have been, the burden of the lookout is now upon the automobile driver, and the duty of the street car passenger is diminished accordingly." ** § 406. Struck by automobile before seeing it. Plaintiff was riding as a passenger in the vestibule pf a street car, which stopped at a usual place for letting off passengers. Several passengers alighted, after which plaintiff, without looking to see if any vehicles were near, stepped off, and whence had proceeded two of three fee^ was struck by defendant's rapidly approaching automobile, whicjh he^ hadi not previously seen. He was' dragged some 60 ieet or more, to a point about 10 feet pa:st tlie front end'of the street, cai;, and Z9Minn. Gen. St. 1913, §2632. 80 Johnson v. Young, 127 Minn. 462, ■ i 148 N. W. 940, 8 N. C. C. A. 580 (1914). PERSONS BOARDING AND LEAVING, STREET CARS 407 received the injuries cornplained of. The street was wet and slip- pery. The issues of defendant's and plaintiff's negligence were submitted to the jury, which found in favor of the plaintiff. Judg- ment for plaintiff was affirmed.*^ The plaintiff was a passenger on an east-bound street car,; and alighted therefrom at a regular stopping place, looking to the west as she did so, and, seeing no vehicle approaching, took two or three steps towards the sidewalk, and was struck by defendant's automo- bile, going easterly-, and which ran within two or three feet of i the side of the car. She stated that she had on a thin veil, but that her vision and hearing were good, and she neither saw nor heard the automobile. . The accident occurred during daylight. She ' was struck by theJeft, or north, front corner of, the machine, which ran half the length of a street car after striking her. There was also testimony that the chauffeur had time to avoid the accident by turning his iftiachine into an intersecting street; that if plaintiff had not tried to cross there was danger that she would have been crushed between the automobile and Street car; that the streets were dry and crowded with pedestrians, carriages and automobiles ; and that no warning signal was given by the chauffeur. .. It was held that the evidence was properly submitted to the jury, a:nd judgment for plaintiff was affirmed.^^ I , i ; •; :■ f § 407. Officer stepping from front end of car. A police officer, looking for a ^ team being driven without a: light, boarded a street car, and stood on the front platform. The car stopped at a switch, then started again, and when near the end; of the switch he saw the wagon, and he told the; motorman to stop.-; When the car was. stopped, the officer stepped off backward, closed^ the door^ and told the motorman to go ahead. He i testified that he looked in both directions before stepping off' the car and saw nothing com- ing; that before the car started he was struck from behind by defendant's automobile ; that he had been on the ground four to ten seconds before he was struck; that when he was struck he was standing as close as he could to the car, and that he heard no sig- nal from the automobile. Held, that it^ould not be ruledas mat- ter of law that the officer was not in the exercise of due care, nor that defendant was free from negligence, and verdict^for the plain- tiff was upheld.^^ ' 1 81 Daly V. Curry, 128 Minn. 449, 151 38 Hartnqtt v. Tripp, ,231 Mass. 3,82, N. W. 274 (1915). . 121 N. E. 17 (1918). 82 Winner v. Linton, 120 Md. 276, 87 Atl. 674, 4 N. C. C. A, 4 (1913); 408 LAW OF AUTOMOBILES § 408. In act of stepping from car. The plaintiff was struck and injured by defendant's automobile, being driven by a licensed chauffeur, while in the act of alighting from the front exit of a street car, stopped at a customary stopping place. The accident occurred about 6:20 p. m., at time when street car passengers were requested, by notices posted in the cars, to leave by the front door, which rule was known to th6 chauffeur. ( At the time in question the automobile was being driven along the right hand side of the street, in the same direction with the trolley car. The chauffeur saw the car was abotit to stop, but drove the automobile past at a rate substantially in excess of three miles an hour, and so close to the car that the plaintiff was struck' while she had one foot on the ground and the other foot on the step of the street car. Plaintiff knew that the traffic on this street was heavy, but she did not look either to her right or left in getting off, but directly towards the sidewalk. The automobile lamps were lighted, and the machine could easily have been seen by her had she looked in that direction. It was held that the chauffeur was negligent, and that the plaintiff was not guilty of contributory negligence as matter of law. Judgment for plaintiff was accordingly affirmed.'* § 409. Struck just after alighting. The decedent was struck by defendant's automobile as he was alighting from a street car at • a customary stopping place, and upon the, instant that he had reached the ground and taken one step forward. The automobile was traveling in the opposite direction to that of the street car, and was on the left side of the street, owing to the fact that for some distance at and near the place of the accident the other side of the street was impassable for traffic on account of paving oper- ations. , Defendant saw that the trolley car was about to stop to let off or take on passengers, and slackened his speed somewhat, but drove past the car at a speed in excess of 8 miles an hour, and so near as to leave a space of not more than three feet between the car and the automobile. It was shown that decedent knew that the opposite side of the street was obstructed, and that all traffic in both directions must pass between the car from which he was alighting and the sidewalk; that the accident happened about 10:30 p. m., and the defendaht's automobile, being equipped with powerful headlights, could be seen about 200 feet away; and that decedent did not look in the direction from which the automobile came before he was struck. It was held that the 8* Wennell v. Dowson, 88 Conn. 710, 92 Atl. 663, 8 N, C. C. A. 583n (1914). PERSONS BOARDING AND LEAVING STREET CARS 409 defendant was negligent, and that the decedent could not be de- clared contributorily negligent as matter of law. In this case the defendant relied upon the rule of conduct that "one who is about to attempt a dangerous crossing must make reasonable use of his senses," and claimed that such a person is necessarily negligent if he omits to ^turn his head and look in a direction from which the danger may be expected. In passing upon the decedent's conduct in this respect, the court in part said : "During the act of alighting from the car he might reasonably look where he was stepping and assume that the car itself in com- ing to a stop at a usual stopping place would warn an approaching vehicle not to pass close to the car. After he had reached the ground and cleared: himself from the car and was standing in a place which under ordinary conditions of traffic might reasonably be regarded as a place of : safety, the rule which the defendant contends for would properly begin to operate. Until then, the question of whether he was guilty of contributory negligence or not, from failing to look to the west, was a conclusion of fact to be drawn from all the evidence in the case, and not an inference of law from the mere fact of not looking." '^ Where a street car passenger looked for approaching vehicles just before alighting, stepped from the car and took two or three steps towards the sidewalk, 12 or IS feet ' distant, without again looking, and was at that moment struck by an automobile which had been following the car, which was moving at excessive speed, and of the approach of which no warning was given, it was held that he was not contributorily negligent as matter of law, that "we cannot declare that an ordinarily prudent person would have done more." *® ' Evidence that the plaintiff alighted from the middle of an open street car at, a street intersection, and was struck imme(|iately by defendant's automobile which he had seen approaching, and which was stopped before the front wheel had gone over him, was held to be insufficient to establish plaintiff's freedom from contributory negligence.*'' §410. Crossing in front of car to left sidewalk. The plain- tiff alighted from a street car, at the front end, which was cus- tomary, and started across in front of the car to reach the opposite side of the street, hesitated until the motorman told him to go 85 Naylor v. Haviland, 88 Conn. 256, S' Vilicki v. New York Transp. Co., 6S 91 Atl. 186, 8 N. C. C. A. S8Sn (1914). Misc. 43, 119 N. Y. Supp. 220 (1909). 36 Bongner v. Ziegenhein, 16S Mo. App. ' 328, 147 S. W. 182 (1912). 410 ' . LAW OF AUTOMOBILES^ ■■■'■■■ i ahead, and when about 4 feet past the street car hewas^ struck by defendant's automobile,! proceeding at 10 or 12 miles ' a:n hour. The day was rainy, and plaintiff had raised his umbrella, and was walking rapidly. He* testified that the street car obscured his view, and that as he passed the car he looked in the direction from which the automobile came, and failed to see it until too late to get out of the way. There was a space of 60 feet between the street car and the other side of the street. Held, that the case was for the jury.?* ' The evidence showed without conflict that the plaintiff had alighted from a street car going westerly and was standing on the northerly curb iri tending ' to go to the southerly side ' of the street. Before attempting to cross she waited until the car from which she ahghted had p3,ssed on. There was another street car stand- ing still iinmediately behind that car. The motorman of the stand- ing car motibhed to her to' cross in front of the car, which' she proceeded to do. The defendant was, at this time, coming westerly in his automobile on the same streiet aiid behind this street car, and seeing the standing car and the right-hand side of the street blockaded teniporarily by several wagons, passed the street car on the left side and' in doihg so ran his automobile along the left half of the 'street, Striking' the plaintiff and knocking her down aS she emerged from in front of the standing street' car and was crossing the street. An ordinance required vehicles to travel on the right side of the 'street and to keep as near the right curb as possible. The automobile was moving IS to 18 miles an hour. It was held that the case was for the jury, and judgment for plaintiff was affirmed. Said the court, in part: "The plaintiff had the right to assume that the defendant's automobile, or any other vehicle coming westerly on Seventh street, would confine its travel to the right- hand side of the street as provided iii ' the ordinance' aforesaid, unless and until, in the reasonably careful use of her faculties, she had reasonable cause to believe otherwise." '^ . ' ' The plaintiff was a passenger on an east-bound street car, on a st|:,eet in which' ■yvere operated two lines, , of , tracks, and alighted thjerefrom by wEiy pi the frop|; ^oor, whenjit stopped at, jaiusual stopping place fqi: such cars, on the ^est. Side, of an intersecting street. , Whiliethie car, was yet /standing, he walked immediately in front of it for the purpose of passing over the crossing for 38 Minor v. Mapes, 102 Ark: 351, 144 39Hams v. Johnson, 174 Cal. 55, 161' S. W. 219, 3Q L. R. A. (N. S.) 214 Pac. IISS, IS N. C. C. A. 199 (1916). (1912). PERSONS BOARDING AND LEAVING STREET CARS 411 pedestrians to the northwest corner of the intersecting streets, with the intention of boarding a' south-bound car on the inter- secting street. Immediately as he emerged from in front pf the car, defendant's automobile,' going east at a high rate of spged, ran him the car, which had started and had gone a few feet, again stopped. The conductor saw her reach a point 3 or 4 feet from the curb line when she was struck. Defend- ant was driving her motor west on Seventh street, ^ trailing the street car, and had been following it for several blocks. At the time of the accident, she testified she was moving at the rate of about ,10 miles per hour. She did not stop the automobile, nor did she sound any warning as she approached the crossing. She testi- fied that she thought the car was slowing dowii for the crossing, that when she saw Miss Koehl in the act of 'alighting she screamed", and, being afraid that the brakes would not hol^d, she turned the machine sharply to the right to avoid, the impending collision. She did not run it into the sidewalk, but turned it so that it continued its course westerly near the curb. She testified that the brakes were in good order, and that at the rate at which she was travel- ing she could have stopped the car in about S feet. The street car had been running at about 6 or 8 miles an hour, andas' it reached Anderson street defendant turned from immediately be- hind it to the north side to pass it while fcrossing Anderson street. She testified she had put on the foot brake, but when she struck Miss Koehl she lost control of herself, and did not know what happened. When she first saw 'Miss Koehl she was 10 ot' IS feet away. Miss Koehl was struck when she was near the curb line of Anderson street and her body was carried nearly to the middle of the street, the automobile running over her and for 10 to IS feet Bl Leach v. Aswan, 130 Tenn. 510, 172 S. W. 303 (1914)." 416 LAW OF AUTOMOBILES beyond. Held, to sustain a judgment for plaintiff."^ The plaintiff was a passenger on a street par that slowed down and stopped at a regular place for receiving and letting off pas- sengers, and when it was practically stopped, he alighted, facing in the direction that the car was moving, and leaving by way of the rear exit oh the customary and proper side of the car, and took two or three steps towards the curb when he was struck and injured by defendant's automobile, running at about 8 miles an hour in the same direction as the street car. It appeared that, a short time before the street car reached this stopping place it passed defendant, and thereafter defendant followed close behind- the car, and was close behind it when it stopped; that the street car slowed up as it approached the stopping place; that defendant knew that passengers were let off at that place; that it was 18 feet from the nearest rail of the car track to the curb;- that no horn or other warning of the approach of the automobile was sounded; that when the automobile stopped after the accident there was a space of only 5 feet. between the side of the street car and the side of the automobile, and that plaintiff was there taken from under the automobile. In affirming judgment for plaintiff the court in part said: "A prudent, ca,reful driver would have anticipated' that passengers were likely to get off the car under the circumstances of approach- ing a street crossing and the slackening of speed. A prudent driver would have been watchful to avoid the kind of accident that then happened. . . . The question whether it was negligent on the part of the plaintiff to get off the car without looking back was also one for the jury." ** PERSONS ABOUT TO BOARD CARS § 415. Waiting at crossing for car. The plaintiff was stand- ing at the southwesterly intersection of two streets waiting for a south-bound street car, when he was struck by defendant's auto- rnobile. The evidence offered in behalf of the defendant tended to show that the automobile was running very slowly at the time of the collision; that the plaintiff was observed by the driver and the other occupants of the car; that the horn of the automobile was sounded; that there was plenty of room for the automobile to pass between the plaintiff and the curb ; and that the injury B2 Koehl V. Carpenter, ^ Cal. App. — , S3 Kerchner v. Davis, 183 HI. App. 600 191 Pac. 43 (1920). Hearing denied by (1913). Supreme Court. PERSONS BOARDING AND LEAVING StREET CARS 417 was caused by'' i-eason of the plaintiff stepping backwards'^tdward the curb and in front of the automobile just as it was about to pass him. ' The plaintiff; however, testifiecl that he was standing near the street car track for the purpose of signaling an approaching car, and that he did not move from the time he took his position there until he was struck by the automobile. There was other evidence which tended to corroborate the plaintiff's testimony. It was held that the questions of the defendant's negligence and plaintiff's contributory negligence were for the jury.®* ' ' § 416. Same— Automobile on wrong side of street. The plain- tiff was standing on the south side' of a street railwa:y track, near the rail, waiting for an east-bound street car j in a pjroper position for taking passage oil the car, wheri she was struck by defendant's automobile being driven westerly on the south, or left side of the street, resuMiig in serious injury to her. Plaintiff did not know of the approach of the' automobile until the moment she was struck, althbugh the street was straight on either side of her. In affirming judgment in plaintiff's favor, and speaking of the care required of her, the court said: "She seems tci have been looking toWards the city, from which her car would approach, and since she was stand- ing upon the south side of the street we cannot say, as a matter of law, that' she was guilty of contributory negligence in not having discovered the. approach of appellant's cal", which was being driVell upon the wrong side of the street, considering the direction in which he was going, contrarj^' to the ordinance of the city and to the established and recognized rules of the road." ®® § 417; Starting on wrong side of street and striking pedes^ trian as she steps from curb] An employee of the defendant in charge of an autoniqbile stopped the same on the left, (south) side of a street in violation of an ordinance, and made delivery of some goods. He was a short distanpe from the east line of. an intersecting street. He tlien started the automobile, and cpllided with the plaintiff just as she stepped from, the curb at the, south- east corner of the streets nientioned in order to board a street car. Held, that the case was for the jury as to the question pi contributory negligence, and judgment for the plaintiff was affirmed.^® , ■ ■ ■ '■ ' . "', ■ " 54 0uellette v. Superior Motor & M. BSposeher v. Long, ^- Tex.: Civ. Atip. Wks., 157 Wis. SU, 147 N. W. 1014, .6 — , 1S6 S. W. 591 (1913). N. C' C. A. 357, i52 :L. R. A. (N. S.) 299 S6 Weihe v. Rathjen Merc. Co., 34 Cal. (1914). ,: App. 302, 167 Pac. 287 (1917). B. Autos. — 27 418 LAW OF AUTOMOBILES " ,• § 418, Failure to look after leaving curb. Whether, after looking once and seeing a clear street, the plaintiff acted as a reasonably prudent man in proceeding from a point within 12 feet of a street intersection toward the street car which he was intent upon boarding, without again turning and looking for appToach- ing vehicles, including the automobile that struck him, in the ab- sence of any warning of the approach of such vehicle, was a ques- tion for the jury, because there is no imperative rule of law requir- ing a pedestrian when lawfully using the public ways to be con- tinuously looking or listening to ascertain if automobiles are approaching.*'' ' § 419. Struck just before boarding car. A pedestrain about to board a street car was not contributorily negligent, as matter of law, in failing to look for and see an approaching automobile, 75 feet away when he" left the curb, or in failing to keep a lookout fqr it while crossing the street, he being in plain view of the chauf- feur, and there being room for the automobile to pass on one side.*' The plaintiff was standing in a street on the side of the car track from which passengers were expected to board cars, and had lowered her umbrella preparatory to stepping on the car, which was almost beside her, when she was struck by defendant's auto- mobile, the presence of which she was not aware before it struck her. She testified that before leaving the curb she looked in both directions and saw no vehicle approaching, and heard no warning. Held, that she was not contributorily negligent as matter of law, and judgment in her favor was sustained.*' After looking north and not seeing defendant's alutomobile, which was evidently in sight, plaintiff walked into the street at a regular stopping place for street cars, in order to board an ap- proaching car, and after she was beyond the path of the automo- bile and close to the street car, she was struck by the automobile, which was moving the same direction as the car, and which swerved to the left in order to avoid striking a pedestrian near the curb. The distance between the curb and the nearer rail of the track was 18 feet. There was testimony that the automobile was moving 12 miles an hour; that the defendant saw the street car approaching, 67 Hillebrant v. Manz, 71 Wash.. 250, Co., SO Wash. 633, 97 Pac. 657, 2,2 L. 128 Pac. 892, 4N. C. C. A. 10 (1912). R. A. (N. S.) 471. In that tese the 88 Lewis V. Seattle Taxicab Co., 72 plaintiff held an umbrella over his head Wash. 320, 130 Pac. 341 (1913). in such a position as to prevent his see- 69 Elliott V. O'Rourke, 40 R. I. 187, ing an approaching team, and in that 100 Atl. 314 (1917). manner attempted to cross the street Upon this question the defendant cited without looking in either direction before the case of Dimuria v. Seattle Transfer or after he started to cross. PERSONS BOARDING AND LEAVING STREET CARS 419 and knew the point of the accident was_a stopping place for street cars. In affirming judgment in plaintiff's favor the court held that, even if plaintiff was negligent in going in front of the automobile, such rlegligence was not the proximate cause of her injuries.®" In an actiori to recover for personal injuries due to being struck by an automobile, there was evidence that the plaintiff was wait- ing for a street car, and, seeing the car approaching, stepped into the street, and was within 2 or 3 feet of the street car track, and about the middle of the car, facing it, when it stopped; that she turned towards the gates a step or two, when the automobile struck her, and to save herself she threw herself on the automobile arid was carried a short distance; that she did not see the automobile and did not hear any warning of its approach; that the space be- tween the curb and the point where plaintiff was standing, a dis- tance of about 14 feet, was unobstructed; that 4 or 5 other persons left the curb about the same time for the purpose of boarding the car, and that plaintiff was last in line. Held, that the case was for the jury; that while plaintiff was not remain oblivious to her surroundings, she was not negligent simply because she did not look and did not see or hear the approaching automobile; that her attention was naturally concentrated on the street car, and she was entitled to assume that others would exer- cise due care with reference to her position. It was also held not to be a complete defense that defendant slowed his machine down to two miles an hour.** § 420. Turning back on approach of automobile which un- lawfully passes car. Deceased was approaching a sta,nding strefet car for the purpose of boarding it. There was a number of other persons about to board the car. There was evidence that de- fendant approached in her automobile, without warning, and at excessive speedj and attempted to pass between the car and the curb, which was in violation of a city ordinance. Suddenly seeing the approaching automobile, deceased turned back toward the curb, and was struck by the machine. Held, to support a verdict against the defendant.*** § 421. Driving over crosswalk between interurban car and person intending to board car. On a dark winter evening the pkintiff started to walk across a public highway on a crossing for pedestrians for the purpose of boarding an interurban car, which BOAdatas V. Averill, 87 Vt. 230, 88 Atl. 62 Ward v. Cathey, — Tex. Civ. App. 738, 8 N. C. C. A. S84n (1913). — , 210 S. W. 289 (1919). 61 Arseneau v. Sweet, 106 Minn. 257, 119 N. W. 46. 420 .'^ ; I.AW OF, AUTOMOBILES , /. > Mi she saw approaching some 200 feet ;away. She,ha4 been waiting in a; waiting- room, near whichrwag an electric light which illumi- nated the .crosswalk! for thp entire width of the road; The cross- ing was a.t a regular sjtopping place for electric cars. Before start- ing to cross plairitiff looked both ways, and testified 'that she saw no automobile. When she was .about two-thirds of the way along the crosswa!lk, and abput 10 or 12 feet from the electric icar^ she was struck by def;endant's automobile, being driven with lightSi burning, on „|;he, right hand side of the road, as, near the car track as defendant, could drive. There was testimony that the car wasi stopped and a man was stepping aboard, when the automobile drove by. Defendant testified that! he saw the car coming some 20,0 |eet, away; that, he first sayif the plaintiff ,y?hen she was- only 2, or 3 feet away frpm him and, ,a little to his left..; The motorman on ,the car testified that he, saw the .^plaintiff wh^n; she left, the waiting room. She was preceded by a man, who hoarded the car.: Held, to sustain a verdict for the plaintiff. >, ,,,) I, Regarding the conduct of the defendant the court said: "It is tiaius clear that the defendant attempted to ,d,'rive his automobile oyer tJiis crosswalk at a> regular stopping place of the electric car,, between; a car, coming to a stop, or stationary, and , a traveler ap-, proaching,to take .the car .andj only 10. or 1 2 feet from it. Such conduct iifalj^ nothing short of negligence.?' ,, After , d.^laring that the pkintiff met the requirements of, due care, the court continued: "She crossed in safety two-thirds of the distance to the electric, car; behind her was a space of ^more, >than 20 feet oh' the ci"osswalk, and ho team approaching from_ the di- rection opposite to the automo.hile. She had a right to assume that an approaching team Or automobile would avail itself of the ample bppojrtuiiity to pass in safety, 6r if a team or automobile approaching on th§ side of the road, next to the car ti-acks,. could not pass td the left on account of approaching teams, *t!hat it wo^'ld stop 'if necessary, to avoid injury toj travelers taking the electric c&i':"^^ ,' "\ esWentzler v. Gould, — Me. — , 110 , Atl. 686 (1920). CHAPTER XIII INJURIES TO CHILDREN §422. Care required of motorist for safety, of children. § 423. Rights and duties of children. § 424. Aged motorist with defective sight and hearing. §425. Minor driving car in violation of law — Effect on right to recover for injury. § 426. Attempting to deflect car around , child. §427. Depending on child heeding, signal of approach. § 428. Child starting unattended truck, injuring playmate. §429. Driving through crowd of children. § 430. Striking one of a group of chil- ' dren in plain view. § 431. Excessive speed of automobile. § 432. Automobile backirlg ^vithout warn- '•'ing.' ■ ' " ' '■' -''^ ■ §'433. Steering gear failing to work. § 434. Automobile skidding onto, side- ' ' ' walk. §435. Automobile turned to' left to avoid other vehicle. ' ' § 436. Automobile -on wrong side of ■ street. ' §437. Both automobile and child start- ing after having stopped. § 438. Parent permitting child tp cross in front of automobile. § 439. Child pulling away from mother •' in sudden peril. § 440. Neither seen by the other. § 441. Struck on sidewajk at private (|riveway. 42 § 442. Child struck near curb^Not seen by chauffeur. §443. Roller skating into collision with automobile. § 444. Roller skater holding to automo- bile in violation of law. §445. Rolling hoop in street. § 446'. Children coasting in street. § 447. Coasting into rear wheel of motor truck. .§ 448. Boys playing football in street. § 449. Walking in front of automobile without seeing it. § 450. Child going into street close in front of automobile. §451. Boy walking into course pi auto- mobile turning towards curb after passing wagon. §452. Walking into street following ■ ' i . crowd. § 453. Running into street in play. §454. Boy running in street overtaken ' I by automobile. § 455. Boy turning back after running into street. § 456. Running from children. § 457. Running from sidewalk after bail § 458. Playing in Ijighway — Struck by truck approaching from the front. , § 459. Running suddenly into street at ' M night. 5 460. Rjnning suddenly onto driveway ■ of bridge. §461. Running against side of auto- mobile. 422 LAW OF AUTOMOBILES § 462. Autonjobile turning towards same side of street boy running to, striking liim near curb. S 463. Failure of boys on crossing to look for automobile. ; ; § 464. Running from behind street car. § 46S. Boy emerging from behind wagjn. § 466. Driving past street car — Child emerging from behind telegraph pole. § 467. Running from in front of horses — Automobile passing other ve- hicle. § 468. Driving around another Vehicle — Failure to see child. §469. Crossing street in middle of block near other children. § 470. Crossing street at school yard gate. §471. Newsboy in plain view — Last clear chance. §472. Newsboy running in front of auto- mobile. § 473. Struck after jumping from wagon." § 474. Same — Bundle delivery boy. §475. Same — At regular crossing. § 476. Same— From rear of wagon. § 477. Same — Moving wagon. § 478. Same — Automobile on left side of street. § 479. Driving behind vehicle on rear of which children are riding. § 480. Boy riding in small wagon attach- ed to and trailing' behind wagon. § 481. Child climbing on and playing about automobile. §482. Child climbing on running board. §483. Starting while child' on running board. §484. Boy permitted to ride on running board. § 48S. Child found injured in street — ' Res ipsa loqyilur. § 422. Care required of motorist for safety of children. The precautions required to be exercised by a motorist may be varied by the capacity of the person in danger to care for himself.^ Greater care must be exercised by persons where their actions in- volve the safety of children,* or persons of defective eyesight,' or othpr infirmity,* when such infirmity is known to exist." What would be proper care when dealing with an adult might amount to negligence with reference to a child, in like circumstances.^ The driver is not an insurer against accidents to children, and 1 New Jersey Express Co. v. Nichols, 33 N. J. L. 434, 440, 97 Am. Dec. 722. 2 Government St. R. Co. v. Hanlon, S3 Ala. 70; Chicago & Alton R. Co. v. Becker, 76 111. 2S; Mattson v. Minnesota & N. W. R. Co., 9S Minn. 477, 104 N. W. 443, 70 L. R. A. 503, 111 Am. St. Rep. 483; Mc Millen v. Strathmann, 264 Pa. St. 13, 107 Atl. 332 (1919) ; Robin- son V. Cone, 22 Vt. 213, 54 Am. Dec. 67'. One cannot keep on his way driving rapidly in plain view of children in a way. to expose them to danger. Barrett V. Smith, 128 N. Y. 607, 608. * Browij v., Stevens, 136 Mich. 311, 315; McCrum v. Weil, 125 Mich. 297. * Robinson v. Cone, 22 Vt. 213, 224, 54 Am. Dec. 67. B Brown v. Stevens, 136 Mich. 311, 315. 6 Mattson v. Minnesota & N. W. R. Co., 95 Minn. 477, 104 N. W. 443, 70 L. R. A. 503, 111 Am. St. Rep. 483; Philadelphia & Reading R. Co. v. Spear- man, 47 Pa. St. 300, 304, 86 Am. Dec. 544. INJURIES TO CHILDREN 423 the mere happening of an accident to a child does not raise a pre- sumption of negligence on the part of the driver.'' While the operator of an automobile is bound to keep a sharper lookout and be more careful in a street where children are congre- gated or are likely to appear suddenly in the highway, than at places where children and others are fewer and travel limited, still the required degree of care is only reasonable in the circumstances, in the absence of a statute requiring a higher degree of care, and an instruction stating that a driver of an automolaile is required to exercise a higher degree of care where children are congregated in the street, is erroneous.' An instruction that, "If the action of the deceased child was such, when the car was approaching and the horn blown, as to indi- cate to a reasonable and firudent man that the child realized, the danger of being in the road, and the child did then get out of the road, the driver might reasonably presume it would remain out of the road, until its conduct was such as to indicate that it was about to return to or was likely to return to the road," was held to be erroneous, because, "As framed and phrased, it would justify reliance upon the h3^othesized acts of the child until its conduct was such as to indicate to that driver that the child was about to return or was likely to return to the road, whereas the only stand- "1 Barger v. Bissell, 188 Mich. 366, 1S4 or physical conditiqns. The operator of an N. W. 107 (191S) ; Silberstein v. Show- automobile must increase his exertions in ell, Fryer & Co., — Pa. St. — , 109 Alt. order to avert danger to children whom 701 (1920) ; McMillan v. Strathmann, he may see, or by the exercise of rea- 264 Pa. St. 13, 107 Atl. 332 (1919); sonable diligence and attention can or Herald v. Smith, — Utah, — , 190 Pac. should see, on or near the highway. Their 932 (1920), citing this work. lack of capacity to apprehend and guard 8 Miller v. Eversole, 184 111. App. 362 against danger makes such care and cau- (1913) ; Ferris v. McArdlCj 92 N. J. L. tion necessary." Deputy v. Kimmell, 73 sab, 106 Atl. 460 (1919),; KuiShne v. W. Va. S9S, 8 N. C. C. A. 369, 80 S. E, Brown, 2S7 Pa. St. 37, lOr Atl. 77 919, SI L. R. A. (N. S.) 989 (1914). (1917). "He is only required to exercise ordi- When driving in a street in which there nary care or such care as an ordinarily is a group of children playing, it is his prudent person would exercise under like duty to bring his automobile under con-' or similar circumstances, and, as indi- trol, and to give warning of his ap- cated, the degree of care required to be proach, and to manage his car with rfef- exercised will be greater when the safety erence to the risk that children may not of children or others of immature judg- exercise the care for their own protec- ment is involved, and when such facts tion that adults are expected to exer- are known to the operator of the car. cise. Ratcliffe v. Speith, 9S Kan. 823. What would constitute reasonable care in 149 Pac. 740 (1915). one case might not be reasonable care in "The vigilance and care required vary, another;" Herald v. Smith, — Utah — , also, in respect of persons of different ages 190 Pac. 932 (1920), citing this work. 424 LAW OF iAliXDMOBILES ardof duty recognized and fixed by law^ as determining the prfl-- priety vel non of conduct or omissioriy is that of the^ reasonably prudent man likewise circumstanced , and likewise advised."® "When an automobile driver sees a! child: in a place Df danger, or has reason to apprehend that it might run into a place of danger, and has sufficient time to stop his car if under proper control, it is his duty to exercise such care as would be reasonably necessary to avoid a collision." " , .., ^ A motorist, cannot presume that a child, four years of ,age.y will exercise ordinary care for his own protection and will not negli>5 gently or recklessly expose himself to danger.^^ . In a case where the evidence showed that the plaintiff., an infant, was struck and injured by the defendant's automobile: while cfgss- ing .the street in front of his father's . place of business ; thait the plaintiff was cautioned immediately , before starting to look out for cars, automobile and wagons ; that the automobile was going rapidly and no signal was given of its approach, it was held that the plain- tiff had established a prima facie case.^* A motorist should have slackened speed or given warning of his presence to a boy who was racing, close to the ; machinci^* ■ A motorist who collided with a child at a street crossing^ and who approached the crossing without giving any warning, and mov^ ing fast, could be found to have been negligent.^* Where, in an action to recover, for the death of a child, who was killed by a jitney bus, evidence that the brakes of the bus werfe defective, and that at the tinie of the accident a speed ordinance of the city was being violated by the, bus, was sufficient to show negligence on the part of the driver.^* § 423. Rights and duties of children. Ordinary care in the case of a child is only such care as the great mass of children; of his age, intelligence, and experience ordinarily exercise under the same or similar circumstances.^® "Children, whereveir they go; 9 Reaves v. Maybank, 193 Ala. 614, , 134 App. Div. 243, 118 N. Y. Supp. 889 69 So. 137 (1915). ■ (1909). 10 Sieberstein v. Showell, Fryer & Co., IB Bruner v. Little, 97 Wash. 319, 166 — Pa. St. — , 109 Atl. 701 (1920). Pac. 1166 (1917). 11 Ratcliffe v. McDonald's Adm'r, — 16 CtfK/omio .• Baillargeon v. -Myers,, Va. — , 97 S. E. 307 (1918). 27 Cal. App. 187, 149 Pac. 378 (191S) ; 1« Dultz V. Fischlowitz, 104 N. Y. Todd v. Orcutt, —Cal. App. — , 183 Pac. Supp. 3S7. ' 963 (1919)'. ' '■ 1* Ferrand v. Cook & Co., 146 La. 17, Delaware: Goldstein v. People's R. 83 So. 362- (1919). Co., S Pennew, (Del.) 306, 309, 60 Atl; l*'SulUvan v. Chauvenet,^^^ Mo.— ; 97S. , ' < 222 S. W. 759 (1920) ; Gross v. Foster; District of Colufnbia: Baltimore & INJURIES TO CHILDB^EN 425 must be expected to act upon ' childish instincts and impulses; and others who are chargeable with ia duty of care and caution toward them, must calculate upon this and take precaution accordingly." "^"^ While a child may know that if, as a consequence of his attempt to cross a street, he is struck by an automobile he will likely be seriously injured, he may not know th&,t he will likely be struck by an automobile as a result of his attempt to cross the street in ^the conditions confronting him at the titne. 'A child has not the knowledge and experience to know or estimate correctly the prob- able coMsequence of his acts iri a given instance. He may know that fire will burn him if he comes in contact with it, and he may know that if he slips in certain circumstances he will fall into the fire, but he may be wholly unable to judge that the taking of a P. R. Co. y. Cumberland, 12- App. D. C, 598, 60(5. ' • Illinois: Baltimore & O. S.-W. R. Co. V. Then, 159 III. 535, 538. ■Kentucky: CoU^tt v. Standard, Oil Co„j 1,^6 Ky. 142, 216 S. W. 356 (1919), , Maryland: State v. .Baltimore, & O., R. Co., '24 Md. 84, 102, 87 ' -Am.- Dec, ' 600." Massachusetts: 'Elkins v. Boston & Albany R. Cb., 115 Mass. 190, 200; Mil- ler! v. Flash Chemical Co., 230 Mass. 419, 119,N.,E.. 702 (1918). Jdfssouri:, Campbell v. St. Louis & S. R. Co., 17S ,Mo. 161, 175, . , 'Nebraska: Chicago, B. & Q. R. Co. V. Grablin, '3i Neb'. 90, 100. ' New York: Marius v. Motor Del: Co., 146 App. Div. 608, 131 N". Y. Supp. 3,57 ,(1911),;r Lafferty V. Third Ave. R. Co., 85 App. Div. 592, 596,' aff 'd 176 N.., Y, 594. Ohio: Cleveland Rolling Mill Co. v. Corrigan, 46 Ohio St. '283, 288, 3 L. R. A. 385. ■ Pennsylvania:- Oakland R. Co.' v. Fifelding, 48 Pa. St. 320, 326 ; Silberstein > V,. .Shoiyell, Fryer & Co., ; — , Pa..; SU — r, 109 Atf. 701 (1920); Edelman v. ^Con- rieii,' 257 Pa.' St. 317, 101 AtI.',;'6S3 (1917):"'' '■'•■ "'■ ^' ' •'' '"' Wisconsin: Quinn v. Ross Motor Car Co., 157 Wis. 543, 147 N. W. 1000, 8 i\. C. C. A. 3>ln (1914). "The degree of care required of a child must be graduated to its age, capacit v, and experience, and must be measured by what might ordinarily be expec+ed' from a child of like age, capacity, and experience under similar conditions. If it; acted as might reasonably be expected' of such a child, it cannot be charged with contributory negligence." Herald v. ^'mith;'— Utah — ,'l90 P'ac. 932 (1920). Child of subriormal mentality. Des- sureault v. Maselly, 92 Conn. 690, 104 •^ AO. 347 (1918). ■ . . "T^e test being whether she used that degree or extent of care virhich ordinarily .prudent children of fier 3,ge ancj intellir- gence are accustomed to use under like cirCunistances." Meserve v. Libby, 115 :'Me. 282, 15' N. C. C, A. 781, 98 Ati. 754 (1916). "Roberta v. Ring, 143 Minp. 151, 173 N. W. 4^7 (1919) ; La.Dufce v. Dexter, — , Mo. App. — , 202 S. W. 254, (1918); Ficker V.' Cleveland, C. C.. & St! L. R. Co., 7 Ohio N. P. 600; Harriman v. Railroad Co.,' 45 Ohio St. 11, 27; ' "A child of tender years has capacity to exercise only such care aijd self-re- .ptraint^ belong to chj'Aoojd., Reason- abler pie,n^re pr^sume^ ,to know th's, and must govern tKemseives accordingly. The caution and care required of others ■' I toward the' infant are measured by the age, the maturity, the capacity, and the intelligence of ihe child." Jones v. ^Strickland, — Ala, — , 77 So. 562 (1917). 426 LAW OF AUTOMOBILES certain step at a certain place will cause him to slip, and conse- quently fall in the fire. And although he may be able to judge that such would be the consequence of his taking the particular step, still it does not follow that he would be chargeable with con- tributory negligence. His mind is not the staid, settled mind of the supposed adult mind. His mind is subject to childish instincts and impressions, and he cannot be charged with negligence in fol- lowing the bent of mind that nature gave him. He is not yet a man; he has not yet put away his childish things. In some jurisdictions it is held that a child under seven years of age is incapable of being guilty of contributory negligence, and that between the ages of seven and fourteen children are presumed to be wanting in that care, disciretion, judgment and sensitiveness to danger which belong to the average child of fourteen years of age or more, and that there is a rebuttable legal presumption that children between seven and fourteen years are incapable of com- mitting what in law amounts to contributory negligence. "Every well balanced child of 8, 9, or 10, or 11 years of age knows that fire will burn, and that if he falls into the fire, or if his clothing catches on fire, he will not only be burned, but he also probably knows that his life will thereby be endangered. Such a child may not, however, — and he is rebuttably presumed by the law not to — ^possess that maturity of discretion which dictates those precautions against the dangers of fire that are conclusively presumed by the law to belong to normal children who are 14 years of age. A child above 7 and under 14 years of age may know that, if he is struck by an automobile, he will probably be killed or suffer great bodily itijury. He may know that if he remains out of public thoroughfares and other places in which automobiles are wont to go, he will be in no dangter from automobiles. He may, however, not possess that maturity of discretion which belongs to adults of ordinary prudence (and which normal children of 14 years of age and above that age are conclusively presumed by law to pos- sess), and for that reason may heedlessly play in the highways and; may heedlessly go across them without exercising such ordinary prudence. If such a child, a child between 7 and 14 years of age and not possessing that discretion and maturity of judgment which the law conclusively presumes a normal child of 14 years of age to possess, is injured through the actionable negligence of another, such a child is entitled to recover, although his own carelessness proximately contributed to his injury." ^' 18 Cedar Creek Store Co. v. Steadham, As a general rule, whether a child tl' 187 Ala. 622, 6S So. 984 (1914). years of age is of sufficient knowledge, INJURIES TO CHILDREN 427 A child in the public street is not a trespasser. His right there is just as sacred as that of his adult neighbor or the owner of a wagon or aiutomobile or street car.*' If a minor is old enough to know the character of the traffic in the streets and the danger from automobiles, he is held to the same degree of care to protect himself fjfom injury therefrom as an adult.^° Where a child tarried at the curb, looked up and down the street, and then attempted to cross, she was not contributorily neg- ligent as matter of law.** A child, 4 years and ten months old, cannot appreciate thp dan- ger of crossing a street when an automobile is approaching within view, and it cannot be presumed that she will conduct herself as an adult would ,*^ It has been held not to be negligence per se in a boy of six to play on the highway, and hence where an automobile came upon him under circumstances which produced fright or terror, and this caused an error of judgment, by which the boy ran in front of the automobile, it was not contributory negligence.*' In one case the court said that it could not be held as matter of law that a child 6 years old was or was not old enough to be capa- ble of exercising some care foi- her safety; that being a question for the jury.** A boy of seven, possessed of the mental capacities natural to an ordinary person of that age, was held not to be exempt from the requirement to exercise some care for his own safety.** It was held that the act of a boy, 8 years old, in running from a place of safety in front of an automobile, by which he was struck, amounted to contributory negligence on his part.*^ discretion, and appreciation of danger so 4 child six years old cannot be held that it may be held guilty of contribu- responsible for contributory negligenc", tory negligence, is a question for the Beno v. Kloka, 211 Mich. 116, 178 N. W. jury to determine. Rule v. Claar Tr. 646 (1920); McCloskey v. Chautauqua & S. Co., 102 Neb. 4, 165 N. W. 883 Lake Ice Co., 174 Pa. St. 34, 37. See (1917). also, Brown v. Sherer, ISS Mass. 83, 85, 19 Long V. Qttumwa R. & L. Co., 16? 29 N. E. 50; Summers v. Bergner Brew- la. 11, 142 N. W. 1008 (1913). ing Co., 143 Pa. St. 114, 120, 22 Atl. 707. MWalldren Ex. & V. Co. v. Krug, 291 24 Meserve v. Libby, US Me. 282, IS 111. 472, 126 N. E, 9/ (1920). N. C. C, A. 781, 98 Atl. 754 (1916). 21 Bruner v. Little, 97 Wash. 319, 166 26 Verdon v. Crescent Auto. Co., SO Pac. 1166 (1917). N. J. L. 199, 76 Atl. 346 (1910). 22 Herald v. Smith, — Utah — , 190 26 Moran v. Smith, 114 Me. SS, 95 Atl. Pac. 932 (1920), citing this work. 272 (1915). 23Thies V. Thomas, 77 N. Y. Supp., 276, 278. ' 428 LAW OF AUTOMOBILES Where a child, 9 years of age, seeking to recover for injuries inflicted by an automobile, was not permitted to testify- at the trial because he had not sufficient intelligence to comprehend the nature of an oath, he cannot be held to the same degree of care that is exacted of a mature person.^'' Where a 9 year old boy, having a good view of the street in both directions, started to cross, and emerged from behind a wagon so clt)se in front of an automobile that an accident could not be avoided, it was held that he was not in the exercise of due care.^' A boy, eleveh and a half years of age, of average intelHgence, has been held to halve sufficient discretion to be guilty of contributory negligence in attempting to pass in front of a rapidly moving auto- mobile, the presence of which he was aware.^® A child, 13 years of age, was not necessarily contributorily neg- ligent in stai-ting across a street without looking for approaching automobiles.*" _ It has been held that a child, 13 years- old, who ran across a public street while playing without looking for approaching vehi- cles, and was run down by an automobile, was guilty of contrib- utory negligence precluding' recovery for injuries so received.'^ In Alabama; a minor Under 14' years is presumed to be incapable of contributory negligence; but this presumption may be rebutted if the child |s more than 7 years of age.'* - ■■■ In an action to recover' for the death of a boy, 14 years old, caused by an automobile, it was held that the trial court properly charged that, "The deceased was'probably iui juris ; >h\it tha.t docs ^ riot mean that he must exercise the degree of care that an adult person must exercise, but he was charged with the duty of exercising the measure of care and caution that is common and Usual with boys of that age," and that it ptoperly refused to charge, "That the burden of proof is upon the plaintiff to show thai the deceased used the same degree of diligence in avoiding danger that would be exacted of an adult under the same circumstances." *' m,, Where wantonness is charged in the operation of an automobile, whereby a child was injured, it was held proper for the plaintiff to show that at the time alleged the autoinolaile wafe' run "very 27 Gross V. Foster; 134 App; Div. 243, 31 Zoltovski v. Gzella, , 159 Mich. 620 118 N. Y. Supp. 889 (1909). 124 N. W. 527 (1^10). 28 Levesque v.'^Dumont, 117 Me. 252, 32 Jones v. Strickland, — Ala. ,^-77 99 Atl. 719 (1917). So. 562 (1917). 29 Ferrand v. Cook & Co., 146 La. 17, 33 Jacobs v. Koehlep S. G. Co., 208 83 So. 362 (1919). N. Y. 416, 102 N. E. 519, 8 N. C. C. A. SORatcliffe V. Speith, 95 Kan. 823, 149 370 (1943), aff'g 152 App. Div. 933. Pac. 740 (1915). INJURIES TO CHILDREN 429 fast," "just as fast as it could go," near a number' of children.^* The negligence of a person having custody of a child is not im- putable to the child.*® §424. Aged motorist with defective sight and hearing. Defendant, 77 years old and with defective sight and heariiig, iivas driving an automobile in a crowded city street, at four or five miles an hour, when he ran over a boy, who ran from behind an- other conveyance. He testified that he saw the boy at a distance of four or five feet from the machine, but there was testimony that on other! occasions he said that he did npt see the boy at all. The automobile passed clear over the boy. Held, that the evidence raised an issue of fact as to his negligence.^^ §425. Minor driving car in violation of law— Effect on rigljt to recover for injury. The fact that a minor drives an automo- bile in violatiqn of a statute forbidding one of his age to drive, does not preclude recovery by him for injuries due to the negligence of another. "It was held ihat in order to prevent ^ recovery lay a pg,sseriger in g,n autompbile driven by an in tos;ica ted person there must, ap- pear some causal connection between the violation of the sta(tu|;e prohibiting an i'ntoxi,C9.ted person from. driving an autoino,bjle ,^nd the accident. If this be true where the, driver of the automobile is intoxicated, what process of reasoning can justify a contrary ruling where the driver of the automobile is under, the age pre- scribed, by statute? If causal relation between the int6?;icat^on- of the .(Iriyer and the happening of the accident be necessary to prevent recovery in one case, how can the youth of th^ driver with- out causal relation prevent recovery in the other?" ''' § 426. Attempting to deflect car around child. In an action by a child between 3 and 4 years of age to recover for injuries inflicted by defendant's autoniobile, there was evidence that the driver could have seen her SO feet away, and in time to have brought his machine under control, and that the driveir attempted to pass behind the child, who became frighteiied and ran back, when she was struck, the, court said: "When an automobile driver deflects his car to, pass around a little child, he must expect from it (the most, naiturs^l thing from one of this age) spjne heefiless, thoughtless, cg-pricious. act, ,the negligent act which, com^s from ** Cedar Creek Store Co. v. Steadham, 86 Roberts v. Rirtg, 143 Minn. ISl, 173 ,187 Ala. ,622, 6S. So. 984 (1914). N. W. 437 (1919). '"sSReynbWs V. Kinyon, — Ho. — , '222 S' Benesch v. Pagel, —"Wis. —,177 S. W. 476 (1920), N. W. 861 (1920). 430 LAW, OF AUTOMOBILES ehildish sportiveness, characteristic of an immature mind. Chil- dren of this age are not responsible under the law; they know no measure of care. * * * When children are on the street, play- ing at a public crossing, plainly visible as the driver approaches, and one of them is in the act of crossing the street, in view of the driver, SO feet away, his obvious duty, on approaching the crossing, is to bring his car under such coittrol as the circumstances demand. With his car under this control, as he approaches, if he attempts to pass the child in the rear, his car should still be under control, the control that good sense demands, so that, responsive t6 its irrational acts, he can stop it to avoid injury. He should expect children's negligent acts." ^* §427. Depending on child heeding signal of approach. The fact that a motorist sounded his horn when approaching a child, (a girl four years and ten months old, in this instance) in the street has but slight bearing on the question of his want of due care. In a case involving this question, the court said: "There is a conflict in (he testimony respecting whether the de- fendant sounded the horn of the d-utomObile at or about the time he crossed the street car track. Under the circumstances and facts of this case it is immaterial whether such alarm was given or not. The plaintiff was a little girl not yet five years of age. The ordir nary child of that age could neither appreciate nor understand the object sought of the reasons for giving such warning. If it made any impression at all upon her mind, she probably accepted it as for her amusement rather than anything else; in other words, we regard the fact as to whether defendant sounded the horn as im- material. It would in no way relieve the defendant of the charge of negligence, if he was negligent in going forward after he ob- served the child crossing the street, nor would it charge the plaintiff with contributory negligence. * * * The only negligence of de- fendant shown by the testimony, if he was guilty of any, was in proceeding .pastward over the crosswalk after he observed thp child, upon the assumption that the plaintiff would heed his approach and rernain away from the course of the aujtomobile." ^' § 428. Child starting unattended truck, injUrying playmate. Where defendant had permitted children to play on and about his motor trucks, which were kept standing in front of his place of business, and the deceased, a five-year-old boy, was killed by the starting of an electric truck by a playmate, the brakes of which ■ »8 silberstein v. Showell, Fryer & Co., 89 Herald v. Smith, — Utah — , 190 — Pa. St. — , 109 Atl. 701 (1920). Pac. 932 (1920). INJURIES to CHILDREN 431 were defective and the switch not thrown off, it was held that the question of defendant's negligence was for the jury. "In the case at bar, the electric truck on ,the day of the accident was standing in front of defendant's place of business a consider- able time, pursuant to a habit defendant had of allowing its ma- chines to do so. The switch, which if thrown off would render the machine absolutely dead, was on, and all that was necessary to start it was to touch the lever, which the boy on the driver's seat did, and immediately the truck started. The brakes were in a worn and defective condition, to the defendant's knowledge, the de- fendant knew that children in the neighborhood played on and around its automobiles, I think it was a question for the jury as to whether defendant was guilty of negligence that was thp proxi- mate cause of decedent's death. Under the opening, the plain- tiff could have introduced evidence to make out a prima facie case against the defendant. While an automobile is, not necessarily a dangerous device, it can easily be inade so by having it in a de- fective condition or pla,ced under circumstances that, tonstitute it a menace to others. It cannot be said as a matter of law that the infant decedent was guilty of contributory negligence." *" § 429. Driving through crowd of children. It has been de- clared to be an act of gross negligence to drive an automobile, through a large crowd of playful, noisy children at the rate of 5 or 6 miles an hour; that when driving through a crowd of children the operator must exercise care commensurate with the exigencies of the situation; and that in such a situation the greatest care is only ordinary care.*^ The plaintiff, a girl 6 years old, was olie of a crowd of 40 to 100 children and adults gathered about a wrecked automobile in a public street, about 6 o'clock on the afternoon in question. There was much noise and confusion, and some of the children were play- ing. It was a thickly populated community. There was evidence that defendant's automobile approached, and the crowd opened a wa,y for it, and it proceeded through the crowd at a rate of speed much faster than a fast walk; that the plaintiff was standing on the edge of the crowd, was seen to fall, and the rear wheel of the automobile ran over her. No witness for the plaintiff saw the auto- mobile strike her, but the defendant stated that there was a colli- sion between the plaintiff and the mud guard or step, caused by *<'Lee V. Van Beuren & N. V. B. P. « Haake v. Davis, 166 Mo. App. 240, Co., 190 App. Div. 742, 180 N. Y. Supp. 148 S. W. 450 (1912). 29S (1920). , ' - 432 LAW .OF AUTOMOBILES her running out from the crowd and against the machine. Other witnesses testified jthat; she did not, run out of the crowd or against the machine. , Held, that the jeyidence was ^ sufficient, to support a verdict, for the, plaintiff.*^ §430. Striking one of a group of children in plain view. Action was brought to recover for the death of kn eleven-year-old' boy, who was killed by defendant's automobile oh an August after- noon, in a public boulevard which was visited at this time of the y^ar by thousands of people daily, while he, with 25 or 30 other children, was runniing and skippitig across the boulevard. A man, seeing the automobile coming towards the children, ran but to abbtlt the center of the boulevard and tried to stop the boys; holding his left hand horizontally and his right hand upward, facing towards the aUtOTtiobile. JEight or ten of the children continued across'.' Deceased, who perhaps at first was sligljtly behind so'me of the others, was "skipping sideways," and "^skipped' iii between the boys." "The way he was skipping towards the end of the line" brought him facing towards the automobile. He was perhaps a foot in advance of the boy next to him, and had come to a stop before he was struck. There wais evidence that defendant was driv- ing IS miles an hour, some witnesses estimating it at 25, and that apparently he did not abate the speed from the time he saw the boys 200 feet away from him until after the accident, and that he sounded no horn or other warning, of his approach. It was held that the evidence was ample for a finding of negligence on the part of defendant, and on the question of the conduct of the decea^sed, the court said: "Whether the deceased was in. the exercise of d,ue care or not was a question of fact. He was at a public park in company with a large number of boys. The conduct of the group was what might have been expected of normal boys out for a holi- day. 'Any one of such a large group of children, if he paused to reason about it in advance, fairly mjght have expected that no auto- mobile would be (driyen through their midst at a high rate of speed. It falls far short of being negligence as matter of law for the dece- dent to have run to the end of the line of Ws companions and stopped a foot in advance of! them. The boulevard was not a rac6 track but a place where travelers had a right to be." ** Where an automobilist drove his automobile on a much used pub- lic boulevard at the rate of at least IS miles an hour, there. being evidence that it was as much as 25 miles, and struck and killed one "Haake v. DaviSi ;166, Mo. App. 249, ,« Clark v. Blair, 217 Mass.- 179, 1(?4, 148 S. W. 450 (1912). N. E. 435, _8 N. C. C. A. 38Sn (1914). INJURIES TO CHILDREN 433 of a group of 25 or 30 ehildren, who were running and skipping across the boulevard, it was held that the evidence would support a finding that the automobilist violated, the provisions of a statute** hy operating, Ms automobile at a speed "greater than is reasonable and proper having regard; to traffic, and the use of the way and the safety of the public." "It might have been pronounced negli- gence," said the court, "to run an automobile along this boulevard within a foot or two of a group of boys which might have been seen by the defendant to have been restrained by their adult com- panion and within about the same distance of others who )iad run ahead of the group which was stopped." ** § 431. Excessive speed of automobile. In an action to re- cover for the death of a bOy, it appeared from the special, findings of the jury that he was struck and killed by defendant's automo- bile oh the north side of an east and west street just west of an intersecting avenue; that there was a brick building 37 feet wide fronting on the east and west street at the northwest corner of the intersecting avenue; that in front of the building, sit the street cUrb, there were two wagOns, with horses hitched to them, the west wagon having a covered top, while the other did not; that there was a passageway between the wagons ; that the automobile was proceed- ing west, and biefore reaching the intersecting avenue reduced its speed; that the automobile was making a loud noise; that while the automobile was approaching the intersecting aVenui, deceased was playing with other boys on the sidewalk in front of the build- ing; that the driver first saw deceased in the street when the ma- Chine was only 8 ^f eet distant from him, arid he immediately turned the car and' endeavored to stop it; that the boy was '8 years and 10 months of age, in possession of all his faculties, of average intelli- gence, and was of sufficient age and intelligence to know and ap- preciate the risk and danger of going into the street. It Was not fotmd Whether the bOy entered th^ roadway between the wagons, or what, if anything, obstructed his view of the approachihg ma- chined There was evidence that the machine, which was being tested, was driveri at the rate of SO miles an hour. It was held that the special findings were not inconsistent with a general Ver- dict for the plaintiff, and judgriient in his favor was affirmed.*® § 432. Automobi],e backing without warning. , The plaintiff 44 Mass. St. 1909, c. 534 § 16, as 46 American Motor Car Co.' v. Rob- amended by St. 1910, c. 60S, § 6. bins, 181 Ind. 417, 103 N. E. 641, 8 N. 4B Clark V. Blair, 217 Mass. 179, 104 C. C. A. 373n (1913). N. E. 43S, 8 N. C. C. A. 38Sn (1914). B. Autos.— 28 434 LAW OF AUTOMOBILES and another boy ran after the defendant's automobile, and the other boy jumped on it. Then when some one yelled "Get off," the other boy tried to get off, and in doing so got his foot stuck between some barrels on the automobile, and plaintiff went to his assistance and pulled out his foot from between the barrels. At this time the automobile had stopped, and, the other boy being free, plaintiff jumped off. Just at this time the automobile, without warning, backed up hill a distance of five feet running over the plaintiff. Held, that the evidence made a prima facie case, and judgment of dismissal was reversed and a new trial granted.*'' ^ While the court did riot expressly refer to such rule, this case clearly shows the application of the doctrine of res ipsa loquituy. § 433. Steering gear failing to work. In an action to recover for the death of a boy, about 13 years of age at the time of his death, there was evidence that deceased and several other children were walking along a public highway on their way home from school; that they saw the defendant's automobile approaching and got ouf; of .the road ; that when the automobile was SO to 70 feet distant from them it began to leave the road, going to the side on which deceased and three other children were walking; that, while his companions escaped, the deceased was struck by the machine and so injured that he died as a result thereof ; that the highway was 40 feet 9 inches wide, and there was a ditch 18 inches deep on the south side, about three and a half feet from, the fence; that deceased was between the ditch and the fence, and about one foot from the fence when he was struck ; that when the automobile left the traveled part of the road defendant shut off the gasoline, and attempted to guide the machine back into the traveled part, but the steering gear would not work and it gradually went to the side of the road; that after striking the boy the machine continued to a telephone pole, which was ' 2 feet from the fence, and^ the hub of one wheel struck the pole with sufficient force to tear a wheel off the car, and break the crosshead on the pole; that it then con- tinued until it struck an oak post in a wire fence at the south side of the road, where it stopped, after breaking the post, a distance of 141 feet from the place where the boy was hit; that the machine was traveling 25 to 35 miles an hour, which was in violation of statute; that the machine was equipped with an emergency brake, which was in good condition; that the car could have been stopped with the emergency brake within 40 or 50 feet when running at . ^Grudberg v. Ehret, 79 Misc. 627, 140 N. Y. Supp. 379, 4 N. C. C. A. 8 i (1913). INJURIES TO CHILDREN 435 30 miles an hour, and within 20 to 25 feet if running at a speed of 12 to 15 miles an hour. It was held thait there was evidence which justified a finding that the negligent rate of speed was the proximate cause of the accident, and also that defendant's negligent failure to promptly apply the emergency brake after discovering that the steering gear was broken justified a finding in plaintiff's favor." § 434. Automobile skidding onto sidewalk. The deceased, a boy of about 8 years of age, was fatally injured by being struck by a skidding automobile of the defendant while he was stand- ing on the sidewalk on the south side of the street. The auto- mobile was being driven westerly on the north side of the street, when its progress was obstructed by a wagon, and by a street car, which was moving more slowly than the automobile had been, and which was proceeding westerly on the northerly of two tracks. The d.river then turned his automobile at right angles or diagonally across the street to the south side, moving at a rapid rate, and in making the turn on that side of the street to continue westerly the rear part of the automobile slued or skidded and the top, which pro- jected ever the sidewalk, struck the boy. The roadway was dry, and the boy was in plain view from the course pursued by the automobile. Held, that the case was for the jury, and judgment for the plaintiff was affirmed.*® § 435. Automobile turned to left to avoid other vehicle. In a,n action to recover for injuries to a child who was struck by an automobile which was turned to the left and run upon the sidewalk, the defense being that the injury was caused by the imf oreseen result of the efforts . of the automobile driver to avoid collision with a motor-cycle which was approaching' on the wrong side of the street at a dangerous rate of speed, instructions were held to be correct which charged the jury that, if they found that the defendant, in operating the car, turned to the left on meeting an approaching vehicle and that by reason of the turning the accident happened, this would be prima facie evidence of negligence and would raise a presumption thai defendant was negligent in turn- ing to the left and upon the sidewalk, but that this act of defend- ant might be explained by him so as to justify it; and "If you find from the evidence that the person operating this car has ex- plained to your satisfaction that such an emergency existed as to justify him in turning to the left, to allow a certain motorcycle i^Fox V. Barekman, 178 Ind. 572, 99 *9McGettigan v. Quaker City Auto V. E. 989 (1912). Co., 48 Pa. Super. Ct. 602 (1912). 436 LAW OF AUTOMOBILES to pass him, nevertheless such person operating the machine must have it under control, after so turning to the left, that he may bfe able to avoid injury to others." so § 436. Automobile on wrong side of street. Where a boy, 1 1 years of age, sj;arted to run across a street without looking in either direction, andjvas struck by an automobile moving at excessive speed, on the wrong side of the street, and . which had not sounded a sigrial after passing a point 400 feet away", it was held that, whether the boy exercised such care as could reasonably be expected of one of his kgk, judgment and experience, was a question for the jury:^^ i Where there was evidence, in an action by a boy, betweefa 10 and 11 years old, to recover for injuries resulting from being run down by an automobile truck, that the plaintiff, while crossing a public street near its intersection with another street, with a ri)ller skate on one foot, was struck by the trUck running on the wrong side of the street: at high speed, it was held that the ques- tion of defendant's negligence was for the jury. In this case it vVas held' that ohe crossing a public street may reasonably expect that danger from vehicles will arise only from persons driving in conformity with the law of the road.^* § 437. Both automobile and child starting after having stopped. In an action to recover for injuries to a child, 6 years of age, the defendant testified as follows: That he saw the chil|d crossing the street ahead, of him, and stopped his automobile to avoid a collision witli her; that she stopped also, nearly ahead of his car, but a little on its left and about 12 feet from it; that he as- sumed that she would wait there until he drove by her, and. he thereupon started his car; that she did not wait for him to pass her, but startied running toyvards his. moving car, and th? collisiop occurred before, hp could again stop the car. In holding that.tl;ie jury were justified in finding for the plaintiff ori this evidence,, the court in part said: "Was it the exercise of , reasonable care: on his part to start his car fprw^rd while the child was nearly in 'front (Of it and only 12 ifeet from it? If instead of assuming that this little child would remain where she was in , the street while he started his car and drqye it by her, the defendant had spoken to 80 Carpenter v. Campbell Automobile 52 Trzetiatowski v^- Evening American 'Co.; 159 la. 52, 140 N. W. 225, 4 N. C. Pub. i Co., 185 111. App. 451 (1914). C. A. 1 (1913). 61 Lynch v. Shearer, 83 Conn. 73,' 75 All. 88 (1910): INJURIES TO CHILDREN 437 her, and told her to go on across the street; the unfortunate acci- dent would not have occurred. We entertain no doubt that the evidence amply justifies the conclusion that a reasonably prudent man, acting under those circumstances, would not have started the car ahead until that little child was safely out of danger. It cannot be held,' therefore, that the jury manifestly erred in find- ing negligence on the part of the defendant." ^* §438. Parent permitting child to cross in front of auto- mobile. Where a father and child, the latter 5 years old, were sueihg to recover for injuries to the child, and it was shown tha,t the father permitted the child to cross the highway when the ma- chiiie in question was approaching 75 feet away, although the father testified that he looked both ways and did not see the ma- chine, it was held that a nonsuit was proper as to the; father, but error as to the child." § 439. Child pulling away from mother in sudden peril. On a dark and smoky, November night, about 8 o'clock, a mother and her five-year-old child started to cross a street at an estab- lished crossing, after the mother had looked both ways and had seen no vehicles. As they neared the first of a double-track car line the mother was holding the child by the hand and was, looking to the left, the direction from which cars would approach on that tratk. When near the first rail, defendant's truck, traveling at high speed in the car track, and without sounding any warning, bore down upon them. In the confusion either the mother drop- ped the child's hand or the child pulled away from her, and went, on and was struck. Held that neither parent nor child )vas, precluded from recovering by the conduct of the mother. "The mother, hav- ing been confronted with sudden peril, through no fault of her owii, was not held to the, exercise of : the best judgment to protect her child from it. The jury fairly found that in her alarm and excite- ment she had done nothing to place upon herself responsibility for her child's injuries." ®® § 440. Neither seen by the other. The plaintiff, a boy 8 years old and lame, was injured in a puWic street by defendant's auto- mobile. He, with 5 or 10 other children, was in the street, and there was testimony that the defendant, operating a car he hiad BSMeserve V. Libby, llS Me. 282, IS 66 Knowlan v. Shipley-Massingham N. C. C. A. 781, 98 Atl,'7S4 (1916). Co., — Pa. St. — , 109 Atl. 629 (1920). 5*Kuehne v. Brown, 257 Pa. St. 37, 101 Atl. 77 (1917). 438 LAW OF AUTOMOBILES bought the day before, with a demonstrator standing on the run- ning board giving him instructions, drove swiftly, without giving , any warning pf his approach suffipient to attract the attention of the children. There was also testimony that just before the plain- tiff was struck he had proceeded two-thirds across the street, which was between 40 and 50 feet wide, in plain view of the automobile, yet the defendant testified that he did not see him. The plain- tiff stated that he did not look up or down the street, where vehicles frequently passed, and that he did not see the automobile at all, although there were no other vehicles in sight. There was testi- mony of a witness, however, that, immediately before the accident , the plaintiff with other children was sta.nding in a. safe place in the street, on one side of the course of the approaching automobile, and that- just as the car reached him it was turned to the left and knocked him down. It was held that the case was for the jury; that the jury could have believed the description of the accident given by the last men- tioned witness. A verdict in plaintiff's favor was sustained.^* \ § 441. Struck on sidewalk at private driveway. The plain- tiff, 6 years of age, and his uncle were walking slowly along the sidewalk of a public street, approaching a private driveway which crossed the sidewalk. There was a step-down of several inches at the driveway from the level of the sidewalk. As they stepped onto the driveway, the plaintiff being about a foot ' in advance, defendant's automobile, a covered delivery machine, came from their rear, without warning, and at high speed, and turned into the driveway across the walk, the front fender of the machine striking plaintiff and knocking him down and the front wheel run- ning over his foot. The uncle jerked the boy back and kept the rear wheel from running over him, and was himself struck on the arm by the fender. Neither plaintiff nor his uncle saw the machine before it struck him. Held, that the case was for the jury. It was argued that plain- tiff could not recover because he and his juncle walked into the machine; that they had good sight and hearing, and that there was nothing to obstruct their view. The court, however, called atten- tion to the fact that the automobile came from the rear of plain- tiff and his uncle, and moved much faster than they. In affirming judgment for the plaintiff, the court in part said: "Under the circumstances of this case, we need nqt consit^er the Beshipelis v. Cody, 214 Mass. 452, 101 N. E. 1071, 4 N. C. C. A. S (1913). INJURIES TO CHILDREN 439 question as to whether appellee was guilty of negligence which con- tributed to his injury. He was* an infant less than six years of age, and the jury by its verdict finds that he had not reached the age of accountability. In the eyes of the law he was non sui juris. The evidence shows he was walking along the street in the direc- tion of his home, at a place where he had a perfect right to be, and if he was gazing in at a shop window, as the driver of the machine states, then it was the driver's duty to use the precautions which the circupistances required to inform appellee of his ap- proach. It was at least his duty to sound the horn, which the general verdict of the jury finds he did not do. He was required to use this care regardless of the age of appellee. It must be taken into account that the use of this crossing was confined to persons who had business with the occupants of adjoining prem- ises, most of the witnesses calling it a private driveway, which fact must be considered in determining the degree of care required of appellant. We cannot say under these circumstances that the verdict is contrary to law." ^'' § 442. Child struck near curb— Not seen by chauffeur. Evidence that a child passed behind a street car and had reached a point within two feet of the curb when she was struck by de- fendant's machine; that she was found under the rear wheels of the machine, and that the chauffeur did not see her before she was struck, made a case for the jury, and judgment for plaintiff was affirmed.** § 443. Roller skating into collision with automobile. , The plaintiff, a boy of IS years, at about half past six on an October evening was roller skating on the sidewalk at the corner of inter- secting streets. As he approached the curb for the purpose of crossing the street at the regular crossing provided for pedestrians, he testified that he looked to see if there was ' any obstacle in the >vay, and saw an automobile express wagon of the defendant about half a block away coming toward the crossing. He proceeded to cross without looking any ful-ther, and when he had gone about 3 or 4 feet from the curb was struck by the automobile which knocked him down and ran over his legs. The plaintiff and his witnesses testified, also, that they heard no sound of horn or other- signal as the automobile approached. The automobile went about IS feet after it ran over the plaintiff before it stopped. At the close of the plaintiff's case fhe defendant rested, without putting 67 Darmody Co, v. Reed, 60 Ind. App. 58 McMonagle v. Simpers, — Pa. St. 662, 111 N. E. 317 (1916). — 110 Atl. 83 (1920). 440 LAW OF AUTOMOBILES in any additional proof,, and moved for the direction of a verdict, which motion was granted. * It was held that this was error; that 'there was a question of fact for the jury whether the accident was due to the negligent driving of defendant's servant or to the contributory negligence" of the plaintiff.^* Where a boy,' 1 2 years of age^ was racing on roller skates, down-grade, on a granitoid sidewalk, at siich a rate of speed, that he could not sto'p after discovering defendant's automobile approach- ing the Crossing of an intersecting street, at 12 oi- 14 niijies an hour, and skated against the side of the machine and was run over by the rear wheel and killed, and it appeared that an occtipant of the, automobile realized the boy's peril when he was about iOO' fe?t arid the car about 50 feet from the crossing, and that he and other witnesses of the , accident called to the chauffeur, but that the attention of the latter, who was conversing with his companion, was not attracted until the boy struck the car, it was held that the owner of the car was liable for the boy's death.®" §444. Roller skater holding to automobile in violation of law. Jf a boy, roller-skating in the street, takes hold of a moving motor truck, in violation of law, and is injured, he cannot recover, unless he is entitled to do so uiider the last clear chance doctrine.®^ § 445. Rolling hoop in street. The plaintiff, a boy . twelve years old, was struck by an automobile operated by the defendant upon a public highway in Lowell, and received Ijie injuries for which this action is brought. The highway is seventy-two feet wide between the curbstones and runs in a northerly and southerly direction; and in the center there is a single street railway track. The accident happened at about half past four o'clock in the aitpr-, noon. The plaintiff, who was rolling a large iron Tipop along the sidewalk on the easterly side of the street, crossed., the street diagonally in a southerly direction, and while in the gutter on the westerly side of the street was stijuck by the automobile. Th.e evidence as to the circumstances of the accident was conflicting. The defendant testified and offered evidence, to show that, while he was operating his machine at a rate of six miles an hour, the plaintiff suddenly ran in front of, and only about.. two feet frpnvt^e machine and was struck before the defendant cou'ld stop his car. SffCurro V. Barrett, 1S6 N. Y. Supp. 61 Renfroe v: Collins & Co., — Ala. 289(1915). — , 78 So. 39S (1918). 60 Hopfinger v. Young, — Mo. App. . ' i — , 179 S. W. 747 (191S). INJURIES TO CHILDREN 441 Th^ plaintiff offerjCd evidence to show that he was rolling his hoop on the extreme right hand or westerly side of the street, near the gutter; that he did not see the automobile which was going in the same direction; that he was struck from behind; and that there were no other vehicles upon the street to interfere with or prevent the defendant avoiding a collision. The plaintiff testified that he crossed the track to get on the right side of the road, and "looked back and front, and saw nothing coming, that he did not see the automobile when he looked back." An ordinance was introduced in evidence which pTohibited the playing of any game in any street "interfering with the convenient and free use" thereof . • It was held that the plaintiff was not a .trespasser, and that whether he was violating the ordinance mentioned was a question for the jury. Verdict in his favor was sustained.** § 446. Children coasting in street. The plaintiff, a boy; 9 years old, with other children, was coasting down a public street, in a thickly settled residence section, where the streets were much used, about 7 o'clock in the evening, when the streets were coated with ice, and as the sled crossed an intersecting street, at IS to 18 miles an hour, it was struck by defendant's automobile running on the intersecting street at 19 or 20 raises, an hour. The sled carried no light or instrument of warning, but the riders screamed warnings liiat could be plainly heard, even in near-by houses. The first intimation the coasters had of the presence of the automobile came from thp glare of its lights, but the sled was going so fast that the plaintiff, who was steering it, could not guide it, and it continued in a straight course until struck. The chauffeur had a, view extending about 130 feet up the street in the direction froni which the sled came when he was 100 feet from the corner. There was testimony that the chauffeur looked straight ahead and did not heed the warning cries, and made no effort to stop until the instant of the collision. ' It was observed that chains on the rear wheels of the automobile cut gi-ooves in the ice from' a point 15 or 20 feet from the point of collision. The automobile was stopped within SO or 60 feet. Had the chauffeur looked, there was sufficient light for him to have seen the sled when his view was not obstructed. Coasting on the streets was in violation of an ordinance. It was held that the case was for the jury under the humani- tarian, or last clear chance doctrine; that the fact that the plain- tiff was coasting in violation of an ordinance did not render him a 62.Patrick v. Deziel, 223 Mass. SOS, 112 N. E. 223 (1916). 442 LAW OF AUTOMOBILES trespasser in the sense of being wrongfully on private' property; that he was exercising a lawful right to use the streets, but doing so in an unlawful manner; that such violation of ordinance was not a defense in an action founded on the humanitarian doctrihe. It was further declared that a chauffeur operating an automobile in a trickly settled portion of a city at a high rate of speed, is bound to keep his car under control in approaching street intersections, and that he owes this ~ duty to all person^, whether rightfully or wrong- fully in the street.** In an action to recover for the death of the plaintiff's intestate, who was killed in a collision between a sled, on which he was coasting, and defendant's automobile, an instruction that if the intestate, a small boy, was coasting on a street in the thickly settled portion of the city to the danger of travelers, his conduct was illegal, and if his illegal coasting caused the accident com- plained of, or partly caused it, the plaintiff could not recover, "un- less, after the danger of the collision became imminent and known to the driver of the car, he could have avoided the accident by the exercise of reasonable care," was held to properly state the law.** § 447. Coasting into rear wheel of motor truck. A boy eight years old was coasting in daylight southerly on the west pave- ment of a street, and "dropped off the curb of the pavement and slid under the rear wheel" of defendant's motor-truck, which was proceeding east on an intersecting street. There was evidence that the boy saw the truck and made effort to avoid it, and there was no evidence tliat the driver saw the boy before the accident. On the northwest corner of the streets in question was a high stone wall and embailkment. Held, to show no negligence on the part of the driver, and that verdict was properly directed for the de- fendant.** .63 Rowe V. Hammond, 172 Mo. App. their habit of coasting on streets in 203, 157 S. W. 880, 4 N. C. C. A. ISn question. Wetherill v. Showell, Fryer & (1913). See also, Cowles v. Springfield Co., 264 Pa. St. 449, 1Q7 Atl. 808 (1919). S. L. Co., — Mass. — , 12S N. E. S89 ^ Child 11 years and 4 months old, (1920). coasting on sled and struck by automo- Motorist amare of presence of children bile, not necessarily guilty of contribu- coasting on hill, is bound to exercise un- tory negligence. Edelman v. Connell, usual care and watchfulness. Yeager v. 2S7 Pa. St. 317, 101 Atl. 6S3 (1917). Gately & F., 262 Pa. St. 466, 106 Atl. 64 Osgood v. Maxwell, — N. H. — , 76 (1919). 95 Atl. 954 (1915). Motorist is under no duty to take 6B \yetherill v. Showell, 28 Pa. Dist, precautions when he has no notice or 259 (1919). knowledge of children coasting, nor of INJURIES TO CHILDREN 443 § 448. Boys playing football in street. The plaintiff, a boy, 16 years of age, was run over and injured by an automobile driven by the defendants,, C. and F., while he and other boys were kick- ing a football about in a pul^lic street^ There was evidence as follows: At the very moment of the collision the plaintiff was standing in the gutter on the east side of the street, at a point about 300, feet north of State street. He was absorbed in the game, but was mindful of the fact that automobiles were liable to pass over the street, and, while he stood facing north watching for the ball, he frequently looked behind him toward State street for approaching automobiles. The car driven by the defendants was a right-hand drive machine, and C. was at the wheel. F., who was selling the car to him, sat at his left, and was teaching him to run it. All that C. was doing or expected to do in the actual operation of the car was the steering. F. was to manipulate the throttle, ~ sound the horn, and work the brake. F. assisted in making the turn from State street onto the avenue, and as the car made the turn the defendants discovered the boys playing in the street. The car proceeded north on the avenue at moderate speed; arid, without sounding the horn, turning aside, checking their speed, giving a warning shout, or making the slightest effort to avert an accident, the defendants ran the car against the plaintiff, thereby knocking him down, rolling him along on the ground some IS feet, ran over him, and finally brought the car to a stop 30,ieet beyond the point where the plaintiff's unconscious fprm was left lying in the gutter. In passing on the merits of the case, the court said: "If the plaintiff was making an iniproper use of the street, this fact did not relieve the defendants of the obligation of exercising due care. They saw him, and they were thereafter bound to proceed with that measure of caution that a careful man who faced such a situation would exercise. True it is that streets and highways are , not es- tablished for playgrounds, and such use of them is not to be encour- aged; but children always have and always will put them to that use to some extent, and they do not thereby become outlaws or trespassers, or necessarily forfeit their rights therein as, travelers. Nor can it be said that there was no evidence that the plaintiff was in the exercise of due care. He was standing close to the edge of the grass on the east side of the street. Between that point and the edge of the grass on the other side of the street was a space 50 feet wide. The game had been going on froiji 15 to 20 minutes. During that time he had looked behind him repeatedly for automobiles. Only one had passed in the time. He was not bound to use constant vigilance. He had a right to assume that an 444 LAW OF AUTOMOBILES automobile driver would exercise: the care- the law requires of him, and that he would be given some warning before he was run down. He might hiave done more for his Own protection, but it was for the jury to say whether he did enough, to answer the re- quirements of the prudent man rule." ®® § 449. Walking in front of automobile without seeing it. The plaintiff's version of an accident in which he was struck by defendant's automobile, being driven at a moderate speed, and at a reasonable distance behind a street car, which it was following in a northerly direction, was that he came from the west side of the street, and looked in both directions before stepping into the street, and also after he was upon the street; that at neither time did he see anything in the street except an electric' car in the vicinity of an intersecting street, about 60 feet distant from the place of the accident; that he then cotitinued across the street and gol to the first rail of the north-bound track ; and that the next thing he re- membered was being in the hospital. He did not see the automobile at all. He was & years and 6 months old: Held, to show negli- gence on the part of plaintiff, and' tha* the trial court properly directed a verdict for the defendant.®' §450. Child going into street close in front of automobile. Where the evidence tended strongly to show that the plaintiff, a child a few months past 4 years of age, did not leave the walk, or come into a position of danger, or of apparent danger, until defendant's automobile was so close to him that no reasonable effort on the driver's part could have avoided running him down, a nonsuit was properly granted.®* § 451. Boy walking into course of automdbile turning to- wards curb after passing wagon. Where a motor truck driver, moving at ordinary speed; turned to the left to about the middle of the street to pass a wagon standing next to the curb, arid at the moment when he turned towards the right curb in front of the horse, which was attached to the wagon, the : intestate, a bright boy of 8 years and 4 months, left the sidewalk near the horse's head and walked or ran into the street 5 or 6 stepsi when he 'was 66 Dervin v. Frenier, — Vt. — , 100 68 Hyde v. Hubinger^ 87 Conn, 704, Atl. 760 (1917). ' ■ ■ ' 87 Atl. 790, SN.'C. d.A. 372(1913). e'Curiey V. Baldwin, — R. I. — , 90 ' ! '' ' >■ ;!i i 1 Atl. 1, 8 N, C. C. A. 380n (1914). ' ' : " .' 1 INJiURIES TO CHILDREN 445 hitby.tbe "right side!! of ithe, front. fender or t by,' the; "right hand: side of the automobile," the driver was held as matter of law not to havei been negligent, although he did not blow his horn when he started to turn back 'towards the right curb. ®^ § 452. Walking into street following crowd. The defendant was driving his automobile on the left side of a street, owing tQ tJ)p ,faC|t, that a krge crowd had gathered in the street at the lower end of the block about a patrol wagon, and the c,rptw:d vi?;as, less dense on the left sid^ of the street. The deceased, a boy 1 1 years of age, was proceeding towards the .crowd along the left sidewalk, as others,, including boys, had don;e„ being attracted by the, excitement, and, \^ithoiit looking to the rear, stepped into the street, proceeding ip a. diagonal course g.Qross, the, street and tpwg^rd the.crpwd, and was struck by defendant's: rnachine coming fi^pm behind. , Defendant had, sounded his horn, but intermittently, and the boy neither iiearc^ nor saw the machine until h6, was. struck. H^ld, that therfi was iio question of contributory negligence in the case; that if the boy had thought of the matter at 9,11, he had the right, to. assume that an automobile, would not run him down.''*' §453. Runninginto street in play. In an action by a boy, 4 years and 10 months old, and of average brightness, to recover for injuries inflicted by defendant's automobile, there was testimony that the plaintiff, with t\yo other children,' was in a shop across the street from where he livecl when a man jn cliarge "chased bim out," and spoke to the children sharply, telling them with emphasis to leave thftplac.e; that, thereupon, he yvith the, others ran across the street, and when alrhost at the farther sidewalk , was struck by the defendant's automobile. There was other testimony that the plaintiff 'an^, his. companions in playing spnie game were running down a runway leading ijnto the shop, and th^t he ,follQwed one of the others across the street, and was struck wheri he had nearly reached the, opposite sidewalk. The street was, narrow, and there were seyieral aUjtompbiles standing at the curb nearby. The boy's speed was .about 4 mil,es an .hpur. There were varipus estimates of, thf! speed of, the automobile, the highest being 18 miles an hpur. , pne witness stated that he did lipt think the horn of the autpinobile was, jjlown, as the machine came clowri_,the street. The accident occurred about dusk. It was held that the questions of negligence and contributory «9Lovett v.^Scott, 232 (Mass., 541.,' 122 'OBurvant v. Wolfe, J26 :La,i 78.7, 52 N. 3. 646 (1919). . i So. 1025 (1910). ■■ ■; > 446 LAW OF AUTOMOBILES negligence were for the jury, an^ a verdict in plaintiff's favor was sustained.''^ Where a IS year old boy ran across a street and was struck by an. automobile, after he had looked both ways,' and there was nothing to prevent him from seeing the automobile for a distanpe ,o.f 400. feet, and he did nothing to save himself from being struck, he was guilty of negligence which barred recovery,''* The law in Massachusetts is much more stringent with children than is the law in most of the states. Where a boy, 14 years of age, and of more than average intelU- gence, was playing with several companions, running south along the east side of a public street, which he knew was occupied by a street car line and was much used by automobiles, and he sud- denly turned but into the street, still running, to cross to a com- panion on the other side, and did not look either north or south, and did not see an approaching automobile which struck him, although it had lights burning, and he did not hear it, though no horn was sounded, it was held that the question of the boy's con- tributory negligence was for the jury, it being said that, "the law applicable to approaching street car and railroad tracks by pedes- trians,, is not applicable as against automobiles which are not con- fined to' any particular track in the street but can run over the whole street." ''* A child who, after waiting for some wagons and a street car to pass, started to run across the street instead of walking, was not on that account contributorily negligent as matter of law.''* § 454. Boy running in street overtaken by automobile. The deceased, a boy 9 or 10 years of age, with one or two companions, was playing ball in a village street about 20 or 25 feet north of the north crossing of an intersecting street; The defendant's auto- mobile approached at, 15 to 18 miles an hour. There was "no other travel on the street, and the children were seen by the occu- pants of the automobile before they were reached. The deceased started on a fast run to cross the street in a diagonal direction from the east to the west side. As the automobile approached the boy its course was changesd diagonally toward the west, so that it and the boy came together at or near the west curb. The chauffeur did not reduce his speed until he reached the gutter, and there ''lAyers v. Ratkhesky, 213 Mass. S89, ''* Sullivan v. Chauvehet, — Mo. App. 101 N. E. 78, 7 N. C. C. A. 12S (1913). — , 186 S. W. 1090 (1916). ■"^Swetzoff V. O'Brien, 226 Mass. 438, 74Varcoe v. Lee, — Cal. — , 181 Pac. lis N. E. 748 (1917).' - 223 (1919). INJURIES TO CHILDREN 447 was evidence that no warning of its approach was given. Held, to justify a verdict for the plaintiff.?* § 455. Boy turning back after running into street. There was evidence that the plaintiff, a boy of 5 years, was with his sis- ter, 7 years of age, on a street curb, and the boy started to run across the street; that his sister screamed for him to come back, and while running back he was struck by defendant's automobile; that the automobile was moving 14 or IS miles an hour; that the rear end of the automobile was IS feet beyond the boy when it stopped; that no warning signal was given; that when defendant reached the street intersection nearby, he put on his brakes a:nd skidded to the other side and struck the boy. Defendant testified that he saw the children in the street when he was 60 or 70 feet from them. Held, to sustain a judgment for plaintiff.''® § 456. Running from other children. The plaintiff's intes- tate, a girl, eight and a half years of age, was struck and killed by an automobile, in front of which she suddenly ran from the side- walk. The jury found that she had been accustomed to passing the place of the accident on her way to and from school ; that she knew that the street was there greatly used by automobiles and other vehicles; that she knew it was dangerous to run diagonally from the sidewalk out into the portion of th^ street traveled by vehicles without looking ahead of her; and that just prior to being run over, and while looking behind her, she suddenly and quickly turned off from the walk and ran tow9.rd and in front of the auto- mobile. The argument was made that, her age being of importance only as an, indication of her mental capacity, and since it was established that she knew it was dangerous to run out into the street without looking ahead of her, and that she did that very thing, the con- clusion was unavoidable that she failed to exercise ordinary' care| according to the standard applicable to the case. In holding against such contention, and affirming judgment for the plaintiff, the court said: "The fault of this reasoning is that it loses sight of the fact that, to be chargeable with contributory negligence, she must have had the capacity, not only to know the danger ordinarily involved in the conduct mentioned, but to realize and appreciate ■ (he risk under the circumstances in which she was placed, and to 76 Bohringer v. Campbell, 1S4 App. — Utah — , 172 Pac. 672 (1918). Div. 879, 95*2, 137 N. Y. Supp. 241 76 Ahonen v. Hryszko, 90 Oreg, 451, (1912). , 175 Pac. 616 (1918). This section cited in Barker v. Savas, 448 LAW OF AUTOMOBILES' exercise the judgment and! discretion necessary to avoid it. Evi- dence was given that there had been a disagreement between her ^nd two other. girls,, that they ran, after Jier, ^.nd .thart; she was a little bit afraid, and, ran away from them. Whether in this .S|itua- tipn she used the; care reasonably to be expected qi a child of her age, intelligence, and experience was a fair question for the jury. She may have knovi^n as an abstract proposition that, th.ejre was danger in being upon the traveled part of the stree>t withput watch- ing where she was going, but have lacked the discretion "to keep this in mind while seeking to escape from the children: ,who. were pursuing her," " § 457. Running from sidewalk after ball. Where it appeared that a boy suddenly ran from the sidewalk into the street, after a ball, and within 4 to 12 feet of an automobile, which was moving at - moderate speed, and, which was stopped so that its wheels skidded and it proceeded only S feet beyond the boy's body, no negligence was shown on the part of the motorist, but rather contributory negligence on the part of the boy.''' § 458. Playing in highway— Struck by truck approaching from the front. A boy who was playing, with another in a public highway, running and looking back, whose attention was attracted by signals of an autotnqbile approaching from the reiar, and by a passing train, was not per se guilty of contributory negligence in failing to observe a truck which came meeting^ him and' which collided with him, there being testimony that the truck driver gave no warnipg signal pf approach.''® § 459. Running suddenly into street at night. The defend- ant was driving his automobile . at night northerly along the east side of a public street., The lights on the automobile were burning brightly, and the night was dark and rainy. The deceased, a boy about 13 years of age, ran or walked from a vacant lot on the east side of; the Street, across the sidewalk ajxd a grass plat between the walk and the curb, and into the path of the defendant's auto- mobile, and was struck and killed. There was no crossing at, this place. for pedestrians, and the deceased was going in a southwesterly direction with an unobstructed view. The glass in the east or rightThand lamp on the automobile , was broken by the collision. TT Routh V. Weakley, 97 Kan. 74, 154 79 CoUett v. Standard Oil Co., 186 Ky. Pac. 218 (1916). ■ ' 142, 216 S. W: 3S6 (1919)» 'Sjdrdain v. American Sight' Seting :' ", Coach Co., 129 App. DiV. 313, 113 N. Y. Supp. 786. INJURIES TO CHILDREN 449 It was lield that the evidence showed that deceased was not in the exercise of ordinary care at thje time of and just prior to the accident, and judgment for plaintiff was reversed and the cause remanded.*" § 460. Running suddenly onto driveway of bridge. In an action by plaintiff to recover for the death of her niinor son, it appeared that the boy was struck by defendant's automobile while in the roadway of a bridge or viaduct; the driveway for vehicles bding in the center of the bridge £ind a footway for p>edestrians on either side. The trial coiirt found that for some unexplained rea- son the boy went on the driveway and was struck; that after he was struck another little boy was seen running on the left side of the car; that "the conclusion is fully warranted, that plaintiff's son and his companion, suddenly and unexpectedly undertook to cross the driveway," and that the injury seemed to have been caused solely by the sudden and unexpected movement of the boy; that there was iio evidence that the child was on the driveway, for a sufficient time before the defendant approached in his car, to per- mit of his having been seen, and the car stopped in time to prevent an injury. The testimony was found to be as stated by the trial judge, and judgment of nonsuit was affirmed. The court in its opinion said : "The defendant cannot fairly or reasonably be charged with hegligenCe, in failing to stop his automobile, and avoid the accident, unless it appeared that the b6y entered the roa:dway at a sufficient distance from the auto- mobile to permit of its being stopped before the collision occurred. If the boy suddenly left the footway at a place where the driver had no reason to expect him to do so, and ran directly in front of the automobile, the result could hardly have been other than dis- astrous, even though the machine had been moving at a very rea- sonable rate.'^ § 461. Running against side of automobile. , If a child runs into the side of an automobile, or if he runs from a place of safety to a place of danger immediately in front of the machine, ordi- narily he cannot recover for injuries so sustained.'^ Where a child, 4 years of age, was walking with his brother, 14 years old, and his sister, S years of age, broke away from the 80 Carliil V. Clark, 172 111. App. 239 «« Marius v. Motor Del, Co., 146 App. (1912). ■'•■ Div. 608, 131 N.Y. Supp. 357 (1911). 81 Stahl V. , SoUenberger, 246 Pa. St. S2S, 92 Atl. 720, 8 N. C. C. A. 377n (1914). B. Autoa.— 20 450 LAW OF AUTOMOBILE^ sister's hand, and ran into the street, pursued but not bvertaken by his brother, until he collided at the crossing with the side of an automobile, which was passing on the intersecting street at a proper speed, and the driver had it under control, and turned it away fropa;tlie apprqaching child, but did not stop until his car was on the ppposite sidewalk, and he sounded the horn,; applied the brake and diminished his speed upon seeing the child, bijt stated that the sudden appearance of the child did not give him time to stop the car, which statement was not contradicted, it was, held that a judgment for the plaintiff must be reversed and a new trial awarded.*^ § 462. Automobile turning towards same side of street boy running to, striking him near curb. Under evidence that the day was clear, that no horn was sounded by the automobile, which made but little noise on a wooden street, that as the intestate, a boy of 11 years, started to run towards the sidewalk "the auto- mobile started towards the side he was running to," that the auto- mobile kept after him on the left side of the street, and caught him within a foot or two of the curb, a verdict for the plaintiff was upheld." §463. Failure of boys on crossing to look for automobile. The plaintiff, a boy 10 years and 6 months old,; was struck and injured by defendant's automobile at a street, crossing, wi,thin a few feet of the curb, from, which he had just stepped into the street. In conipany with him were two companiojis,, 9, and ij years of age, and the boys were interested in pictures pf ' noted baseball players, contained in a box of candy purchased by one of thenj, at, a stpce near the crossing. They were exanjinipg the pictures as they leisurely approached and entered upon the cross- ing. Defendant approached in his automobile and turned to the left at the street intersection onto this crossing, as he entered which his car collided with two of the three boys, knocking plaintiff to the street and injuring him. Defendant was in a hurry. He ad- mitted that he saw the boys when he was at a distance of 68 feet from the place of collision, near the crossing and leisurely ap- proaching it. He said that he was driving at 8 or 10 miles an hPur, but there was evidence that he was going much faster; and that he repeatedly gave warning of his approach, though this, too, was contradicted by plaintiff's evidence. 83 Paul V. Clark, 161 App. Piv. 4S6, 8* Buckley v. Sutton, 231 Mass. J04, 145 N. Y. Supp. 98S, 8 N. C. C. A. 378n 121 N. E. 527 (1919). (1914). INJURIES TO CHILDREN 451 In affirming jydgment for the plaintiff, the cou^ti held that, con- ceding the. testimony of the defendant regarding his rate of speed and the warning of his approach to be true, he may still have been negligent to such a degree as to warrant a verdict . against him ; that seeing them, as he did, approaching the crossing, a,nd they not seeing him or his car, he then knew and they did not know, that he intended to drive over the crossing; that even if they had heard his signals, , they may have thought he would continue his course up the street he was driving on — "as in fact his course seemed to be, according to testimony not contradicted," that "h^couid also ob- serve, and perhaps did observe, their inattention, to the approach of the car, thus evidently demanding greater care on his part to avoid injuring them." *^ It was also contended in this case by the defendant that his continuity of view of the boys, after first seeing them, was broken by a wagon preceding him into the street into which he turned, but the court attached no importance to the fact, although defendant claimed that it caused him to have to turn to the right and then back to the left; it appearing that it was a light open delivery wagon, and turned the, same corner near the curb. § 464. Running from behind street car. The plaintiff, a boy, 10 years old, with four other children, was on his way to school about 12:30 o'clock p. m. When they reached an intersecting east and west street, in which was a double line of street car tracks, three of his companions remained on the: south side of the street, while he and one other boy started north across the street. A" west- bound street car stopped at the west crossing of the street, and plaintiff was behind it when it stopped. He touched the pin on the rear of the car and then ran towards the north sidpwalk, . and was struck by defendant's automobile, being driven west. He was on- the crossing when hit, but, when he came to his senses he was IS feet from the crossing, and the automobile was standing in the street in front of him, it having run about 1 S feet after strik- ing him. Plaintiff stated that he heard no warning of the auto- mobile's approach; that he had attended school 3 years, and, was in the fourth grade, and that during the last two years of school he had passed over this crossing an average of four tirhes a day. It was held that there was no negligence proved on the part of defefndant, and that the trial coui-t properly sustained a de- murrer to plaintiff's evidence. The court further held that a 86 Deputy V. Kimmell, 73 W. Va. S9S, 80 S. E. 919, SI L. R. A..(N. S.) 989, 8 N. C. C. A. 369 (1914">. 452 LAW OF AUTOMOBILES statement by the driver of the machine, who was a defendant, that he would do all in his power to help the boy's niother and would be responsible for all debts in the case, was not an admission of liability, and was properljr excluded from the evidence.*® § 465, Boy emerging from behind wagon. Plaintiff's intes- tate, a boy 9 years and 2 months old, was struck by defendant's automobile and received injuries from which he died. The facts were stated as follows: "Standing at the curb on the right-hand side of the street was a team, and coming up the street on the car tracks of the street railroad was a large covered truck wagon. From curb to curb the street was about 45 feet wide. Going down the street the automobile came to the teams when they were about opposite each other and passed between them. There were no other automobiles or teams on this portion of the street at the time. Street lights and the automobile lights were lighted: It had beeii i-aining, and the street was wet. The driver sounded his horn at the crossing next above, and was going at about ei^t miles an hour as he came to the team and the covered wagon. Deceased was on the left side of the street, when one of his mates called for him to come over and play. When the automobile had reached the tail of the covered wagon the deceased came from behind the covered wagon directly in front of the automobile and about 4 feet ahead of it. Some witnesses say he was 'running'; some, 'most running.' He hesitated and started to turn back, surprised and confused. Despite the driver's efforts to avoid hitting the boy, he was struck by the right mud guard or wheel." , In granting a new trial to defendant, the court said: "Under these circumstances it does not seem negligence for the driver of the car not to sound his horn in passing the wagon. The auto- mobile was plainly visible for a good distance before reaching the teams, and there were few people oil the street. The police regu- lations of all municipalities not only discourage, but prohibit, un- necessary noises by automobiles, and the driver would not be led to suspect the appearance of a pedestrian directly in front of his machine." *'' § 466. Driving past street car— Child emerging from behind telegraph pole. ,A statute provided: "In passing railroad or street cars, vehicles shall be so operated upon that side of said street or railroad car with due care and caution that the safety of 86 Winter v. Van Blarcom, 2S8 Mo. S'Levesque v. Dumont, 117 Me. 262, its, 167 S. W. 498, 8 N. C. C. A. 37Sn 99 Atl. 719 (1917). (1914). INJURIES TO CHILDREN 453 passengers boarding or alighting from such street or railroa,d car shall be fully protected, and for that purpose said vehicle shall be brought to a stop, if necessary, but upon the other or left side of sa|.id street or, railroad car, should there be a clear passage, said veliicle shall be permitted to so increg,se its speed for the necessary distance to negotiate a safe clearance between said street or rail- road car and said vehicle so desiring to pass, and, the rate of speed requisite and necessary so to do shall not be deemed to be an ex- cessive rate of speed, having due regard to the speed of said rail- road or street car." It was also , provided that the rate of speed shall be reasonable, up tp 25 miles a,n. hour, but any speed in excess of 25 miles an hour shall be unreasonable. It was held that where there was a clearance it was not negli- geiit for a, motorist to pass a street par at any necessary; speed, up to 25 miles an ho]iir. So, where a motorist was driving past a street car at 18 miles an hour, when a child ran suddenly from behind a telegraph pole, which had concealed it from view, and was struck by the rear fender, the motorist was not liable.** § 467. Running from in front of horses— Automobile pass- ing other vehicle. A boy, 14 years of age, was playing with com- panions in. a street. He had just run from the east to the west side of the Street, and at that time an express wagon and an auto- mobile were proceeding south along the street. The boy started to run. across the street again, and in doing so ran a few feet in front of the horses, which were being driven to the express wagon. He was going so fast he could not stop, and just as he got past the horses he was struck by the autorriobile, which ran 125 or 130 feet after striking him before it was stopped. The automobile was moving 20 or 25 miles an hour, and no warning signal was given of its approach. Defendant's witnesses stated that the auto- mobile was following the express wagon, which was moving south on the. west side of the street; that when it reached th.e-, place of the accident' the chauffeur turned to the east sid« of the street in ordei: to pass the wagon; that the automobile was then moving 4 to 8 mrlies an hour', and the horn was sounded as it came up behind the wagon^ arid again just before the boy was struck ; that ■. the boy crosseid immeciiately under the horses' heads, and hiad 88 Sorsby v. Benninghoven, 82 Oreg. 34S, IS N. C. C. A, 84, 161 Pac. 251 (1916). 454 LAW OF AUTOMOBILES not the driyer.pf the wagon pulled his horses they would have.cpme ip icpntact with him. It was held that the questions of negligence were for the jury, and jiidgment for plaintiff was affirmed.?' § 468. Driving around another vehicle— Failure to see child. Plaintiff's intestate, a child less than 5 years of age, was struck and killed by defendant's automobile. The automobile going north, turned out, to avoid a vehicle, on thie east' side of the street, and after passing a:n ice wagon on the opposite side, turned agairi to the west; at a point eighteen feet in the rear of the ice wagon and about three feet from the west curbing, it ran over the intfestate. No signal was given of the approach of the machine; the speed was not lessened although the driver knew "there was danger around an ice wagon." He admitted he did not see the child before the Accident and the first he knew that anything had happened was from the jai^. It also cpiild be found that as he approached the deceased, his head was turned over his left shoulder toward the rear of the ice wagon, and he was speaking to someone. Held, to justify a verdict for the plaintiff."* § 469. Crossing street in middle of block near other children. Where there was evidence that the defendant was driving his automobile down grade at 25 miles an hour, at a place where he knew that children frequently congregated ; that the machine was coasting, therefore making comparatively littlie noise; that it struck the plaintiff, a boy of 5 years of age, when he was 4 or 5 feet from the curb, on his; way to cross the street, and who appeared to be oblivious of the approaching automobile; that the child had started from a group of bbys on the sidewalk, and was going to join one of his companions on the other side of the street; that there was nothiiig to obscure defendant's view of the plaintiff arid his com- panions; that there was no car line in the street,- and defendant gave no warning signal of his approach, it was held that judgment for the plaintiff would not be disturbed, although the defendant's evidence was radically opposed to that of the plaintiff." § 470. Crossing street at school yard gate. In an action to, recover for the death pf a little girl, 7 years old, resulting from being struck by an automobile, there was eyidencej tending to show that the deceased, a strong, healthy girl with good eyesight and . hearing and with ilie intelligerice usual to one pf her yearsj was 89Akers v. Fulkerson, 1S3 Ky. 228, 91 Bloom v. Whelan, S6 Pa. Super. Ct. 1S4 S. W. 1101, 4 N. C. C. A. 4 (1913). 277(1914). . , , , > "Nelligan v. Fontaine, 225 Mass. 329, . i , 114 N. E. 303 (1916). INJURIES TO CHILDREN 455 standing on the sidewalk at a point nearly opposite the "girls' gate" of the yard of the School on the other side of the street, at which school she was a pupil, about 15 miiiuteis before the time for the opening of school; that the width of the street between side- walks was about 43 feet; that there were two street railway tracks in the street, and many automobiles and other vehicles commonly were passing; that when a passing trolley car had cleared her some 5 or 6' feet, and when a boy ran out into the street from the other side from a point just north of the School gate arid waved his hat at the driver of the automobile "so it would not do any hafm," deceased "started in a jog trot" across the street, and was struck and fatally injured by the a,utomobile driven by defendant at 15 or 20 miles an hour, no wafning of its aproach being given. In sustaining a verdict for the plaintiff, the court held that it could not be successfully contended that the ' parents of deceased were negligent in permitting her to be iiriattended under these circimistances, and in respect to the question of negligence on the part of the deceased and the defendant, said : "She was on her way to school and directly in front of the school house yard. At such a place and hour travelers iij automobiles might be expected tp move at a mode^'ate speed. The car which had just passed to some extent obscured her view of the opposite side of the S|treet to her right, and the waving of the hat by the boy almost directly in front of her, which presumably, she may have seen, might have been regarded as some protection against an approaching yehicle. ... The rate of speed alone, in view of the dp^e proximity to a school house and the actual presence of some children near by, and the natural . expectation that the paths of otliCTS at that hour of the day would be converging, to tha-t point, was significant.*^ §471. Newsboy in plain view— Last clear chance. The plaintiff, a newsboy, 12( years of age, was standing on the south- west corner of intersecting streets, and defendant's automobile, driven by hiS; chauffeur, was approaching, and wishing to board the car to sell papers, started to walk diagonally across to the northeast corner. When he reached the crossing of the street railway tracksj slightly north of the track in the east and west street, he was struck by the automobile with such force as to carry him along 10 or 12 feet, permanently injuring him. The im- mediate cause of the collision was the act of the chauffeur sud- denly turning diagonally to the west to go into the east and west »2 Tripp V. Taft, 219 Mass. '81, 106 N. E. S78, 7 N. C. C. A. 488, 8 N. C. C. A. 373 (1914). 4S6 LAW GF AUTOMOBILES street as he was crossing the car track in that street. He gave no warning of his approach, and did not stop the machine until he had struck the boy, when it was brought to a standstill \yith a front wheel on , plaintiff 's chest. There; was nothing to obstruct the chauffeur's view pf the plaintiff, Tjie defendant offered no evi- dence. It was held that the case was for the jury under the last clear chance doctrine, on which the plaintiff relied, and judgment for the plaintiff was affirmed. In part the court said; "It was the duty of the driver of the car to keep , a lookout in the direction his car was going and turning. He then would have seen the boy and it would have been his duty to immediately takg;; all reasonable measures to avoid him. If he had, been looking ,he, could have stopped in time, for the eVideoce shows he actually did stop within the sp9,ce of a few feet, in this respect fully answering defendant's objection that it was not shown in what space the machine could have been stopped." ®' § 472. Newsboy running in front of automobile. Where a newsboy, 14 years of age, ran suddenly from behind his news stand on the sidewalk, diagonally across the street, at a place other than a crossing, to secure papers' from a distributing cart, and ran in front of an, automobile, moving S or 6 miles an hour, oh the side of the street from which he started, and so close'to the machine that it could not be stopped in time to avoid a collision, but which was stopped' within its length af tfer the impact, it was held that the boy's negligence was the sole proximate cause of his ifijury.'* The plaintiff's intestate was a bright, intelligent newsboy, 12 years and, 2 months of age, engaged in selling newspapers in a public square in Boston. Just befote the accident which resulted in his death he had been called by two men who were standing near the curb on a reserved space in the middle, of an avenue at its entrance to th€ square. There was evidence that he sold a pSaper to one of the men-: that the other asked for a paper he: did not have, and he said he would get it, and turned and i started across the street to do so, when he was struck and killed by the defend- ant's automobile, which passed at a high rate of speed within arm's reach of one of the men; that the square was much frequented; and that no signal was given by the automobile sufficient to warn the boy. Held, that this evidence was sufficient to take the questions MEisenman v. Griffith, 181 Mo. App. 94Daugherty v. Metropolitan MbtOr 183, 167 S. W. 1142 (1914). Car Gc, 8S Wash. 105, 147 Pac; 6SS This section cited in Barker v. Savas, (1915), — Utah — , 172 'Pac. 672 (1918). INJURIES TO CHILDREN 457 of the defendant's negligence and the deceased's contributory negli- gence to the jury.'* § 473. Struck after jumping from wagon. One has the legal righ|t to alight from a wagon standing in the street or moving along the street and go to either side; but a motorist is not bound to know the intentioiis or purpose of a boy sitting on the tail of a wagon.'® In so doing he must exercise a proper degree of care for his own safety, to be determined by his own age and suiroundings, and automobile drivers, owe him the duty of exercising ordinary care to avoid Qolliding with him. "To say that such parties owed no such duty till they actually discovered him on the street would be treating him as an intruder without the legal right to be there." ''' § 474. Same— Bundle delivery boy. The plaintiff, 2 or 3 months past the age of 14, was employed as "jumper" on a de- livery wagon, and in the performance of his duties it was necessary for him to follow the instructions of the driver' and deliver pack- ages to the proper addresses. There was evidence tending to show that, on the occasion in question, before jumping off the left side of the wagon the plaintiff looked back and saw no automo- bile' approaching; that the horse was walking when he jumped, and he alighted about one and a half feet from the side of the front wheel, took some parcels from the wagon and was walking slowly by the side of the wagon waiting for it to pass so he could go to the sidewalk, when he was struck in the back and left side by the defendant's automobile; that the machine knocked him to the pave-' ment and dragged him 66 feet and ran 100 feet farther before it was stopped; that there was a clear space of 30 feet to the left of the wagon for iJie automobile to pass. The operator testified that he saw the wagon, knew what it was, and knew the character of the business in which it was engaged. It was held that the ques- tions of negligence and contributory negligence were properly sub- mitted to the jury, and judgment for plaintiff was affirmed." § 475. Same— At regular crossing. In an action to recover for injuries caused by being struck by an automobile, it appeared that the plaintiff, a minor, was riding on the rear of a wagon driven MRasmussen v. Whipple, 211 Mass. »8 Gerhard v. Ford Motor Co., ISS 546, 98 N. E. 592 (1912). Mich. 618, 119 N. W. 904, 20 L. R. A. »6 Bishard v. Engelbeck, 180 la. 1132, (N. S.) 232 (1909). 164 N. W. 203 (1917). S' Hartley v. Marino, — Tex. Civ, App. — , 158 S. W. 1156 (1913), 458 LAW OF AUTOMOBILES by,, an acquaintance, traveling easit. and i upgrade along a public street; that when the wagon arrived. at the east line of; an inter- secting street, plaintiff alighted from the rear of the wagon, at the regular crossing for pedestrians, and started along the crossing to the left side of the street on which he had beeii traveling; that he had gone but a few feet from the wagon when he was struck by the automobile going west, downgrade. There was evidence that the automobile was traveling 25 miles an hour a block east of the place of the collision, and going at a terrific speed at the time of the accident, and continued running for half a block before it Was . stopped; that plaintiff had traveled 6 feet or more on thfe crossing before he was struck; that there was no warning signal givfefl of the -approach of the autombbile. An ordinance fixed the' speed limit for automobiles at 12 miles an hour, and' required tBat a warning be giyen by automobile drivers of their approach to street intersections. It was held tiiat the case was for the jury, both in respect to defendant's negligence. and, plaintiff's contributory negligence; that the viplatipn of the ordinance by the driver of the, car was negli-! gence; that the plaintiff was where he had a right to be, and if he had lopked and seen the automobile coming, he ha,d a right to as- sume that the driver would not violate the ordinance in regard to speed. .The court distinguish^ bejtwieen this case, where the plain- ti^ was on the crossing for pedestrians, and a c,ase in which a, pedestrian walked from behind a wagon without looking for auto- mobiles and was struck by one, not at a usual crossing, but near the middle of the block.®' § 476. Same— From rear of wagon. The plaintiff, a boy, nearly 11 years of age, going on an errand, was riding on the tail- board of a wagon, proceeding northerly along a public street. He was seated with his back toward the driver, but when ready to alight from' the wagon, he jumped, turning his body as he did so, thus bring his face toward the driver and jumping off backward. He then started to run diagonally across the street in a northwest- erly dijrectioR (toward tljie left side of.the str,eet), wlxe^n . almost at once hf; was struck by defendant's automobile, approaching , from behind, which caused injuries resulting in his death. There was evidence that the automobile turned out of its direct course to pass the vehicle in front. It was held that no recovery could be had for the death of the boy on account of his contributory negli- gence.^ 99Franey v. Seattle Taxicab Co., 80 1 Mills v. Powers, 216 Mass. 36,. 102 Wash. 396. 141 Pac. 890 (1914). N. E. 912 (1913). INJURIES TO CHILDREN v 45$ A boy was held to be negligent who jumped from the rear end of a cart, on which he had been riding with the permission of the driver, walked a short distance and came into collision with the side of an automobile which he had previously seen.* §477. Same— Moving wagon. Where a boy jumped from a wagon proceeding westerly along a public street, and had taken only two or three steps on his way to the south side of the street when he was struck by defendant's automobile approaching the wagon from the rear, and there was evidence that the automobile was moving at a rate of speed in violation of an ordinance, and in fact at 25 or 30 miles an hour, and was 25 or 30 feet distant when the boy jumped to the ground, and that the speed df the automobile was unreasonable and dangerous in view of the traffic on the street, it was held that the case was for the, jury, and judgment for the plaintiff was affirmed.' § 478. Same— Automobile on left side of street. The plaintiff, a boy between 8 and 9 years of age, was riding on top of a wag- on loaded with lumber, which was proceeding north along the east side of an avenue, and was followed at a distance of about 25 feet by an oil wagon. When the heads of the horses drawing the lumber wagon were about 20 feet south of an intersecting street, their driver guided them diagonally to the left, beginning to turn west into that street. At this time the defendant's automobile was proceeding at 12 or 15 miles an hour south along the west side of the same avenue, some 60 or 70 feet north of the intersecting Street mentioned. When the driver of the automobile observed that, the lumber wagon was about to cross his course, he swung the car to the east, or left, side of the avenue, and then turned it westerly to cross at the rear of the lumber wagon and in front of the oil wagon, and thence back' to the right side of the avenue again. As the lumber wagon was turning west into the intersecting street, and the automobile driver was swinging his car towards its rear to re- cross behind it, the plaintiff alighted from the rear of the lumber wagon and ran out towards the east curb, and was struck by the right front corner of the automobile. The driver of thfe auto- mobile testified that he was but 10 or 12 feet away when he first saw the boy come from behind the wagon; that he then for the first time applied his' brakes and could have stopped shortly after striking him, but the driver of the oil wagon motioned him to go ahead. It was held that this evidence made out a prima facie case ■ ' f- 2 Smith V. Listman, 96 Misc. 28S, 160 * Bartley v. Marino, — Tex. Civ. App. N. Y, Supp. 129 (1916). — 158 S. W. 11S6 (1913). 460 LAW OF AUTOMOBILES of negligence against the defendant^ and that the question of the plaintiff's contributory negligence should likewise have been sub- mitted to the jury.* In part the court sa,id: "Though the driver^s own testimony tends to negative liis claim that he could not check or stop his car in time to allow the wagon to safely pass in front of him, which compelled turning the car and passing to the left, and there is some conflict of testimony as to the speed at which he was running when he started to swing in behind the wagon he was meeting, these questions were clearly issues of fact, and there was ample evidence for the jury to consider, much of it undisputed, tehdiilg to show that his car struck the boy while on the wrong side of the street and of the vehicle it was passing, in violation of the law 6f the road and a city ordinance, near a crossing, with other following and passing conveyances in close proximity, without giving warn- ing of its approach to those who might not be able to see or would not anticipate its passing upon: that side^ and* while swinging in behind the loaded wagon at the rear of which the boy was rjding, running the car at such a speed that he could not avqid any one who might come from behind the wagon, which he knew was just turning onto anbther street. "Irrespective of which side they pass and why, it is a settled rule of the road that, 'When two vehicles are passing it is, the duty of each driver to look out for pedestrians suddenly appearing from behind the other vehicle.', The undisputed evidence that; defend- ant's car was on the wrong side of the road, passing the vehicle it was meeting on the left, alone raises a presumption of negligence on the part of its driver, and when such negligence is shown to haye had a, causal relation to the injury inflicted upon the plaintiff, as, is the case here, a prima facie case of actionable negligence is pre- sented. If, as claimed by defendant, there were justifying circum- stances tending to show it necessary for the driver to take the left side of the road, the question was of fact for the jury and not of law for the court. If facts were shown warranting; the driver in passing to the left, it then became his duty tP observe that degree of caution and proceed with care at such reduced speed as was commensurate with the unusual conditions." In respect to the question of the boy's contributory negligence, the court said: "To what extent this boy knew and understood the rules of the road or reasoned upon the proper course which he should pursue to avoid dagger is mere conjecture,, but to the same *Winckowski v. Dodge, 183 Mich. 303, 149 N. W. 1061 (1914). INJURIES TO CHILDREN 461 extent he is held accountable under the law of contributory negli- gence he must be credited with commeijsurate knowledge of the subject matter. In seeking to reach the walk from near the center of the street he took the proper direction for safety, from his point of observation, according to. the rules of the road, and would have been safe had defendant's driver kept on his proper side of the street, as plaintiff had a right to presume all vehicles from that direction would do. From where he was at the rear of the load of lumber he could watch in the direction vehicles on the east side of the street should come from. The only thing in that direction' for him to avoid was the oil wagon following close behind, drawn by walking horses. This first commanded his- attention. He could easily estimate that danger, and knoW that by moving quickly he would avoid it while passing to the walk across the east side of the street, which was otherwise sa,fe, provided the rules of the road were observed by drivers of passing vehicles. It cannot be said under these circumstances thaj; a child of his age was, as a matter of law, negligent in not anticipating that defendant's automobile might come upon him without warning, running at a rapid rate upon the wrong side of the street, and then turn quickly diagonally across the way, between the two horsedrawn conveyances which were moving close together. Contributory negligence cannot be imputed to a plaintiff for failure to anticipate negligent acts of a defendant." § 479. Driving behind vehicle on rear of which children are riding. The driver of one vehicle following another, on the rear of which there are children whose attitudes indicate purpose or lia- bility suddenly to step off of it, desiring to pass such other, is bound to adopt and use reasonable precautions for the safety of the children, such as vigilance, warning, and reduction of speed, if necessary. But he is not required to have his car under such control that he may stop it instantly upon a sudden and unex- pected intrusion of a child So situated, upon the path or course of the car and immediately in front of it. Such sudden intrusion of a child upon the path of the yeliicle, does not necessarily preclude liability of the driver for injuries resulting, since both partitas havq the right to use the highway and are under duty to exercise care and caution.* § 480. Boys riding in small wagon attached to and trailing behind wagon. A person who drives so dangerous a machine as * Go£E V. Clarksburg Dairy Co., — W. Va. — , 103 S. E. S8 (1920). 462 LAW OF, AUTOMOBILES an automobile through the principal street of a large city, upon a bright, dry day, and who sees, at a distance of ISO feet in front 6i him, two boys, ages 10 and 12 years, respectively, trailing in a soap box wagon behind an ice wagon, should take such precautions in his driving as that, in no event or situation, conceivable to an in- telligent man, will he run over and kill the boys.* §481. Child climbing on and playing about automobile. Wbei;e the owner of an automobile upon returning to his car, found an infant, four and a, half years old, thereon, and twice drove the i;ifant from the car, he was not thereby absolved from further duty towards the infant; but, the child still remaining in close proxi- mity to the car, the driver was required to exercise reasonable <:are to avoid injuring him.'' § 482. Child climbing on running board. A child, even of tender years, who trespasses on the running board or other part of an automobile in the highway is entitled only to the duty owed to a trespasser; i. e., the duty on the part of the operator not to injure him wilfully or wantonly, and the duty to take proper precautions agaiAst injuring him after discovering his presence.* 6 Albert v. Munch, 141 La. 686, 7S So. S13 (1917). -. 7 Ziehm v. Vale, 98 Ohio 306, 120 N. E. 702, 1 A. Ly R.,:^381 (1918)., 8 Madden v. Mitchell Auto Co., 21 Ga. App. 108, 94 S. E. 92 (1917). "Notwithstanding the plaintiff was an infant of immature years, he was wrong- fully upon the running board of the com- pany's engine, and was therefore a tres- passer. The only duty which a railroad company owes a ' trespasser is not to injure him waiStonly or wilfully; and or- dinarily this rqle iinposes upon the com- pany simply ,the duty of taking proper precautions after the presence of a tres- passer in a position of peril has been discovered. It will not do, however, to lay this down as an absolutely invariable rule. A railroad company may, by its own acts and conduct, impose upon itself the duty of anticipating the presence <3f a trespasser in such^ a position. * * * A railroad * * * cannot, in all cases, relieve itself from liability to a tres- passer by showing merely that its serv- ants and employees did not know of the presence of the trespasser, but in some cases it must go further and show that there were no circumstances froin which an ordinarily prudent person would have had reason to anticipate his presence. * * * Railroad companies may not be bound to anticipate that children will be allured by passing trains and attempt to board and ride upon them. But when the right of way of a railroad company extends through a place used as a play^ ground by a number of children of ages varying from 6 to IS years, and when these children are accustomed continu- ously, every time the train enters the playground when they" are upon it, to swarm upon the train and to ride to the limits of the playground, and when the employees of the company know of this custom and make no objection to it, the company' is bound to carry theiljurden which such a knowledge and tacit per- mission imposes, and this burden would require the company to comply with the demands of ordinary care for the pre- INJURIES TO CHILDREN 463 §483. Starting while child on running bqard. A chauffeur came out of a house, where he had been on business, and found several children playing about and on his truck, which he had left standing in the street. He told them to get off, looked around to see that they had done so, and, hearing the call that they all were off, started up his car, whereupon the plaintiff, who was on the running board on the left side and towards the street, fell off and was injured. It was held error for the court to charge that, "It was the duty of this di-iver to look out for children around his ttuck at the time he was about to start it, and he owed to all of those chil- dren the degree of care that a reasonably prudent man wduld exer- cise under the' circumstances." Said the court: "The plaintiff was on the off side, away from the side where the chauffeur entered the car and where he sat, and unless he looked with some particularity he might well miss seeing her down on the running board. It is a care of serious moment imposed upon the busy teamster to make a search around his car lest a child too young for discretion and undirected by par- ents has tucked herself away in an obscure place, beyond the casual and convenient notice of the driver. The driver, by such rule, in responsibility supersedes guardians and other custodians in watchfulness of the children on each block where his business re- quires him to stop. An automobile is a legitimate vehicle on the street, and entitled to stop without accumulating children upon it. I am not convinced that it is the usual duty of a chauffeur to search for infantile trespassers ensconced on the far side of his car. In this case it seems that the children in that neighborhood were ac- customed to play around the running board of the car, and when the man would come out they would get off. It seemed to the driver that the circumstances required him to look on both sides of the car, and he says that he did so before starting, and another wit- ness so testified. But there is evidence that when he looked the girl was on the left side. If he looked around the car, and did see the girl, he should have given her time to get off, and should have waited until she did get off. Farther than that, I see no grounds for suggesting that he was wanting in care." ' § 484. Boy permitted to ride on running board. Where there was evidence that a boy, 14 years of age, climbed upon the running board of defendants' truck, and with their knowledge and implied vention of injury to the children." Ash- ^Ostrander v. Armour & Co., 176 App. worth V. Southern R. Co., 116 Ga. 63S, Div. 152, 161 N. Y. Supp. 961 (1916). 59 L. R. A. 592. 464 LAW OF AUTOMOBILES consent rettiained thereon during a trip on a country road, for a distance of between 6 and 7 miles, when the automobile, at a curve in the road, left the road arid collided with a wire fencfe; serioiisly injuring the boy, it was held error for the trial cpiirt to direct a verdict for the defehdarits, the case being one for the jury; and this, althoilgh there was no proof against the defendants of active negligence." §485. Child found injured in street— Res ipsa loquitur. The mere fact that, shortly after the passage of a vehicle on a street, a, child was found lying in the street, that had apparently been run over, raised no case for the application of res ipsa loquitur}^ lOGrabau v. Pudwill, — N. D. — , " Schier v. Wehner, 116 Md. SS3, 82 178 N. W. 124 (1920). AU. 976 (1911). CHAPTER XIV INJURIES TO PERSONS EMPLOYED IN STREETS § 486. General rights and duties of per- sons employed in the streets. § 487. Prima facie case. §488. Laborer relying on warning being given. § 489. Street paver struck. § 490. Street sweeper struck from rear. § 491. Street sweeper struck by backing automobile. §492. § 493. Laborer working at night. Employee sweeping snow from car track. § 494. Police officer struck by automobile on wrong side of street. § 49S. Traffic officer colliding with ob- struction while exceeding speed limit. § 496. Street car employees crossing street from car. § 497. Taking wood from pile at night without displaying light. §498. Worker on floor of private sub- way used by automobiles. § 499. Telephone ; employee working at mailhole at night witnout red- light as required by ordinance. § 486. General rights and duties of persons employed in the streets. The rights of a laborer whose duties require hiih to be in that part of the street used by vehicles, with respect to such vehi- cles cannot be determined by the same rules applicable to pedes- trians with no occupation requiring their presence in that part' pf the street. Not that he is bound to exercise any less care, but be- cause the care to be exercised must he determined from a different standpoint. His care or want of care is a fact to be determined from all the circumstances surrounding him at the time.^ Drivers of i vehi- cles are bound to take notice of him and to exercise the care enjoined by law upon such drivers not to injure him, and he may rightfully 1 Clark V. Bennett, 123 Cal. 27S; King V. Green, 7 Cal. App. 473 ; Carnegbi v. Gerlach, 208 111. App. 340 (1917) ; Cecola V. 44 Cigar Co., 2S3 Pa. St. 623, 98 Atl. 77S (1916). One rightfully employed in a highway has the same rights therein as a traveler. Stone V. Forest City Ex. Co., lOS Me. 237. "It is said that such a man must keep 465 B. Autos. — 30 that lookout for cars and vehicles which an ordinarily careful man compelled to be in the street and to be giving atten- tion to his work would keep, and that such care must manifestly be a lesser , degree of care than that required of the traveler, who may come and go as he will." Bubb V. Milwaukee El. R. & L. Co., 165 Wis. 338, 162 N. W. 180. 466 LAW OF AUTOMOBILES assume that this will be done.'' He is not negligent, while not moving about, because he becomes engrossed in his work and does not look about or listen for approaching vehicles.' He is not called upon to exercise the same diligence in avoiding accidents as pedestrians or others who use the street merely as a medium of locomotion.* In a case in which a workman, who was engaged iii a kneeling position in paving a street, turned his head to attend to his work, and in doing so was struck by the hub of a rapidly driven vehicle, where there was room for such vehicle to pass at a safe distance, the court Said: "Plaintiff's occupation imperatively demanded his attention, and the use of his eyes. The noise of approaching ye- hicles was unavoidably inaudible to him. His person was plainly visible to the drivers of approaching vehicles — a fact in itself sufficient to excite the caution of an ordinarily prudent person. To hold him employed as he was, to the exercise of constant vigi- lance to avoid injury from the want of ordinary care on the part of the drivers of vehicles incessantly passing on a public thorough- fare, means either that he must expose himself and his fellow workmen to the risk of injury from inattentive performance of his work, or that he must abandon his work aljfogether." * Persons using the streets as travelers are bound to exercise rea- sonable care not to injure one who is rightfully working in the street.® And the workman in the street is not bound to neglect his work in order to avoid injury due to the want of ordinary care on the part of the drivers of vehicles.'' Thus, in a case where it appeared that the plaintiff was engaged in oiling street car tracks;, that he was facing in the directiqn from which a car, or vehicle obeying the law of the road, would approach; that he was walking, backward while at work; that he heard no warning; that the de- fendant's automobile approached from behind and struck and in- jured him, it was declared that the jury were justified in finding for the plaintiff.* 2 Nehring v. Monroe Stationery Co., Smith v. Bailey, 14 App. Div. 283 ; Ford — Mo. App. — , 191 S. W; 10S4 (1917). V. Whiteman, 2 Pennew. (Del.) 3SS, 45 8 Nehring v. M^pnroe Stationery Co., Atl. S43. — Mp. App. — , 191 S. W. 10S4 (1917). 7 Anselment v. Daniell, 4 Misc. 144, 23 4 Graves v. Portland R., L. & P. Co., N. V. Supp. 87S; Smith v. Bailey, 14 66 Oreg. 232 ; Cecola v. 44 Cigar Co., 2S3 App. Div. 283 ; Burger v. Taxicab Motor Pa. St. 623, 98 Atl. 775 (1916). Co., 66 Wash. 676, 123 Pac. S19 (1912); B Anselment v. Daniell, 4 Misc. 144, 23 Ferguson v. RejTiolds, , — Utah ^, 176 N. Y. Supp. 87S. Pac. 267 (1918). 8 Quirk V. Holt, 99 Mass. 164, 96 Am. 8 King v. Green, 7 Call App. 473, 94 Dec. 725; Riley v. Farnum, 62 N. H. 42; Pac. 777. INJURIES TO PERSONS EMPLOYED IN STREETS 467 In an action' to recover for the dieath of a traffic officer, who was killed by an automobile while he was on duty at the intersection of two streets, the trial court properly instructed the jury that they should take into account that "that man, as a traffic officer, had duties to perform there, other than looking after his own safety," and tha,t he "had the right to expect that those traveling those streets lyould take into consideration the fact that he had duties to perform there, and that he could not look after himself as \;vpuld one who had nothing to do but walk around those streets." ' While such laborer cannot exercise the same care while in the streets as others, he is bound to exercise reasonable care to avoid the dangers by which he is surrounded, and if actually guilty of contributory negligence he cannot recover for his injuries.^" § 487. Prima facie case. The testimony of the plaintiff and a witness that while plaintiff was engaged in his work in a public highway on a bridge approach, and without any movement on his part, he was struck by defendant's automobile approaching from the rear, established a prima facie case. Other evidence that the plaintiff, without looking, suddenly moved immediately in front of the automobile, did not preclude plaintiff from recovery, but merely presented a question for the jury.^^ § 488. Laborer relying on warning being given. Whether or not one at work shoveling sand in the street a few inches from a car track, was negligent in continuing his work and relying upon a warning from an approaching car, whose motorman could pre- sumably see him, and which he saw when a block away, and which ran him down without warning, was held to be a question for the jury.^^ § 489. Street paver struck. The plaintiff, while at work in a public street, was struck by defendant's automobile just after he had picked up a Belgian block to carry it over to a hole in the street. His testimony was that just before he stooped down for the block he had looked and had seen nothing coming towards hipi. Several witnesses called by him testified that the driver of the aufo- 9 White V. East Side M. & L. Co., 84 " Nehring v. Monroe Stationery Co., Oreg. 224, IS N. C; C. A. 848, 164 Pac. — Mo. App. — , 191 S. W. 1054 (1917). 736(1917). l^Cloonan v. Brooklyn Heights R. 10 Smith V. Bailey, 14 App. Div. 283; Co., 87 Misc. 177, 149 N. Y. Supp. 481 Campfeell v. Wood, 22 App. Div. S99; (1914). Burgeir v. Taxicab Motor Co., 66 Wash. 676, 123 Pac. 519 (1912). 468 LAW OF AUTOMOBILES mobile had given no warning of its approach^ Under this testi- mony it was held that the questions of negligence and contributory negligence were for the jury, and judgment for plaintiff was affirmed.^' § 49Q. Street sweeper struck from rear. Where there was evidence that the plaintiff, a street sweeper, was standing between the street car tracks and the south curb of the street, performing his duties, with his back to the west, and in full view of drivers of automobiles approaching from the west, but that defendant never- theless ran him down and injured him, the case was properly sub- mitted to the jury.''* §491. Street sweeper struck by backing automobile. Where a chauffeur backed an automobile out of a garage, across the; sidewalk, and in a curve to the center of the street, some SO or 60 feet from the garage, with the top up, and sounding the horn when he started out, when he was on the sidewalk, and again as he was entering the street, looking all the while in the opposite direction from that in which he was moving, and at the point men- tioned collided with the plaintiff, a street sweeper, who was work- ing with his back towards the approaching machine and did not see it until he was struck, it was held that the chauffeur was neg- ligent, and that the plaintiff ' was not negligent in having his eyes on his work and not seeing the automobile; this although before starting out of the garage the chauffeur asked some schoolbioys if the way was clear, and received an affirmative answer. The court declared that the horn blown at the west curb of the street vyas no notice to plaintiff that a car was circling around to run over him in the middle of the street." § 492. Employee sweeping snow from car track. Plaintiff, while engaged in sweeping snow from a street car track, about 6:30 one. December iporning, was struck and injured, by defencjant's automobile. There had been a new fall of about six inches of ^now during the night, and a snowplow had been driven over the track. It was the duty of the plaintiff to sweep the rail clear, and pick out the ice and snow from around the switch tongue. While engaged in his work, he was facing north. The car approached from the south. Just before he was struck, he was stooping over, engaged 18 Cecola V. 44 Cigar Co., 2S3 Pa. St. IB Ostermeier v. Kingman-St. Louis 623, 98 Atl. 775 (1916). Imp. Co., 2SS Mo. 128, 164 S. W. 218 14 Latham V. Harvey, — Mo. App. —, (1914). 218 S. W. 401 (1920). INJURIES TO PERSONS EMPLOYED IN STREETS 469 in qlearing the s\jdtch tongue. He raised himself to his full height, and was almost immediately struck by the car. There was suffi- cient in the record to warrant the finding of the jury that no hqrn yvfa,s sounded, and it was possible for the jury to find also that the lamps on the automobile were not lit. In affirming judgment for plaintiff the court said: "Respondent was on, the street at a time when there was but very little traffic. His labor demanded that he work on the side of the street that was in the path of traffic. The driver of the automobile might have seen him in ample time to stop his machine. He says he could have stopped it in seven or eight feet at the rate he was going, but that he did not see respondent." ^® § 493. Laborer working at night. The deceased was a mem- ber of a sewer gang working at night, which had just finished flush- ing a catch-basin, and he was engaged in rolling up a three-inch fire hose, which was stretched on the street. This necessitated that he walk slowly in a stooping position, and give at least some attention to his work. One of the men carried a red light, but deceased did not have it near him. There was evidence that the defendant's taxicab, moving at. the rate of at least 2 S miles an hour, equipped with lamps throwing a light 200 to "250 feet, and with brakes — emergency and transniission — which could be applied, simultaneously and in an instant, struck the deceased, and killed him. The chauffeur testified that he did not see deceased until within 25 feet of him; that he applied both brakes at once. Sliding the wheels, and the cab went 25 feet before it stopped. There was also evidence that the chauffeur could have seen deceased when he was more than 100 feet away; that no horn or other warning was sounded; that when the cab was stopped, deceased was lying with his legs under the front of it, 18 or 20 feet from the coil of hose he had been rolling when he was struck. The chauffeur was excused from sounding a horn for the street intersection where the men were at work, because the cross street was closed to traffic. It was held that the questions of negligence and contributory negli- gence were for the jury, and judgment for plaintiff was affirmed." § 494. Police ofiicer struck by automobile on wrong side of street. A traffic officer is not required to exercise the same degree of care in looking for approaching vehicles as an ordinary pedes- trian. Where such an officer was struck from behind by a vehicle driven on the wrong side of the street, while he was walking a few 16 Morrison v. Conley Tixicab Co., 94 i'' Burger v. Taxicab Motor Co., 66 Wash. 436, 162 Pac. 365 (1917). , -Wash. 676, 123 Pac. S19 (1912). 470 LAW OF AUTOMOBILES feet to the left of the center of the street, he was not guilty of con- tributory negligence in failing to look, as he had a right to assume that owing to his presence vehicles would keep to the right." The deceased, a policeman, while engaged in the performance of his duty, was struck and killed by defendant's automobile, be- tween 12 and 1 o'clock at night. There was evidence that the automobile was being run at a very high rate of speed, and that it was on the wrong side of the roadway. It also appeared that the operator saw the deceased before the accident, and could have avoided running into him by exercising the care the law required of him. In affirming judgment for plaintiff, the court said: "The intestate, as said, was a police officer, and at the time was per- forming his duty as such. He was, undoubtedly, required, in view of the performance of the work assigned to him, to use reasonable care to prevent being run over. He was not, however, obligated to use tiie same degree of care that would be required of an ordina;ry pedestrian. The rule to be a,pplied; in view of the work which he was doing, is similar to that applied to persons who are employed by a municipality to work upon the public streets.'?^® § 495. Traffic officer colliding with obstruction while exceed- ing speed limit. It is held in some states that peace officers are not excepted from the operation of laws limiting the speed of vehi- cles on public highways. While it is declared that exceptions should be made in favor of those whose special duty it is to detect and arrest persons violating speed laws; while discharging such duty, such exception must be made by the Legislature, and cannot be made by the courts.*" Exception is sometimes made in respect to speed in traffic laws in favor of traffic officers in the performance of their duties.*^ "His right to the street is not exclusive, and he cannot wilfully and must not carelessly run down others lawfully on the street. The fundamental common law rule, notwithstanding conceded priorities of right upon the highway, still persists as the basic con- ception of relative rights. Sic utere ut alienum non Idedas is the basic maxim determinative of relator's rights." ** Although a traffic policeman was exempted from the provisions 1* Xenodochius v. Fifth Avenue Coach 20 Desmond v. Basch & Greenfield, — Co., 129 App. Div. 26, 113 N. Y. Supp. N. J. L. — , 108 AU. 362, (1919). 13S. I 21 Clark v. Wilson, — Wash. — , 183 19Fitzsimons v. Isman, 166 App. Div. Pac. 103 (1919). 262, ISl N. Y. Supp. SS2 (1915). 22 Desmond v. Basch & Greenfield, — ■ N. J. L. — , 108 Atl. 362 (1919). INJURIES TO PERSONS EMPLOYED IN STREETS 471 of a speed ordinance, it was held that he must use ordinary care for his safety.*' A motor-cycle policeman, acting in the line of his duty, was held not to be contributorily negligent as matter of law in traveling at 35 or 40 miles an hour.** A police officer, charged with detecting violations of the speed law, and arresting the violators, was held to be negligent as a mat- ter of law in riding his motor-cycle at SO or 60 miles an hour while pursuing a speeding automobile in the nighttime, and who collided with a wagon negligently left in the street without red lights being placed on it as required by ordinance. It was held, however, that he was not precluded from recovering for injuries so incurred unless his negligence concurred with that of the contractor in proximately causing the accident; and that it was for the jury to determine whether his negligence was a proximate cause of his injuries.** § 496. Street car employees crossing street from car. Where a motorman stopped his car, alighted therefrom, looked up and down the street, then passed behind the car to cross to the other .side of the street, and was immediately struck on the leg by defendant's automobile, which was being driven at a high rate of speed within a few inches of the side of the car, and in a narrow spa,ce between the car and the curb, it was held that the case was for the jury.** The plaintiff was a conductor on an electric car, and was struck and injuted by defendant's automobile while he was crossing the road at night to operate a signal light. He alighted from the right side of his car, passed behind it, and was struck by the automobile, which approached from the rear, while he was passing to the left side of the road to reach the signal; having reached a point over a switch track at the left of the car, and some S or 6 feet froni. the car, when he was struck. It appeared that the automobile had been in company of the car for some distance, passing the car when the latter stopped, and dropping to the rear when the car got under way; and that the conductor had stopped and made these signal changes several times. The automobile was moving about 10 miles an hour. The road on the right of the car being better than that on the left, the left side being rough and occupied by a 28 Miner v. Rembt, 178 App. Div. 173, App. — , 9 N. C. C. A. 66S, 173 S. W. 164 N. Y. Supp. 945 (1917). 518(1915). 2* Clark V. Wilson, — Wash. — , 183 26Dugan v. Lyon, 41 Pa. Super Ct. Pac. 103 (1919). 52 (1909). 2BKeevil v. Ponsford, — Tex. Civ. 472 LAW OF AUTOMOBILES' switch track, the conductor said that he expected jthe automobile, the presence of which he ,knew of, to pass to the right of the car. It was held that the case was^ for the jury, and judgment for plaintiff was affirmed. The court declared that the law of the rdad is not such an absolute rule that plaintiff was bound to presume that the defendant would pass the car on the left, regardless of the condition of the road on that side, and the better condition of the roa,d on the right. Further the court said: "If he looked, and saw that he had room to pass around the rear end of the trolley car, and had a right to assume that the motor car would pass to the right hand side, it was not contributory negligence, as matter of law, for the plaintiff to keep his eyes upon the signal light and to run across the: roadway to give his^ signal without paying further attention to the driver of the motor car. A man iij the discharge of his duties has a right to rely in some measure, upon other people discharging their duties toward him, and it was a proper question for the jury whether the plaintiff, who was in full view of the chauf- feur, had exercised that degree of care which the circumstances demanded." "'' § 497. Taking wood from pile at night without displayiiig light. Where the plaintiff was in the street in front of his house, after dark, in a stooping poSture, putting wood into a basket from a pile which extended on both sides of the curb, when he was Struck by defendant's automobile, negligently driven, it was held that he could not recover because he had failed to display a light oVer the pile of wood as required by ordinance; such neglect constitut- ing contributory negligence.** § 498. Worker on floor of private siibway used by automo- biles. The plaintiff was engaged in the work of repairing the floor of a subway through which thfe a.utomdbiles of defendant passed to and from a union station carrying mail. The subway was about 200 feet in length, about 20 feet Wide and 20 feet high. It wks much used] and men were frequently engaged in repairing same. It extended north and sotith, and plaintiff was at work about 2 feet from the east side and 95 feet north of the south entrance. He was working with hammer and chisel taking out a small por- ' tion of the floor, resting on one knee, when defendant's truck, heavily laden and moving 4 miles an hour, ran upon his leg and crushed it. The subway was well lighted. As a rule trucks going north used the east side of the subway, while those going south 27 Kalb V. Redwood, 147 App. Div. 77, *8 Holub v. Cootware, 169 Wis. 176,' 131 N. Y. Supp. 789 (1911). 170 N. W. 939 (1919). : INJURIES TO PERSONS EMPIi^OYED IN STREETS 473 occupied the west side. Before conimencing work, plaintiff's fore- man caused a plank about 10 feet long to be stationed across the east half of the south entrance to the subway with a view of pre- venting conveyances from entering that portion. This was the only precaution taken for the protection of those employed in the sub- ; way. The plaintiff was in view of the driver for a distance of 100 feet, and the truck could have been stopped within 4 or 5 feet. Ii^ affirming judgment .for plaintiff, the court held that the rule applicable between a railroad company and its employees on sec- tions, to the effect that a railroad company owes such an employee no duty to warn him of an approaching train, was not applicable to this case. As to the theory of defendant's liability the court said: "The case is similar to and should be disposed of in accordance with the principle which attends the use of a public street. In such circumstances, the law devolves the duty upon defendant's driver to anticipate the presence of persons engaged as plaintiff was as within the range of reasonablfe probability, and to exercise due care in making observations to the end of rendering them rea- sonably secure from injury by being run upon." On the question of plaintiff's contributory negligence, the court said: "It appears the question concerning plaintiff's coritributdry negligence, if any, was one for the jtlry. It is true he was on his knees at work and looking toward, the east wall of the subway at the timef; that is to say, he was not looking to the south for the approach of an automobile upon him. Obviously he may not be declared negligent as a matter of law for such conduct, for he knew that a barrier had been erected at the east side of the southern entrance suggesting the presence of workmen, and he knew, too, that an abundance of light prevailed, so those approadiing might discover his presence there. It is certain that the law does not require one so situated to anticipate negligence on the part of others." ^9 §499. Telephone employee working at manhole at night without red light as required by ordinance. The deceased was superintendent of undergrpund construction for a telephone com- pany, and while at work late in the evening near an open manhole in the street directing the work of a man in the manhole, he was struck and killed by defendant's automobile. An ordinance re- quired the use of a red lantern at the opening, but none was used. About the opening of the manhole was a wooden rack, made of 29Papic V. Freund, — Mo. App. — , 181 S. W. 1161 (1916). 474 LAW OF AUTOMOBILES four stout corner posts, to which two rails were fastened, and which was about two and a half feet square, and about two and a half feet high, ajid which was painted a bright red color. A candle used about a foot below the opening shed a light on the red frame which could be seen at least 100 feet, and gave the appearance of a red light to any one standing in the street. The street was well lighted, and the deceased could have been seen by anyone approach- ing northerly in the street for several hundred feet, and there was nothing to obstruct a view of him and the red flame. The defend- ant's automobile approached, moving in a northerly direction at 35 or 40 miles an hour. It had just begun to rain, but there was still some light from the sun. The automobile carried the usual lights. The driver was looking away as the machine approached the street crossing where deceased was engaged and he gave no warning of its approach. The intestate saw the automobile, and when it was at a distance of ISO feet, called to the driver to hold up. The intestate believed that the automobile would turn out or stop, and with the purpose of saving the occupants from danger, or prompted by a desire to save the workman in the manhole from danger, or because he was suddenly perplexed and bewilderd by the danger of the situation, or had no opportunity to get out of the way, he remained in the street near the red rack, and was struck and killed. It was held that the case was for the jury, and that it was for the jury to say whether the absence of a red light at the manhple, in violation of an ordinance, was a contributing cause of the acci- dent, and whether deceased, in remaining at the manhole after see- ing the approach of the automobile, acted as a reasonably prudent person. Judgment for plaintiff was accordingly affirmed.'" 80 Case V. Clark, 83 Conn. 183, 76 Atl 518 (1910). CHAPTER XV INJURIES TO OCCUPANT OTHER THAN DRIVER § SOO. Negligence of operator not at- tributable to occupant. § SOI. The rule in Michigan and Wis- consin. § S02. As between members of family. § 503. Husband and wife riding in com- munity property automobile. § S04. As between co-employees. § SOS. As between members of fire de- ' partment. § S06. As between policemen and auto- mobile patrol chauffeur, § 507. As between nurse and driver of ambulance. § 508. As between dealer's chauffeur and prospective purchaser. § 509. Presumption when passenger is killed. § 510. Operator and occupant as fellow servants. §511. Rules of the road as applicable. § 512. Occupant having right of control of automobile. §513. Speed statute not applicable to guest. § Sl4. Joint or common enterprise. §515. Same — Illustrations. § 516. Same — -Co-employees. § 517. Same — Operator and invited guest. § 518. Same — Guest suggesting ride and directing course to take. § 519. Same — Policeman and patrol driver — Fireman and driver. § 520. Care required of occupant. §521. Same — ^Intoxicated occupant. 475 522. Occupant not required to take same precautions as driver. 523. Occupant inactive iii presence of danger. ,524. Failure to look for danger. 525. Riding with back towards danger. 526. Failure to direct or warn driver or to alight. 527. Failure to protest against negli- gence. ^ 528. Passenger injured by overturning of automobile due to striking dog. 529. Collisions with street cars. 530. Same — ^Automobile stalled on track. 531. Same — Captain of fire department with control over driver. 532. Riding on rjinning board of truck, struck by rear of street car rounding curve. 533. Collisions with railroad trains — Duty of occupant. 534. Same — Occupant in rear seat. 535. Same — Father watching son drive. 536. Same — Crossing bell ringing. 537. Same-^IUustrations. 538. Jumping from automobile on ap- proach of train which gives no crossing signal. 539. Riding with intoxicated or negli- gent driver. , 540. Same — Occupant and driver drink- ihg together. 541. Riding in automobile without proper lights. 476 LAW OF AUTOMOBILES § 542. Overloaded automobile. § S43. Participation or acquiescence in driver's negligence. § 544. Statute imputing negligence of operator to gratuitous passen- ger void. § 545. Liability of operator or owner ,to guest for negligence. §546. Same. § 547. Same — Driving into open canal. § 548. Same — Guest invited by servant of owner. § 549. Guest injured by skidding of auto- ; mobile — Res ipsa loquitur. § 550. Passenger jumping from automo- bile, while in . motion. § 551. Duty and Jiability to person re- questing ride. § 500. Negligence of operator not attributable to occupant. With the exceptions not^ in the next succeeding section the law is that the "negligence of the operator of an automobile is not attribut- able to a guest or passenger, whether gratuitous or for hire, where such: guest or passenger has no right of control over the operator or machine, and exercises no control over either.^ And this is, true '^Alabama: Birmingham R., L. & P. Co. V. Barranco, — Ala. — , 84 So. 839 (1920); Birmingham S. R. Co. v. Har- rison, ,— Ala. — , 82 So. 534 (1919) ; Johnson v. Louisville & N. R. Co., — Ala. — , 82 So. 100 (1919) ; Karpeles v. City Ice Del. Co., 198 Ala. 449, 73 go. 642 (1916); Galloway v. Perkins, 198 Ala. 658, 73 So. 956 (1916); Central of Georgia R. Co. v, Jones, 195 Ala. 378, 70 So. 729; Birmjngham-t. R. & U. Co. V. Carpenter, 194 Ala. 141, 69 So. 626 (1915). Arkansas: Carter v. Brown, 136 Ark. 23, 206 S.W. 71 (1918); Ward v. Ft. Smith L. & T. Co., 123 Ark 548, 185 S. W. 1085 (1916) ; Minor v. Mapes, 102 Ark. 351, 144 S. W. 219, 39 L. R. A. (N. S.) 214 (191-2). California: Irwin v. Golden State Auto Tour Co., 178 Cal. 10, 171 Pac. 10S9 (1918); Nichols v. Pacific El. R. Co., 178 Cal. 630, 174 Pac. 319 (1918) ; Bryant v. Pacific EI. R. Co., 174 Cal. 737; 164 Pac. 385 (1917) ; Hagenah v.' Bid- well, — Cal. App. — , 189 Pac. 799 ( 1920) ; Stewart v. San Joaquin L. k P. Co., — Cal. App. — , 186 Pac. 160 (1919); Ellis v. Central Cal. Tr. Co., — Cal. App. — , 174 Pac. 407 (1918) ; Par- menter v. McDougall, 172 Cal. 306, 156 Pac. 460 (1916) ; Lynn V. Goodwin, 170 Cal. 112{ 148 Pac. 927, 9 N. C.'C. A. 915 (1915); Tousley v. Pacific El. R. Co., 166 Cal. 457, 137 Pac. 31, 8 N. C. C. A. 1033 (1913); Thompson v. Los Angeles & S. D. B. R,.,Co., 165 Cal. 748, 134 Pac. 709, 4 N. C! C. A. 379 (1913); Lininger V. San Francisco, V. & N. V. R. Co., 18 Cal. App. 411, 123 Pac. 235 (1912). Colorado: Denver City Tr. Co. v. Armstrong, 21 Colo. App. 640. Connecticut: Wieidlich v. New York, N. H. & H. R. Co., — Conn. — , 106 Atl. 323 (1919) ; Chodes v. Clark Seed Co., — Conn. — , 111 Atl. 58 (1920); Wing v. Eglntpn; 92 Conn. 336, 102 Atl. 655 !(1918). Delaware: Campbell v. Walker, 2 Boyce (Del.) 41, 78 Atl. 601 (1910). Florida: Porter v. Jacksonville El. Co., 64 Fla. 409, 59 So. 400, 4 N.,C. C. A. 379 (1912). Georgia: Seaboard Air Line Ry. v. Barrow, 18 Ga. App. 266, 89 S. E. 383 (1916); Adamson y. McEwen, 12 ,Ga. App. 508, 77 S. E. 591 (1913). Illinois: Vanek v. Chicago City R. Co., 210 111. App. 148 (1918); Fredericks V. Chicago Rys. Co.; 208 IlL App. 172 (1917); Sutton v. Chicago, 195 111. App. 261 (1915),; Henderson v. Chicago Rys. qo., 170 111. App. 616; Odett v. Chicago City R. Co., 166 111. App. 270. INJURIES TO OCCUPANT OTHER THAN DRIVER 477 Indiana: Union Tr. Co. v. Haworth, — ind. ^, lis N. E. 753 (1917); Chi- cago, I. & L. R. Co. V. Lake County S. & T. Co., 186 ind. 3S8, 114 N. E. 4S4 (1916); Marion & Bluffton Tr. Co. v. Umpliress, — Ind. App. — , 127 N. E. S68 (1920) ; LaTce Erie & W. R. Co. v. Hpwarth, — ind. App. — , 124 N. E. 687 (1919) ; Lake Erie & W. R. Co. v. Reed, 57 Ind. App. 65, 103 N. E. 127, 4 N. C. C. A. 22 (1913) ; Indiana Union Tr. Co. V. Love 180 Ind. 442, 99 N. E. 1005 (1912). Iowa: Wagner v. Kloster, .— la., — , 175 N. W. 840 (1920) ; Nels v. Rider, — la. — , 171 N. W. 150 (1919) ; Willis v. Schertz, — la. — , 175 N. W. 321 (1919) ; Withey v. Fowler Co., 164 la. 377, 145 N. W. 923 (1914). Kansas: Corley v. Atchison, T. & S. F. R. Co., 90 Kan. 70, 133 Pac. 555 (1913). Kentucky: Louisville & N. R. Co. v. Scott's Admr!, 184 Ky. 319, 211 S. W. 747 (1919) ; Coughlin v. Mark, 173 Ky. 728, 191 S. W. 503 (1917); Hackworth V. Ashby, 165 Ky. 796, 178 S. W. 1074 (1915) ; Beard v. Klusmeier, 158 Ky. 1S3, 164 S. W. 319, 50 L. R. A. (N. S.) 1100 (1914) ; Livingston & Co. v. Philley, ISS Ky. 224, 159 S. W. 665 (1913). Louisiana: Maritzky v. Shreveport R. Co., 144 La. 692, 81 So. 253 (1919); Ja- cobs v. Jacobs, 141 La. 272, 74 So. 992 (1917); Broussard v. Louisiana W. R. Co. 140 La. 517, 13 N. C, C. A. 910, 73 So, 606 (1917). Maine: Sykes v. Maine Cent. R. Co., Ill Me. 182. Maryland: Baltimore & O. R. Co. v. State,: 133 Md. 219, 104 Atl. 465 (1918); United Rys. & El. Co. v. Grain, 123 Md. 332, 91 Atl. 405 (1914). Massachusetts: Fahy v. Director General, — Mass. — , 126 N. E. 784 (1920) ; Griffin v. Hustis, — Mass. — , 125 N. E. 387 (1919); Bullard v. Bos- ton Elevated R. Co., 226 Mass. 262, 115 N. E. 294 (1917). Minnesota: Fraught v. Great North- ern R. Co., — Minn. — , 175 N. W. 998 (1920); Kalland v. Brainerd, 141 Minn. 119, 169 N. W. 475 (1918); Carson v. Turrish, 140 Minn. 445, 168 N. W. 349 (1918); McDonald v. Mesaba R. Co., 137 Minn. 275, 163 N. W. 298 (,1917) ; Kokesh v. Price, 136 Minn. 304, 16 N. C C. A. 1050, 161 N. W. 715 (1917); Zen- ner y. Great Northern R. Co., 135 Minn. 37, 159 N. W. 1087 (1916) ; Ploetz v. Holt, 124 Minn. 169, 144 N. W. 745 (1913); Carnegie v. Great Northern R Co., 128 Minn, 14, 150N.W. 164 (1914) Missouri: Davis v. City L. & Tr. Co. — Mo. App. — , 222 S, W. 884 (1920) ., Rappaport v. Roberts, — Mo. App. — . 203 S. W. 676 (1918) ; Newton V. Har- vey, -^ Mo. App. — , 202 S. W. 249 (1918) ; Montague v. Missouri & K. I. R. Co., — Mo. App. — , 193 S. W. 935 (1917) ; Byerley v Metropolitan St. R. Co., 172 Mo. A^p. 470, 158 S. W. 413 (1913); Graham v. Sly, 177 Mo. App. 348, 164 S. W. 136 (1914) ; McFadden v. Metropolitan St. R. Co. 161 Mo. App. 652, 143' S.W. 884, 1 N. C. C.A. 134n (1912) ; Rush V. Metropolitan St, R. Co., 157 Mo; App. 504, 137 S. W. 1029 (1911). Montana:: Sherris v. Northern Pac. R Co., 55 Mont. 189, 175 Pac. 269 (1918) New Jersey: Tronto v. Reo Motoi Co., 92 N. J. L. 595, 106 Atl. 383 (1919) ; Lange v. New Xprk, S. & W. R. Co., 8? N. J. L. 604, 99 Atl. 346 (1916) ; Hor- andt v. Central R. Co., 81 N. J. L. 488, 83 Atl. 511 (1911). New York: Terwilligejr v. Long Island, R. Co., 152 App. Div. 168, 136 N. Y. Supp. 733 (1912) ; Sherwood v. New York Central & H, R. R. Co., 120 App. •Div. 639, 105 N. Y. Supp. 547; Read v. New York Central & H. R. R. Co., 123 App. Div. 228, 107 N. Y. Supp. 1068; Hoag V. New York Central & H. R. R. Co., Ill N. Y. 199, 202, 18 -N. E. 648; Robinson v. New York Central & H. R. R. Co., 66 N. Y. 11; Ward v. Brooklyn Heights R. Co.,' 119 App. Div. 487, 104 N. Y. Supp. 95, aff'd 190 N. Y. 559; 478 LAW OF AUTOMOBILES Noakes v. New York Cent. & H. R. R. Co., 121 App. Div. 716, 106 N. Y. Supp. 522, affy 195 N. Y. S43 (1909); Sinica V. New York R. Co., 190 App. Div. 727,' 180 N, Y. Supp. 377 (1920); Fraser v. State, 182 N. Y. Supp. 491 (1920). North Carolina: Williams v. Blue, 173 N. C. 452, 92 S. E. 270 (1917) ; McMil- lan V. Atlanta & C. A. L. R. Co., 172 N. C. 853, 90 S. E. 683 (1916) ; Hunt v. North Carolina R. Co., 170 N. C. 442, 87 S. E. 210 (1915). North Dakota: Chambers v. Minne- apolis, St. P. & S. S. M. R. Co., 37 N. D. 377, 163 N. W. 824 (1917;), citing this work. Ohio: Toledo R. & L. Co. v. Mayers, 93 Ohio 304, 112 N. E. 1014 (1916). Oklahoma: Oklahoma R. Co. v. Thomas, — Okla. — , 164 Pac. 120 (1917), citing this work. Oregon: Robison v. Oregon-W. R. R. & N. Co., 90 Oreg. 490, 176 Pac. 594 (1918); Sanders v. Taber, 79 Oreg. 522, 155 Pac. 1194 (1916) ; Tonseth v. Port- land R., L. & P. Co., 70 Oreg. 341, 141 Pac. 868 (1914). Pennsylvania: Keinath v. Bullock, — , Pa. St. — , 110 Atl. 755. (1920) ; Wanner V. Philadelphia & R. R. Co., 261 Pa. St. 2y3, 104 Atl. 570 (1918) ; Vocca v. Penn:- sylvania R. Co., 259 Pa. St. 42, 102 Atl. 283 (1917); Sisson v. Philadelhpia, 248 Pa. St. 140; 93 Atl. 936 (1915) ; Senft v. Western Maryland R. Co., 246 Pa. St. 446, 92 AU. 553 (1914) ; Wachsmith v. Baltimore & O. R. Co., 233 Pa. St. 465, 82 Atl. 755, 4 N. C. C. A. 386, Ann. Cas. 1913B 679 (1912); Yeahing v. Balti- more & 0. R. Co., 233 Pa. St. 468, 82 ^ Atl. 756 (1912) ; Donnelly v. Philadel- ' phia & R. R. Co., S3 Pa. Super. Ct. 78 (19i3) ; Kerr v. Philadelphia & R. R. Co., S3 Pa. Super.' Ct. 83 (1913) ; Neu- miller v. Acme Motor Car Co., 49 Pa. Super. Ct. 183 (1912). Tennessee: Stem v. Nashville Int. Ry., - Tenn. — , 221 S. W. 192 (1920). Texas: Zucht v. Brooks, — Tex. Civ. App. — , 216 S'. W. 684'(1919) ; Chicago, R. I, & G. R.'Co. V. Wentzel, — Tex. Civ: App. — , 214 S. W- 710 (1919); Texas El. R. Co. y. Crump, — Tex. Civ. App. — , 212 S. W. 827 (1919); El Paso El. R. Co. V. Benjamin, — Tex. Civ. App. — , 202 S. W. 996 (1918) ; Lyon v. Phillips, — Tex. Civ. App. — , 196 S. W. 995 (1917). Utah: Cowan v. Salt Lake & U. R. Co., — Utah —,.189 Pac. 599 (1920); Montague v. Salt Lake & U. R. Co., — Utah — , 174 Pac. 871 (1918); Loch- head V. Jensen, 42 Utah 99, 129 Pac. 347 (1912). Vermont: Bancroft v. Cote, 90 Vt. 358, 98 Atl. 915 (1916); Wentworth v. Waterbury, 90 Vt. 60, 96 AU. 334(1916). Washington: Dillabough v. Okanogan County, 105 Wash. 609, 178 Pac. 802 (1919) ; Beach v. Seattle, 85 Wash. 379, 148 Pac. 39 (1915); Wilson v. Puget Sound El. Ry., 52 Wa'sh. S22, 101 Pac. SO (1909). Federal: Hines v .Johnson,, 264 Fed. 465 (1920); Bernhardt v. City & S. R. Co., 263 Feid. 1009 (1920),; Harmon v. Barber, 247 ,Fed. 1, 159 C. C. A. 219; Long Lsland R. Co. v. Darnell (C. C. A.), 221 Fed. 191 (1915); Brommer v. Pennsylvania R. Co., 179 Fed. 577, 103 C. C. A. 135 (1910) ; Dale v. Denver City Tr. Co., 173 Fed. 787, 97 C. C. A. 511 (1909),; Little v. Hacket, 116 U. S. 366, 6 Sup. Ct. 391, 29 L. Ed. 652. "The rule fairly deducible from our own cases, and supported by the great weight of authority by courts of other jurisdictions, is that, where an adult person, possessing all his faculties and personally in the exercise of that degree of care which common prudence re- quires under all the attending circum- stances, is injured . through the negli- gence of some third person and the con- curring negligence of one with whom the plaintiff is riding as guest or companion, between whom and the plaintiff th^ re- lation of master ;and servant, or prin- INJURIES TO OCCUPANT OTHER THAN DRIVER 479 although the guest selected the driver as host.* If such passenger is injured he is to be judged by the duty that the law imposes upon him under the circumstances existing at the time of the accident.* This rule applies where the injured person was in the act of boarding an automobile with the intention of becoming a guest of the driver.* It is not essential to the application of this rule that the rela- tion of carrier and passenger exist between the operator or owner and the passenger.* Nor is there any distinction between a pas- cipal and agent, or mutual responsibility in a common enterprise does not, in fact, exist, the plaintiff being at the time in no position to exercise authority or con- trol over the driver, then the negligence of the driver is not imputable to the injured person but the latter is entitled to recover against the one through whose wrong his injuries were sustained." Shultz V. Old Colony St. Ry., 193 Mass. 309, 79 N. E. 873, 8 L. R. A. (N. S.) 597, 9 Ann Cas.402, 118 Am. St. Rep. 502. "The doctrine that one who volun- taril;^ becomes a passenger in a convey- ance thereby so far identifies himself with the driver that he cannot recover for an injury negligently inflicted by a third person, if the driver's negligence was a contributing cause, never gained much of a foothold in this country, and is now repudiated in England, where it originated." Corley v. Atchison, T. & S. F. R. Co., 90 Kan. 70, 133 Pac. 555 (1913). The negligence of the driver of a ve- hicle transporting freight is not imput- able to the owner of the freight, if he is not the owner's servant. Henderson v. Chicago Rys. Co., 170 111. App. 616. When negligence of operator is sole cause of injury, recovery cannot be had from third person. Birmingham R., L. & P. Co. v. Ely, 183 Ala. 382, 62 So. 816, (1913) ; Lake Erie & W. R. Co. v. Reed, 57 Ind. App. 65, 103 N. E. 127, 4 N. C. C. A. 22 (1913); Dale v. Denver City Tr. Co,, 173 Fed 787, 97 C. C. A. 511 (1909). This rule applied where soldiers were riding in a truck driven by a sergeant; all acting under orders of superior offi- cers. Charleston & W. C. R. Co. v. .Alwang, 258 Fed. 297 (1919). Guests riding on the inside ,oi a limousine driven on a crowded street by a chauffeur of presumed skill and ex- perience, are not to be charged with the chauffeur's negligence. BuUard v. Bos- ton Elevated R. Co., 226 Mass. 262, 115 N. E. 294 (1917). "One who is injured by reason of a defective bridge' while riding in a private vehicle may recover from a county other- wise liable, notvvithstanding the negli- gence of the driver, which may have con- tributed to produce the injury; the in- jured party being free from negligence and having no authority or control over the driver." Reudelhuber v. Douglas County, 100 Neb. 687, 161 N. W. 175 (1916). 2 Wiley V. Young, 178 Cal. 681, 174 Pac. 316 (1918). SNoakes v. New York Cent. & H. R. R. Co., 121 App. Div. 716, 106 N. Y. Supp. 522, aff'd 195 N. Y. 543 (1909). 4 Irwin V. Golden State Auto Tour Co., 178 Cal. 10, 171 Pac. 1059 (1918). BPerkihs V. Galloway, 184 Ala. 265, 69 So. 87^ (1915). , Carrier of persons without reward are required by statute (Civ. Code, sec. 2096) in California to exercise ordinary care. Nichols V. Pacific El. R. Co., 178 Cal. 630, 174 Pac. 319 (1918). 480 LAW OF AUTOMOBILES senger in a public hired automobile, and one riding ^ in a private conveyance.® The fact that the passenger directs the chauffeur where to go and what route to take, does not affect the question.'' The mere fact that a guest of the owner was permitted to give the chauffeur in- structions as to the place to go, did not constitute him the agent of the guest so that his negligence was imputable to the guest.* A plea which sets up negligence on the part of a passenger in a vehicle in failing to stop, look, and listen before entering upon a railroad crossing, is bad if it fails to allege that such person had control over the driver or vehicle.' "The only principle upon which such contributory negligence could bar the right of recovery, is that the driver should be re- garded as the agent or servant of the passenger." ^^ It has been held that this rule is only applicable to cases where the relation of master and servant or principal and ageiit does not exist, or where the passenger is seated away from the driver, and is without opportunity to discover danger and to inform the driver of it; and that it is no less the duty of the passenger, where he has the opportunity to do so, than of the driver, to learn of danger, and avoid it if practicable.''^ With due respect to the opinions of these courts, it can safely be said that the only exception to this rule is in cases where the re- lation of master and servant, or some similar relation, exists be- tween the driver and passenger.^* Thus, the negligence of a chauf- feur while driving his employer is imputable to the lattpr.'^ This exception is grounded upon the fact that the negligence of the servant is the negligence of the master; in other words, the master (passenger) is operating the machine through the agency of the 6 Roby V. Kansas City S. R. Co., 130 m United Rys. & El. Co. v. Grain, 123 La. 880, 58 So. 701, 4 N. C. C. A. 325, Md. 332, 91 Atl. 405 (1914). 41 L. R. A. (N. S.) 355 (1912) ; Cham- H Davis v. Chicago, R. I. & P. R. Co., bers V. Minneapolis, St. P. & S. S. M. R. 159 Fed. 10, 88 C. C. A. 488, 16 L. R. A. Co. 37 N. D. 377, 163 N. W. 824 (1917), (N. S.) 424; Brickell v. New York citing this work. Cent. & H. R. R. Co., 120 N. Y. 290, 24 ^ Roby V. Kansas City S. R. Co., 130 '^^ E- 449, 17 Am. St. Rep. 648. La. 880, 58 So. 701, 4 N. C. C. A. 325, ^* Colorado Springs & I. R. Co. v. 41 L. R. A. (N. S.) 355 (1912) ; Farrar ^ohun, — Colo. — , 180 Pac. 307 (1919) ; V. Metropolitan St. R. Co., 249 Mo. 210, Milner's Adm'r v. Evansville R. Co., - 155 S. W. 439. ^y- —• 221 S. W. 207 (1920) ; Luken v. * Collins' Ex'rs v. Standard Ace. Ins. Co., 170 Ky. 27, 185 S. W. 112 (1916). Pennsylvania R. Co., — Pa. St. — , 110 Atl. 151 (1920) ; Bernhardt v. City & S. R. Co., 263 Fed. 1009 (1920). » Central of Georgia R. Co. v. Jones, iSLytle v. Hancock County, 19 Ga. 195 Ala. 378, 70 So. 729. App. 193, 91 S. E. 219 (1917). INJURIES TO OCCUPANT OTHER THAN DRIVER 481 servant (driver).. In other instances where the courts attempt td create exceptions it will be found that it is the passenger's own neg- ligence that is charged against him. For instance, it is negligence on the part of a passenger or guest to ride in a recklessly driven machine without doing what he = reasonably can to cause it to be properly driven. So, it is. negligence if he observes an i impending .danger and fails to warn the, driver, who, oblivious thereof, is care- lessly; incurring the same. But this is not imputed negligence; it is the negligence of the passenger or guest, first hand.^* "Disregarding the passenger's own due care, the. test whether the, negligence, of the, driver is ito be imputed to the one riding depends. upon the latter's control, or right of control, of the actions of ,the .driyeF, go as , to , constitute in fact, the relation of principal ,an(l agent or master; a,rid. servant, or his voluntary, unconstrained, noncontractual surrender of all ,qare,foi; himself to, the caution of the driver." ^®i^-, ,^.., ;,, , •,.,ii-i ,-.., ■.-,,,;• In North Carolina it is held that tl^e negligence of the driver may he considered, in an actipn by the guest or passenger against a third party, only on the question of proximate c^jtis^.^^. ,, , Where a boy was riding in a wagon with his employer, and upon approaching a railroad crossing each watched and listened for a train approaching . from his side, and each depended , fully ,upon the other to watch on his side, the negligence of either iii the per- formance of such duties was imputable to the other. In such case "there was oh the part of teach a voluntary surrender to the biher of all care against aiiy danger coming from the side for 'which the dther made himself resf)Onsible." ^''' In such case, each made' the other his servant or ageht to do for him that Which the law re- quired him to do for'himself. •"' In One case it appeared that the plaintiff, a young lady, -was Hd- ing as a guest in a buggy with a young nlan and his sister; that upon seeing an automobile approaching at a high rate 'of' speed, the driver drove the team to the side of the road, which was har- ;row,,and; stopped them; that ^e team was gentle, |^ and accus|;Dmed to meeting automobiles, ?.nd the .driver gave no.^ignal to the autoist to stop; tjiat the ,a.utompbile, .which was a steam propelled rnachine, advanced rapidly until in front of the horses, when it made a sud- den and unexpected stop, at the same time emitting a cloud off steam ' l4KalIana v. Brained, 141 Minn. 119, 16 Wagner v. KloSter,, — laj'— , 17S 169 N. W. 475 '(1918) ;' Azingfer v. Penn- N. W. 840 (1920)', • //. , n ■ „ ^ ^ i The negligence of a chauffeur is not imputable to an employee of his riding on the seat besi(ip him.*^ Where, in order to recover fpr an injury to an automobile pas- senger due. to a deflect in the highway, it must be provejl that tlie defect, was the spJe cause of the injury, such, passenger cannot re- cover, regardless of his relation to the driyer,, if the latter's negli- gence was a contributing cause to the injury.** If the injuries to the occupant are proximately caused by the negligence of the person with whom he iS riding, he cannot recover against a third person whoge negligence was not the; proximate cause thereof.*' § 501. The rule in Michigan and Wisconsin. In Michigan and Wisconsin a distinction is made between thoSe who are passengers in a common carrier and persons who are riding gratuitously in ISGrahaih'v. Sly, 177 Mo. App. 348, Co., 142 La. 835, 77 So. 647 (1918). 164 S. W. 136 (1914). I *«Feeley v. Melrose,:20S Mass. 328; 91 19 Sampson v. Wilson, 89 Conn. 707, N. E. -306, 27 L. R. A. (,N. S.) US6 96 AtL 163 (1915).-' - (1910). . , . , , 80 Sisson V. Philadeljshiai 248 Pa. St. 28 Hagenah v. Bidwell, -- Cal. App. 146, 93 Atl. 936 (1915). , ; ■ —,189 Pac. 799 ■(1'9261'. '' 81 Peterson v. New Orleans R. & L. , / INJURIES TO OCCUPANT OTHER THAN DRIVER 483 private vehicles. The negligence of the driver is not imputable to, the former, while it is to the latter .2* ; , It i is i settled law in Michigan and Wisconsin that any occupant of a private vehicle is barred from recovering , from a third person for injuries caused by sucli person's negligence if the (Jriver of such vehicle is also properly chargeable with negligence proximately contributing to the .accident.** In an action in Michigan by a woman to recover for injuries incurred in a, collision betwee:n an automobile, in wh(ich shp was riding with the driver, and a street car of the defendant, the court held that "in order to recover plaintiff must allege and prOve not only the negligetace Of the defendant, but that' she herself and also the person driving the vehicle in which she weIs ridihg were free from any negligence which contributed to the accident." *® So, in, an ;fearlier Michigan case it was held that where a woman of mature years and discretion voluntarily entered the private con- veyance of another to ride with him, and by his contributory neg- ligence was injured, she must be held to have adopted his con- veyance for the time being as her own and to have assumed the risk of his negligence, which must therefore be impfuted to her .''''' The negligence of an adult driver, is held in Michigan not to be ittiputable to a minor passenger who has no control over the opera- tion of the machine.** § 502. As between members of family. The rule that the negligence of the operator is not imputable to a guest or passenger, riding in the automobile applies as between a husband, who is driv- ing, and his wife, who is riding with him;*® between parent and 2* Galloway v. Detroit United R. Cd.,, « Mullen v. Owosso, 100 "iVIich. 103, 168 Mich. 343, 134 N. W. 10 (1912) ; 58 N. W. 663, 23 L. R. A. 693, 43 Am; Lauson v. Foild du Lac, 141 Wis. S7, 123 St. Rep.i 436. N. W. 629, 135 Ain. St. Rep. 30, 25 L. R. «» Ommen v. Grand Trunk W. R. Co., A; (N. S.) 40 (1909). 204 Mich. 392, 169 N.. W. 914 (1918); 26 Jewell V. Rogers Twp., 208 Mich. Donlin v.' Detroit United Ry., 198 Mich. 318, 175 N. W. 151 (1919); Gra;nger v. 327, 164 N. W. 447 (1917). Farraht, 179 Micli. 19, 146 N. W. 218, 51 ^^ Arkansas : -Miller v. Ft. Smith L. & L; R. A.'(N. S.) 453 (1914) ; 'Kneeshaw Tr. Co., 136 Ark. 272, s206 S. W., 329 V. Detroit United' Ry., 169 Mich. 697, 135 (1918). ) ISf. W. 90:3 (1912); Steinkrause v. Edk- Colorado: .Colorado Springs & I. R. stein; — Wis. — , 175 Wis. 988 (1920) ; Co. v.Cohun,.^ Colo. — , 180 Pac. 307, Puhr V. Chicago & N. W. R. Co., — Wis. (1919). , —, 176 N.W. 767 (1920); Jbhn V.Pierce, Mlinois: Gaffney v. Dixon, 157 111. — Wis. —, 178 N. W.' 297 (1920). App. 589 (1910). , , ,. MColboriie V. Detroit United Ry., 177 Iowa: Fisher v. Ellston, 174 la., 364, Mich. 139, 143 N. W. 32, 4 N. C. C. A. 156 N. W. 422 (1916). , 383 (1913). Kansas : i ■'Denton v. Missouri, K. &.• 484 LAW OF AUTOMOBILES child, whether the child is an adult or minbr,'" 'brothers, and other relations, '* unless the relation of master and servant or principal and agent existed- between them at the time,^* in regard to the' busi- ness liiey were concerned about at that time. If, however, a wife, riding with her husband in an automobile, trusts to his car'e and caution, his negligence, it has been' hdld, is imputable to her.'' ,In such a case it seems that She'has'in a sensie made hirri her agent to look-out for her safety.' If this is itbe, the fact that the negligence of the driver is so imputed does'niQt depfend upon the relation of husband and wife. The, better rule seems to be that a wife, riding yv^ith ii^^huspm^^^ is pntitled to. rely upon him to Iqoji outi tp a grpat e^ttent for liep. ,T. R. Co.; 97 Kan. >498; iSS Pac. 812 (1916); Denton v: Missouri, K. & T.jR. Cq.,r90,Kan. 51, 133 Pac.: SS8, 4 N. C. C,, A. 38:1, (19}3) ; ,WilIiams v. Withing- ton,.,88 Kan. 809; 129 Pa,c!, 1148;' (1913). Kentucky: Livingston & Co. v. tiiil- ley, ISS Ky. 224, 1S9 S. W. 665 (.l^h) . 'Mhine': 'Cohh V. Cumberland Co. P. & L. iCo:, 117 Me. 455, 104 Atl. 844 (1918). Ifiinnesota: Bruce v. ,Ryan, 13,8 Minn. 264, la^-'N. W.' ti82 (l'9i7); Kokesh V."' Price; 136 Minn. 304, 16 N. C. C. A. lOSb, 161 N. W. 71S. (1917). . ^.Missouri: \Z\&%\tt v. United Rys. Co., — Mo. App. — , 220 S. W. 1016 (1920). New YiAk: Ward vj Clark, 189 App. Div. 344, 179 N. Y. Supp. 466 (1919). Rule applies where husband i^ riding in automdbile owned and driven by his wife.' Christensen v. Johnston, 207 III. App. 209 (1917). "The reasoning applied in' cases hold- ing that the negligence of the driver will be imputed to the rider iij some instances was that the driver was the servant of the one riding with him and under the control of the master. < That' is undoubt-' edly a sound ' distinction, where the' one dfJving'is under the control of another person and is only carrying out that per- son's orders, and the one ridiiig in siicb case should be held chargeable with th^ negligence of his servant. This dlstitic- tion, however,- cannot apply as' between husband- and wiff, because the ; wife has ; j not that . dirpcltipn . ^nji , control, an^ fis ;ipt , chargeable jyith i |;he manner of drivipgi or in directing how ^the , driving shall Tae done. It is hot supposed that the wife has charge over ma;tters of this kind. She rather relies Upon h«r husband, land ■ trusts to his guidance: arid prqfection- If he blunders, why shquld, she; be ,(;harge- able, when she is without fault?" Knox- ville R. & 'L. Co. v.'Vartgild'er, U2 Tenn. 487, 178 S. W.'lin (,191S). .■.., SOgurzio V. Joplin & P.iR, Co.,,,iq2 Kan. ,287, S.62, 171-| Pac,,, 351 (191,8)^; Henry v. Epstein, S3 Ind. App. 265 (1913), Dudley y. Wabash R. Co., 171 Mo., App. ,652,, 1S4 S. W. 462. _ - In those^ states which follow the rule th^t :the negligence of the parent is im- putable to a minor child, the rule under discussion, no, doubt, would not apply. 31 Parmenter v.. McDougall,- 172, Cal. 306, ,156. .Pac. 460 ;(1946); Garden v. Chicago Rys. , qp., 210 111. App. „45S, (1918); Praught.-v. CJr^a); ,Npr%ri) , R. Co.,;— Minn. — , 175 N.,W. 998 (1920),; Lawler V. Montgomery, — y^ct. App. .7-, ?17 S. W,, 8S6i (■1.92Q).. , .,; . 3« Ljouisvjlle, V, .Zoeller, 15S Ky. ,192, 160 S. W. SOO, 5 N./,C. C. A. 443 (1913). SSFogg v,,N?w,'Vo!;k, ^..B.. & h! R. Co., ?23 ;M:ass. 444, i;i N. E. 960 (1915),: INJURIES TO OCCUPANT OTHER THAN DRIVER 485 safety, and that by so doing she is not chargeable with his negli- gence.'* , It has been held that where a wife was seated with her husband on the front seat of an automobile, which he was driving, with equal opportunity to observe, she was under the same duty to lookout and discover an approaching train that he was.'" A woman, riding in an automobile with her husband, across street car tracks, was not negligent as matter of law because she did not look for or see an approaching car and warn her husband thereof.'^ Anyone riding with a driver has the right to some extent to rely upon him to exercise care for the safety of all in the vehicle. By this such person does not make the driver his servant, nor is he on that account to be held for the driver's negligence. It is a matter of every day occurrence in every part of the country for persons of ordinary prudence to rely greatly upon the person in control of the vehicle. It would be strange, indeed, to require every person in a vehicle to keep the same lookout that the driver naturally keeps and is required to keep. What all men do may certainly be taken as the standard for ordinary prudence. Of course, if the passenger or guest knows or has notice that the driver is careless or reckless, he may be negligent in entrusting himself in the vehicle with him; but that raises a question of his own negligence, and has no bear- ing oh the question of imputed negligence. ; According to the true principles of law the negligence of one person is not imputable to another unless they stand in such rela- tion to each other that the acts of the fbrmer may be said to be the acts of the other; in other words, that one is acting for the other, as a servant acts for his master. Where the plaintiff was riding with her husband in an automo- bile, which became stalled on a street railway track, and she re- mained seated in the machine while her husband was cranking the engine, and although she saw a street car approaching at a negli- gently high rate of speed, when it was about 700 feet distant, and called her husband's attention to such fact, she remained seated 34 Denton v. Missouri, K. & T. JR. Co., shown here, to impugn her husband's 97 Kan. 498, ISS Pac. 812 (1916). abUity to drive and assume the pre- "Common sense would dictate that rogative to dictate to him the manner when a wife goes riding with her children of driving." Williams v. Withingtpn, 88 in a rig driven by her husband she right- Kan. 809, 813, 129 Pac. 1148. fully relies on him not to drive so as to 86 Beemer v. Chicago, R. I. & P. R. imperil those in his charge. The law does Co., 181 la. 642, 162 N. W. 43 (1917). not depart from common sense by re- 86 Colorado Springs & I. R. Co. v. quiring her, under the circumstances Cohun, — Colo. — . 180 Pac. 307 (1919) . 486 - LAW OF AUTOMOBILES until the car was about ; 100. feet away, .when she stood up and waved her hand to the motorman, but did not leave the machine, and the only reason she assigned for remaining in the machine was her expectation ,that the motorman would stop, it .wasi held that she could n,ot recover, on account of. her negligence, ^ for injuries, received whexx the car struck the automobile; it, being impossible to avoid the conclusioji th^t she,qho$|B to put all, the responsibility for her. pergonal safety upon, the motorman, ;-vvhic;h, in the circum- stances, she was not warrjantedi in doing. iIt,also appeared in this case that the accident happened at night, and both front arid rear lamps of the machine were lighted.*'' In order, to charge a wife with negligence in riding in an automo- mobile, driven by' her husband, whom she knew had an . injured haiid, it must also appear that, she knew, or in the exercise of ordi- nary care was required tp know, .that by reason of svicb injury he was unable tp manage the automobile with ordinary safety.** , Where a wife, who owned an automobile, seri|:, it to another city for her husband to use, and while, there on a qasual visit she was injured while riding in the,niachihe with; her husband, it was held that, as she was exercising no, control oyer the machine, the neg- ligence of her hiisband was not attributable to her; he beipg a bailee of the car.*® , It has beeii held thaj: a wife, riding with her husband, may^ not rely implicitly upon the care and prudence exercised by him, and that it is her duty, where they were approaching a street rail- way track at a careless rate of speed, to attempt tp,liavje,|hiin check his speed to a safe rate, and that, a failure on her -par;t; so X9 do constitutes negligence.*", , , , , The mere relationship of fatherand son does not change the rule relating to imputable negligence. Hence, a father who was riding in an automobile driyen by his ,? 9-year-old son was not chargeable with the latter's negligence; the.fatl^er,, having no con- trol-over the pperation of t)iei;nachine." , The negligence of a grandparent could not be, imputed to a grandchild, two. and a half, years of, age, ridirig, with him in an automobile.*^ Where the plaintiff was riding as his brother's guest on a motot- cycle when defendant's automobile collided therewith, inflicting ST Lawrence v. Fitchburg & L. St. R. MMiUer v. Ft. Smith L. & Tr. Co., Co., 201 Mass. 489, 87 N. E. 898 (1909): 136 Ark. 272, 206 S. W. 329 (1918). SSGaffney v. Dixoft, 157 111. App; 589 41^ Bryant v. Pacific El. R. Co., 174 (1910). • Cal. 737,, 164 Pac. 385 (1917). 39 Virginia R. & P. Co. v. Gorsuch, « Howe v. Central Vt. R. Co., — Vt. 120 Va. 655, 91 S; E. 632 (1917). ■ — , 101 Atl.:45 (1917). • INJURIES TO OCCUPANT OTHER THAN DRIVER 487 the injuries complained of, and there was no evidence that he had or could exercise any control over his brother in the operation of . the motor-cycle, the negligence, if any, of the brother was not attributable to him.*' Where the plaintiff was riding in an automobile as the guest of harSaurit, the negligence of her cousin, who was driving the car, was not imputable to her.** The .rule applied wher^ a daughter was riding as guest of her father, and her brother was driving.*^ The negligience of the rnaster's seirvant; is not to be imputed to the master's wife.*® . ' / In an action by a husbaijcl in his individual capacity tQ recover for injuries to his wife, negligence on his part which contributes to the injury is a bar to his recovery.*'' §503. Husband and wife riding iri cbmmuiiity property automobile. In Washington, owing to statutes relating to com- munity property, which merge the husband and wife in legal entity, the wife's adininistrator could not recover for her death, occurring while she was riding with her husband in an automobile, which the husband negligently drove onto a railroad crossing, both beingalmost immediately killed by a passing train, as the contributory negligence ' of the husband was that of the entity.** §504. As between co-employees. The fact that the operator of an automobile an2. the immediate time of the accident, he ** Burke v. Curtis Aeroplane Motor was a fellow servant with the plaintiff, Co., — Ala. — , 85 So. 703 (1920). 490 LAW OF AUTQMOBILElS ; § 511. Rules of the road as applicable. In an action by: a guest in an automobile to recover for injuries resulting from a col- lision; between the machine in which he was riiding and defend- ant's truck, it was held to be error to iostruct that the law of the highway had nothing to do with the facts, as there could be no recovery unless defendant's driveri was negligent, and his observe: ance of the rules of the road, and reliance on their obsejyance, by other travelers, was material on this issue.®' ' ' '"'" §512. Occupant having, xight of control of automobile. If an occiipant of an automobile controls, or has the right of con- tirol over, the operation of the car in matters of detail, he is charge-, able with the operator's negligence,^" , ; :. The operator is deemed to be the servant of such person.?^ ■ The negligence of a chauffeur i^ imputable to his employer or master who is riding with him; and diis is true regardless of whether the latter is so situated 1;hat he can give direction^.®'' . , _ Where the occupant .of an automobile had authority , tp . cout trol the speed thereof, and ;nafie,no effort, to do so, but perinitted it to be driven at an unlawful rate; of ^peed, which caused it to collide with a tree when the driver was atf;enipting to avoid a colli- sion with another machine, and the occupant was injured, it was held that he could not recover. In this respect the court said: "But he was a policeman wear- ing a star as such and carrying a revolver and, though Off his as-, signed beat, was still clothed with the authority of enforcing the law. He was endowed with the same authority as marshals in making arreSts, and the latter are empowered to make these in order to 'diligently enforce all laws ... for the preservation of the public welfare and good order.' Though Reeve was driving at a speed in excess of that limited by statute, plaintiff interposed no objection or protest whatever, though presumably he might have required him to slow his car down to 10 miles an hour. Had he 69 Chodes v. Clark, Seed Co.,, — Conn. Bullard v, Boston Elevated R. Co., 226 — , 111 Atl. S8 (1920). Mass. 262, US N. E..294 (1917).* 60 Bryant v. Pacific El. R. Co., 174 // the passenger had the more con- Cal. 737, 164 Pac. 385 (1917); Colorado venient view of an approaching train, , Springs & I. R. Co. v. Cohun, — Colo. and was superior in autl^ority to the — , 180 Pac. 307 (1919). driver, so that he could have ordered 61 Williams y. Blue, — N. C. — , 92 S. hiin to stop, he may be charged with E. 270 (1917). contributory negligence. Klinczyk v. Evidence of the conduct of the occu- Lehigh Valley R. Cp._, 152 App. Div. pant as bearing on the question whether 270. or not he stpod in the relation of em- 62 Bullarjl v. Boston EJevate4. R., Co., ployer' to the chauffeur is admissible. 226., Mass. 262, US N. £. 294 (1917). INJURIES Xa OCCUPANT OTHER THAN DRIVER 491 done so, no argument is required to diemonstrate that the accident would riot have occurred. As he was in a position of authority and might have determined the speed of thie car, he is not in a situa- tion, because of b^ing a gtiest, to evade responsibility for the rate at which it was being driven. His position is akin to that of a person other than the driver taking no/heed of the danger ahead;" ®* The owner of a truck at the request of his nephew. One of a pa;rty of several young ' persons, loaned the truck to take them for a ride, and instructed his driver to go and get them. He testified that if the. driver had refused to go he would have discharged him; that no one but his hephew spoke to him about the matter, and that there was no understanding that he or the driver would be paid for such service. The driver testified that he went at the direction of his employer; that none of the crowd had any control over him in regard to the management, direction, or operation of the machine, and that they did not attempt to exercise any over him. Held, that Whether Or not the driver was the agent of, the occupants of the truck; subject to their direction and control, wa« a question for the jury.** If an occupant actually assists in the operation of the machine, he is liable for injuries caused by his negligent operation.®* § 513. Speed statute not applicable to guest. A statute reg- ulating the rate of speed of motor vehicles at ra.ilroad crossings does not apply to one jriding in such a vehicle as a guest or com- panion of the driver, but having no control over him. "It would apply to one merely riding in the vehicle oiily when the negligence of the driver should be imputed to him." ** § 514. Joint or common entierprise. Where persons are asso- ciated together in the execution of a common purpose arid under- taking it has been held that each is the agent of the others in carry- ing out their plans, so that the negligence of one is attributable io the others.*'' The relation existing between such persons is some- what Similar to that of master and servant, in that the act of one is the act of another. But it lacks the essential element of that re- 88 Hubbard v. Bartholomew, 163 la. 67 garnett v. Levy, 213 111. App, 129 58, 144 N. W. 13, 49 L. R. A. (N. S.) (1919) ; Tannehill v. Kansas City, C. & 443 (1913). S. R. Co., — Mo. — ,, 213 S. W. 818 46 Bernhardt v. City & S. R. Co., 263 (1919) ; Langley v. Southern R. Co., ^ Fed. 1009 (1920).. S. C. — , 101 S. E. 286 (1919) ; Philadel- 66 Williams v. Blue, 173 N. C. 452, 92 phia & R. R. Co. v. Le Barr, 265 Fed. S. E. 270 (1917). , ■ 129 (1920). 66 Baker v.. Streater, — Tex. Civ. App. — , 221 S. W. 1039 (1920). 492 LAW OF AUTOMOBILES la tipn of control. N^elther has control of the details by means of which the common purpose is executed. Hence, the only theory on which one may be charged with the negligence of another is that each is engaged in the performance of the plans which all have agreed upon and whiclj. are as personal to one as to another. It is a sort of partnership, as itwere.®' But the justice of a rule charging one with the negligence of another in the matter of per- forming soiTie detail in the execution of the common plans, the performance of which detail he has no right of control, is ex- tremely questionable.*' This doctrine was ; rejected by the Coutt of Civil Appeals of Texas, the court saying that "We know of no authority for such a proposition of law, and appellant has cited none." ■"" For this rule to apply, it is said that eachi must" have an equal right of control,''^ and the negligence must be in respect of a mat- ter within the joint enterprise. To apply this rule to an occupant, he must have either express pr implied right to direct the movement of the car.''^ > The test in determining the question is whether the persons were jointly operating or controlling the rriovements of the vehicle in which they were riding.''' , . ,; . ; -, : ; "But in order that there be such a joint undertaking it, is, not sufficient merely that the passenger or occupant of the machine indicate to the driver br chauffeur the route he may wish to travel, or thfe places to whieh he wishes to go', even though in this riespe'ct -, - .■'■■•' •■■■■,■,.... ^ ,68 Bryant v. Pacifi6 El. R. Co., 174 Co., 140 Tenn. 623, 20S S. W. 437 Cal'. 737, 164 iPac. 385 (1917), quoting (1918). , .,. |. from this work. Washington: McCanna v. Silke, 75 ?? Massachusetts : Beaucage v. Mercer, Wash. 383, 134 Pac. 1063 (1913). '■'■ 206" Mass. 492, 92 N. E. 774 (1910). TO Kansas City, M. & O. R. Co. v. Minnesota: Kokesh v. Price, 136 Durrett, — Tex. Civ. App. — , 187 S.'W. Minji. 304,, 16 N. C. C. A. 1050, 161 N. 427 (1916). ■ W. 715 (1917); Ward v. Meeds, 114 71 Corley v, Atchison, T. & S. F. 'R. Minn. 18, 130 N. W. 2 (1911) ; Tereau Co., 90 Kan. 70, 133 Pac. SSi (1913). V. Meeds, 114 Minn. 517, 130 N. W. 3 /( is proper to show that the injured (1911). ,!) person was a passenger for hire, bec£^use New Jersey: Pange v. New York, S. from this relation it is fairly implied & W. R. Co., 89 N. J. L. 604, 99 Atl. 346 that he was not in control of the car, (1916). and was not engaged in a joint enterprise Oregon: Robison v. Oregon W. R. which included the driver. Bancroft v. & N. Co., 90 preg. 490, 176 P^c. 594 Cote, 90 Vt. -358, 98 Atl. 915 (1916)." (1918). 72 Robison v. Oregon W. R. & N. Pennsylvania: Dunlap v. Philadelphia Co., 90 Oreg. 490, 176 Pac. 594 (1918). R. T. Co., 248 Pa. St. 130, 93 Atl. 873 78 Kokesh v. Price, 136 Minn. 304, 16 (1915). N. vC.>C. A. 1050, 161 N. W. 715 (1917). Tennessee: Hurt v. Yazoo & M. V. R. INJURIES TO' OCCUPANT OTHER/THAN DRIVER 493 there exists between them a cbmmon enterprise'of riding together'. The circumstances must be such as to show that the occupant and the driver together had such control and direction over the auto- mobile as to be practically in the joint or common possession of it,;"* ^, ,, , , . .,. :„ ^ ,..,.^ In Pennsylvania the rule is stated that the fact that two, per- sons' are engaged in a common purpose does not of itself cause the negligence of one to be imputed to the o^er.''** , Where two men are engaged in the joint purpose of taking t\yo ladies for an afternoon's automobile ride, during which one of the men was injured by the conibined negligence of a tdwn in main- taining a defective highway arid his associate in the undertaking, it was held that he was charged with the negligence of his. associ- ate, and could not recover from the town for his injuries.^ Such a situation must not be confused with the relation of host and guest; the rules of law in this respect applicable to the two being entirely different. where two persons, intimate friends, one of whom owned an automobile, went on a pleasure trip, in which they were equally in^terested, the, one who did not own ttie car getting it ready for, the trip, they were enga!ged in, a joint enterprise, and. the negligence of the one who was driving, without regard to which it was, in going upon t railroad crossing, -jyherp the machine was struck by a, train, wa? imputable to thi? other.''® ,. Soipe common purpose or interest is hot to be inferre;d,,ifrom the fact that two .persons were riding in the sa.me vehicle, one of them driving and, managing the same, while, the other occupied another seat, passively going wherever the driver saw fiiti to direct their course. Nor can it be inferred from the fact that the latter ac- cepted the invitation of the former to ride as a inatter of simple pleasure or outing. Indeed, the fact that one invites and the other accepts a simple invitation of this kind, withoijt sugge^tjon of ''4 Bryant V. Pacific El. R. Co., 174 336; Atwood v. Utah Light, etc., Ry. Cal, 737, 164 Pac. 385 (1917). , ,; , Co,, 44 Ut^h,, 366,, 140 Pac: 137; Cot- "Parties cannot be saiA to be engaged ton v. Willmar, etc., Ry. -Co., 99 Minn. in a joint enterprise, within the meaning 366, 109 N. W. 835, 8 L. R. A. (N. S.) of the law of negligence, unless there be 643, 116 Am. St. Rep.' 422, 9 Ann. Cas. a community Of interest in the objects 935. or purposes of the ''undertaking, and an ''4a Eline -v. Western Md. R. Co,,' 262 ec(ual right to direct and govern ''the Colo. 511, W2 Pac. 1063 (1918), movements and conduct of each other ''* Wentworth v. Waterbury, 90 Vt. with respect thereto. Each' must hive , 60, 96 Atl. 334 (1916). some voice and right to be hedrd in its 76 Washington & O; D. Ry. v. Zell's control- and management." St. Louis, Adm'r, 118 Va. 755, 88 S. E. 309 (1916). etc., Ry, Co. v. Bell, 58 Okl.. 84, 159 Pac. '* '' , ■ ■- ., i •* 494 LAW OF AUTOMOBILES some common end to be accomplished by their united effort or agency, tends to negative any such relation.''^'' If the passenger joins the driver in testing a danger, he cannot recover for any resulting injury.''* , § 515. Same— lUusti-ations. Where, plain,tiff and the owner of ani autombbile were on a trip in the machine whicli they had plan- ned together, of which they shared the expenses, and in regard to which one had as much right as the other to be heard in respect of any and all details; the enterprise was joint.'" Although plaintiff had invited defendant to join a hunting party, and they were riding fo their destination in defendant's auto- rhobile, at the latter's solicitatioii, they were not engaged in a joint enterprise.*" One who is r,iding with another, the latter having offered to take him to another town to get repairs for his automobile, was not engaged with the latter in a joint enterprise.'^ A minor who was merely a passenger in an autoinobile' and had not participated in the arrangements, was iiot engaged in a joint enterprise with the driver.*^ A child, two and a half years of age, taken for a pleasure ride by her grandparent, was not engaged with him in a common enter- prise.** , . It has been held that an bccuplant and driver of an automobile, returning from a trip to look at a piano, whicli the driver was try- ing to sell to the occupant, were engaged in a joint understanding.** ' Whiere; the owner of a car with defective lights agreed wiifli an- other oWnfer that the latter should follow close behind the former sx) that the leading car could get the advantage of the light from the larhps of the rear car, it was held that there was not such a joint or common enterprise as to charge the owner of the rear car with the negligence of the owner of the front car.** A nurse employed and paid by a local organization to attend sick persons within a certain district who cOuld not afford a nurse, when called upon to do so by the physician in charge of such a 77Withey v. Fowler Co., 164 la. 377, Co., -- la. — , 17S N. W. 9S0 (1920). 14S N. W. 923 (1914). 82Donlin v. Detroit United Ry., 198 VSTrumbower v. Lehigh Valley Tr. Mich, 327, 164 N. W. 447 (1917). Co., 23S Pa. St. 397. 83 Howe v. Central Vt. R. Co., — Vt. T9 Derrick v. St. Lake & O. R. Co., SO — , 101 Atl. 45 (1917). Utah S73, 168 Pac. 335(1917). 84 Lawrence v. Denver & R. G. R. 80wilmes V. Fournier, ISO N. Y. Co., — Utah — , 174 Pac. 817 (1918). Supp> 860 (1920). 8BDaggy v. Miller, 180 la. 1146. 14 "Barrett v. Chicago, M. & St. P. R. N. C. C. A. 453, 162 N, W, 854 (1917K INJURIES TO OCCUPANT OTHER THAN DRIVER 495 patient, and whose duty it was to go with a physician in his auto- mobile at his request to attend a patient, was injured while on such a trip by the negligent opreration of the automobile by the physician. It was held that it could riot be ruled as matter of law that the nurse and physician were engaged in a joint enterprise, and the nurse was allowed to recover from the physician.'^ The fact that a wife is riding with her husband in an automobile drivrai by him does not indicate that they are engaged in a joint enterprise." The plaintiff eniployfed her family physician to go with her to bring her mother, who was ill, back with her to her home. The doptor procurejd the use of his son's automobile, for the trip, : Ihe rriachine being driven by his daughter. They all, rode together, andi . when they reached their destination they found that the mother had: died, and their errand was fruitless. On the way back the. ajito-. mobile broke dpyvn, and not being able to .repair it, the doctor, after some delay, employed the driver of a passing auto truck to take them in tow. While being drawn in this way their n)a,chine was struck by a street car, and plaintiff was injured; ■■ It was, held that there was a question for the jury aS; to whether or not, all three were engaged in a common enterprise, so that the hiring of the truck driver by the doctor was a hiring by the plaintiff, mak- ing the .truck driver her servant, whose contributory negligence was imputable to her. Said the court: "We think the inference might fairly have been drawn from th^ testimony that the parties were all engaged in a common enterprise, in which; the plaintiff,, was ,qui(ie as much interested as was her physician, i who was un- , doubtedly making the trip "for her benefit and at her request,: When lie employed the driyer of the auto truck to take them in tow, it was in furtherance of the common purpose. At least Jiie jury would have been warranted in finding: that to be the fact. We see no room for any distinction between any of the occupants of the automobile. They were at the time being drawn by the auto truck, whose driver had been employed to take the whole party to their destination. The extent of the control which they, or any of them, could or should have exercised over the driver was a question of fact for the jury." ** SBLoftus V. Pelleiier, 223 Mass. 63, 111 together, does not much affect this ques- N. E.-712 (1916). tion."' Kokesh v. Price, 136 Minn. 304, Vf'The ]act that they were husband 16 N. C. C. A. 1050, 161 N. W. 715 and wife or that they ran a store to- (1917). gether, or that they ' were riding to- 88 McLaughlin v. Pittsburgh Rys. Co., gether or that they were, going fishing 252 Pa. St. 32, 97 Atl. 107 (1916).- 496 i ,. LAW OFAUIIOMOBILES ,,\yhere;one T. invited the plaintiff, and one Bv "requested thai presence of Mrs. S. as his, companion," on a pleasure drive, and B. hired a horse and a one-sieated rig from a livery s;table and drove during the evening, ,T. sitting on.;the left side of the buggy holding plaintiff's daughter on, his lap,- while B. was on- the right- hand side sitting on the lap of Mrs. S., and their rig was collided wjith, by the defendant's automobile,: it was held that .whether the persons in the buggy were, engaged in a i joint enteiprise so that the negligence of the driver, B., was imputable to the plaintiff was a question, for, the jury. Judgment for the plaintiff, was accordingly affirpied.*® , - . .: § 516. Same^ Co-employees. On the occasion ih cjuestion the driver of the auto truck and plaintiff, who were co-emplOyeies' of the Bell-Jones Company, wholesale dealers' in ice cream, vve|te eiigageq in delivering tubs of ice cream to ciistomers in various paifts of the city. The truck was' k ' large; heavy btife,' loaded with tubs coii- tEtining cahs fillfed' with ice creafli, with ice placed around the cans inside thfe tubs? The ice creani appears to have been covered with a' tarpaulin. Plaintiff was the salesman of the' Bell-jbnies Coni- psLny^ and he informed the driver of the truck where the respective parties to whom cream was t6 be delivered were located, and perV haps to some extent gave difectioris as to the rdute to be followed in arriving at the Various places where ice dream was. to be left. Plaintiff claims to have had nothing to dp with' the Operation or control of the truck; that his business wais'tb Ml and deliver the ice cream to the ctistdtners; 'thcit'both the driver artel plaintiff weire employed by the Bell- Jones Company, the latter having nothiftg to do with the selectibh or employtnent of the driver or' other control over him than as above stated. Held, that plaintiff and his co-employee were riot engaged in a,' common or joint enterprise.®" §517. Samie— I Operator and invited guest. Where one person invit;es anpthpr for a; pleasure ride, the two are not engaged Jn a, conimon enterprise or joint adventure.®^ Where g, young lady was riding in an automobile upon theinvir tation of the driver, for the purpose of i being carried, to, her home, and a detour was made _ for the purpose of leaving another young 89, Ward; V. Meeds, 114 Minn,,; 18, 164!S. W. .319, SO' L. R. A; (N. S.) 1100 130 : N. W- 2 (1911) jTereau v. Meeds, (1914); Corley v. Atchison, T. & S. 'F. 114 Minn. S17j 130 N, W. 3 (1911), .■ R. Co., 90 Kan. 70* 133 Pac. SS5 (1913); 90 Stoker v. Tri-City R. Co., 182 la. Jacobs v. Jacobs, 141 La. 272, 74 So. 1090, 16S,N; W. 30 >(1917).' , . I .:■■ 992 , (1917). , ■, 91 Beaud i V. . Klusmeier, 158 ,Ky., 153, , ,i INJURIES TO OCCUPANT OTHER THAN DRIVER 497 lady at her home, andr also for the purpose of enjoying a longerri ride, there was no joint or common enterprise which would charge the young lady \yith the dri,yer's negligence.®^ , ,, , , One who accepted tl3i,e, ii^yil^^tion of the; driver o^ an autpmobile , to ride home, from a picnic, was not engaged in a jpi^it or com-, mon enterprise with the driyer. "The law will not create or pre- sume t^e relatipp from the mere fact that he accepted the invita- tiqn, of another to ricjp in his carriage^ If he is ibut, the guest, of. i the other, and neither,, has nqr assumes the right to direct or con- trol ^],e conduct ofjtlie, driver, neither he npr t^e owner xan be regarded as his servant. In such case he would not be answerable to a third person for an injury caused by the negligence of the dtlver; and it seems to us that there isv no principle of law upon which such negligeiice can be imputed to him when it contributes to his own injury.®' , /. The plaintiff, a young ladyy was visiting ;a friend, and a gentle- man and his wife p^id her and, the, friend a visit on Sundav evening. B,eforei leaving, .the man said in, substance that if; they would like he would be pleased to take themi put and let them ;seei how the town; had grown since a previous visit. The invitatioru was ac- cepted, and it was arranged that he would , calL for them on the foUpwing; morning with an automobile, which h,e,i in fact did^; It was ihejd. that these facts had no tendency to show a joint under- taking pr enterprise, in which either party; assumed, or was charged with, any responsibility or liability for the negligence of the other, and that it was no answer to say that the driver and his guest were out for the pleasure or recreation to be derived from the ride. The. court said: "It is somewhat difficult to state a comprehensive defi- nition of what constitutes a joint enterprise; as applied to this class of cases, but it is perhaps sufficiently accurate for present pur- poses to say that to impute a driver's negligence to another occu- pant of his carriage, the relation between them must be shown to be somethiiig more than that of host and guest, and the mere fact that both have engaged in the drive because, of the mutual pleasure to be so derived does not niaterially a,lter the situation." ®* ' The mere fact that the guest was holding a rope leadiiig a horse, which the driver of the vehicle had sold and was on the way to deliver to the purchaser, does not charge the guest with the negli- gence of the driver, it, appearing that the guest neither owned nor 92 Lawrence v. Sioux City, 172 la. »* Withey v. Fowler Co., 164 la. 37?, 320, 1S4 N. W. 494 (1915). ' 145 N. W. 923' (1914).' ' 93 Wagner 'v. Kloster, — la. — , 175 ' ' ' N. W. 840 (1920). B. Autos.— 32 498 LAW OF AUTOMOBILES had any control over the vehicle* in vvhich he was riding with the' driver'.'^ *" . i i - ' Where one accepted an invitation to become the giiest of thie owTiet of an autombBile on a trip,"upi6n conditibii that he should pay' the iexp'eiises of the party at the place of destination, but who had no interest in the autbmbfcile and exercised no control over thfe- chauffeur in the actual drivih;^ of the machine, it Was held that he was not liable for dri iWjury caused by the negligent operation of the machine; as he was not engaged iii a common or joint' enter- prise with the owner or the chauffeur, but was riding as aii invited guest.'® § 518. Same'-^Guest suggesting ride and directing course to take., The mere fact that la' guest of a motorist suggested taking a ride and directed to the course to take, was no evidence that the two were engaged in a joint enterprise. ' Otife B. took decedent and'ia young lady into his automobile about 11 o'clock at night arid, after taking the young lady to her home, went with decedent to the latter's room in a hotel, where they had drinks and lunch. ' -Decedent then suggested that they take a ride before retiring, to which B. consented. B. then' inquired of dfebedent Where they should drive, and decedent suggested the.rOute, whidh they proceeded to follow. While So engaged the accident in question hap"pfened. Held, that there was no evidence that the parties w'ere engaged in a joint enterprise.^ § 519. Same— P^oliceman and patrol driver.— Fireman and driver, j!^ policeman and the driver of a police patrol automobile are not engaged in a common enterprise, while answerjing a, riot,; call." ' ' '/ ■■. ', ,..,„ The same rule applies to a fireman and; the driver of a hose cart, or a fire engine, while the former is riding on such viehicle in line of his duty.' , ; ' ^520. Care required of occupant. While the negligence of the operator of an automobile is not chargeable to a passenger, 96 Davis V. Boston & ,N. St. R. Co., 8 Denver Tramway Co, v. OiOaaoh, 64 2 14 Maps. 98. '" ' '' ' ' Colo.'sii, 172 .Pac.i063' (1918), citing' 96Adamson v. ]\ilcEwen, 12 Gai App. Elyton Land Co. v. Mingea, 89 Ala.'SJ'ii- 508, .77, S. E. S91> (1913). , 7 ^outh.; 666; McBride v. Des Moines ICram v. Des Moiijes, — la. — , 172 ; City R. Co., 134 Iowa, 398,, 109 N., W. N. W. 23, 18 N. C. C. A. 162 (1919). 618; McKernan v., Detroit Citizens' St. 8 Denver Tramway Co. v. jOrbach, 64 R. Co., 138 Mich. 519,-101 N. W. 812, Colo. 511, 172 Pac. 1063 (1918). 68 L. R. A. 347. INJURIES Xa OCCUPANT OTHER THAN DRIVER 499 Still the passenger is bound to exercise such care for his own safety as the exigencies of the situation require.* ' It is no less the duty ^Alabama:, Birmingham R., L. & P. Co. V. Barranco, — Ala. — , 84 So. 839 (1920). Arkansas: Carter v. Brown, 136 Ark. 23, 206 S. W. 71 (1918). ' California: Parmenter v. McDougal, 172 Cal. 306, 156 Pa,c. 460 (1916);,. Hagenah v. Bidwell, — Cal. App. — , 189 Pac. 799 (19'20)> McClure v. South- ern Pac. Co., — Cal. App.'—, 183 Pac. 248 (1919); Drouillard v. Southern Pac. Co;„ — Gal.: App. — , 172 Pac. 40S (1918).' ■; ; ,.iM Colorado: Colorado Springs & I. R. Co. V. Cohun, 66 Colo; 149, 180 Pac. 307 (1919). Connecticut: Weidlich v. New York, N. , H. & H. R. Co., — Conn. — , 106 Atl, 323 (1919). Illinois: Odett v. Chicago City , R. Co., 166 111. App. 270; Fredericks v. Chi- cago Rys. Co., 208 III App. 172 (1917). Indiana: Union, Tr. Co. v. Haworth, — Ind. — , lis N. E. 7S3 (1917). Iowa: Wagner v.. Kloster, — la. — , 175 N. W. 840 (1920) ; Willis v. Schertz, — la. — , 175 N. W. 321 (1919) ; Black V. Chicago G. W. R. Co., — la. — , 174, N. W. 774 (1919) ; Stoker v. Tri-City R. Co., 182 la. 1090, 165 N. W. 30 Kansas: Schaefer v. Arkansas V. I. R. Co., — kan. — , 179 Pac. 323 (1919). Kentucky: Milner's Adm'r v. Evans- ville R. Co., — Ky. — , 221 S. W. 207 (1920) ; Graham's Adm'r v, Illinois Cent, k. Co., 185 Ky. 370, 215 S. W. 60 (1919). Maine: Blanchard v. Maine Cent R. Co., 116 IVIe. 179, 100 Atl. 666,(1917). Maryland: Baltimore & O. R. Co. v. State, 133 Md. 219, 104 Atl. 465 (1918) ! Massachusetts: Fogg v. New York, N. H. & H. R. Co,, 223 Mass. 444, 111 N. E. 960 (1916); Griffin v.Hiistis, — Mass. — , 125 N. E. 387 (1919). Michigan: Jewell v. Riogers Twp., 208, Mich. 318, 175 N. W. 151 (1919) ; Om- men v. Grand Trunk W. R. Co., 204 Mich. 392, 169 N. W.'914 '(1918). 392, 169 N. W. 914 (1918). ■' ' Minnesota: Carnegie v. Great Nprth- ern k.'Ca., 128 Minn. U, 1^6 N. W. 1'64 ( 19i4) ; Praught v. Great Northern R: Co., i- Minn. M 175' N. W. 998 (1920) ; KftllaiK^ y. Brainprd, 14J Minn. 119, 169 ik. W. 475 (1918); McDonald V. Mesaba R-. Co., 137 Minn. 275, 163 N,W. 298 (1917) ; Kokesh v. Price, 136 Minn. 304, 16 N. C. C. A. lOSO, 161 N. W. 715 (1917); Zenner v. Great Northern I^, Co,,, 135 Minn. 37, ,159 JSf. W. 1087 (1916). ' Missouri: Zieglef v. United Rys. Co., — Mp. App. — , 220 S. W. 1016 (1920) ; Davis V. City L. & Tr. Co., -^ Mo. App. — , 222 S., W. 884 (1920); Lawler v. Montgomery. — Mo. , App. — , 217 ^. W. 856 (1920) ; Rappaport v. Roberts, — Mo. App. — , 203 S. W. 676 (1918) ; Newton v. Harvey, — Mo. App.. — , 202 S, W. 249 (1918) Montana: „Sherrk. v. Northern Pac. R. Co., ,55, jMo^it, 189, 175 Pac. 269 (1918). ,„ Nebraska; Morris v. Chicago, R. & Q. R. Co., 101 Neb. 479,, 163, N. W. 799 (1917). ,• . ■ Nepo York:, Read v. Npw ,Yor,k. Cen- tral & H. R. R. Co,.,, 123 App. Div. 228, 107 N, Y. Supp. 1068; N.oakes v. Neiy York Central & H. R. R., Co., 121 App. Div. 716, ip6 N. Y. Supp. ,522; Ward v. (ilark,,'l8?'App. Div.' 344,' 179 TSS.'I^. Supp. 466 (1919). Ohio: Board of Com'rs v. Bicher, 9S Ohio 432, 121 Jj. E. S3S' (1918); Toledo R. & L. Co. V. Mayers, 93 Ohio 30^112 N: E. 1014 (1916). .; I Oregon: Ro'bison v. Oregon-W! R. & N. Co., 90 Oreg. 490, 176 Pac. 594 Pennsylvania: Dunlap v. Philadelphia R. T. Co., 248 Pa. St. 130, 93 Atl. '873 (1915); Senft v, Western Maryland R. Co., 246 Pa. St. 446,' 92' Atl. '^53' (1914) ; Laudenberger v. Easton Tr. Co., 261 Pa. soo LAW; OF AUTOMOBILES of the passenger,! vyhere;he has the opportunity to do so, than, of the driver, to learn of danger and to avoid it if ptacticable.* i , This rule, has been appHed to an employee riding iwith his ^ em- ployer.^ i " • . : An occupant is under no duty to anticipate, that the driver, will be negligent,''' and negligence on the part of the occupant which does not contribute to his injury, will not bar recovery.* A guest may properly be held to the duty of keeping a lookout, but he is not bound, as matter of law, to anticipate: that an ap- proaghing automobile from the opposite direction will violate the law of the road by keeping to the left side, nor, when the auto- mobile is barely moving, that warning necessarily shall be sound*- ed, even though that duty is exacted of the driver by statute.' ' A guest, riding on the rear seat of an automobile the top, being St. '288, 104 Atl. 588 C4Q18). ■ ' ■ ' Tennessee: Hurt v. Yazoo & M. V. R. Co., 140 Tenn: 623, 20S S. W. 437 (191JS); Knoiville R.'& L. Co. v. Van- gilder, 132 Tenn. 487, 178 S. W. 1117 '(191S).-' ' -' ■ •'■ Texas: Chicago, R. 1 & G. R. Co. v. Wentzel, -^"Tex.' Civ. App. —,214 S. W. 710 '(1919);" El Paso El. R. Co. v. Benjamin, — Tex. Civ. App. — , 202 S. W. 996 (1918)'; Roiitledge v.''Rainb- lei- Auto. Co., J- Tex. Civ. App. -ii, 95 S. W. 749. ' t/tah: Cowan v. Salt Lake & U. R. Co., — Utah — , 189 Pac. S99 '(1920) ; Lawrence v. Denver & R. G. R. Co., ■ — Utah —, 174 Pac. 817' (1918). Virginia: Virginia & S. W. R. Co. V. Skinner, 119 Va. 843, 89 S. E. 887 (1916),. ,, "Tlpe rule which has met with generfif approval in the more recent cases makes the passenger responsible, , only ,for, his personal, neeligence, and ^ea,ves it to. the jury to determ^r^e whether, under, the circuinstances, he was justified in trust- ing his safety to the ,care of the driver and not looking or listeriing for hiror self. The negligence of );he driver is thps, pot impuj;ed, to, the, guest or pas- senger, but the circumstances may bg such as to make it the duty of the fias- senger to look and" listen and attiempt to control the driver for his own pro- t'ection. The passenger is thus held' re- sponsible for his own negligence, but riot for the negligence ■ of the driver. He must exercise due care and' caiition, and, if his negligence contributes approxi- mately to the accident, he' cannot 're- cover damages." Cotton v. A^lllmar & S. F. R. Co., 99 Minn.''36e,' 109 N. W. 83S, 8 L. R. A. (>j; S.) 643, 116' Am. St. Rep. 422, 9 Ann. Cas. 935. ' A 'fire ' department cafkain, ' riding oh an automobile ladder trupk, was bound to exercise due" care for his safety'. Lynch V. Boston Elev. R. Co.,' 224 Ma^. 93, 112 N. E. 488 (1916). S Campbell v. Walke'r, 2 Boyce (Del.) 41, 78 Ati. 601 (1910) ; LeaparA v. Kan- sas City R. Co., — Mo. App: — , 21"* S. W. 268' (1919). "■■ '' ' ' ' BHoyle v. Northern Pac. R. Co.. ,105 Wash'. 652, i78 Pac. 810 (1919), ' ''Birmingham R., L. & P. Co. v. Bar- ranco, — Algi,, — , 84' So. 839, ,(192q). , 8Dav^ V. City L. & Tr, Co., — ,Mo. App. —,'222 S.'W. 884 (1920). ,,, 9 Willis V. Schprtz, — la. — , 175 N. W, 321 (1919^!',' INJURIES TO OCCUPANT OTHER THAN DRIVER 501 up and. the doors closed, was not chargeable with negligence when the machine was struck by a car at a crossing.^" : If the passenger voluntarily goes into _a patent danger that he could reasonably avoid, he cannot recover.^^ Where one rode as a guest in an automobile on a dark night, without lights, over roads with which neither the driver nor any of the persons with him was familiar, with full knowledge of the facts, it was held that he was a§ guilty of negligenec as the driver j^^ It js not negligence per se to ride in an automobile over a muddy and slippery road, even in the nighttime.^' i . Where one of ; the occupants of an automobile suggested, when within a block of the street intersection where the accident oc- curred, that the driver speed up, which suggestion was complied with, plaintiff was not negligent for doing nothing more than pro- testing against the rate of speed, as the time was too short" in which to do more.^* : ; ^ » Whether or not the plaintiff e^^erciged due care for hpr safety r by remaining in a disabled automobile while it was being towefl .by a rope through the traffic of a public highway, and in committing herself to the care of a strange driver, with whom, on accqunt of the length of the rope and the noise of the machinery, it was difficult to communicate, during which trip her machine was struck by a street car, was held to be a question for the jury.^* ' The fact that six persons were riding in a five-passenger auto- mobile when it ran into a washout, does not prove overloading.^® One unacquainted with the operation or management of an auto- mobile who was riding with one whom he knew to be an experienced ciauffeur, there being no mutuality in a common enterprise be- tween them, could not be charged with the negligence of, such chauffeur.^'' ' The plaintiff was riding at night in an automobile which was driven into a ravine or gulch in a city street, and received the injuries complained of. The ravine wa§ about 30 feet deep ^t^^ nearly 80 feet wide, but to a traveler approaching it' at night, it had the appearance merely of an unpavpd portion of the street. There 1* Marion &;B. Jt., Co. v. Reese, — i^Rapj^aport v. Ro'berts, — Mo. App. Ind. App. — , 124 N. E. sop (1919):. -7, 203 S. W. 676 (1918). , ;,,;- 11 Trumbower v. Lehigh Valley Tr. IS McLaughlin v. Pittsburgh Rys. Co., Co., 23S Pa. St. 397. ' 2S2 Pa. St. 32, ^7 Atl. 107 (1916). i2RebilIard .v. Minneapolis) St. P. & 16 Dillabough v. Okanogan County^' lOS S. S.. M. R. Co., 216 Fed. 503, L. R. Wash. 609, 178 Pac. 802 (1919). A. 191SBi 9S3 (1914). 1'' Chadbourne v, Springfield St. R. Co., 18 Dillabough v. Okanogan County; 105 199 Mass. 574, 85- N. E. 737. - Wash. 609, 178 Pac. 802 (1919). 502 LAW OF AUTOMOBILES ' was no barrier, or red light, or anything to indicate the presence of the ravine, and the place was not well lighted, the lights, in fact, tending rather to obscure than to disclose the ravine. The plaiiltiff was a guest of the family with whom she was riding. She -was seated on the front seat with the dti\)^er, and the side curtains and windshield were up; and the lamps lighted. The automQbile was proceeding at an excessive rate ' of speed, but the evidence indi- cated that she had no appreciation of the speed of the machine. She was not familiar with the vicinity of /the place of accident, and did not know of the existence of the ravine. She testified that she could see the lights on the other side of the ravine, which she noticed only as a kind of dark spot or shadow, but did hot think it indicated danger. ^ She did not attempt to exercise any cdntrol over the automobile, or to select the streets over which' it was to be driven. She had no reason to believe that the driver was care- less or incompetent. It was held that the defendant city was grossly negligent',' and that the act of the driver in driving at an excessive rate, of speed could not be imputed to plaintiff. Accordingly, judgmeiit in her favor was affirmed.^* The vigilance of one passenger will not relieve a fellpysr passen- ger from the duty of, exercising care and prudence to avoid injury." § 521. Same— Intoxicated occupant. Intoxicated occupants of aii automobile are required to exercise the same degree of cafe that sober persons ^re.^" "One riding in an automobile is bound to use ordinary care for his own safety. If there should be evidence tending to show that he voluntarily became so intoxicated as to be unaljle ioi: that reason to exercise ordinary care, and did so fail, and that by "the use thereof he could have avoided the consequences to himself pf the negligence of the driver, such question would be one for the jtiry, under proper instructions." . So, if a guest took drinks of liquor with the owner and driver of the car, some of the liquor being furnished by the owner and some by the guest, this may be shown for the purpose of aiding in the determination of whether the guest was negligent.^^ "Beach v. Seattle, 85 Wash. 379, R. Co., 18S Ky. 370, 21S S.' W. 60 148 Pac. 39 (191S). (1919). ISWiwirowski v. .Railroad Co., 124 21 Powell v. Berryj 14S Ga. 696, 13 N. Y. 420, 424. N. C.' C. A. 858, 89 S. E.-7S3 (1916). 20 Graham's Adm'r v. Illinois Cent. • ' INJURIES TO OCCUPANT OTHER THAN DRIVER 503 §522. Occupant not required to take same precautions as driver. A guest or invitee is not charged with the same strict legal duty of keeping a lookout and being watchful as the driver.^ A person of ordinary prudence riding with another, upon his invitation, will naturally put d certairi trust in his judgment, and will rely in some measure on the assumption tHat he will use care to avoid the ordinary dangers of the r6ad.*' "In order to conclusively cliarge a mere passenger with c^oii; tributory negligence in failing to see an approaching train, some- thing more than ability to see and a failure to look must be shown. His failure to look is evidence to be considered on the question of his negligence, but it is not conclusive against him. In general, the primary duty of caring for the safety of the vehicle and its pa^- ' sengers rests upon the driver, and a mere gratuitous passeiiger should iiot be fouiid guilty of contributory negligence as a matter of law, itnless he in soriie v(fay actively participates in the negligence of the driver, or is aware either that the driver is incoihpetent or careless or unmindful of some danger known to or apparent to the passenger, or that the driver is not taking proper precautions in approaching a place of danger, and being so aware, fails to'warn or admonish the driver, or to take proper steps to preserve his own safety.""*' .. ; ■" "One riding as a passenger or guest riiay not place his safety 22 Martin v. Southern Pac. Co., — ■ care required of her is, the cSre exercise^, , Cal. App. ^, 18S Pac. 1030 (1919) ; , by an ordinarily prudent passenger. She Azinger v. Pennsylvania R. (jo.^ 262;Pa. [ coiild not take cbntrol of the car. ^he St. 242, ids Atl: 87- (1918) ; Montague might warn ' or admonish her husband as ' V. Salt Lake & U. R. Co., — Utah — , to signals, as to the Speed and Manner 174 Pac. 871 (1918). , with ■ which- < he rounded the corner. She : "The law is not so unreasonable as did not do, these; things, but the whole to require a passenger to exercise 'the incident covered but a very short space same quality of diligence as that of of time. It does not appear that her. a driver.'' ChriStfensen V. Johnston, 207 husband was not usually careful. We 111. App. 209 (1917). cannot say that she was negligent as A In a case in which the plaintiff sought matter of law." Kokesh v. Price, 136 recovery for: the death of his wife, who Minn. 304, 16 N. C. C. A. lOSO, 161 was killed while riding with him in an N. W. 71S (1917). automobile, the court said: "She was 28 y^jj j.j^ie ig particularly applicable to not the driver of the automobile, but a women guests. Pigeon v. Massachus- : passenger. She was required to exercise ettsiN. E. St. R. Co., 230 Mass. 392, watchful care, but not the same watch- 119 N. E. 762 (1918). fulness as is required of the driver. She 24Ca:rnegie v. Great Nohhern R. Co., could rely in some measure on the as- 128 Minn. 14, ISO N. W. 164 (1914). sumption that he would be careful. The 504 LAW OF AUTOMOBILES entirely in the keeping of the driver, but he must, exercise due and reasonable care for his own protection arid safety."** "Orie occupying a vehicle, as a guest cannpt rely upon, the care and vigilance of the driver to the extent of relieving himself from the exercise of reasonable precautions for his own safety."*® "Although a guest is not required to exercise, tl;ie same degree of care and watchfulness as the driver, yet hje must bear the conse- quences of his own negligence, when he joins in testing a danger; but the extent to which one, in the position of a guest, should appreciate an impending peril, and act in relation thereto, depends upon the facts peculiar to each case." *'' An occupant, of an automobile was held to be disconnected from the driver's negligence, because "he was a passenger for hire, and had reason to assume that the chauffeur was competent." ?' ; Whether a guest .riding with an experienced, , careful driver, at not to exceed 15 miles an hour, approaching an intersecting high- way, where their machine was struck by another traveling on the - other highway, and who called the attention of the driver to the approach of the other mfichine, exercised due care for his safety, was held to be a question for the jury, and judgment; for, the plain- tiff against the driver of the other car was affirmed.*® In a case where the evidence showed that the plaintiff's intestate, who was sixteen years of age, was riding in an automobile at the in- vitation of the operator ; that he had never ridden in an automobile before; that he was entirely unfamiliar with the vehicle, and that he, knew £e Was riding with an older person whom he knew was familiar with its operation and fully able to manage and control it, it Was held that the jury were justified in finding that the intes-' tate was not guilty of negligence when the automobile was struck by a train under circumstances which rendered the operator guilty of contributory negligence.'" So, in crossing a railroad track a passenger need not look and listen for an approaching train with the same care required of the operator .''^ 26Hines v. Johnson, 264 Fed. 46S 2» Wagner v. Kloster, — la.^— ,_ 175 (1920). N. W. 840.(1920). 26 Stern v. Nashville Int. Ry., -^ 30 Sherwood v. New York Central & Tenn. — , 221 S. W. 192 (1920). H. R. R. Co., 120 App. Div. 639, lOS ZTMinnich V. Easton TV. Ccj — Pa. N. V. Supp. 547. St.—, 110 Atl, 273 (1920). 31 Thomas v. Illinois Cent. R. Co., 28Br6ussard v. Louisiana & W. R. 169 la. 337, 151 N. W. 387 (1915). Co., 140 L. A. S17, 13 N. C. C. A. 910, 73 So. 606 (1917). INJURIES TO OCCUPANT OTHER THAN DRIVER SOS § 523. Occupant inactive in presence of danger. While it has been said that an occupant "cannot sit inactive when danger is imminent and be regarded as having exercised due care for his own safety,"'* he is not always chargeable with negligence because he sits inactive in the presence of danger. "It cannot be said as a matter of law that such guest or passen- ger is guilty of negligence because he has done nothing. In many such cases the right degree of caution may consist of inaction. In situations of great and sudden peril, meddlesome interference with those having control, either by physical act or*by disturbing sug- gestions and needless warnings, may be exceedingly disastrous in its result. While it is * * * the duty of such guest or passenger not to Submit himself and his safety solely to the prudence of the driver of the vehicle, and that he must himself use redsonable care for his own safety, nevertheless he should not in every case be held guilty of contributory negligence merely because he has done nothing. If there be threatened danger which is known to the passenger and unobserved by the driver, the passengfer would be guilty of negligence if he failed to notify and warn the driver; also, if the driver be careless or reckless in his conduct, and this is known to the passenger, and there be reasonba;le opportunity to do so, it would be the passenger's duty to caution the driver knd remonstrate with him, and if he (the latter) persisted in his im- proper conduct, to leave the vehicle; but manifestly that would not be possible, nor could it be required in every case." '* The fact that deceased^ who was riding on a truck with the chauffeur, did not interfere with the management of the truck when it was driven on a railroad crossing, the view being open, did not render him guilty of negligence as matter of law.'* 'When danger arising out of the operation of a vehicle by an- other is manifest to a passenger who has adequate opportuiiity to control the situation, if he sits without protest andpermits himself to be driven to his injury, his negligence will bar a recovery." *^ § 524. Failure to look for danger. ■ A guest or passenger in an automobile should keep a reasonable lookout for danger, if neces- sary; the degree of care which he is required to exercise depeiiding 82Vanek v. Chicago City R. Co., 210 3* Southern Pac. Co. v. Wright, 160 111. App. 148 (1918). C. C. A. 339, 248 Fed. 261 (1918). *3 Hermann v. Rhode Island Co., 36 36 Azinger v. Pennsylvania R. Co., R. I. 447, 4S0, 90 Atl. 813 (1914), 262 ^a. St. 242, lOS Atl; 87 (1918) ■ quoted with approval in Vocca v. Penn- sylvania Co., 259 Pa. St. 42, 102 Atl. 283 (1917). 506 LAW OF AUTOMOBILES ' upon all the attendant circumstances.^* The character of 'the vehicle in which he is a passenger may be such, or his location in it, or the other circunjistances, may be such, that to^ look or listen for approaching cars, or other dangers, would be unnecfessary and useless. For such a passenger to engage in conversation with fel- low passengers, and entirely neglect to look out for dangers, or to observe the nianner in which the vehicle is being operated, niight l?e the conduct of a, reasonably prudent person. It cannot be said, therefore, that in every case, and all the time, it- is the duty of a gratuitous passenger to use his senses, or to look g,nd listen in order to discover approaching vehicles or other dangers, or that .his. fail- ure tq do so would be a failure to exercise due care. But while this is so, the law fixes no different standard of duty for him than for the drive^. Each is bound to use reasonable care,, What conduct on the passenger's part is necessary to comply with his duty must depend upon all the circumstances, one of which is that he is merely a passenger having no control over the; management of the vehicle in wfhich he is being transported. Manifestly, the conduct which reasonable care requires of such; a passenger will not ordinarily, if in any case, be the same as that which it would require; of the drivjBr. While the standard of duty is the same, the conduct re- quired to fulfill that duty is ordinarily different because their cir- cumstances are different.*'' : As the court in one case said J in regard to a lady guest, riding in an automobile at the time it was struck by a street car: "She had no control or authority over the driver, but was merely a guest, and, as any, woman under the> same pircumstances would have done, she relied upon her escort to look out for her safety. She was not charged with the duty of looking out for possible dangers, If a possible danger was ca,lled to her attention, and she realized it; it was her duty to call the attention of her escort to it; and thj§ she did.. , When she saw a car coming she called his attentiqn, toit. Had she assumed the task of looking out for cars, the case might have been different; but such duty had not been 'committed to her, and she had not assumed it. There is nothing to indicate that 36 Vocca V. Pennsylvania R. Co., 259 approaching danger, whether it be known Pa. St. 42, 102 Atl. 283 (1917). or unknown to the driver, he is negli- "Ordinarily a passenger riding in a gent if he fails to call the driver's at- vehicle driven by another is not held tention to it, or to, try, in some way, to to the same degree of care to keep a avoid it." Warth v. Jackson County lookout for dangerous places in the road Court, 71 W. Va. 184. that is required of the driver. But if S' Clarke v. Connecticut Co., 83 Conn, the passenger knows of any existing or 219, 76 Atl. S23 (1910). INJURIES TO OCCUPANT OTHER THAN DRIVER 507 she acted differently from any other woman under the same cir- cumstanees." ** i ^ A woman carrying a child on her lap riding at night in a single seated buggy drawn by a gentle horse, driven by her husband, not attempting to exercise any control over the driver or vehidle, was not charged with the duty of seeing and avoiding an autoinobile approaching from; the side on which her husband was sitting; and if he was negligent, such negligence was not imputable to her.*' § 525. Riding with back towards danger. Where a, passe:nger was sitting on the front seat of an automobile with the driver, with his back turned towards the direction from which the train irt question came, talking to persons on the back seat, it was held that in the absence of notice or warning to apprise him of danger, no negligence could be imputed to him because of the position in which he was riding.*** , : § 526. Failure to direct or warn driver or to alight. If the passenger sees or hears anything indicating danger that the driver cannot or probably does not see or hear, it is his duty to tell the driver. But it is not incumbent upon tlie pa;ssenger to tell the driver of every approaching street car or other vehicle, tar of every defect in the highway, which is as manifest to the driver as to the passenger.*^ A gratuitous passenger, in no matter what vehicle, is not ex- pected ordinarily to give advice or direction as to its control and managemeiit. To do so might be harmful rather than helpful.*^ But in the circumstances of a particular occasion, it may be his duty to look out for threatened or possible dangers, and to warn the driver pf such after their discovery.*' - The mere fact that one riding with a motorist who is negligent in drivine fails to require the motorist to exercise proper care or take other steos for his own protection, does not necessarily render him contribiitorilv negligen,t as matter of law.** A passenger for hire has been held not guilty of contributory 38 Rogers V. Portland R., L. & P. Co., « Clarke v. Connecticut Co., 83 Conn. 66 Oreg. 244, 134 Pac. 9 (1913). 219, 76 Atl. 523 (1910). 39 Williams v. Withington, 88 Kan. 43 Clarke v. Connecticut Co. 83 Conn. 809, 129 Pac. 1148 (1913). ,219, 76 Atl. 523 (1910) ; Pigeon v., Mas- *» Wanner v. Phfladelphia & R. R. sachusetts N. E. St, R. Co., 230 Mass. Co., 261 Pa. St. 273, 104 Atl. S70 392, 119 N. E. 762 (1918). (1918). ■ 44 Cram V. Des Moines, — la. ^,' 172 41 Toledo & O. C. Ry, v.^Fippin, 32 ; N. W. 23, 18 N. C. C.A. 162 (1919). Ohio Cir. Ct. R. 7SS, aff'd 86 Ohio St. .^34. 508 LAW OF AUTOMOBILES negligence in not warning, advising, or difecting the driver in case of emergency, or in not attempting to control the acts of the driver in: passing othier cars.*^ The plaintiffs, husband and wife, were riding, one evening, as guests, in an automobile owned and driven by one Berghmann, the wife sitting on the front seat at the left of the driver, and the hu&^i band sitting behind in a rumble seat. While turning into a street in which the defendant operated a street car line, the automobile was struck from the front by a street car, cavjsing plaintiffs to be injured. There was sufficient proof of negligence on the part of defendant in running the street car at an excessive rate of speed, a:nd there was a verdict for the plaintiffs. The trial court set aside the verdict and granted a new trial on the ground of contributory negligence; finding specifically thai the operator was negligent; that it then became the duty of each of the plaintiffs to do some- thing to save himself from injury; that neither of the plaintiffs told' the automobile driver to stop and did not caution him; that each of the plaintiffs might have stepped • from the automobile to the ground. In reversing the order granting a new trial, and directing that judgment be rendered, on the verdict, the court, on appeal, said; "In accordance with both reason and the weight of autlior- ity, any negligence on the part of Berghniann which may have con- tributed to bring about collision cannot be imputed to' either of these plaintiffs, between whom and Berghmann no relation of master and servant, principal and agent, or participators in a com- mon enterprise existed in fact, or should be implied in law. It is the duty of such guest or passenger, in circumstances similar to the one under consideration, to use reasonable care for his own safety. Whether he has exercised such a degree of care is primarily a ques^ tion for the jury. It cannot be said, as a matter of lawj that such guest or passenger is guilty, of negligence because he has done ijotiiing. In many such cases the highest degree of caution may consist of inaction. In situations of great ajid sudden peril med- dlesome interference with those having control, either by physical act" or by disturbing suggestions and needless warnings, may be exceedingly disastrous in its result. While it is true that it is the duty of such guest or passenger not to submit himself and his safety solely to the prudence of the driver of the vehicle, and that he must himself use reasonable care for his own safety, never- theless he should not in every case be held guilty of contributory negligence merely because he has done nothing. If there be threat- ened danger which is known to the passenger and unobserved by 4B Wilson V. Puget Sound El. Ry., 52 Wash. 522, 101 Pac. SO (1909). INJURIES TO. OCCUPANT OTHER THAN DRIVER 509 the driver, the passenger would be guilty of negligence if he failed to nOtifj? and warn the driver; also if the driver be careless or reck- less in his conduct, and this is known to the passenger, and there be reasonable opportunity to do so, it would be the passenger's duty to caution the driver and remonstrate with him, and, if he per- sisted in his improper conduct, to leave the vehicle, but manifestly that would iiot be possible nor could it be required in every case. The testimony discloses no circumstance' which should have caused these plaintiffs to question the skill or the prudence of Berghmann before the accident. The situation cif known peril, just before the collision, came upon all the occupants of the automobile quickly and Unexpectedly. It cannot be said positively that it then be- came; the duty of Ida Hermann to tell Berghmann to stop or to caution him, or that such action on the part of Otto Hermann was possible, or if possible Tyouldj not have^been distracting to Bergh- mann and have added to the danger. In our opinion a court would not be justified in setting aside the finding of a jury that these plaintiffs were not guilty of contributory negligence in failing to tell Berghmann, to stopj or in fdiling to caution him. "Neither does it appear; to us that the jury's verdict should be set aside b^ecause these plaintiff s . failed to step or jump frpin the autohiobile ' just before Berghmann drove onto the track, or at the tirhe his left front wheel wais in th^ track. To step or jump trqm a moving automobile, especially for a woman to do so, is an act firaught with danger, and would not be attempted by a prudent person without careful consideration and as a last resort for safety. If these plaintiffs had conceived such d ^lir'po'se, before they could have executed it the machine would have been partly' in the car track, and Mrs. Hermann surely would have placed herself m a DbSitibn of great: danger, apparently in a place of greater dangfef than before; she would have been upon the ground between the car rails, with the possibility of falling, immediately in the path of the electric car, which was instantly upon them, and which pushed the automobile, according to the testimony of'^Some witness,' with great force for a considerable distance. Ill the case of Mi*. Her- mann also; there is a strong probability that before he could have stepped or jumped frorii the automobile and- reached" a place of safety lie would 'have found himself in danger, greater than threat- ened him while he was seated in the rear of the automobile, aind very likely he would have suffered much more serious injury than happeiied to him in that position." *® *« Hermann v. Rhode Island Co, 36 ' • ■'' R. I. 447, 90 Atl. 813 (1914). 510 LAW : OF AUTOMOB ILES ; Where the, plaintiff; was seated on the front seat of an automo- bile ^ith the driver and; saw a teq.m and ' wagon standing diago- nally across th,e road, just after thp or had,. turned a curve in the road. ,an4 while 8 to 12, rods distant therefrom, the team being in such a ; pQsition that the car could not pass on either side, and the driver did not slackep his speed , and first saw the wagon when about IS feet fro;n it, and plaintiff did nothing to warn the driver or to avert the impending accident, and the automobile went through a guard ,rail and over, an embankment, and plaintiff was injured, it was held, th^t he was guilty of contributory negligence.^!'; Where the plaintiff j a negro, sat in the : front seat of an automo- bile which approached a railroad crossing at? four or five miles an hour, and an approaching train could have been seen and. heard by him and the driver when they were 60 or 70 feet from the track, and the automobile continued from this point with the view ob- scured until it was 10 or 12 feet from the track, when the train was seen approaching about 60 feet away, at 20 miles an hour, and, the plaintiff made no effort to escape, although there was no door or other obstacle to prevent him from stepping to the street, it was held that his negligence barred recovery.** § 527. Failure to protest agaijisi negligence, "When dan- gers,^ which are either reasonably majpifest or known to an in- vited guest, coiifront the driver of a vehicle, andthe guesf has an adequate and, proper opportunity to contrpl or iUiftueij^qe, the. situ-; atl,oij for safety, if he sits by without warning or protest and per- mits himself to be, ^(Jj^iven carelessly to his injury, this is negli- gence which will bar recovery." *' , , , "The, rule is, well established that, when, possible dangers aris- ing out of the negligent operation of a. hired vehicle or a: con- veyance in which one is riding as an invited guest are manifest to a passenger wlio has any adequate opportunity, tp control thp situa- tion, if he sits by without protest and permits himself to be driven Oil to his injury, this is, negligence which will bar recovery. In othpr words, the negligence of the driver is not imputed, to the passenger, but the latter is fixed with his. own negligence when, he ipins the former in, testing ni,aijif est dangers." ,Af|t;er laying down the foregoing rule, the court ,sta,te4 the .facts as follows:, "Here, . 47 Wentworth v. Waterbury, 90 Vti 49Minhich v." Easton Tr. Co., — Pa. 60, 96 Atl. 334 (19l6). St. — , 110 Atl. 273 (1920;!.: 48 Coby V. Qulncy, O. & K. C. R. •Co., 174 Mo. App. 648, 161 S. W. 290 (1913). INJURIES TO OCCUPANT OTHER THAN DRIVER 511 the clear, strong, preponderating evidence shows that the chauf- feur was seen by numerous disinterested witnesses, sonie three or four blocks north from the point of the accident, driving in a reck- less manner, at an estimated speed of 40 miles an hour, on the wrong side of the road, quite close to the trolley track;, further- more, the admissions of the plaintiiffsi show that they both were familiar with automobiles a:nd able to appreciate the possible dan- gers of this highly improper course of conduct.": The court ac- cordingly denied recovery.®" In an action to recover for injuries incurred by a guest of an automobile operator, when defendant's automobile collided there- with, the following instruction 'was held to ^bstantially state the law: ' ' ;,. "The plaintiff in this case was required to exercise reasonable care;, that is, that degree of care which a person of reasonable prudence would exercise in the situation in which he was placed. If he had reason to suspect carelessness or incompetency on the part of the driver, it was his duty, to protest and remonstrate with or caution him against being careless, or to caution him concern- ing the operation of the car, and : if the driver was running the car at a dangerous rate of, speed, and the plaintiff knew of the rate of speed and its danger; or, in the exercise of reasonable prudence, ought to have known and appreciated it, it was his duty to remon- strate against such speed, and direct the driver to slacken the same, and if he knew and appreciated the danger of a; collisioji in time to avert it by promptly warning the driver, it was his duty to do so." " , , , The plaintiff was riding in the rear of the driver of a motor- cycle; which was moving at high speed ,, on , the wrong side, of the road, and was. injured while the -driver was attempting to p^ss other vehicles. Held, that hie was negligeiit jn faiHng, to protest against the negligence of the driver, and, hence, coiild hot re- cover." . • , • -■•• i,-i .■' --.-,-,;- •".' - -, •'•r--'- ■ ,;;•;, . That a guest in a touring car rode with the owner at 15 ,to 20 miles an hour for several blocks, without: protesting^ was held not to charge her with negligence as matter of law, .although the maximum rate of speed permitted by law was 10 miles an hour.** Whether an occupant of an automobile was negligent in per- mitting the chauffeur to drive 18 to 20 miles„3,n Jfcioxjr in ihe dark, BOHardie v. Barrett, 257 Pa. St. 42, S2 .Russell v. Watkius, 49 Utab, S98 16 N. C. C. A. 48S, 101 Atl. 7$ (1917). 164 Pac. 867 (1917). i . ' 61 Elling V. BlakeiMcFall Co., 85 Oreg. , 53 Holland, ,, v. Yellow . Cab Co., — 91, 166 Pac. 57 (1917). Minn. — , 175 N. W. 536 (1920). SI2 - i LAW OF AUTOMOBILES' ' • without lights, over a road strange to the driver, was a questioh for the jury." ■ ' A passenger in an automobile, provided by a railroad coihpany to convey its passengers to another road, who had no control over the driver, was not negligent in failing to attempt to' take steps to lessen the excessive sjjeed of the can" ' i • The fact' that the automobile, in which a passenger was riding on the rear seat, was proceeding for 1,200 feet at night at a rate of speed in excess of that allowed by' statute, and was withiri 100 feet of a pile of brick before it could be seen, and in turning around the pile of brick the machine collided with an obstruction, was not sufficient to charge such ■■ passenger with negligence in failing to remonstrate with the driver against the unlawful rate of speed.; "To say that he was guilty of contributory negligence on the facts found is to say that in riding 1,200 feet under the conditions shown, without determining that the speed was ex- cfessive, and remonstrating with the driver and requesting thai he slacken the speed or let him alight from the automobile, he did not use ordinary care.'' ^^ . i Where a passenger for hire had; no control over the automobile, and was thrown into da,nger without an opportunity to save him- selfy or even to object to the conduct of the chauffeur, he cannot be.charged with negligence;" ,, ' § 528. Passengeif injured by overturning of automobile due to striking dog. There ^Yas evidence that the automobile, oper- ated by defendant as a common carrier, and in which plaintiff was a passenger, was, being -driven on, a city street at 2.51 to, 30 n^les dh hour; that two dogs ran' in froiit of it; that the driver changed his course to avoid the first dog, and struck the other, causing the rriachine to turn over, injuring the plaintiff. Held, to support a judgment for the plaiiitiff." § 529. Collisions with street cars. Where a passenger' in a;n automobile,' on approaching a street intersection over which street cars are operated^ hears a street car coming thereon at a high or dangerous rate of speed, it is a question for the jury whether, in the exercise of ordinary care, he should have warned the driver of 6* Stewart V. Sari Joaquin f. & P. Co:, ' S7 Rush V. Metl-bpolitan '•^L'-''R. Co., — Cal. App. — , 186 Pac. 160 (1919). 1S7 Mo. App. 504, 137 S. W. 1029 BBHafmon v. Barber, 247 Fed. 1, 159 (1911). > ■' ' ' • "' C. C. A. 219. ' 88 Bean-Hoga'i v. KlofehrV 103 Kah. 66 Gary V.' Geisel, 58 Ind. App. 618, 731, 175 Pac. 976 (1918).' '"'' ' ' 108 N. E. 876' (1915).^ i , :■ INJURIES TO OCCUPANT OTHER THAN DRIVER 513 the automobile, and whether a failure so to warn contributed to the collision, then occurring between the automobile and streiet car."' Where a guest paid no attention to the surroundings, and the automobile was struck by a street car which could easily have been seen, and neither guest, driver nor motorman saw the dan- ger in time to avert a collision, no recovery could be had foi death of the guest.®" The fact that the occupant was from the country and unfamiliar vvith the street and loca,tioin, and the driver was a resident of the vicinity, with long experience as a driver and acquaintance with his surroundings, is to be considered in determining the question of due care on the part of the occupant when the machine in which he was riding was struck by a street car.®^ Where both guest and driver were on the lookout for cars, and they proceeded at low speed, in daylight, onto the track, where they were struck by a car which could haye been seen in time for the driver to stop the automobile, if his attention had been called to the car, both guest and driver were contributorily negligent.®^ "One who is riding in her parent's automobile, which her sister is driving, and knows that the automobile, after the passing of a street car going in the same direction on the nearer of, two street car tracks, is being turned in the middle of the block, to cross the nearer track and the further track for cars going in the opposite direction, and could have seen an on-coming car on the further track if she had looked, but pays no attention whatever', is guilty of contributorv negligence." *' Where one seated with the driver of a vehicle admitted that she saw the street car, which struck their vehicle, nearly half a block awav, but made no attempt to warn the driver, it wa!s held that a presumption arose that she w^s negligent.** Where, in an action to recover for injuries incurred in a collision between an automobile and a street car, it appeared that the plaintiff was riding in the automobile as a passenger for hi(-e; that she was a stranger in that vicinity, and did not know that their road crossed a railway track; that she did not see or hear the approaching car; and that the conduct of the chauffeur had not 69Christison v. St. Paul City R. Co., R, Co., 230 Mass. 392, 119 N. E. 762 138 Minn. 4S6, 16S N. W. 273 (1917). (1918). 60 Laudenberger v. Easton Tr. Co., 63 Carden v. Chicago Rys. Co-. 210 261 Pa. St. 288, 104 Atl. S88 (1918). 111. App. ISS (1918). 61 Johnson v. Chicago Surface Lines, 64 Cincinnati Tr. Co. v. Sanders, 32 209 111. App. 26 (1918). Ohio Gir. Ct. R. 413. 62 Pigeon V. Massachusetts N. E. St. ' B. Autos.— 33 514 LAW OF AUTOMOBILES been such as to show that he was manifestly incompetent or inat- tentive to his duties to such a degree as to impose upon plaintiff any greater obligation of watchfulness than that which would otherwise haye been hers, it was held that she could not be charged with negligence as matter of law.®* Where it appeared that the driver of an automobile was clearly negligent in driving on railway tracks without looking for a car; that the deceased, who sat beside the driver, was familiaj with the neighborhood, saw the car tracks, and was aware that a car might pass at any moment, but made no effort to observe whether or not the track was clear; and that the deceased and the driver were engaged in a common purpose, it was held that no recovery could be had for the death of deceased, killed when a car struck the automobile ; that in such case it was the duty of deceased to be on the lookout for an approaching car and to have warned the driver of its approach; and that judgment was properly entered for the defendant non obstante veredicto.^^ Where the occupant of an automobile, which was caught between two cars pn an electric railway, testified that when within 25 to SO feet of the track the automobile was slowed down to 4 to 6 niiles. an hour; that at that point he could not see more than 75 to 150 feet east, and that he looked and listened for a car, and heard and saw none; and it appeared that the driver looked and listened; that the automobile was making but little noise; that he looked both ways of the track; that when the front wheels were on the first track he saw an east-bound car 175 feet west, approaching at 30 miles an hour; that he endeavored to increase his speed and turn to the east, when he saw a car coming on the west-bound track, at 12 miles an hour; that he then turned his mkchiiie be- tweeii the tracks, as the only alternative, and, the space being too narrow, it was crushed between the cars, and plaintiff was injured, it was held that plaintiff was not contributorily negligent -as riiat- ter of law.®'' Whether a passenger was negligent in remaining in an automo-- bile that was struck by a street car, was held to be a question for the jury, it appearing that she looked for a car but did not see it until the automobile was entering upon the track, when it would have been dangerous for her to have jumped out.®' 66 Thonipson v. Los Angeles & S. D. 67 Speer v. Southwest Mo. R. Co., 190 B. R. Co., 16S Cal. 748, 134 Pac. 709, Mo. App. 328, 177 S. W. 329 (19lS). 4 N. C C. A. 379 (1913). 68 Indiana Union Tr. Co. v. Love, 180 66Dunlap V. Philadelphia R. T. Co., Ind. 442, 99 N. E. lOOS (1912). 248 Pa. St. 130, 93 Atl. 873 (1915). INJURIES TO OCCUPANT OTHER THAN DRIVER SIS The plaintiff, a woman of mature years, was riding in an auto- mobile, being driven by her husband, which came into collision with one of defendant's electric cars at a public crossing. She testified that she was familiar with the vicinity, and that in ap- proaching the crossing she was in conversation with a guest in the automobile, giving no attention to the driving, but depending on her husband, in whom she had implicit confidence and trust; that when 400 or 500 feet from the track, she could have seen the wires and the trolley pole of the approaching car had she looked, although the car itself was hidden by walls and shrubbery; and that the approach to the track was down a steep hill. It appeared that her husband had the machine under control and could easily have stopped it had she warned him. Held, that she was giiilty of contributory negligence barring recovery ; that she was required to exercise some care to ascertain whether there was peril in crossing at that time.®' § 530. Same— Automobile stalled on track. Where the auto- mobile in which plaintiff was riding late on a dark and foggy night, became stalled on defendant's car track, and while the chauffeur, who had tried in vain to move the machine, was some distancp away on the track for the purpose of stopping a car, the plaintiff, who had alighted from the machine, re-entered 4t and was injured when the car that the chauffeur tried to stop struck the niachine, it was held that her right to recover was barred by contributory negligence.'"' The plaintiff sat in an automobile stalled on a street car track, while her husband went a distance of 12 S feet to signal an ap- proaching car to stop. She saw that the car did not stop for, his signal, but did not attempt to get out of the automobile until shp saw that the car was not going to stop, which was when it was 12 feet away. The machine was in plain view on the track, and the car had stopped half a block away and started up again. Held, that she was not contributorily negligent as matter of law.''^ § 531, Same— Captain of fire department with control over driver. The plaintiff, member of a city fire department, was in charge of a new automobile ladder truck, accompanied by an agent of the manufacturer, who was instructing the men how to handle it. /They approached an intersecting street, in which were, two fiSPouch V. Staten Island M. R. Co., C. St. R. Co., 2S1 Pa. St. 498, 96 Atl. 142 App. Div. 16, 126 N. Y. Supp. 738 1051 (1916). (1910). 7lHensley v. Kansas City R. Co., — 70 Coleman v. Pittsburgh H., B. & N. Mo. App. — , 214 S. W. 287 (1919). 516 LAW OF AUTOMOBILES lines of street car tracks, at the rate of 10 or IS miles an hour, with the bell on the truck ringing so loudly that the driver could not hear the approach of a street car. The truck was 36 feet long, which made it difficult to turn into an intersecting street without plenty of space. They continued thus until the front of the truck was about 11 feet from the first rail of the car track without anyone looking for a car. At this time the driver dis- covered an approaching car, and did all in his power to stop be- fore colliding with same, but he could not do so within that space. A collision ensued in which the plaintiff was injured. An ordinance gave fire deF>artment vehicles right of way over other vehicles. On this trip there was no occasion for haste. Held, that plaintiff's contributory negligence was a proximate cause of -the accident, and that he could not recover. Plaintiff was a captain, sat by the driver, and had control over the truck.'* § 532. Riding on running board of truck, struck by rear of street car rounding curve. The plaintiff was riding on the side- board of a motor-truck with his feet on the running board, by per^ mission of the driver on condition that he would not put his feet inside. When the truck reached an intersecting street it stopped, in compliance with the signal of a traiffic officer. It was stopped so close to the street car track' that an oncoming car in passing the truck livhere there was a turn in the track, which causted the rear end of the car to swing out, struck the plaintiff on the leg! The street car disregarded a signal of the traffic officer. Held, that plaintiff was entitled to recover. "If he had taken a position as a pedestrian so close to the track that an oncoming car hit him when it swung around the curve he would undoubtedly be guilty of contributory negligence, because the car was running on a fixed track and he could easily have changed his position and he was bound to note the swing of the rear end of the car to make the curve, but being on an automobile truck, which, under the plain- tiff's evidence, was hemmed in by another automobile in front of it, the only way he could have escaped if he had seen the car com- ing on v^ould have been by jumping off the truck or putting his legs inside, where he had been forbidden to put them. He had a right to assume at the start that the car would obey the signal pf the traffic officer. He found himself without fault of his unex- pectedly placed in a position of danger, and he is to be dealt with in the light of his surroundings at that time, and is not neces- 72 Lynch v. Boston Elev. R. Co., 224 Mass. 93, 112 N. E. 488 (1916). INJURIES TO OCCUPANT OTHER THAN DRIVER 517 sarily negligent even though his judgment was wrongfully exer- cised." '* § 533. Collisions with railroad trains— Duty of occupant. It is the duty of one who is riding in an automobile as a passenger, when about to cross a railroad track, to look and listen for ap- proaching trains, and to warn the chauffeur of the near approach of a train, and prevent him from attempting to cross the tracks close in front of the train, and a failure to perform this duty amounts to negligence.''* He must use reasonable care to learn of the approach of a train and to keep out of its way.''^ "The mere sight of a *railroad crossing by a passenger of a vehicle approaching such crossing, where there is then present no apparent danger in making the crossing, does not make it the duty of such passenger to warn the driver of the crossing or of the near aooroach of the vehicle thereto." ''* The care required of the passenger or guest in an automobile approaching a railroad crossing is gauged in view of the relation of driver and guest or driver and passenger. The duty of the passenger to exercise care in such cases has reference to that rela- tion, and to the measure of reliance which the passenger, in the exercise of ordinary care for his own safety, may repose in the person charged with the control, management, and operation of the vehicle, including all the duties of that position." TS Nikl V. Wilkes-Barre R. Co., 72 Pa. or ought to have had In the exercise of Super. Ct. 11 (1919). reasonable care. ''*Sherris v. Northern Pac. R. Co., 5S 'SMilner's Adm'r v. Evansville R. Mont. 189, 175 Pac. 269 (1918); Dreger Co., — Ky. — 221 S. W. 207 (1920). V. International R. Co., 190 App. Div. 76 Ellis v. Central Cal. Tr. Co., — S70, 180 N. Y. Supp. 436 (1920); Read Cal. App. — , 174 Pac. 407 (1918). V. New York Central & H. R. R. Co., "Lord v. Delano, ^ Mo. — , 188 S. 123 App. Div. 228, 107 N. Y. Supp. W. 93 (1916). i? 1068 ; Robison v. Oregon-W. R. & N. Though plaintiff was required to exer- Co., 90 Oreg, 490, 176 Pac. S94 (1918). cise ordinary care for his own safety and "A passenger who, knowingly and to reasonably use his faculties of sight without protest, suffers the chauffeur to and hearing to observe and avoid the drive an automobile upon a railroad dangers incident to crossing such track, track without slopping to look and listen, an instruction that he "was not exoner- is negligent." Eline v. Western Md. R. ated from, any duty at all by reason of Co., 262 Pa. St. 33, 104 Atl. 8S7 (1918). the fact that he himself was not driving This case, however, declares that this the machine" is erroneous. Toledo R. duty depends upon whether or not the & L. Co. v. Mayers, 93 Ohio 304, 112 passenger had knowledge of the cross- N. E. 1014 (1916). ing; that is, knowledge which he had 518 LAW: OF AUTOMOBILES' : ;.; , ! Ordinary care on the, part of a guest is measured by whether he failed in his duty to keep a lookout and to warn his companion, the driver of the -automobile^ \yhen he discovered th^^ approach of a train.''* ..''.:.'•'■'■, -• -; ■; ■ ., -i,- "A mature person, who attenipts to cross an interurban railroad track without taking any precautions for his own safety, while riding in an automobile with another, who is driving, cannot re- cover damages, for injuries sustained in a collision with a car on the track, when by looking he could have seen the approaching car in time to have warned the driver of the danger." '* A guest is required, in the exercise of ordinary care iot his own protection, to keep a vigilant lookout for apip'roaching trains, when about to pass over a railroad crossing. If he is sitting on the front seat with the driver; enjoying opppttunities' for seeing and listening equal to those of the driver, there is no reason for exact- ing a less degree of Care in these respects from himi than the driver is reauired to exercise.*" . Where a passenger in an automobile saw, or was bound to see an approaching^ trtiin when it rounded a curve, and the driver also saw it, there waS neither occasion nor necessity for interference by the passenger with the operation of the car, and to have done so might only have served to increase the danger.*^ Where the passenger, having no control over the driver or car, did not know of the driver's intention to go on a railroad track without stopping, looking and listening', he was held not to be negligent in failing to warn the driver of an approaching train.*^ Where there was evidence that at the time of and immediately prior to the collision in which deceased, riding as a gUest in the automobile in question, was killed, she was exercising no care to ascertain the existence of the railway track, or the approach of the car, but that, owing to obstructions along the, route, to have looked and listened would not have warned her of danger,,, the case was for the jury.*' > One who by invitation rode in an automobile driven by another and remained in it, with knowledge that it was approaching a dangerous Railroad crossing, without requesting the driver to stop or to take other necessary precautions, to avoid danger, was guilty ''S L,yon V. Phillips, — Tex. Civ. App. 81 Carbaugh v. Philadelphia & R. R. — , 196 S. W. 995 (1917). Co., 262 Pa. St. 25, 104 Atl. 860 (1918),. 79Kirby v., Kansas City, K- V. & W. 82 Birmingham ,S. R. Co. v. Harrison, R. Co., — Kan. — , 186 Pac. 744 (1920). — Ala. — , 82 So; 534 (1919). 80,Barrett v. Chicago, M. & St. P. R. 83 stem y. Nashyille Int. Ry., — Tenn. Co., — la. — , 175 N. W. 950 (1920). — , 2,?1 S-. W. 192 (1920). INJURIES TO OCCUPANT OTHER THAN DRIVER 519 of contributory negligence, and could not recover for personal in- juries sustained from coiliding with a passing train, even though no signal 'by the locomotive bell or whistle was given.** ■Where the driver and other occupants of an automobile gave no. attention to their surroundings or safety as they approached a rail- road crossing, where the automobile was struck, by a train, all were gyilty of negligence.'* . i § 534. Same— (Jccupant in rear seat. The rule of law in this respect does not apply with the same degree of strictness where the passenger is seated away from the operator, or is separated, from him by an enclosure, and is without opportunity to discover danger and to inform the operator of it.*® ' "The guest on the rear seat of the automobile owes a very lim- ited degree of care. He is not expected to direct the, driver, nor to , keep a lookout. . Dangers oi^ threatened dangers known to hini he must warn the driver of, and for his failure to do so be chargeable with having proximately contributed to the accident, unless a, rea- sonable person under all the circumstances would not have given the warning. * * * If he had been asleep, or reading a book, or engrossed in talk with another than the driver, or in deep thought, he would not have been, because of this, negligent.. Ordinary ex- perience instances this as not infrequently the conduct of the ordi- narily prudent person when riding as a guest on the rear seat of an automobile." *'' One sitting on the rear seat of an automobile holding another person on her lap, was not negligent as matter of law for failure to observe the approach of an interurban car, which she could have done had she looked or listened.** § 535. Same— Father watching son drive. Where an owner was riding in his automobile, which was being driven' by his son, whom he fea;red could not properly drive the car, as they were ap- proaching a crossing, which was in bad condition, and he watched the handling of the car instead of looking for a train, although he knew that it was about train time, and they were struck by a train before they could clear the crossing, it was held that both were negligent and could not recover.*' 84'Moi'ris V. Chicago, B. & Q. R. Co., STWeidlich v. New York, N. H. & H. 101 Neb. 479, 163 N. W. 799 (1917)'. - R. Co., — Conn. -^, 106 Atl. 323 (1919). 85 Conant>v. Grand Trunk R. Co., 114 88 Cowan v. Salt Lake & U. R. Co., Me. 92, 9S Atl. 444 (191S). ,, — Utah r-, 189 Pac. 599 (1920). 86Brickell v. New York Central & H. 89 Leopold v. Texas ,& P. R. Co., 144 1 R. R. Co., 120 N. Y. 290, 24 N. E. -449, La. 1000, 81 So. 602 (1919). 17 Am. St. Rep. 648. ; , 520 LAW OF AUTOMOBILES § 536. Same— Crossing bell ringing. Where occupants were warned by a crossing bell of the approach of a car, and coxild have seen the car, had they looked, in time to cause their driver to stop and avoid a collision, but did not, they could not recover for injuries incurred in such collision.'" § 537. Same— Illustrations. Whether or not a passenger has been guilty of negligence depends, like any other question of neg- ligence, upon' all the circumstances of the particular case. Thus, the plaintiff, a female, sixteen years of age, was riding on tbe rear seat of a two-seated automobile, being seated between her mother and a gentleman. The chauffeur, who was a competent operator, and plaintiff's father occupied the front seat. The automobile was struck by a train and plaintiff seriously injured. It was held that, considering her age, six and all the surrounding circumstances at the time of the accident, plaintiff's failure to look up and down the track at the crossing for an approaching train, as constituting contributory negligence, was a question for the jury.^ * In an action by an occupant of an automobile to recover for injuries incurred in a collision with a railroad train, the court stated the facts as follows: "The automobile in which plaintiff was riding stopped about 100 yards from the track, on the south side of the cornfield, while men lighted their cigars and spoke of the crossing ahead Of them with which they were acquainted. They looked into the corn and across it and saw nothing, and listened and heard nothing. The plaintiff looked as best she could from heir unfavorable position. When thfe two men on the front seat were SS or 60 feet from the crossing, Mr. Ward, who was also look- ing, said to him, 'Good God, George, there it is,' or somethihg to that effect. The train had then first come in sight of him at about the distance between two telephone poles away. At the time this . remark was made by Mr. Ward the plaintiff had not yet seen the train, and therefore from that time on no negligence can be im- puted to her." Her husband had been warned, and nothing she could say would add to his information. Had she attempted to use physical force it would only have embarrassed him in his efforts to stop the machine. He immediately took measures to do so, and succeeded just in time to put the front of it in the way of the projecting pilot of the locomotive. There is no evidence of neg- ligence in failing to make every reasonable effort to stop the ma- 90 Sellers v. Galveston, H. & S. A. R. R. Co., 121 App. Div. 716, 106 N. R; Co., — Tex. Civ. App. — , 208 S. Y. Supp. 522, aff'd 195 N. Y. 543 W. 397 (1918). (1909). INoakes v. New York Cent. & H, INJURIES TO OCCUPANT OTHER THAN DRIVER 521 chine from thq time Mr. Ward says the train first came in sight. Had there been such negligence the plaintiff would not have been responsible for no way is suggested in which she could have assisted." It was held that the trial court was justified in granting a new trial on application of the plaintiff after verdict for the defendants.^ The plaintiff's deceased with three others was a passenger for hire in an automobile when it was struck by defendant's train, and he suffered injuries from which he died. The chauffeur neither looked nor listened for the train, which was declared to be gross negligence, and the train was run at an excessive rate of speed. There was nothing to prevent deceased from seeing the train had he looked. He was seated on the rear seat. The chauffeur was pre- sumably competent and experienced. For some distance before reaching the crossing the public road and railroad paralleled each other. Their not having heard the train was explained by the fact that it had shut off steam, and was moving along very smoothly and silently; so peculiarly so as to attract the attention of one of the witnesses, who remarked upon the fact before the automobile had come upon the scene ; and the wind, was considerable, blowing towards the train. That the train was not seen was accounted for by the fact that it was coming from behind; and also, possibly, in part, by the fact that the road was very dusty and the cloud of dust raised by the automobile was being blown in that direction. So dense was this cloud of dust that it hid the automobile from the engineer, who saw this cloud, but not the automobile itself, as he approached and passed it from behind. The turn from the road to tiie crossing was sharp. In affirming judgment for the plaintiff, the court held that the deceased was disconnected with the negligence of the chauffeur, because he was a passenger for hire and had reason to assume that the chauffeur was competent, and in respect of the contention that he should have seen the train and warned the chauffeur, the court said: "The contention is that he should have observed the cross- ing and warned the chauffeur; and in support of this the case of Dixon v. V: S. & P. R. R., 139 La. 329, 71 South. 527, is cited. The occupants of the automobile in that case were not passengers for hire. . The obiter dictim in that case, practically to the effect that a passenger on the front seat of an automobile is under the same legal obligation as the chauffeur to be observant, has no ap- 2 Lord V. Delano, — Mo. — , 188 S, W. 93 (1916). 522 i ; / LAW OF (AUTOMOBILES; I plication to this case for ; the- reason that Wright was not on the front seat; and as to its being good law in any case, quaere^".' , ; i In an action to recover, for injuries incurred when, the ,autoni the suggestion of plaintiff a drive was under- taken around a certain driveway in Marquette, after having added five young women to the party. The automobile, which was de- signed to carry seven passengers, was carrying twelve persons, and while on this trip, in making a turn, a tire blew out, the car skidded, capsized and fell on the plaintiff, causing the injuries complained of. It was contended that the negligence of the plaintiff precluded 28 Powell V. Berry, XAS Ga. 696, 13 S. S. M. R. Co., 37 N. D. 377, 163 N. N. C. C. A. 858, 89 S. E. 753 (1916). W. 824 (1917). 29 Chambers v. Minneapolis, St. P. & ^ INJURIES Tp OCCUPANT OTHER THAN DRIVER 533 his right to recover. The court held that, although the plaintiff seemed to have been the most active in procuring the overloading, or overcrowding, of the automobile, and to have imbibed intoxi- cating liquors with the Qthers, and to have undertaken the jour- ney without protesting either as to the overcrowding of the car or as to the alleged excessive speed at which it was driven, and that if it could be said that the plaintiff acquiesced or participated in the negligence of the driver he should not be permitted to recover, still the case, while not free from difficulty, was for the jury,*" § 543. Participation or acquiescence in driver's negligence. If the occupant of an automobile acquiesces or participates in the negligence of the operator, he should not be permitted to recover.'^ If he voluntarily goes into a danger that he can avoid,, or joins the driver in testing a danger of which he knows, his contributory negligence will prevent recovery.'^ There was no joining with the operator in testing a manifest danger where it appeared that the operator stopped at a railroad crossing and looked and listened for a train, and one was not in sight.'* If a passenger urges the chauffeur to go at a high rate of speed, or acquiesces in such demands on the part of his comrades, and if the chauffeur is thereby induced to go at an unsafe rate of speed, and an accident occurs by reason thereof, then his negligence will be held to have contributed to the result and he cannot recover for injuries so received.** The plaintiff was riding in an automobile being driven at a high rate of speed when it struck a bundle of papers, which the de- fendant had placed in the street. After colliding with the papers the machine ran 70 or 80 feet, struck an iron pole 9 inches wide and 7 inches thick, made of quarter-inch rolled iron, and broke the pole off about 6, inches from the ground, turned around twice, breaking the body loose from the frame and practically destroy- ing the automobile. It appeared that the automobile was > being driven at about 50 miles an hour when it struck the papers, and that the plaintiff was injured when the machine struck the pole, but that striking the pole was due to the machine being deflected by 30 Webber v. Billings^ 184 Mich. 119, 82 Senft v. Western Maryland R. Co., ISO N. W. 332 (1915). 246 Pa. St. 446 92 Atl. SS3 (1914). "Fair v. Union Tr. Co., 102 Kan. 33 Carbaugh v. Philadelphia & R. R. 611, 171 Pac. 649 (1918); Webber v. Co., 262 Pa. St. 25, 104 Atl. 860 (1918). Billings, 184 Mich. 119, 150 N. W 332 84 Routledge v. Rambler Auto. Co., — (1915); Langley-v. Southern R. Co.,'— Tex. Civ. App. — (1906), 9S S. W. 749. S. C. — , 101 S. E. 286 (1919). 534 LAW OF AUTOMOBILES the papers. It was held that the nuisance created by the defendant by putting the papers in the street was not the proximate cause of the injury, which was due to the negligence of the plaintiff in rid- ing at such a reckless and high rate of speed. In part the court said: "The evidence would warrant a find- ing that the automobile was rushing through the street at the rate of SO or more miles an hour, and the only wonder is that all the occupants were not instantly killed. The plaintiff, participating in such insane business, cannot be heard to say that he was not called upon to exercise any care, and that while in such unreason- able use of the highway he had a right to assume that the highway was safe. The mere fact that plaintiff rode in the automobile 1,500' feet in something like 20 seconds, without remonstrance or even a suggestion to the driver that he stop the car or slacken its speed, places on the plaintiff all the recklessness or contributory negligence needed to sustain a finding of ,a jury that he was in an unreasonable use of the highway; and his failure to attempt to restrain the driver from pursuing such a madcap pace would war- rant the jury in finding complete acquiescence on his part in the driver's negligence or carelessness, and - render him answerable therefor." 8^ Where the plaintiff was a guest of the defendant, and was injured by the automobile in which they were riding being run at a high raj;e of speed around a curve which threw plaintiff out; and it was shown that the plaintiff was not in a position to direct the opera- tion of the automobile, it was held that he was not bound by the demands of the other occupants that the operator maintain a high rate of speed, unless it be shpwn that he made such demands his own by acquiescing thereto. ^^ An automobile salesman who had been demonstrating an auto- mobile for the plaintiff as a prospective purchaser, was taking him, after the test, to his destination. He speeded up the car to 60 miles an hour, which was in violation of a statute, and in rounding a curve the car was upset and the plaintiff injured. The accident was due to the excessive speed. Plaintiff brought suit against the salesman. I After the test plaintiff expressed satisfaction with the machine, directed the salesman to return, and requested that he be driven not too fast. The plaintiff testified that his attention was not attracted to the speed until within a few moments before the curve was reached and too late to prevent the accident. Held, that 36Jefson v. Crosstown St. Ry., 72 Tex. Civ. App. — (1906), 9S S. W. 749; Misc. 103, 129 N. Y. Supp. 233 (1911). Perkins v. Galloway, -184 Ala. 26S, 69 36 Routledge v. Rambler Auto Co., — So. 87S (1915), quoting from this work. INJURIES TO OCCUPANT OTHER THAN DRIVER S3S the question of the plaintiff's acquiescence in an unlawful act was for the jury, and that verdict for the plaintiff would not be dis- turbed." § 544. Statute imputing neglig'ence of operator to gratuitous passengers void. A statute of Alabama known as the "Auto- mobile Act" contained a section which provided as -follows: "The contributory negligence of the person operating or driving any motor vehicle in this state shall be imputed to every occupant of said motor vehicle at the time of such negligence in actions brought by such occupant or his personal representatives for the recovery of damages fqr death or personal injury whether the relation of principal and agent exists between such person operating or driving such motor vehicle and such occupant or not, provided that the provisions of this section shall not apply to passengers paying fare and riding in a motor vehicle regularly used for public hire." It was held that the statute in this respect unjustly discriminated against persons riding in automobiles who did not come within the exception of pay passengers, and was invalid. The court said: "It may be that the motor vehicle, because of its mechanism and capacity for speed, as well as its rather recent appearance and gen- eral use, is considered more dangerous than other vehicles in com- mon use before it became such a general instrument of use and travel, as was the case when the coal oil lamp succeeded the tallow candle; yet it is a vehicle of most common use, and is recognized as having the right to the use of our highways in common with all the other modes of travel, possessing the same general rights and subject to the same general rules as to the duties and liabilities owing to the public, and the occupants of same should enjoy the same legal protection accorded to persons riding or traveling in other vehicles. "We do not mean to hold that the Legislature cannot enjoin upon motor vehicle operatives certain duties and restrictions not placed upon other vehicles of an inherently different nature and character, for the protection of the public. But the right to do this does not authorize the penalizing of people who ride in same, by de- priving' them of a legal right enjoyed by persons riding in any other ' kind of vehicle, and such a discrimination cannot be justified upon the basis of a reasonable classification. Section 34 not only discrimi- nates against persons riding in motor vehicles in favor of those riding in all other vehicles under similar conditions, but it dis- criminates between those who ride in motor vehicles for hire. In 37 Snyder v, Jenkins, 25 Pa. Dist. 929 (1916). 536 LAW OF AUTOMOBILES other words, if a person rides in a motor vehicle which is' regularly used for hire he is not responsible for the negligence of the driver or operator; yet if he rides in one for hire he- is responsible, unless said vehicle is regularly operated for hire. The section dehies an equal protection of i the law to all persons similarly situated, and is , an unwarranted discrimination." ** § 545. Liability of operator or owner to guest for negligeiice. The courts have confused this question by failure to keep in mind the distinction between the duty owed to an invitee arid that owed to a mere licensee. The distinction' is clearly illustrated by reference to the former as one riding at the invitation of the owner of the autoriiobile, and to the latter as one who has requested permission to iride. The views of the courts, however, are given herein without regard to recognition of this difference. One who accepts an iflvitatiori to ride with a driver is not charge- able with his negligence, provided there was no negligence on ac- count of the character or condition of the driver, or the safefy of the vehicle, or otherwise." The operator of an automobile who invites ano'ther to ride with hihi is bound to exercise reasonable care for the safety of his guest, and if by his negligence the guest is injiired, the latter being in the exercise of due care, he is liable in damages therefor.*" This care 88 Birmmghani-;T. R. & V. Co. y. Car- method of travel. He must exercise the penter, 194 Ala. 141, 69 So. 626 (191S) ; care and diligence which a man of rea- Galoway v. Perkins, 198 Ala. 6S8, 73 So. sonable prudence, engaged in like busi- 956 (1916). ness, would exercise for his own profec- 89 Robinson v. Kew York Central & tion and the protection of his faihily and H. R. R. Co., 66 N. Y. 11. property — a care which must be reason- , iOBarnett v. Levy,, 213 111. App.. 129 ably commensurate with the nature and (1919), quoting from this work; Fitz- hazards attending this particular, mode jarrell v. Boyd, 123 Md. 497, 91 Atl, S47 of travel. Failing m.this duty, he will (1914). be liable to the occupant or guest in the ■'"It is thus clear that one who accepts car for Injuries the result of such care- an invitation to ride in such vehicle leSsness or lack of diligence." Perkins does not thereby relinquish the claim v. Galloway, 184 Ala. 26S, 69 So. 87S to protection from the owner or opera- (191S). tor of the machine the same as that This rule has be,en extended by many accorded to persons riding in other ve- cases to one not a common carrier, who hides. The application of the princi- voluntarily undertakes to transport an- ples involved is a comparatively new other, and makes siikh voluntary car- one. The express or implied duty of rier responsible for injury to the pers6n the owner and driver to the occupant transported ■ resulting from negligence, of the car is to exercise reasonable care in whether the service was for a compen- its operation not to unreasonably ex- sation or was gratuitous. ■Perkins v. pose to danger and injury the occu- Galloway, 184 Ala. 26S, 69 So, 875 pant by increasing the hazard of that (1915), ' INJURIES TO OCCUPANT OTHER THAN DRIVER 537 is such as seems feasonable and proper from the character of the undertaking.*^ He is not required to use the same degree of care that a common carrier is.** A person invited to ride in an automobile is a Ucensee, and the duty of the person extending such invitation is to use ordinary care not to increase the danger of the guest or to create a new danger.*' His responsibility is not limited to the duty to refrain from gross or wilful neglect, but he must abstain from ordinary negligence that might add to or increase the ordinary dangers pf the occupation.** "A person thus invited to ride stands in the same situation as a bare licensee who enters upon real property which the licensor is under no obligation to make safe or keep so, but who is liable only for active negligence. The obligation of one who invites another to ride is not as great as that of the owner of real property , who invites another thereon, especially for the purpose of trade or com- merce, because, under such circumstances, the one who gives the invitation is bound to exercise ordinary care to keep such property reasonably safe, Under the above principles, therefore, one who invites another to ride is not bound to furnish a sound vehicle or a safe horse. If he should have knowledge that the vehicle was unfit for transportation or the horse unsafe to drive, another elementv would arise, and he might be liable for recklessly inducing another to enter upon danger.*^ "In principle, we see no difference between the case of one who goes upon the premises at the invitation of the owner, and the case of one who takes a ride at the invitation of the owner of the^ *1 Avery v. Thompson, 117 Me. 120, injury to another obliges him who was 103 Atl. 4, L. R. A. 1918D 20S, Ann. at fault to pay for the injury." Jacobs Cas. 1918E 1122 (1918). v. Jacobs, 141 La. 272, 74 So. 992 (1917). *8 Avery v. Thompson, 117 Me. 120, *3 pigeon v. Lane, 80 Conn. 237, 67 103 Atl. 4, L. R. A. 1918D'205, Ann. Atl. 888, 11 Ann. Cas. 371; Mayberry Cas. 1918E 1122 (1918). ,v. Sivey, 18 Kan. 291; Beard v. Klus- "The driver of an automobile, who meier, 158 Ky. 153, 164 S. W. 319, SO has invited a guest to ride with him, is L. R. A. (N. S.) 1100 (1914); Roy v. not absolved from responsibility for neg- Kirn, 208 Mich. S71, 175 N. W. 475 ligence or imprudence merely because he (1919), approving rule laid down in is performing a gratuitous service or Avery v. Thompson, 117 Me. 120, 103 favor to his companion. Although an Atl. 4, L. R. A. 1918D 205, Ann. Cas. invited guest of the driver of an auto- 1918E 1122 (1918); Patnode v. Foote, mobile, being a mere licensee, is not en- 153 App. Div. 494, 138 N. Y. Supp. 221. titled to the consideration due by a ** Jacobs v. Jacobs, 141 La. 272, 74 carrier to a passenger for hire, he is So. 992 (1917). nevertheless entitled to the benefit of the 46 Patnode v. Foote, 153 App. Div. provision of the Civil Code that any act 494, 138 N. Y. Supp. 221. of negligence or imprudence that causes 538 LAW OF AUTOMOBILES automobile, or other vehicle. In either case the relation of host and guest arises." *® So, where plaintiff was invited by defendant to ride in his auto- mobile, and while so riding, and when another automobile' at- tempted to pass them, the defendant increased his speed and par- ticipated in a race with the other machine, and plaintiff begged' defendant to be allowed to get out, but her request went unheeded, and defendant's machine collided with a pile of brick and sand and other building material which had been stacked in the street, and plaintiff was injured, it was held that she could recover.*''' In New Jersey, it is held that one who is invited to ride as the guest of a motorist is an invitee to whom the motorist owes the duty of due care.** It has been held that a licensee can recover only for the active ; negligence of the licensor; but under an allegation that the injury to the licensee was caused by the licensor's careless, negligent, and improper driving, evidence of active negligence is admissible.*' The liability of the owner is the same although the injured per- son was not invited by him to ride, but by one of his party; the owner knowing of his presence and not objecting thereto.'''' 46 Beard v. Klusmeir, 1S8 Ky. 1S3, 164 S. W. 319, 50 L. R. A. (N. S.) 1100 (1914), quoted approvingly in Barnett V. Levy, 213 III. App. 129 (1919). « Beard v. Klusmeier, 158 Ky. 153, 164 S. W. 319, SO L. R. A. (N. S.) 1100 (1914). 48 Mackenzie v. Oakley, — N. j^. L. —,■108 Atl. 771 (1920). 49 Pigeon v. Lane,^ 80 Conn. 237, 67 Atl. 888, li Ann. Gas. 371. 50 Galloway v. Perkins, 198 Ala. 658, 73 So. 956 (1916). "The deceased was clearly fiot a tres- passer, and was expressly invited by one of the parties in the automobile, and his presence in the car was kBown and acceded to^ by the defendant. The duty of defendant not to injure the deceased was therefore the same as if he had ex- pressly invited deceased to ride with him. As before remarked, it does seem hard that defendant should be mulcted in damages, when he was attempting to do an act of kindness and courtesy to the deceased and his comrade by taking them, tired and footsore from hunting, into his machine and proceeding to carry them home, and when be was not at all responsible for their being away from home without conveyance. But this kindness and charity, in the eyes of the law, did not excuse defendant from ex- ercising ordinary care not to inju* them. If he had been, carrying their goods under like conditions, he would not have been liable except , for gross negligence or wantonness. But as to the gratuitous carriage of persons the rule, as we have shown, is different ; the carrier is then liable for failure to exercise rea- sonable care as to the safety of those gratuitously riding with him, and the fact that he himself is subjected to the same liability or probability of injury, or is himself injured, as are the guests, does not preclude a recovery against him for injury to those who are so riding with him." Galloway v. Perkins, 198 Ala. 658, 73 So. 956 (1916). INJURIES TO OCCUPANT OTHER THAN DRIVER 539 An owner who invited another to ride with him as his guest, was liable to such guest for inj dry caused by the negligence of the chauffeur.*^ A guest who had no power of control over the management of the car, who did not consent to or acquiesce in the particular man- agement or mismanagement • that caused the injury; who was a stranger in the locality, and was seated on a rear seat; and who was one of the first to dispover the impending danger, and to warn the driver of it, was not guilty of contributory negligence.** § 546. Same. In Alabama the rule is laid down that the owner and driver of an automobile who undertakes to transport another gratuitously as his guest is liable for injuries to or death of such per- son due to his negligence.*' In Massachusetts it has been held that the owner is liable to a guest riding gratuitously only for gross negligence.** In the same state»it is held that where one invites another to ride with him gratis, the undertaking is not governed by the rule as to liability of licensors. To recover in that state for injuries the invitee must show gross negligence; that being a state in which negligence is divided into degrees. "In holding that to charge a defendant with liability in case of a gratuitous undertaking to transport a person the plaintiff must prove gross negligence because that is the measure of liability in case of the gratuitous undertaking to keep or carry goods, it is not to be jind'erstood that gross negligence in the two cases is the same thing. In all cases (no matter whether the case is a case of ordi- nary or of gross negligence) the consequences likely to result is a fact to be taken into consideration in determining what ought to be done by the defendant to fulfil his measure of his liability. For . example : It might be held that the omission to do a certain thing in the transportation of goods was no-t negligence and that by reason of the seriousness of the consequences likely to result the omission to. do the same thing ia case of the transportation of a person would be negligence; and so in case of gross in place of ordinary negli- gence." ** BlLojvell V. Williams, 183 App. Div. 6*Flynn v. Lewis, ,231 Mass. 550, 121 701, 170 N. Y. Supp. 596, (1918). N. E. 493, 2 A. L. R. 896 (1919). 62 Avery v. Thompson, 117 Me. 120, 56 Massaletti v. Fitzroy, 228 Mass. 487, 103 Atl. 4, L. R. A. 1918D 205, Ann. 18 N. C. C. A. 690, 118 N. E. 168 Cas. 1918E 1122 (1918). (1917). S3 Galloway v. Perkins, 198 Ala. 658, 73 So. 956 (1916). 540 LAW OF AUTOMOBILES In an action against a motorist by one who was injured while riding with him as an invitee, the jary were warranted in believing that he was familiar with the premises and knew that he was ap- proaching a grade crossing. The whistle had been blown and, the automatic bell was ringing. When within two or three rods of the crossing the plaintiff exclaimed! "The engine!" as the train came in sight around a bend in the road. Thereupon the defendant slowed the automobile a little, looked up and saw the train, and then as he approached within 12 or IS feet of the crossing he in- creased the, speed, attempted to cross in front of the oncoming train, aiid was struck by it. A verdict in plaintiff's favor was up- held.6« Where an autdmobile was driven by defendant at 15 to 18 miles an hour over a country road that was somewhat rough, with holes and ruts, and it struck a hole that was obscured to a great extent by dust and went over an! embankment, causing injury to the plaintiff, who was riding in the automobile as a guest, it was held that there was no evidence to support an allegation of negligence against the defendant.^'' § 547. Same— Driving into open canal. The driver of an automobile is not answerable in damages for personal injuries in- flicted upon his guest in the car as a result of ah accident, where the facts are: The driver had inquired about the condition of the thoroughfare before entering it and was informed that it was all right; the car, while traveling at a moderate speed on a prominent street in a city, ran into an open canal extending across the thor- oughfare, without any guard rail, barrier, red light, or other warn- ing of danger; the glare of an electric light between the driver and the canal prevented his seeing the danger until it was too late to st;op his car while going a,t an ordinary speed; the driver had never traveled over that route before and had no knowledge of the danger- ous situation; the guest in tlie car had traveled over that route several times before and was acquainted \vith the situation, but did not warn the driver or complain of the speed.** § 548. Same— Guest invited by servant of owner. Where one employed to solicit orders for oil was furnished an automobile for use in such business, and while acting within the scope of his 66 Avery v. Thompson, 117 Me. 120, B8 Jacobs v. Jacobs, 141 La. 272, 74 103 Atl. 4, L., R. A. 1918D 205, Ann. So. 992 (1917). Cas. 1918E 1122 (1918). STLochhead v. Jensen, 42 Utah, 99, 129 Pac. 347 (1912). INJURIES TO OCCUPANT OTHER THAN DRIVER 541 duties he invited a third person to ride with him, the latter was a licensee, to whom the employer of the oil solicitor owed the duty of "exercising ordinary care.®® ' Where a chauffeur, without authority so to do, and, in fact, in violation of instructions, invited another to ride with him, the owner was held not to be liable for injuries to the occupant caused by the chauffeur's negligence.®" § 549. Guest injured by skidding of automobile— Res ipsa loquitur. Where one who was riding as a guest with the owner of an automobile was injured by the skidding of the machine it was held that the rule of res ipsa loquitier applied, and that whether the defendant's explanation that the car was caused to skid by the high- way being made slick by a sudden shower of rain, was a sufficient defense, was a question for the jury.®^ § 550. Passenger jumping from automobile while in motion. A truck driver, for a consideration, transported employees to their homes, the custom being to stop directly in front of the yard gate. On the occasion in question he drove some IS or 20 yards past the gate, and an employee, who was to alight there, jumped from the truck while it was in motion, and was killed. Held, that there was no liability on the part of the driver.®* §551. Duty and liability to persons requesting ride. Iii Pennsylvania it is held that if the gratuitous carriage is for the benefit of the guest alone, the own6r or driver is required to use only slight diligence and care, and where it is for the pleasure and benefit of both, he is required to exercise ordinary diligence.®' The plaintiffs solicited the defendant, as brother members of a social organization, to convey them in his automobile to Certain picnic grounds and return. The defendant did as requested, and in making the return trip the car was overturned and the plaihtiffs were injured. It was alleged that the car was being driven at a high rate of speed. The cases were submitted to the jury under an instruction that the plaintiffs were invitees, to whom defendant owed the duty of due care. It was held that this instruction was erroneous, as the plaintiffs were merely licensees, to whom the only 59 Royal Indemnity Co. v. Piatt & S^Dantzler Shipbuilding & D. D. Co. W. Ref. Co., 98 Misc. 631, 163 N. Y. v. Hurley, 119 Miss. 473, 81 So. 163, 4 Supp. 197 (1917). A. L. R. 1487 (1919). «ORolfe V. Hewitt, 227 N. Y. 486, 12S 63 Cody v. Venzie, 263 Pa. St. 541, N. E. 804 (1920). 107 Atl. 383 (1919). 61 Mackenzie v. Oakley, — N. J. L. — , 108 Atl. 771 (1920). 542 V LAW OF AUTOMOBILES ; , legal obligation imposed was that of refraining f rqm the perpetra- tion of acts wantonly or wilfully jnjurious. Said the court: "The act of the defendant in acceding to their request possessed none of the elements of a contract, and involved no element of invitation which can bring it within the rule of law applicable to a passenger Upon a railway train or a hired bus or to those cases of, express or implied invitation upon which reliance is placed in the appel- lant's brief, and which involve, as a consequence of the legal re- lationship thus established, the application of the rule of due care." «* 6*Lutvin V. Dopkus, — N. J. L. • — , 108 Atl. 862 (1920)!; CHAPTER XVI FRIGHTENING HORSES § SS2. Duty generally of operator. § 553. Same — Illustrative cases. § 554. Failure to stop after horse fright- ened. §555. Duty to" stop engine as well as automobile. §556. Engine running while automobile stopped at side of ^ road. §557. Emission of vapor or steam near horses. §558. Excessive speed. § 559. Speed greater than reasonable and proper, etc. § 560. Overtaking and passing horse- drawn vehicles. § 561. Driving close to team. § 562. Automobile on wrong side, con- tinuing near horse. § 563. Automobile on wrong side — Cur- tains flapping. ' § 564. Stopping close to team. § 565. Sudden appearance of automobile without warning. § 566. Loose horses driven in highway. § 567. Assisting to get horse past auto- mobile. § 568. Horse taking fright second time, after automobile has departed. § 569. "Whenever it shall appear." §570. Failure to stop, as required by statute. § 571. Duty of driver of horses. §572. Driving horses known to be aifrajd, • of automobiles. ; § 573. Driving team by standing auto- mobile. §574. Injured by holding to frightened horse. § 575. Evidence of other team having been, frightened by same auto- mobile. § 576. General duty of operator as to noise made by automobile. § 577. Reckless sounding of horn. § 578. Overtaking and passing other ve- hicle. § 579. Cranking automobile near team. § 580. "Chugging"' of automobile in pass- ing team. § 581. Failure to take precautions after frightening team — Last clear chance. § 582. Evidence as to noise of automo- bile. SIGNAL BY DRIVER Or HORSES TO OPERATOR OF AUTOMOBILE § 583. Signal by person other than driver. § 584. Calling to operator. §585. Duty of operator upon signal. § 586. Duty of operator when no signal' given. §587. Stojjping on signal and moving forward when necessary. § 552. Duty generally of operator. An automobilist has the right to operate his car on the public highways, and is not an 543 I 544 LAW OF AUTOMOBILES . insurer against the fright of horses using the same highway at the same time, and if damage is done by a horse taking fright, at an automobile properly operated no liability arises; ^ still due care must be exercised in the use of the highways in order that the rights of others be not infringed.* He cannot assume that a horse ridden along a road frequented by automobiles is gentle.* "As long as an autbist observes the laws of the road, he should not be held responsible for the consequences of a meeting between his machine and a vicious or high* strung and insufficiently broken 1 Iowa: Cresswell v. Wainwright, 154 la. 167, 134 N. W. S94 (1912). Kansas: McDonald v. Yoder, 80 Kan. 2S, 101 Pac. 468 (1909). Missouri: Daily v. Maxwell, 152 Mo. App. 415, 133 S. W. 351 (1911) ; Sapp v. Hunter, 134 Mo. App. 685, 115 S. W. 463 (1909) ; Hall v. Compton, 130 Mo. App. 675, 108 S. W. 1122; O'Donnell v. O'Neil, 130 Mo. App. 360, 109 S. W. 815. Nebraska: Tyler v. Hoover, 92 Neb. 221, 138 N. W. 128 (1912). New York: Nason v. West, 31 Misc. 583, 585, 65 N. Y. Supp. 651; Young v. .Sibley, L. & C. Co., 119 N. Y. Supp. 446 (1909). South Dakota: Pease v. Cochran, — S. D. — , 173 N. W. 158, 5 A. L. R. 936 (1919). Virginia: Baugher v. Harman, 110 Va. 316, 66 S. E. 86 (1909). A motorist and horseman have equal rights to the use of the highways. Eddy v: Stowe, -^ Cal. App. — , 185 Pac. 1024 (1919). "The driver of a horse upon the pub- lic road assumes the risk of its takipg fright at an automobile when operated properly and with due care." Coco Cola Bot. Wks. v. Brown, 139 Tenn. 640, 202 S. W. 926 (1918). The use oj traction engines on the public ways is lawful. Wabash, St. L. & P. R. Co. V. Farver, 111 Ind. 195, 199, 60 Am. Rep. 696; Gilbert v. Flint & P. Mi R. Co., 51 Mich. 488, 47 Am. Rep'. 592; Macomber v. Nichols, 34 Mich, 212, 22 Am. Rep. 522. 2 Byrd v. Smith, — Ark. — , 215 S. W. 640 (1919); Richmond v. Conner, 197 III. App. 105 (1915); Lemke v. Ady, — la. — , 159 N. W. 1011 (1916) ; Cresswell V. Wainwright, 154 la. 167, 134 N. W. 594, (1912) ; Savage v. Boyce, 53 Mont. 470, 164 Pac. 887 (1917). "The quantum of care required is to be estimated by the exigencies of the particular situation; that is, by the place, presence or absence of other vehicles and travelers; whether the horse driven is, wild or gentle; whether the conveyance and power used are common or new to the road, and the known tendency of any feature to frighten animals." In- diana Springs Co. v. Brown, 165 Ind. 465, 74 N. E. 615, 6 Ann. Cas. 656, 1 L. R. A. (N. S.) 238. The degree of care required of either the driver of a horse or the chauffeur of an automobile is governed by the char- acter of the agency employed. Wright V. Crane, 142 Mich. 508, 106 N. W. 71; 12 Detroit Leg. N. 794. What is reasonable care as exacted by the law is to be determined from the extent of danger incident to the use of the respective vehicles. Merely running an automobile on the highway while horses are being driven thereon does not authorize an inference of negligence on the part of the operator of the auto- mobile. O'Donnell v. O'Neil, 130 Mo. App. 360, 109 -S. W. 815. S.Cohen v. Meador, 119 Va. 429, 89 S. E. ;876 (1916). FRIGHTENING HORSES 545 horse. B^ut on account of its speed and power and the noises it emits, an automobile when carelessly run may be exceedingly ter- rifying even to gentle and well broken horses, and the rules of the common law, as well as those of the statute, demand of the drivers of such vehicles the observance of a due regard for the rights and safety of others." * Chief Justice Cooley, in a case involving the use of traction engines on the highway, said: "Horses may be, and often are, frightened by locomotives in both town and country, but it would be as reasonable to treat the horse as a public nuisance from his tendency to shy and be frightened l?y unaccustomed objects, as to regard the locomotive as a public nuisance from its tendency to frighten the horse. The use of the one may impose upon the manager of the other the obligation of additional care and vigilance beyond what would otherwise be essential." * However, it is a matted of common knowledge that automobiles are likely to frighten horses,* and their operators are charged with such knowledge, and they must exercise care accordingly so as not to interfere with the rights of others.'' Because of the appearance and attributes of the automobile there is a manifest difference in the situation presented when one meets or passes a team and when two teams meet and pass. The prudence demanded of the automobile driver is by no means the same as if he, too, were driving a team. He must order his conduct in the light qf the conditions created by the presence arid operation of his peculiar kind of conveyance, and in doing so must observe every precaution which would occur to a reasonably prudent man occupying his place.' In an action for damages caused by the plantiff' s horse being frightened at defendant's automobile it was held that there was some evidence to justify a finding for the plaintiff where it ap- peared that the automobile was of somewhat crude and unusual construction, and was propelled by steam generated by a gasoline burner; that it gave forth a loud puffing noise, and could be heard 4 Daily v. Maxwell, 152 Mo.App. 41S, App. 110, 91 N. E. 171 (1910); Delfs v. 133S. W. 3S1 (1911). , . Dunshee, 143 la. 381, 122 N. W. 236 6Macomber v. Nichols, 34 Mich. 212, (1909); House v. Cramer, 134 la. 374, 220, 22 Am. Rep. S22. 377, 112 N. W. 3, 13 Ann. Cas. 461, 10 fi Christy v. EUiott, 216 111. 31, 40, 74 L. R. A. (N. S.) 6SS; McDonald v. Yo- N., E. 103S, 3 Ann. Cas. 487, 1 L. R. A. der, 80 Kan. 25, 101 Pac. 468 (1909) ; (N. S.) 215, .108 Am. St. Rep. 196; Trombley v. Stevens-D. Co., 206 Mass. Trombley v. Stevens-D. Co., 206 Mass. 516, 92 N. E. 764 (1910). 516, 92 N. E. '764 (1910). 8 Arrington v. Horner, 88 Kan. 817, THaynes Auto. Co. v. Slnnett, 46 Ind. 129 Pac. 1159 (1913). B. Autos. — 35 546 LAW OF AUTOMOBILES for two blocks, and that the odor was pronounced; that steam or smoke issued from the exhaust, and that teams had been frightened by it, and at the time of the accident was driven past plaintiff's hprse at the rate of ten or twelve miles an hour and did not moder- ate its speed until the horse became frightened.® If there is nothing about the appearance of an automobile or the manner in which it is loaded that would suggest to an ordinarily prudent man that it will frighten a horse that has become ac- customed to automobiles on the highway, one is not liable for injuries caused by a horse taking fright at such machine; there being no negligence in the manner of its operation.^" The operation of an automobile in a manner to make a loud noise, creating dust and smoke, cannot be said as matter of law to constitute negligence.^^ In the absence of statute it is "the duty of the driver of an auto- mobile, which, by its speed and noise, is likely to frighten the ordi- nary country horse or mv;le, to observe the frightened attitude of an approaching team, and, if necessary, to check or slacken his speed, and otherwise to take reasonable precautions to prevent the team from getting beyond the control of its driver." ^* If the operator sees, or by the exercise of ordinary care should see, that a horse. is becoming frightened by his automobile, it is his duty to do whatever is reasonable and necessary under the circumstances to avoid an accident.^* 9Mason v. West, 61 App. Div. 40, 70 Nebraska: Tyler v. Hoover, 92 Neb. N. Y. Supp.,478. 221, 138 N. W. 128 (1912). 10 Pease v. Cochran, — S. D. — . 173 North Carolina: Curry v. Fleer, 1S7 N. W. 1S8, S A. L. R. 936 (1919). N. C. 16, 72 S. E. 626 (1911). 11 Henderson v. Northam, 176 Cal. Pennsylvania; Spangler v. Markley, 493, 168 Pac. 1044 (1917). 39 Pa, Super. Ct. 351 (1909). i8Burcham v. Robinson, 113 Miss. South Dakota: Pease v. Cochran, — S27, 74 So. 417 (1917). S. D. — , 173 N. W. 157, 5 A. L. R. 936 '^^ California: Eddy v. Stowe, — Cal. (1919). App. — , 185 Pac. 1024 (1919). Washington: Ross v. Rose, — Wash. Illinois: Christy v. Elliott, 216 111. —, 186 Pac. 892 (1920). 31, 50, 74 N. E. 1035, 3 Ann. Cas. 487, "Whenever a person operating an auto- 1 L. R. A. (N. S.) 215, 108 Am. St. Rep. mobile knows, or in the exercise of or- 196; Stout V. Taylor, 168 111. App. 410 dinary care should know, that his ma- (1912) ; Smith v. Hersh, 161 III. App. 83 chine is frightening a horse, or, in the (1911). situation in which he has left it, is likely Iowa: Horak v. Dougherty, — la. to frighten a horse, he is bound at his — (1908), 114 N. W. 883. peril to exercise due care to prevent an Maine: Towle v. Morse, 103 Me. 250, injury." Coco Cola Bot. Wks. v. Brown, 68 Atl. 1044. 139 Tenn. 640, 202' S. W. 926 (1918). Minnesota: Nelson v. Halland, 127 "When one drives so dangerous a ma- Minn. 188, 149 N. W. 194 (1914). chine through the public thoroughfares it FRIGHTENING HORSES 547 This d^ty requires him to take into account the character of his machine, its general appearance, the noise accompanying its opera- tion, its new use in the vicinity, its tendency to frighten horses, and, from such and all other pertinent considerations to proceed with that speed and caution which reasonable care requires.^* The fact that a horseman is on the wrong side of the highway when struck by an automobile, his horse being unmanageable, does not prevent recovery by him.^^ It may not be sufficient to merely, comply with all statutory re- quirements, but in the exercise of due care, as required by the com^ mon law, it m9.y be his duty to take further precautions.^* It is the duty of the operator, when he sees that his advance is endangering the occupants of a carriage he is meeting, to check or stop his machine until such danger is averted, without regard to any negligence on the part of the occupants of the carriage.^' This duty he owes to the driver of horses, whether the highway on which they meet is a public or private one, and even though the driver of the horses is a mere licensee, or even a trespasser, and the operator is incumbent upon him to exercise cor- responding care that the safety of the traveling public is not endangered there- ' by." .Gregory v. Slaughter, 124 Ky. 345, 99 S. W. 247, 124 Am. St. Rep. 402, 8 L. R. A. (N. S.) 1228. . A count which alleged that on or about August 17, 1912, defendant negli- gently ran, or caused to be run, an auto- mobile, or motor vehicle of like kind, along the streets of the town of Fayette, Ala., causing plaintiff's mule, which was attached to his buggy, to become unman- ageable, to break loose and run away with plaintiff's buggy, thereby destroy- ing and rendering worthless plaintiff's said buggy and his harness attached to said mule, and rendering said mule less fit for service, and as a proximate result of said negligence of said defendant, plaintiff was damaged and injured in the sum of $99.50, was held' to state a good cause of action. Roach v. Wright, 195 Ala. 333, 70 So. 271 (1915). l*Gue V. Wilson, 87 S. C. 144, 69 S. E. 99 (1910). 16 Eddy V. Stowe, — Cal. App. — , 18S Pac. 1024 (1919). 16 Eddy V. Stowe, — Cal. App. — , 185 Pac. 1024 (1919) ; Trombley v. Stevens-D. Co., 206 Mass. 516, 92 N. E. 764(1910): - > " Walls V. Windsor, 5 Boyce (28 Del.) 265, 92 Atl. 989 (1915) ; Mclntyre v. Or- ner, 166 Ind. 57, 68, 76 N. E. 750, 8 Ann. Cas. 1087, 4 L. R. A. (N. S.) 1130, 117 Am. St. Rep. 359; McDonald v. Vo- der, 80 Kan. 25, 101 Pac. 468 (1909) ; Cumberland Tel. & Tel. Co. v. Yeiser, l'41 Ky. IS, 131 S. W. 1049, 31 L. R. A. (N. S.) 1137 (1910); Tudor v. Bowen, 152 N. C. 441, 67 S. E. 1015 (1910) ; Cue " V. Wilson, 87 S. C. 144, 69 S. E. 99 (1910); Brown v. Thome, 61 Wash. 18, 111 Pac. 1047, IN. C. C. A. 107 (1910), citing this work. "// defendant knew, or could have known by the exercise of ordinary care, that the machine in his possession and under his control had so far excited plaintiff's horse as to render him danger- ous and unmanageable, it was his duty to have stopped his automobile, a,nd taken such other steps for plaintiff's safety as ordinary prudence might sug- gest." Shinkle v. McCuUough, 116 Ky. 960, 77 S. W. 196, 25 Ky. L. Rep. 1143, 105 Am. St._ Rep. 249. 548 LAW OF AUTOMOBILES a lawful user of the highway." If, seeing the fright of a team, and the narrowness of the road, he is willing to take his chances in passings or miscalculates the space, when by waiting a few minutes he could pass in entire safety, he cannot complain of the resulting liability to pay for injuries thus caused.^® In an action for damages due to the frightening of the plaintiff's horse by defendant's automobile, where it was shown that the de- fendant failed to cortiply with his statutory duty to go to the side of the road with his automobile and remain stationary until <■ the plaintiff coiild pass with his horse after he was aware that the plaintiff's horse was frightened; it was declared sufficient to take the case to the jury.^ The fact that it is necessary for him to keep his eyes and attention fixed on the track of the road to enable him to guide the machine safely by a carriage and to avoid holes and other obstructions, is no excuse for him not heeding the fright of the horses drawing a carriage which he is meeting.^^ An instruction by the court that by statute the rule of the road in California is that every person having control of a motor vehicle on a public highway approaching any vehicle drawn by a horse shall operate the motor vehicle "in such manner as to exercise every rea- sonable precaution to prevent the frightening of any such horse * * * and to insure the safety and protection of any person * * * driving the same," was upheld, being in the exact words of the statute.**^ The person in charge "of an automobile when meeting hbrse- drawn vehicles must use good judgment and be, guided by the exi- gencies of the occasion. It may be necessary not only to stop the automobile at the Side of, the road to allow the other conveyahce to pass, but to stop the running of the motive power to prevent the frightening of the horses by the noise.^' If timely warning of the approach of an automobile is given, the operator need not stop unless he sees, or in the exercise of the required degree of care ought to see, that horses he is overtaking or meeting are frightened.^* 18 Knight V. Lanier, 69 App. Div. 454, 187 Pac. 130 (1919). 74 N. Y. Supp. 999. 23 Rochester v. BuU, 78 S. C. 249, 58 l»Gurney v. Piel, 105 Me. 501, 74 Atl. S, E. 766; Murphy v. Wait, 102 App. 1131 (1909). Div. 121, 92 N. Y. Supp. 253. . 20 Fletcher v. Dixon, 107 Md. 420, 68 24 Fields v. Sevier, 184 Mo. App. 685, Atl. 875. 171 S. W. 610 (1914). 2lMcIntyre v; Orner, 166 Ind. 57, 67, The common law does not require him 76 N. p. 750, 8 Ann. Cas. 1087, 4 L. R. to stop unless ordinary prudence dic- A. (N. S.) 1130, 117 Am. St. Rep. 359. tates such a course. Gue v. Wilson, 87 22Freiburg v. Israel, — Cal. App. — . S. C. 144, 69 S. E. 99 (1910). FRIGHTENING HORSES 549 When a horse does not show fright until the automobile is at such a point that it appears that at least as safe a course as any is to proceed on past, it is not negligence to do so.*' § 553. Same— Illustrative cases. The plaintiff was riding in a buggy with her sister, driving westerly along a public road, and met defendant, driving his automobile in the opposite direction. Their team took fright at the automobile, whirled about, and both occupants fell out of the buggy. The traveled part of the road was somewhat narrow at the place of the accident, being 16 or 18 feet wide. The defendant first came into view of the team when he was 300 or more feet distant therefrom. About 10 rods in ad- vance of the team, and also going westerly, was a man on horse- back. Because his horse was afraid of automobiles, he dismounted and led his horse to the south side of the road. The defendant thereupon bore to the .north side to pass. He then turned immedi- ately toward the south, running his automobile into some brush and against a bank on the south side, where he stopped. The effect of this movement was to give the team the benefit of practically all the traveled road. However, almost simultaneously with defend- ant's movement the team whirled about in retreat. According to the testimony in behalf of the plaintiff, the team was 30 or 40 feet from the automobile when it whirled away. According to defend- ant's testimony the distance was considerably greater. It was held that there was no evidence of negligerice on the part of defendant.2s Where the evidence showed that an automobile was driven on a public highway at the rate of twenty miles an hour, making a noise that could be heard several hundred yards away; that the driver seeing a horse which he was meeting hitched to a buggy, rearing and plunging, without any other apparent cause, failed to stop his machine or slacken its speed, apd the horse in his fright overturned the buggy and injured the occupants, it was held that there was sufficient evidence to support a finding that the defendant was negligent.*'' An automobile approached meeting a horse at the rate of three or four miles an hour, the driver of the horse gave no signal, and there was nothing in the conduct of horse or driver to indicate that the horse was likely to become frightened at the automobile. When the automobile reached a point opposite the horse and five feet 26Baugher v. Harman, 110 Va. 316, 66 27 Indiana Springs Co. v. Brown, 16S S. E. 86 (1909). Ind. 465, 74 N. E. 61S, 6 Ann. Cas. 6S6, 26 Turner v. Bennett, 161 la. 379, 142 I L. R. A. (N. S.) 238. S. W. 999 (1913). 550- LAW OF AUTOMOBILES distant therefrom, the horse became frightened apd overturned the carriage to which it was hitched. Such was held not to amount to negligence on the part of the automobile operator as matter of law.^' Under the following facts^ stated by the court, it was held that the case was for the jury, and judgment for the plaintiff was af- firmed: "There is evidence in the case that, after the horse began to become restless, the plaintiff's wife not only signaled but called upon the defendant to stop, and that instead of doing so, and while the horse was jumping and rearing and backing up, the defendant not merely failed to stop, but turned his machine to the right side of the road and in close proximity to the horse, and at the same time tooted his horn, while the other occupants of his machine laughed loudly at the consternation this had occasioned. If this was so, the defendant was clearly negligent, and whether it was so or not was for the jury to decide. "The question, too, of contributory negligence was for the jury and not for the court to pass upon. There was evidence pro and con on the question of the restless character of the horse, and there was evidence pro and con on the question as to whether the plain- tiff himself turned his horse in front of the approaching machine, and that the accident was due to his stubbornly refusing to give the plaintiff his share of the road, or whether the horse became unmanageable before the machine and the carriage met' so that it was impossible to do so. Such being the case, the question of contributory negligence was for the jury and not for the court to pass upon." *' § 554. Failure to stop after horse frightened. The plaintiff was driving an ordinarily gentle horse, which had often passed automobiles without becoming frightened, along a city street. She was driv'ng east close to the south side of the street, which was 30 feet wide. Defendant was approaching, moving in the opposite direction, in his automobile. Plaintiff testified that she noticed that her horse was becoming frightened at the automobile when it was about 139 feet from her; that she then attempted to hold the horse by the lines, but he became more frightened as the auto- mobile approached, and turned sharply to the north side of the street; that when he reached the north side of the street, and close to the sidewalk, he turned quickly to the south, and threw her out of the buggy, seriously injuring her; that when she was thrown 28 Davis V. Maxwell, 108 App. Div. .«9Messer v. Bruening, 32 N. D. SIS, 128, 96 N. Y. Supp. 45. 156 N. W. 241 (1916). FRIGHTENING HORSES SSI to the street the automobile was some 80 feet away, coming, toward her, and she was run over by it; that there was nothing to obstruct defendant's view of the horse during all this timei The defendant testified that when he first discovered the fright of the horse he was about 20 feet from it, moving 5 or 6 miles an hour; that the horse quickly turned to the north side of the street, and he at once turned his machine on the sidewalk to avoid a col- lision; that he was obliged to leave the sidewalk and return to the street on account of a little house that was built close to the side- walk; that when he turned his machine out on the street there was room between the sidewalk and the buggy for him to pass, but that as he was in the act of passing the buggy the plaintiff jumped out and fell immediately in front of the machine, and so close that he could not stop in time to avoid her, so he turned the wheeh so that they did not touch her, and the body of the car passed over her. , It was held that either version of the accident was sufficiient to justify a verdict for the plaintiff, that the jury may have found that defendant's failure to stop was negligence.'" In an action to recover for injuries due to plaintiff's horse taking fright at defendant's automobile, where the defendant stated that when he first saw the horse it was frightened, but he kept on withr out attempting to stop, and a statute required motorists on the high- ways to stop when it shall appear that any horse is about to become frightened by the approach of such motor vehicle until the horse shall have passed, it was held that a verdict for the defendant could not be sustained.'* § 555. Duty to stop engine as well as automobile. Although no statute may require an automobilist to stop his motor after stop- ping his car, on signal or othan^ise, if reasonable precaution should require it, he must do so or be chargeable with negligence.'^ But it is not in itself negligence for a motorist to permit his engine to continue running after stopping his car at the side of the road for a temporary purpose." A statute requiring the driver in charge of an automobile, when signaled by the driver of any vehicle drawn by horses, to stop the automobile until the other vehicle has passed, was held not to impose upon the driver of the automobile the absolute duty upon signal to stop the motive power of his vehicle in addition to stop- so Webb V. Moore, 136 Ky. 708, 12S 32 Ellsworth v. Jarvis, 92 Kan. 89S, S. W. IM (1910). 141 Pac. 113S (1914). 81 Searcy v. Golden, 172 Ky. 42, 188 88 Gipe v. Lynch, ISS la. 627, 136 N. S. W. 1098 (1916). W. 714, (1912). SS2 LAW OF AUTOMOBILES ping the vehicle itself. Whether it is the duty of such driver td stop the motive power of his automobile depends upon the circum- stances of each case.'* Where the plaintiff was able to control his frightened horses to the extent that he gave the road to defendant's automobile, which continued to approach, and stopped them, it was held that this fact fairly indicated to defendant that if he went ahead he ought to pass by the team, and that a jury would be justified in concluding that he was not warr'anted in bringing his automobile, the cause of the horses' fright, practically alongside the horses, and then stop- ping it there and permitting the engine to continue to make lOud noises. "It would be entirely reasonable," said the court, "to say that if he stopped he should have stopped the engine, and that he might have anticipated that after he stopped abreast of the horses and did not stop the engine they would become panic-stricken and lunge sidewise away from the car." '^ § 556. Engine running while automobile stopped at side of road. It was held to be negligence for the driver of a truck to permit the engine to continue running while the truck was stopped at the side of the roadway for a period of 20 minutes, and that the intention of the driver that the truck should reniain there for 20 minvites was properly proved as bearing on the question of his neg- ligence, although the accident happened within a few moments after the truck was stopped.'® § 557. Emission of vapor or steam near horses. The jplaintiff was riding in a buggy with a young man and his sister, and upon seeing an automobile coming in the opposite direction, the team, which was gentle and accustomed to meeting and passing aiito- mobiles, was guided to the side of the road and stopped. There was evidence that the automobile approached at a speed of 25 to 40 miles an hour, until it was in front of the team, when the autoist made an unexpected and sudden stop accompanied by the emission of a cloyd of steam which blew into the faces of the horses and so frightened them that they became unmanageable and overturned the buggy, injuring the plaintiff; that the motive power of the auto- mobile was steam; that the loosened condition of packing around a piston permitted steam to escape even when the car was station^ 34 Mahoney v. Maxfield, 102 Minn. 36 Coca Cola Bot. Wks. v. Brown, 139 377, 113 N. W. 904, 14 L. R. A. (N. S.) Tenn. 640, 202 S. W. 926 (1918). 251. SB Ellsworth V. Jarvis, 92 Kan. 89S, 141 Pac. 113S (1914). FRIGHTENING HORSES 553 ary; that knowing he had a gentle teanij the driver did not signal for the automobile to stop; that the road in question was narrow. It was • held that the evidence was for the jury, and judgment for plaintiff was affirmed, the court in part saying : "The absence of a signal from the driver of the buggy was equivalent to an as- surance to the autoist that the horses were gentle and would not bpconie frightened if the car was run by them without stopping, but did not constitute an invitation to be reckless or negligent. It became the duty of the autoist to handle the car in a manner reasonably regardful of the obvious conditions of the confronting situation and not to presume too far upon the declared gentleness of horses placed in such close quarters. To approach on a narrow road at top speed and then suddenly ^top, and cause the machine to eject a dense cloud of steam into the faces of the horses could not well be expected to produce any other result than that which followed in the present instance." ''' Plaintiff was driving a buggy, having with him his wife and a small child. Defendants were approaching in an automobile, apd when plaintiff saw the automobile he gave the lines to his wife, and went to stand at the head of his horse, which at the time showed signs of fright. The roadway was about 16 feet wide, and after plaintiff led his horse to one side of the road, defendants approached and stopped opposite the horse. Neither party spoke, and defend-, ants started to proceed. Immediately a volume of vapor, described as being about as farge as a hat, was spurted out from a tube in the rear axle, under and against the horse, accompanied by a hiss- ing sound, and a strong odor of gasoline. The horse became un- manageable, and the plaintiff was injured. The horse was about 18 years old, and prior to this accident was regarded as trust- worthy and not easily frightened. Held, that the case was for the jury; that a jury would bfe warranted in concluding that defend- ants had full Control of their machine, and should have known the hazard following their progress, which could have been re- lieved of all possible danger by remaining stationary for but a moment." § 558. Excessive speed. If a motorist drives his machine at a rate of speed that is unreasonable in the circumstances, and a team is frightened thereby, he is liable for the consequent injuries.*' The following instruction was held to properly present the issue "Graham v. Sly, 177 Mo. App. 348, 89Haynes Auto. Co. v. Sinnett, 46 164 S. W. 136 (1914). Ind. App. 110, 91 N. E. 171 (1910)'. 88 Reed V. Snyder, 38 Pa. Super. Ct. 421 (1909). 554 LAW OF AUTOMOBILES in the case from which it was taken: "If the jury believe from the evidence that on the occasion plaintiff was injured the defend- ants were operating an automobile along the public highway at a speed greater than was reasonable and proper, having regard to the traffic and use of the highway, and if they further believe from the evidence that by reason of that fact, if the jury find it to be a fact, the plaintiff's horse became' frightened and overturned his wagon whereby the plaintiff was injured and his property damaged, the jury should find for the plaintiff." *" § 559. Speed greater than reasonable and proper, etc. Where there was evidence that the defendant,- on his motorcycle, met the plaintiff, driving a horse and buggy, at a place where the road was only 12 to 15 feet wide, and on the right of which was a ditch 18 or 20 inches deep; that defendant passed at a speed of 25 to 40 miles an hour; that just about the time defendant was opposite the horse he sounded his whistle, making an uncommon noise, and scaring the horse so that it upset the buggy and caused the injuries complained of, it was held that the defendant was operating his motorcycle at a rate of speed greater than was rea- sonable and proper, having regard to the traffic and the use of the way, and so as to endanger the life and limb of another, and that defendant was properly held liable for the injuries incurred by plaintiff.*^ §5e0. Overtaking and passing horse-drawn vehicles. An instruction charging the jury in effect that it is the duty of an automobile driver to give warning to the dri^^er of a horse-drawn vehicle in front before attempting to pass; that the sounding of an automobile horn is the usual way of giving warning; that, while there was no statute on the question at the time of the accident, it was the custom for a driver, coming up behind another vehicle and passing it, to turn to the left, and of the driver of the vehicle ahead to turn to the right, was held to properly state the law.** A statute requiring the operator of an automobile to stop his machine when it appears that a horse is becoming frightened and to remain stationary until the horse or horse-drawn vehicle has passed, is not applicable when an automobile is overtaking a horse- drawn vehicle.*' 40 East Tennessee Tel. Co. v. Cook, «» Fleming v, Oaites, 122 Ark. 28, 182 ISS Ky. 649, 160 S. W. 166 (1913). S. W. S09 (1916); Smith v. Hersh, 161 41Hutson -V. Flatt, 194 III. App. 29 111. App. 83 (1911). (191S). «Koenig v. Sproesser, 161 Wis. 8, 1S2 N. W. 473 (1915). FRIGHTENING HORSES 555 "To say that the motor should stop while the horse passes it going in Jthe same direction would be an absurdity." ** But this of course, does not affect the duty of an autoist overtaking afid passing a horse or horse-drawn vehicle to exercise due care.** Where there was evidence that the defendant, driving his auto- mobile, approached the hack in which plaintiff was riding from the rear; that the team drawing the hack was already somewhat frightened from having passed an automobile; that the plaintiff saw the defendant approaching, and stood up in the hack and waved to him, and called out to him, begging him not to pass them; that defendant nevertheless came on at a high rate of speed with the machine making a great deal of noise; and that as he passed the team became very much frightened and ran away, overturning the hack and injuring the plaintiff, it was held that the jury were war- ranted in finding that defendant failed to exercise proper care to avoid frightening the team.*® In a case in which there was evidence tending to show that, with- . out any warning signal, the defendant's automobile approached di- rectly behind plaintiff's cart, that the automobile turned out barely enough to avoid colliding with it, was within a few feet of the horse when passing, and turned back into the road when no more than 10 feet beyond the horse, the court said: "No argument is re- quired to demonstrate that an automobile, making little noise in moving as in this instance, and passing as the evidence tended to show this did, would be likely to frighten an ordinarily well-broken horse; and whether the defendant, in operating it as he did in pass- ing, exercised the caution an ordinarily prudent man would in like circumstances, was for the jury to determine."*'' In an action to recover for injuries caused by the plaintiff's team taking fright at defendant's automobile as the same overtook and was passing the team, and in which the plaintiff's testimony was that the approach of the automobile was sudden and without warn- ing, and the defendant testified that it was not; that he gave a warning signal when about 100 feet away, whereupon the driver looked back and drove to the right; that he then drove on, seeing no manifestation of fright by the horses, and did not stop until the buggy suddenly went into the ditch, it was held error to in- struct the jury wiliiout qualification that if defendant approached the buggy and failed. to stop his automobile soon enough to prevent 44 Smith V. Hersh, 161 111. App. 83 46 Fleming v. Gates, 122 Ark. 28, 182 (1911). S. W. 509 (1916). 4B Smith V. Hersh, 161 111. App. 83 47Delfs v. Dunshee, 143 la. 381, 122 (1911). N. W. 236 (1909).^ 556 LAW OF AUTOMOBILES frightening the horses and thereby caused the runaway, then plain- tiff could recover. "Nothing was therein said about the approach being sudden or unknown to plaintiff,, whereby the horse took fright at the car's sudden appearance and before the occupants of the buggy could take any precautions for their safety or give defend- ant the statutory signal to stop by the raising of the hand, nor (in case the approach was not sudden and without warning) was any- thing in said instruction requiring the jury to find that the horses' fright was observable to or could have been seen by defendant be- fore he was required to stop." " Where a statute required that the driver of an automobile ap- proaching any vehicle drawn by horses shall operate, manage and control the same in such a manner as to exercise every reasonable precaution to prevent the frightening of such horses and to insure the safety and protection of the person driving the same, and that every automobile shall be provided with a suitable bell, horn or other means of signaling, and it was shown that the defendant, ap- proaching from the rear, ran his automobile to within ten feet of the left hin(i wheel of the plaintiff's wagon without sounding a warning of his approach, and plaintiff's horse becan^e frightened and injured the plaintiff, it was held that, in view of the provisions of the statute, the jury were warranted in finding for the plain- tiff." § 561. Driving close to team. Driving an automobile close to a horse on the public highway is not of itself evidence of negli- gence, the operator being otherwise in the exercise of due care.*" The duty of the driver of an automobile is the same whether his ma,ehine is being driven within three feet or within thirty feet of an animal. The nearness with which a machine is run to an animal does not constitute negligence unless it is done purposely to cause fright or unless the driver, before going near, discovers, or in the exercise of ordinary care should discover, that running the machine close to the animal will frighten it.*^ In action against two defendants for the death of driver of a hearse whose horses were frightened by defendants' automobiles, evidence that machine of one passed so close to the team as to scrape the tip of the pole presents a question for the jury as to negligence of such defendant.** *8 Fields V. Sevier, 184 Mo. App. 68S, 50 Walls v. Windsor, S Boycie . (28 171 S. W. 610 (1914). Del.) 265, 92 Atl. 989 (191S). « Gifford V. Jennings, 190 Mass. 54, 61 Shelton v. Hunter, 162 Ky. 531, 172 76 N. E. 233. See also, Murphy v. Wait, S. W. 9S0 (1915). 102 App. Div. 121, 123, 92 N. Y. Supp. S^Zelezmy v. Birk Bros. Brew. Co., 253. 211 111. App. 282 (1918). FRIGHTENING HORSES SS7 Action was brought by a boy to recover for injuries incurred when the mule he was driving took fright at defendant's auto- mobile and ran away, and the evidence in his behalf tended to show that he was seated in a buggy, to which the mule was hitched, on the side of a city street; that the mule's head was some three or four feet from a concrete foot crossing that was four or five feet wide; that the automobile, driven by a young lady, came up the street facing the mule; that, as it approached, it was run from one side of the street to the other; that when the automobile came to the foot crossing, which was a few inches above the grade of the street, and when in about ten feet of the mule's head, and while running about eight or nine miles an hour, it was turned in the direction of the mule, and passed within three or four feet of him, although it might have been run some ten or fifteen feet from him; that about the time the automobile came upon the foot crossing the mule manifested some uneasiness by raising his ears; that about the time the automobile was even with the mule he lunged a few times and started to run. In affirming judgment entered on a direct verdict in favor, of defendant, the court in part said: "It does not seem to us that this evidence was sufficient to make out a case of negligence against the operator of the machine. The horn was not sounded as the machine approached the mule, nor was there any reason why it should have been. The speed of the automobile was not excessive, nor was. the conduct of the mule, until the automobile had passed him, sufficient to put a person of ordinary prudence on notice that he was frightened or likely to run off. It is true that the mule raised his ears and gave some evidence of fright when the automo- bile was within a few feet of him, but it was then too late to stop the machine or take any steps towards preventing the further fright of the mule other than to go ahead, and this the driver did." ** In a personal injury action there was evidence that the plaintiff ( was driving a single horse, which was old and well broken and ordi- narily not afraid of automobiles; that he observed the defendant approaching in an automobile, and he pulled his horse to the right side as near as possible to a ditch; that the roadway was only 21 or 22 feet wide, with a ditch on either side; that defendant, traveling at 10 to 15 miles an hour, passed so close to plaintiff's vehicle that , the track of the automobile was one or two feet from the wheel of plaintiff's buggy; that there was considerable mud and slush in the road, which the automobile was splashing on either side, and which 63 Shelton v. Hunter, 162 Ky. 531, 172 S. W. 950 (191S). 558 LAW OF AUTOMOBILES it splashed toward the horse as it passed; that the automobile moved somewhat to the left and nearer the buggy, as it passed, and the plaintiff's horse suddenly lurched, overturning the buggy and injuring the plaintiff. Held, to support a verdict for the plaintiff, although, the jury might have acquitted the defendant on such evidence of any blame.** § 562. Automobile on wrong side, continuing near horse. The defendant "was a man 63 years old, and quite inexperienced in the handling of cars. "He was driving on the left or wrong side of the road. He saw the plaintiff approaching with her team. His speed was not excessive, but the evident cause of the accident was his failure to seasonably turn from the left to the right side of the " road. He continued on his course until within too short a distance of the horse, within 15 or 20 feet as the plaintiff claims, or 40 or 50 feet as the defendant admits, a space covered according to either contention in from one to three^ seconds, even if he was traveling at only 10 miles an hour. He ran directly toward the horse, and so close that the horse was naturally frightened and whirled quickly to the left." The plaintiff "was on the right side of the road. She was famil- iar with the horse, which was 10 years old, gentle, and not ordinarily afraid of automobiles. The horse was walking. She was driving on a loose rein, but that was the usual mariner of handling this horse. There was no indication of fright until the close proximity of the machine." It was held that the jury properly found the plaintiff free from contributory negligence, and a verdict in her favor was sustained.'" § 563. Automobile on wrong side— Curtains flapping. The plaintiff was going south on a street with a wagonload of household furniture. The auto van of the defendant came from the east on an intersecting street and turned towards the plaintiff from the south and at first was on the westerly side of the street on which the plaintiff was driving. The auto van had curtains which were flapping and making some noise. The plaintiff's team became frightened and ran away and the plaintiff's furniture was damaged. It was held that the evidence justified a finding for the plaintiff.** § 564. Stopping close to team. Where a motorist overtook and passed a horse-drawn vehicle and saw that the horse had become B4pfeiffer v. Radke, 142 Wis. S12, 125 B6 La Brash v. Wall, 134 Minn. 130, N.W. 934 (1910). 158 N. W. 723 (1916). "Hobbs V. Preston, 115 Me. 553, 98 Atl. 757 (1916). FRIGHTENING HORSES 559 frightened at his machine, whether or not he was negligent in stop- ping about 30 feet in front of the horse, which became more fright- ened and ran against a telephone pole, injuring itself, was a question for the jury. "The natural effect of stopping the thing which had frightened it but a short distance away was to furnish an obstacle to his progress which it naturally would attempt to avoid, and this might have been found to have turned the horse from its course, and therefore to have contributed to its injury." *'' § 565. Sudden appearance of automobile without warning. The plaintiff and her daughter were driving a spirited, but gentle, horse to a buggy, and as they approached an intersecting street, an automobile dashed suddenly and without warning around the cor- ner, moving at a high rate of speed toward the horse, which turned about, and ran away, injuring the occupants of the buggy. There was evidence that the speed of the automobile was high and danger- ous; that the operator was not looking ahead; that in rnaking the turn the car was headed directly toward the horse; that the plain- tiff's view of the car was obscured until it reached the corner. Held, that the evidence justified a finding of negligence on the part of the automobile operator.^* If an automobile's sudden and close approach to a team without warning causes the fright of the team, liability therefor cannot be escaped because the team did not manifest fright sooner.^' § 566. Loose horses driven in highway. A statute prohibiting the driving of any motor vehicle on any public highway at a speed greater than is reasonable and proper, having regard to the traffic and the use of the way, or so as to endanger the life or limb or injure the property of any person, and providing that "Upon ap- proaching a person walking along or upon a public highway, or a horse or horses, or other draft or domestic animal or animals, being ridden, led, or driven thereon, the operator of a motor vehicle or motor bicycle shall give reasonable warning of his approach, and use every reasonable precaution to avoid injuring such person, or frightening or injuring such horse, horses, or other draft or do- mestic animal or animals, and, if necessary, stop his said motor vehicle or motor bicycle until he can safely proceed," was intended for the benefit of drovers driving loose animals on the highways. A drover with cattle, horses, or other domestic animals, has a right "Delfs V. Dunshee, 143 la. 381, 122 69 Fields v. Sevier, 184 Mo. App. 685, N. W. 236 (1909). 171 S. W. 610 (1914). B8 Daily v. Maxwell, 1S2 Mo. App. 41S, 133 S. W. 351 (1911). 560 LAW OF AUTOMOBILES upon the public highway, and any one operating an automobile over the same is bound to have proper regard for such traffic, as the law contemplates the public use of every public highway for any lawful purpose. Such statutory provisions do not contemplate nor require that all domestic animals taken upon the public high- ways shall be ridden, driven in harness, led with halters, or in some manner be restrained. Where an autoist drove his machine through a narrow lane at 18 or 20 mile? an hour where another was driving, a number of loose young horses, and did not slacken his speed ; although the driver of the horse waved for him to stop, and the horses became frightened so that one of them ran into a wire fence and was killed, it was held that the autoist was guilty of negligence, and that it was immaterial whether he saw the other's signals or the horses, since by the exercise of reasonable care he could have seen them.^" § 567. Assisting to get horse past automobile. The plaintiff was driving a single horse and buggy on a public highway, and as she came to the top of a hill she saw the defendants in an auto-, mobile from 60 to 100 feet distant, coming up the hill. Her horse manifested some fear and stopped. He then began to back, and backed the buggy against a bank on the side of the road. She signaled the defendants to stop, and called for help. The automo- bile was stopped within about a rod of plaintiff's horse, and both de- fendants went quickly to plaintiff's rescue, by first taking the horse by the bit. The horse, however, backed the right wheel of the buggy in such a way as to break it, which caused the plaintiff to fall out and Sustain the injuries complained of. There was no col- lision, and the horse did not run away. It was held that there was no evidence of negligence on the part of defendants or either of them, and judgment on a verdict in their favor was affirmed.®^ In an action to' recover for injuries received when the plaintiff's team became frightened at defendant's automobile, recovery was sought on account of the negligent manner in which the defendant assisted in getting the team past the machine, and the plaintiff testified as follows, his testimony being substantially corroborated by his wife and another woman, who were with him in his wagon: The defendant, after being signaled to stop, came within IS feet of the team, onto the grade where plaintiff was, and at a place where plaintiff could not turn off the grade. He then stopped and stayed in his car until the plaintiff asked him to get out and help him. ^■^ ^ ' ' ' . 60 Fitzsimmons v. Snyder, 181 111. 61 Gearhart v. Stouder, 161 la. 64,4, App. 70 (1913). 143 N. W. 499 (1913). FRIGHTENING HORSES \ 561 "I could have turned off the grade if he had stopped farther back. When I asked him to help me, he hesitated a moment, then got out of his automobile, and was about to take hold of tHe- horse that was not afraid, and I said, 'Take the other one.' He walked around and took the other horse, grabbed for it, and said, 'Come on.' He led it just about 10 feet. Then he let go the horse and struck it, and said, 'Go on.' The horse lit out. I was tryiiig to hold them with both hands, but they ran and tipped us out. I didn't hit them. Before he stopped he turned his automobile off the grade, about IS fjeet away. The car was standing still when I undertook to drive by. I could not unhitch them after he stopped the car. They were up in the air. If I had loosened the line up a little, they would have run away. When he took hold of the horses, I told him not to let go. The horses were, at the time, frightened and danc- ing around. The horses started to run immediately, as soon as he let go, and ran until they upset the. wagon." WhUe the defendant's testimony contradicted that of the plain- tiff, it was held that there was sufficient evidence to support the verdict in plaintiff's favor; that it was the duty of defendant on request of plaintiff, under the circumstances, to render him assist- ance, and in doing so to exercise reasonable care.®* A statute providing that the operator of an automobile shall keep a vigilant watch for horse-drawn vehicles, and when he sees or by vigilant watch could see, that the horses are becoming frightened, to immediately stop his automobile and, in certain circumstances, "to give such personal assistance as would be reasonable to insure the safety of all persons concerned and to prevent accidents," does not make of the autoist an insurer of the safety of the persons in the horse-drawn vehicle, but requires him to render such assistance as would reasonably lead to safety. An instruction plalcing the duty upon him "to render such personal assistance as would insure the safety" of the person in such vehicle was erroneous ; effort rea- sonably directed to insure safety being a far different proposition from an absolute insurance of safety, as directed in the instruc- tion.®^ §568. Horse taking fright secoud time, after automobile has departed. The defendant was driving his automobile along a city street at night, and overtook the decedent and her husband riding in a buggy, his .lights disclosing their presence when he turned to the left to avoid a standing automobile on the right side of the street. At that time defendant was close to the buggy and 62 Pekarek v. Meyers, 159 la. 206, 140 63 Cratpn v. Huntzinger, 163 Mo. App. N. W. 409 (1913). 718, 147 S. W. S12 (1912). B. Autos.— 36 562 LAW OF AUTOMOBILES he claimed that he could only pass it safely on the right. As he passed the buggy, either between it and the automobile or bfetween it and the right curb, his fender grazed the buggy and frightened the horse, whicli started to run, but was stopped in a very short distance. The injury to the buggy was negligible. The horse was nervous, and defendant offered to take the occupants of the buggy home in his car, which they declined. Examination was made of the buggy, quite a crowd had gathered, and- after a period ranging according to the testimony from 5 to 20 minutes, defendant pro- ceeded in his automobile to his home. A few minutes later the diecedent and her husband proceeded on their way with the horse arid buggy. After going -a short distance, the horse again took fright and ran away, throwing both occupants out, and seriously injuring the decedent. It was contended that the fright of the horse continued from the time of the collision and caused it to run the second timei Both an ordinance and a statute required vehicles overtaking others to pass on the left. In affirniiing judgment for defendant the court held that the evidence was sufficient to sup- port a finding that defendant was not negligent in the first instance, and that the collision was not the proximate cause of the decedent's injury, or that the decedent was contributorily negligent. In regard to the violation of the law of the road, the court said: "Neither the ordinance nor the statute purports to lay down a hard and fast rule of the road, to be followed under all circumstances. Circumstances may confront a person, and often do, where' care would require him to avoid or relinquish the side of the street to which he was otherwise entitled." On the question of proximate cause, the court said: "Assuming that the defendant was at fault in causing the collision, the de- cedent had escaped injury therefrom. For the time being, at least, the danger was over. After a considerable investigation, the de- fendant left for his home. The decedent and her husband re- mained. It rested with them to judge whether their horse was suf- ficiently recovered from his. fright to justify the continuance of their journey. The relation of the defendant to the accident that happened later was not materially different from what it would have been if the decedent had not been in the buggy when the col- lision occurred, but with knowledge of the facts had entered the buggy after , the horse had been brought under control."^* § 569. "Whenever it shall appear." A statutory requirement that the drivei* of an automobile shall bring his vehicle to a stop 8*Herdman v. Zwart,' 167 la. 500, 149 N. W. 631 (1914). FRIGHTENING HORSES 563 whenever it shall appear that any horse driven or ridden by any person is about to become frightened, has been construed to mean that, wherever it might, by the exercise of reasonable care and diligence on the part of the driver of the automobile, so appear to him that such horse is about to become frightened, then he is charged with such knowledge.®^ So, under such provision it is held to be the absolute duty of the operator of an automobile to stop when he sees that a horse is frightened, and that he has no discretion in the matter.*^ The operator will be charged with seeing what he ought to have seen.*'' § 570. Failure to stop as required by statute. Under a stat- ute providing that when it shall appear that any horse ridden or driven on the highway is about to become frightened by the ap- proach of any motor vehicle, it shall be the duty of the operator to come to a full stop until such horse shall have passed, and,, if necessary, to assist in preventing accident, a motorist cannot de- termine for himself whether he should proceed or to stop; failure on his part to stop being a violation of the statute, rendering him liable for any injury proximately resulting therefrom.®* § 571. Duty of driver of horses. The driver of a team which is met or passed by an automobile is confronted with a different sit- uation from the one he would occupy if the automobile were merely a horse-drawn vehicle, and he must take cognizance of the conditions so presented and act with reference to them.*" It is the duty of the driver of a vehicle to look ahead, and to either side when there is likelihood of any person or vehicle approachiiig him from those directions, in order to see what should affect his drK^ing.'''' While it it his duty to look ahead and see whatever there may be in the line of his vision which should affect his driving, if he knows that an automobile is approaching from the rear, he must act with reasonable prudence in the light of such knowledge,''^ But he is under no duty to discover a vehicle approaching from the rear, and 66Russ V. Strickland, 130 Ark. 406, 68 Russ. v. Stricklancl, 130 Ark. 406, 197 S. W. 709 (1917), "quoting from this 197 S. W. 709 (1917). work; Christy v. Elliott, 216 III. 31, 45, S^Arrington v. Horner, 88 Kan. 817, 74 N. E. 103S, 3, Ann. Cas. 487, 1 L. R. 129 Pac. 11S9 (1913). A. (N. S.) 21S, 108 Am. St. Rep. 196; 70 strever v. Woodard, 160 la. 332, Ward V. Meredith, 220 111. 66, 77 N. E. 141 N. W. 931, 6 N. C. C. A. 73 (1913) ; 118, aff'g 122 111. App, 1S9. Arrington v. Horner, 88 Kan. 817, 129 66 stout V. Taylor, 168 III. App. 410 Pac. 1159 (1913). (1912). 71 Arrington v. Horner, 88 Kan. 817, 67 McDonald v. Yoder, 80 F'n. ''.5, 129 Pac. 1159 (1913). 101 Pac. 468 (1909). 564 LAW OF AUTOMOBILES is not bound to give way for it to pass until its presence is brought to his attention.''* He may rely tipon those approaching from that direction to do so in the exercise of- ordinary care. He does not assume the risk of his horse becoming frightened by the negligent operation of an automobile, although the highway on which he is driving is much used by such machines.'" § 572. Driving horse known to be afraid of automobiles. A person is not to be deprived of his right to use any means of conveyance within his control because, forsooth, the animal he must drive is unaccustomed to the sight of automobiles and be- comes frightened upon meeting or coming near them. Public high- ways are established for the benefit of all who find it necessary or desirable to travel thereon, adopting any means of conveyance not prohibited by law.''* An instruction which told the jury, in effect, that the plaintiff was not entitled to recover for an injury caused by his mule becom- ing frightened at the approach of an automobile and running away and injuring him, if he knew that the animal was liable to become frightened upon meeting an automobile, and a prudent person would not have driven an animal of that kind upon the public high- way where automobiles might be met, was held not to be the law.''* In this case the court said: "Plaintiff had the right to drive his mule on the public highway, being bound, of course, to the exercise of ordinary care while doing so, and there was no reason to think that he could or would not have time upon the approach of an automobile to take such measures as would protect himself from danger on account of the fright of the animal by either leavitig the road if opportunity offered, or by getting out of the buggy and hold- ing the animal until the danger was passed." Evidence of the character of the horse ridden or driven by the plaintiff is admissible on the issue of whether the proximate cause of the injury was the negligence of defendant or the vice of the animal; but before its reputation may be shown for the purpose of proving contributory negligence, such issue must have been properly raised by the pleadings.''* It is not ordinarily negligence as matter of law to ride a horse on a road frequented by automobiles.'''' If he understood that the WStrever v. Woodard, 160 la. 332, 76 Butler v. Cabe, 116 Ark. 26, 171 141 N. W. 931, 6 N. C. C. A. 73 (1913). S. W. 1190, L. R. A. 191SG 702 (1914). 73 Delfs V. Dunshee, 143 la. 381, 122 76 Cain v. Wintersteen, 144 Mo. App. N. W. 236 (1909). 1, 128 S. W. 274 (1910); Bliss v. Wol- 74 Butler V. Cabe, 116 Ark. 26, 171 S. cott, 40 Mont. 491, 107 Pac. 423 (1910). W. 1190, L. R. A. 191SC 702 (1914). "^1 "There may he exceptional cases in FRIGHTENING HORSES 565 horse was gentle and kind, and had been driven by a woman, evi- dence of that sort would tend to show that he was in the exercise of due care. In this connection, what the vendor of the horse told such person a short time before the act complained of, is compe- tent to show what such person understood the nature and character of the horse to be, and whether he was in the exercise of dye care in driving him.''* It is a rule of law, however, that where one knowingly places himself in a place of danger which he might easily have avoided, he assumes all the risks incident thereto. So, where deceased was riding a fine, high-bred mare, very quick of action and difficylt to control when excited or frightened, which he had known intimately for several years, and had frequently ridden her, and knew her peculiar characteristics, and that she was afraid of automobiles, and upon seeing an approaching automobile, reined the mare on the side of the road, facing the approaching car, and did nothing to indicate to the driver of the car that he had the least fear of his ability to manage the mare, and sat and waited for the automobile, and the mare showed no signs of fright until the car was almost opposite, when she wheeled and commenced a struggle in which deceased was killed, it was held that he was contributorily. negli- gent, and that no recovery could be had for his death.'" Where the operator of an automobile discovered the peril of the plaintiff in time to have avoided injQring her by the use of every means in his power, consistent with the safety of himself and others, the previous negligence of plaintiff in going on the highway in a buggy dtawn by an unruly horse, would not bar a recovery, as such negligence on her part, in the circumstances, becomes a condition and not the proximate cause of the injury.*" § 573. Driving team by standing automobile. When the driv- which the wild and dangerous character shy of machines' ; but there was noth- of a horse would make his use on a road ' ing in the evidence to indicate that a frequented by automobiles negligence man accustomed, as plaintiff was, to the per se, but in the average case, and in use of horses, would experience any seSi- such a case as we think the evidence, ous difficulty in riding the hors^ Ijy a viewed most favorably for defendants, car if the driver thereof obeyed the show this one to be, it is a fair pre- statute." Cohen v. Meador, 119 Va. sumption that a horse which is likely to 429, 89 S. E. 876 (1916). become- frightened and unmanageable '8 Ferryall v. Youlden, 76 N. H; S48, upon meeting an automobile in motion 85 Atl. 786. can, with reasonable safety to the rider, _ 'SDreier v. McDermott, IS 7 la. 726, be taken by the car if the conditions 141 N. W. 31S, 8 N. C. C. A. 1082, SO of the statute are complied with. The L. R. A. (N. S.) 566 (1913). plaintiff's horse had been struck by a SOBlackwell v. McGrew, : — Tex. Civ. machine once before, and was 'pretty App. — , 141 S. W. 1058 (1911). 566 LAW OF AUTOMOBILES er of a frightened horse attempts to pass an automobile that has been stppped when the fright of the horse was discovered, he will be barred of recovery for injuries received in such attempt, unless it appears that there was no other reasonable course for him to pursue, and that the negligence of the automobile driver placed him in such peril.'^ The plaintiff, driving a restive horse, turned off the road for the purpose of quieting it, and a^t about the same time the driver of an automobile discovered the fright of the horse and stopped his machine at the, side of the road. The automobile was not stopped as soon as it could have been after the fright of the horse was dis- covered, and the plaintiff, being in fear that his horse would be hurt owing to the character of the place where it was stopped, attempted to force it to pass the automobile, and was injured in the attempt. There was testimony that the engine of the automo- bile continued to run after the car was stopped. It was held that, it appearing that plaintiff was not injured until he attempted to drive past iJie automobile, he was guilty of contributory negligence which barred recovery.** § 574. Injured by holding to frightened horse. The plain- tiff was leading a horse by a headstall, when defendant's automo- bile came over a hill 25 rods distant. The horse was restive, but plaintiff did not signal to the driver to stop, and the latter came on toward the horse, which finally reared and struck plaintiff down and ran away. The trial court directed a verdict for defendant on the ground of contributory negligence, holding that the plaintiff should have let go his horse. Held, that the trial court was in error; that the questions of negligence and contributory negligence were for the jury.** § 575. Evidence of other team having been frightened by same automobile. It is held that the plaintiff , seeking to recover for injuries caused by his team being frightened by the alleged neg- ligent, reckless and unlawful driving of defendant's automobile, could give testimony as to other horses being frightened by the same automobile, in like circumstances, at the same time, or im- mediately afterwards, and on the same road; such testimony being corroborative of evidence relative to the frightening of his own team,** 81 Cumberland Tel. & Tel. Co. v. Yei- R. A. (N. S.) 1137 (1910), ser, 141 Ky. 15, 131 S. yV. 1049, 31 L. «3 Cusick v. Kinney, 164 Mich. 25, R. A. (N. S.) 1137 (1910). 128 N W. 1089 (1910). 82 Cumberland Tel. & Tel. Co. v. Yei- «* Conrad v. Shufordj 174 N. C. 719, ser, 141 Ky. IS, 131 S. W. 1049, 31 L. 94 S. E. 424 (1917). FRIGHTENING HORSES 567 NOISE § 576. General duty of operator as to noise made by auto- mobile. The right to operate an automobile on the highways carries with it the right to make the noises incident to its operation.*' But this right can only be exercised with a due regard for the rights of others. If the operator knows, or by the exercise of ordinary care ought to know, that his machine has excited a horse so as to render it unmanageable, it is his duty to stop the machine, for the presumption is that the machine is always under the control of its operator.*® He is charged with the knowledge that horses may be frightened by the noise made by his machine, and he must exer- cise care accordingly. The failure of a motorist to stop his engine, after having stopped his car, and thus pf event the noise made by it, and at which a passing team was frightened, when he could have done so without danger, was negligence.*'' In a case where it was alleged that the defendant drove his auto- mobile at a negligent rate of speed, and that he was negligent in allowing the automobile to make a loud noise whereby the plaintiff's horse became frightened and unmanageable and threw plaintiff from his wagon, the court ruled that if the horse was frightened by the ordinary noise of the automobile which was not greater or different than the noise made when propelled at legal speed, there was no liability.** The defendant was driving a one-cylinder automobile, at a rate of speed little faster than a team in front of her which she, was overtaking. Her machine was in low gear, which caused it to make more ^oise than when running in high gear, but no more noise than usually made by one-cylinder machines running in low gear. There was nothing in the appearance of the machine specially calculated to frighten horses. No warning was given that the team mentioned was frightened or likely to be frightened by the approaching ma- chine, and theire was no evidence to show that defendant had any «B House V. Cramet, 134 la. 374, 377, Hancock, 156 N. C. 56, 72 S. E. 80, 1 112 N. W. 3, 13 Ann. Cas. 461, 10 L. N. C. C. A. 101 (1911) ; Coca Cola Bot. R. A. (N. S.) 655; Coca Cola Bot. Wks. v. Brown, 139 Tenn. 640, 202 S. Wks. V. Brown, 139 Tenn. 640, 202 S. W. W. 926 (1918); Brown v. Thome, 61 926 (1918); Eichman v. Buchheit, 128 Wash. 18, 111 Pac. 1047, 1 N. C, C. A. Wis. 385, 390, 107 N. W. 325; Brown 107 (1910). V. Thome, 61 Wash. 18, 111 Pac. 1047, 1 87 Sapp v. Hunter, 134 Mo. App. 685, N. C. C. A. 107 (1910). 115 S. W. 463 (1909). 86 House V. Cramer, 134 la. 374, 377, 88 Eichman v. Buchheit, 128 Wis. 385, 112 N. W. 3, 13 Ann. Cas. 461, 10 L. R. 390, 107 N. W. 325. See also, Cahpon A. (N. S.) 655; Curry v. Fleer, 157 N. v Chicago & N. W. R, Co., 85 Wis. C. 16, 72 S. E. 626 (1911) ; Gaskins v. 570. 568 LAW OF AUTOMOBILES reason to think that the team was likely to become frightened. When she approached near the team it became frightened, sprang sideways so as to break the tongue of the vehicle they were draw- ing, ran down the street, and collided with and injured the plain- tiff. Held, that there was no evidence of negligence on the part of the defendant, and that she was not liable for the injuries to plain- tiff." Plaintiff was riding horseback driving loose horses along a pub- lic road, when he met an 'automobile driven by the defendant. His Hding horse became frightened, reared and fell, crushing one of plaintiff's feet and otherwise injuring him. He testified that his riding horse was well broken, accustomed to automobiles; that he could safely ride him within five feet of one, and that it was the loud and unusual sound emitted from the machine that caused the horse to take fright. No evidence was offered, however, tend- ing to show that the noise from the machine was caused by any aict of defendant, or that by the exercise of the highest possible degree of care she should have prevented it. It was held that the plaintiff had failed to make a prima facie case.'" But the noises of an automobile may be emitted under such cir- cumstances as to render the person responsible therefor liable as for negligence.'^ Thus, if an operator of an automobile allows the explosions from his engine to continue and does nothing to Stop them after he is aware that a horse being driven on the highway is badly frightened thereby, he is guilty of negligence.'* But it has befen declared not to be negligent to allow explosions from an automobile engine to continue after the automobile has been brought to a stop on the public highway, unless the opferEitor Sees, or by the exercise of reasonable care ftiight see, that it is likely to cause injury to another, i. e., frighten horses." § 577. Reckless sounding of horn. The duty to sound a horn, does not justify a motorist in doing so in a sudden and reckless manner, thereby causing fright to a team of horses.'* ' 89 Simmons v. Lewis,. 146 la. 316, 12S Alsever v. Railroad Co., US la. 338, 88 N. W. 194 (1910). N. W. 841; Cobb v. Railroad Co., 37 91) Day V. Kelly, 50 Mont. 306, 146 S. C. 194. Pac. 930(1915). 92indiana Springs Co. v. Brown,-16S 91 House V. Cramer, 134 la. 374, 377, Ind. 465, 470, 74 N. E. 615, 6 Ann. Cas. 112 N. W. 3, 13 Ann. Cas. 461, 10 L. 656, 1 L. R. A. (N. S.) 238. R. A. (N. S.) 655. 98 House v. Cramer, 134 la. 374, 112 For the rule as applied to railroad N. W. 3, 13 Ann. Cas. 461, 10 L. R. trains see Toledo, W. & W. R. Co. v. A. (N. S.) 655. Harmon, 47 111. 298, 95 Am. Dec, 489 ; 94 Conrad v, Shuf ord, 174 N. C. 719, Andrews v. Railroad Co., 77 la. 669; 94 S, E, 424 (1917), - FRIGHTENING HORSES 569 § 578. Overtaking and passing other vehicle. In an action to recover for injuries incurred when plaintiff's horsp, which he was driving to a buggy, was frightened, the case was for the jury where there was evidence to the effect that defendant's automobile was approaching the buggy from the rear, making unusual and unnecessary noises, and that the accident resulted from the fright of the horse, not otherwise accounted for.'* § 579. Cranking automobile near team. The defendant stopped his automobile near where the plaintiff's team was stand- ing hitched to a surrey, and in charge of a competent driver. The team could hear, but could not see the machine. When the ma- chine was being cranked for the purpose of being started, one horse began to prance and show symptoms of fright^ but the cranking kept on, causing the horses to run away and injure them- selves. There was also evidence that this machine made a most unusual and loud noise, which defendant refused to have fefnedied on account of the expetise. In upholding a verdict for the plaintiff, the court in part said: "It was the duty of this defendant, assum- ing that his machine was a normal one, when he began to 'crank up,' to keep a watchful eye on the horses standing so close by. It was his duty when he saw that they Were manifesting symptoms of fright, to stop at once, until the horses could be removed. . . . His Honor might well have told the jury that to crank up such a defective and abnormal machine in close proximity to a pair of horses, without giving the driver notice to remove them is per se negligence." '* While the plaintiff was in the act of driving by the defendant's automobile, which was stopped at the side of the road, with the occupants standing in front of it, the defendant suddenly started his engine, without any effort to ascertain whether there was any team near, and the plaintiff's horse took fright at the sudden noise, whirled from the machine, throwing plaintiff from her vehicle and injuring her. Held, that the question of the defendant's negligence was for the jury.*'' ) § 580. "Chugging" of automobile in passing team. Where witnesses for the plaintiff testified that the defendant's automobile; driven at 8 or 10 mifes an hour, when overtaking, and 3 or 4 feet .alongside of plaintiff's team, started "chugging" and frightened them, causing a runaway resulting in one of the horses being killed, 96CoughIin v., Mark, 173 Ky. 728, 191 97 Fisher v. McGrath, 112 Minn. 4S6, S. W. 503 (1917). 128 N. W. S79 (1910). 96 Tudor V. Bowen, 152 N. C. 441, 67 S. E. 1015 (1910). 570 LAW OF AUTOMOBILES a verdict for the plaintiff was susta,iried, although the defendant and a number of witnesses testified that the car was run at a low rate of speed, that it was not making any noise, that it had not caught up with the teani at the time of the accident, and that the team was frightened and excited while the car was 75 feet away." § 581. Failure to take precautions after frightening team- Last clear chance. The defendant was traveling northerly 'on a public road in his automobile. At the intersection of another road he reduced his speed to cross a. culvert, and after crossing it, again increased his speed. The increasing of ,the speed caused the automo- bile to make a noise not unusual when starting up speed, but which some of the witnesses described as a "terrible noise." The plain- tiff's son, 17 years of age, had been working a team of mules of the plaintiff to a grader a short distance from the road intersec-, tion, and had unhitched them from the grader and driven them to one sidfe of the road, and they were about 30 feet from the road when the automobile passed them. When the automobile crossed the culvert the mules were in full view of defendant, and he saw that they were becoming frightened. When defendant increased his speed, making the noise described, the mules broke loose from the boy and ran away, causing one of them to be killed and the other one badly injured. Defendant had placed some dogwood branches in his automobile, which extended a short distance above the car. The plaintiff's son testified: "Well, the noise, the size of the thing, and all; of course they could see them things, and the rattling, I guess. Well I didn't think about the mules getting scafed. I would have drove them away if I had thought about them getting scared. I had time to get back out of th^ way. Could have got back out of the way," behind the schoolhouse, which was 65 feet away, but thought he had them under control. There was evidence that the machine was seen coming 200 yards away, and that the boy had to hurry to get out of the way of it. It was held that a verdict for the plaintiff was justified; that the boy in charge of the mules was not negligent as matter of law. The court said: "We think the rule applicable here tliat / applies to the operation of railway engines. It is held in railway cases that the company will be held liable for injuries if the servants, by ringing the bell, blowing the whistle, or caus- ing steam to escape, causes a team to run away if at the time such noise was made the employees knew, or had reason to be- SSKirlin v. Crittenden, 176 111. App. 550 (1912). FRIGHTENING HORSES 571 lieve, that it would probably frighten said team, and that injury might result therefrom." ^ As there was a dissenting opinion in this case it was certified to the Supreme Court for a determination as to which was cor- rect, the conclusions of law reached by the majority or the mi- nority. That court decided in favbr of the majority, land held that the doctrine of discovered peril applied to the facts; that, consequently, the negligence, if any, of the boy in charge of the mules was not a defense; and that, "under the facts of this case it was the duty of defendant to halt his automobile and ceasfe the noise until the mul6s could be removed or controlled."^ §582. Evidence as to noise of automobile. Testimony 'as to the comparative noises made by automobiles is competent when the noise is a feature of the alleged negligent operation! But testimony as to the comparative noises made by two automobiles, based on a comparison made by the witness is not admissible, where there was no proof of the condition of the machines at the time the comparison was made.' Where a statute requires that when a horse indicates fright at an automobile the operator shall cause the automobile to make as little noise as possible, it is proper to allow a witness to testify that the defendant's automobile made more noise than any he had ever heard.* In an action to recover for injuries caused by a horse taking fright at an automobile, a witness who had passed the automobile probably 2S times was properly allowed to testify that it was an exceedingly noisy machine, the loudest machine he had ever heard.* SIGNAL BY DRIVER OF HORSES TO OPERATOR OF AUTOMOBILE § 583. Signal by person other than driver. Under a statute requiring the driver of any automobile, when signaled by the driver of any vehicle propelled by horses, to stop his automobile until the other vehicle has passed, it was held insufficient for an occupant of a horse-drawn vehicle other than the driver to give the signal.* ICarsey v. Hawkins, — Tex. Civ. 6 Fletcher v. Dixon, 113 Md. 101, 77 App. — , 16S S. W. 64 (1914). Atl. 326 (1910). 2Carsey v. Hawkins, 106 Tex. 247, SMesser v. Bruening, 25 N. D. 599, 163 S. W. 586 (1914). 142 N. W. 158, 8 N. C. C. A. 1087n, 48 « Porter v.^ Buckley, 147 Fed. 140, 141, L. R. A. (N. S.) 945 (1913). 78 C. C. A. *138. * Fletcher v. Dixon, 107 Md. 420, 68 Atl. 875. 572 LAW OF AUTOMOBILES In the case last cited the court in part said: "The driver is named as the responsible party required to signal and whose signal is required to be noticed by the other driver; a,nd thus by necessary implication the right of any other person, occupant or bystander, to give the statutory signal is excluded. And this is so for good reasons. The plaintiff is the person who was re- sponsible for the manner in which this horse was controlled. It is his negligence or contributory negligence for which he is h^ responsible. It is his horse. As an owner he is presumed in law and in fact to know it and its characteristics, habits, and disposition, gentleness or viciousness, better than any other person, and sense more fully and quickly than any occupant of the rig an actual dangerous situation. He knows, or is presumed to know,, when he has control of the animal. ... He must know that the automobile driver must look, to him, as the person in control of his part of the situation, as the proper person to give and charged with' the dutjr of giving the warning signal, and until such warning is given by signal, shouting or otherwise, the auto- mobile driver had the right to assume it was unnecessary to stop, so long as she was using due care and ordinary caution not to frighten the horse in passing." Where the plaintiff's wife, who was riding with him in a buggy, upon their meeting the defendant in his automobile, threw up her hands and called for defendant to stqp, it was held that such was not a compliance with a statute providing for the signal to be given by the "driver" of the horse.' In a criminal prosecution for the alleged violation of a statute requiring the driver of an automobile to, "on signal by raising the hand, from a person riding, leading or driving a horse; or horses or other animals, bring such motor vehicle immediately to a stop," it appeared that defendant, driving an automobile, met a wagon and team, the driver of which called to him to stop, and another occupant of the wagon raised his hand as a signal for defendant to stop. It was held that a conviction could not be sustained; that the -statute was both penal and criminal, and must be strictly construed in favor of the defendant; that in view of the plain provision of the statute referring to the giving of a signal by a designated person, the provision could not be ex- panded to include a signal given by another; and that the evi- dence was, therefore, insufficient to sustain a conviction.' 7 Messer v. Bruening, 25 N. D. S99, 8 state v. Wilson, 188 Mo! .App. 342, 142 N. W. 1S8, 48 L. R. A. (N. S.) 94S, 174 S. W. 163 (191S). 8 N. C. C. A. 1087n (1913). FRIGHTENING HORSES 573 On the other hand, other courts have held that it is sufficient if an occupant of a horse-drawn rig other than the driver gives the signal.' Under a statute providing that any person operating a motor vehicle shall, upon meeting any person or persons driving a horse or horses, on any public highway, "upon request or signal by put- ting up the hand from any such person, or persons, so . . . driving any horse or horses, ... . immediately bring his ve- hicle to a stop," etc., it was held that the word "driving" is not confined to the person alone in the horse-drawn vehicle who holds the lines, but includes any occupant of such vehicle, and such signal given by any occupant thereof is sufficient. This was set held in a prosecution for violation of such statute.^" Where a negro, riding on the back of plaintiff's wagon, at the latter's direction,, signaled and called to an approaching motorist to stop when at a distance of about 40 yards, it was held that the case w;as for the jury, under a statute requiring the driver of an auto- mobile to stop, etc., at "request or signal from a person riding, lead- ing or driving a horse or horses." ^^ Under the Minnesota statute ^^ which provides that "in case said animal exhibits any signs of fright, the operator shall bring his ma- chine to a- stop, and, upon request or raising of the hand of the person in charge of said animal," etc., and "on signal by raising the hand, or by request, from a person riding, leading or driving a horse," etc., "bring such motor vehicle immediately to a stop," it is held that the signal may be given by an occupant of a horse-drawn rig other than the person having control of the Hnes.^' The court declared that the statute must have a sensible con- struction, and that, "It is enough if the signal is given by an occu- pant of the rig so that the auto driver is given fair warning that he should stop; and he should not be heard to quibble because the signal does not come from the driver." § 584. Calling to operator. In an action to recover for the loss of a horse, it appeared that plaintiff was driving the horse on a public highway, and met defendant driving an automobile; that when the vehicles were within IS or 20 steps of each otl^er, SSchaar v. Conforth, 128 Minn. 460, 72 S. E. 80, 1 N. C. C. A. 101 (1911). 151 N. W. 27S, 8 N. ,C. C. A. 1079 12Minn. Gen. St. 1910, sees. 2632, (191S). 2634. 10 State V. Goodwin, 169 Ind. 265, 82 13 Schaar v. Conforth, 128 Minn. 460, N. E. 459. 151 N. W. 275, 8 N. C. C. A. 1079 "Gaskins v. Hangock, 156 N. C. 56, (1915). 574 N LAW OF AUTOMOBILES the horse showed fright, and the driver shouted "Look out!" that defendant then turned and passed on the right side of the road, and when the car was opposite the horse, the latter turned and plunged into a wire fence, and was so, badly injured as to render it useless. The only charge of negligence alleged was the failure of defendant to stop his car when the driver called to him to "look out." De- fendant stated that he heard the call, and interpreted it to mean to turn out of the beaten road, which he immediately did. The action was brought under a statute regulating the conduct of the driver of any automobile when approaching horse-drawn vehicles, and declar- ing that "if requested by signal or otherwise by the driver of such horse or horses, shall procefed no farther," etc. Held, that these words were insufficient as a signal within the meaning of the statute. "According to dictionary definitions," said the court, "the meaning of the words is to exercise care, rather than to proceed no further. The equivalents of the phrase are, 'take care,' 'be watch- ful/ 'take heed,' and 'act with prudence.' In their popular signifi- cation, and alone, they do not import a request to stop or stand still."" Where the driver of a horse called out to a motorist whom he was meeting to "Hold on, wait, stranger, until I get out and hold my horse," the case was held properly submitted to the jury.^* § 585. Duty of operator upon signal. If an operator is re- quested by signal or otherwise to stop, he should not go farther, unless such movement is necessary to avoid accident or injury, or unless the animal is under the control of its driver.^® It was held that the failure of the driver of a motor truck to stop when signaled to by the driver of a team he was meeting was neg- ligence, such disregard of the signal being in violation of statute." Evidence that the defendant motorist did not stop his automo- bile when signaled to by the plaintiff, who was driving a team and meeting the automobile, and that defendant failed to turn out sufficiently to permit plaintiff to pass, is sufficient to raise an issue as to the defendant's negligence, although contradicted by his evidence.^' 14 Sterner v. Issitt, 89 Kan. 3S7, 131 v. Thome, 61 Wash. 18, HI Pac. 1047, Pac. 551, 8 N. a C. A. lOSOn (1913). 1 N. C. C. A. 107 (1910). IS Spangler v. Markley, 39 Pa. Super. "Union Tr. & S. Co. v. Westcott Exp. Co., 79 Misc. 408,. 140 N. Y. Supp. Ct. 351 (1909). gg^ g ^ ^ ^ ^ jQggj^ (1913). 16 Battle V. Guttrey, — Ark. — , 208 18 Chapman v Strong, 162 Mich. 623, S. W. 289 (1919); Cohen v. Meador, 127 N. W. 741, 8 N. C. C. A. 1088n 119 Va. 429, 89 S. E. 876 (1916) ; Brown (1910). FRIGHTENING HORSES 5,75 Where there was evidence that plaintiff was driving one horse , to a wagon, and saw defendant's automobile coming meeting Jiinj at 20 miles an hour; that at that place the road was not witie enough for him to pull out and let the car pass, and he hurried his horse in order to reach a lane that he might turn into; that, his horse became frightened, a,nd he raised his hand and signaled the automobile a number of times to stop; that, it did not even slow down until it was within a few feet of the horse, which had been showing fright; that the horse then reared, qijid threw plain- tiff out of the wagon, causing the injuries complained of, it was held that a verdict for plaintiff would be sustained.^' The plaintiff was riding with thei driver in a light wagon drawn by a team of spirited horses, traveling at the rate of 7 or 8 miles an hour. There was evidence that when they reached the top of a slight elevation they saw the defendant approaching meeting them in his automobile at a distance of about 700 feet; that, at the request of the driver, the plaintiff signaled the defendant to stop, but the defendant disregarded the signal, and continued on his course at substantially the same rate of ^peed, which was rapid until the two were about to meet at a point on the road where the width was only 11 feet and with a ditch on either side, when the horses suddenly sprang from the road into the ditch, and both occupants of the wagon were thrown out. While this testimony was diametrically opposed by that of the defendant, it was held that it was sufficient to justify a finding that defendant's failure to heed the signal and stop his car was the proximate cause of the accident. Verdict for the plaintiff was sustained.*^" The plaintiff was driving a horse which became frightened at an approaching automobile, he got out of the vehicle, held his horse- by the bit and motioned the operator of the automobile, who stopped his machine but started up again towards the horse. The horse became unmanageable and reared and plunged w'hile the plaintiff struggled to control it; the operator drove his aiitomobile on very near and past the horse, which, in its fright,' overturned the vehicle and the plaintiff was injured. It was held that a find- ing of negligence was justified .^^ The plaintiff and his sister were riding in an open wagon drawn by one horse, and on seeing the defendant coming towards them ISBlackden v. Blaisdell, 113 Me. S67, 21 Murphy v. Wait, 102 App. Div. 121, 93 Atl. S40 (191S). 92 N. Y. Supp. 2S3. • 20 Carter v. Potter, 110 Me. 54S, 86 Atl. 6?1 (1913). 576 LAW OF AUTOMOBILES in an automobile, the sistei: gave the statutory signal to defend- ant to stop by raising and motioning with the handl The defend-* ant disregarded the signal and ran the automobile out of the high- way two or three rods into a dooryard. The plaintiff was thereby induced to |jelieve he could drive along in safety, but the auto- mobile unexpectedly turned and reappeared in the highway dirctly in front of him, frightening his horse and causing personal injuries to the plaintiff. It was declared that the jury were justified in finding defendant negligent.^^ § 586. Duty of operator when no signal given. In the ab- sence of statutory signal by the driver of horses the automobile operator is not bound to stop unless ordinary prudence requires him to do so.^' - . When no statutory signal is given the question of the automo- bile > operator's negligence must be measured by the common la\y standard of due care.^* There is no rule of fixed liability in such cases, for the question of negligence oh the part of the operator of the automobile, and the failure of the driver of the team to sig- nal, usually resplye themselves into issues of fact for the jury.^* A statute requiring an automobile driver to stop when requester, or signa,led to do so by the driver of horses, merely defines his duty when signaled or requested to stop, and does not affect his com- mon law duty to do whatever is reasonable and proper in the cir- cumstances when no signal is given or request made.^^ The want of a. signal will not relieve the autoist from exercising due, care in view of all the circumstances, and he may be guilty of common law negligence for refusing to stop upon signal by an occupant of the horse-drawn vehicle other dian the driver, when he sees such signal; this question being ordinarily for the jury.^'' A number of statutes require the operator of an automobile to stop his vehicle immediately upon signal by a person driving a restive horse. It has been held that this provision does not relieve the operator of the duty to stop without such signal if he sees that a person is being iniperiled by his horse taking fright at the 22Towle V. Morse, 103 Me. 2S0, 6S 26 Delfs v. Dunshee, 143 la. 381, 122 Atl. 1044. N. W. 236 (1909). 28 Tyler v. Hoover, 92 Neb. 221, 138 27 Messer v. Bruening, 32 N; D. SIS, n! W. 128 (1P12). ,156 N. W. 241 (1916); Strand v, Grin- 24 Messer v. Bruening, 2S N. D. S99, nell Auto Garage Co., 136 la. 68, 113 142 N. W. 158, 8 N. C. C. A. 1086, 48 N. W. 488; EUsworth v. Jarvis, 92 Kan. L. R. A. (N. S.) 94S (1913). 895, 141 Pac. 1135 (1914); Nelson v. 26 Nelson v. Haland, 127 Minn. 188, Halland, 127 Minn. 188, 149 N. W. 149 N. W. 194 (1914). 194 (1914). FRIGHTENING HORSES 577 approach of the automobile.** The operator is at all times under the duty to exercise reasonable care, and to take such steps as an ordinarily prudent man would under the circumstances to pre- vent injury to others.*' And notwithstanding a statute authorizes the driver of an automobile to pass other travelers on the high- ways at the rate of eight mUes an hour when no signal is given, he is bound to exercise reasonable care and caution not to cause injury to others.^" The driver of horses is not required under all circumstances to give a signal to stop in order to free himself from the charge of' contributory negligence. If he is occupied with the management of his horses he will not be required to jeopardize the safety of himself or others in order to give such signal.'^ Where a horse- man is busily engaged attempting to control his frightened horse the motorist may in the exercise of reasonable care be required to stop without signal.^* In an action to recover the value of a horse, injured when frightened by defendant's automobile, there was evidence that the highway on which the automobile and plaintiff's team met was a straight level prairie road, with a shallow ditch on either side; that the horses were ordinarily gentle, but on this occasion showed signs of fright at the automobile at a considerable distance before meeting it; that on approaching the car the driver reined the team partly out of the road; that defendant saw, or with reasonable care could have seen, that the horses were frightened, notwith- standing which he proceeded at a high rate of speed past the team, without checking the car, or making any effort to avoid further fright to the horses; that the horses were thus caused to plunge into the ditch on their side of the road; that the driver of the horses made no sign to defendant to stop or slow down his car, but directed his efforts towards controlling his horses, which he was unable to do. It was held that the facts justified a verdict for plaintiff; that the duty to exercise reasonable care to avoid fright-. 28Walkup V. Beebe, 139 la. 395, 116 N. South Carolina: Rochester v. Bull, W. 321. 78 S. C. 249, 58 S. E. 766. He Delaware: Simeone v. Lindsay, 6 Washington: Jones v. Hoge, 47 Wash. Pennew. (Del.) 224, 65 AH. 778; Han- ^63, 92 Pac. 433, 125 Am. St. Rep. 915, nigan v. Wright, S Pennew. (Del.) S37, ^'^ ^- ^- ^- '•^- ^'^ ^^^^ 540 63 Atl 234 ^^ Davis v. Maxwell, 108 App. Div. .' . . J , ^. . 128, 131, 96 N. Y. Supp. 45. Maryland: Fletcher v. Dixon, 107 si^tr^j.^ ^. Crinnell Auto. Garage Md. 420, 68 Ad. S7S. Co., 136 la. 68, 113 N. W. 488. New York: Davis v. Maxwell, 108 82 Eddy y. Stowe, — Cal. App. — , App. Div. 128, 131, 96 N. Y. Supp. 45. 185 Pac. 1024 (1919). B. Autos.— 87 578 LAW OF AUTOMOBILES ening plaintiff's horses was imposed upon defendant,' and that this duty he was bound to perf onn, regardless of whether or not the driver signaled him to stop.'® § 587. Stopping on signal and moving forward when neces- sary. Statutes sometimes require the operator of an automobile on the public highways, on a signal of distress from a person driving horses, to stop all motor power and remain stationary, unless a movement forward shall be deemfed necessary to avoid accident or injury. Under such a statute it has beeii declared to be for the operator of the autoimobile to determine whether a for- ward nlovemerit is necessary, and his determination is controlling if he acts reasonably and in good faith.'* 33 Nelson v. Haland, 12? Minn. 188, 34McCummins v. State, 132 Wis.' 236, 149 N. W. 194 (1914;., 112 N. W. 2S. CHAPTER XVII COLLISIONS WITH STREET CARS § 588. Mutual^ obligations of motorist and street car motorman. § 589. Duty of street car motorman. § 590. Same — ^Instruction. \ § 591. Duty of automobile operator. § 592. Duty under stop, look ahd listen rule. § 593. Same — Where view is obstructed. § 594. At what distance from track mo- torist should look. § 595. Street car having right of way at crossing. § 596. May assume that street car will be operated with due care. § 597. Stopping of street car as invita- tion to motorist to cross. § 598. Street cars operated on private right of way. § 599. Liability of strpet railway com- pany for injury to passenger struck by automobile. § 600. Duty of employees not in charge of street car. §601. Law of road not applicable. § 602. Automobile stalled on track — Mutual obligations. § 603. Same — At bottom of grade at night. § 604. Neither driver nor motorman at- tempting to stop. § 605. Taxicab running against street car — Failure to sound gong on latter. § 606. Salvage corps automobile — Injury to employee. §607. Fire apparatus having right of way. S79 ACT OR OMISSION OF MOTORIST § 608. Duty bf motorist to look to the rear for street cars. § 609. Ignorant of tracks — Car in view. §610. Excessive speed — Unable tp stop after seeing car. §611. Driving against moving car. §612. Turning automobile so as to re- ceive glancing blow. §613. Vision of sprinkling truck driver obscured by tank. § 614. Turning suddenly from one track onto another. §615. Turning suddenly while parallel- ing track. § 6 W. .Turning from behind one car in front of another on parallel track. § 617. Turning onto opposite-bound track on bridge in cloud of smoke. §618. Crossing behind standing car in front of another on parallel track. § 619. Turning around other vehicles and colliding head-on with car. §' 620. Driving onto track after seeing car. §621. Driving slowly across track with- out looking. § 622. Failure to see car in sight. § 623. Struck by car following close, be- hind another. §624. Motorist having right of way fail- ing to see car until near him. §625. Continuing on track after seeing approaching car. § 626. Driver continuing , across when car reduces speed. 580 §627. §628. §629. §630. §631. §632. §633. § 634. §635. §636. §637. §638. §639. § 640. §641. §642. §643. §644. §64S. § 64b. §647. §648. §649. §6S0. LAW OF AUTOMOBILES A Failure to look after passing ob- struction. Driving on track close in front of car. Turning onto track in front of car. Car coming from opposite direc- tion than expected. Turning onto track without signal- ling, after passing (jtar. • Automobile required by another vehicle to stop on track at street crossing. Stopping automobile on track without looking for car. Backing onto track. Driving out of garage in front of car. Driving in front of lighted car at night. Driving against street car. Unable to turn off track on ac- count of snow. Meeting car in snow storm. Driving onto private right of way in center of street at night. Driving on track to avoid ve- hicles in street. Driving onto track to pass vehicle ahead. Conductor on running board struck by automobile. Automobile colliding with passen- ger riding on bumper of street car. Steering gear of automobile break- ing. Following and colliding with car. Stopping close to track. Struck by overhang of street car rounding curve. Motorcyclist struck by trailer. Staitutory presumption that col- lision was due to car company's negligence. ACT OR OMISSION OF STREET CAR OPERATIVES §651. Street car running on dark night without lights. §652. Failure to sound warning signal. § 653. Car backing onto Y. § 654. Street car overtaking and collid- ing with automobile. § 655. Trolley pole breaking and falling on automobile. § 656. Automobile seen 100 feet distant. § 657. Street car leaving track — Res ipsa loquitur. § 658. Excessive speed of car. §659. Excessive speed of car at cross- ing- §660. Same — ^Automobile reducing speed on track. §661. High speed — Mistake in judgment by motorman. § 662. High speed— No signal. §663. Same — Rainy night. § 664. High speed — View partly obscured by another car. § 665. Motorman signalling motorist to cross, then starting car. § 666. Motormat; signalling motorist to cross — Struck by another car. § 667. Street car at high speed striking slowly moving truck, visible for long distance. § 668. Excessive speed not essential to wantonness. § 669. Motorman unable to stop within limit of his vision. LAST CLEAR CHANCE DOCTRINE § 670. Generally — Illustrations. §671. Instructions to jury. § 672. Instruction under vigilant watch ordinance. § 673. Concurring negligence. § 674. No apparent danger until too late to stop street car. COLLISIONS WITH STREET CARS 581 (.675. Stopping on track. i 676. Car and automobile meeting. (677. Stopping trucic near track after passing car. [678. Engine "killed" on track. § 679. Turning slowly onto track. § 680. Looking back while driving across track. § 681. Automobile in view several hun- dred feet. § 588. Mutual obligations of motorist and street car opera- tors. The respective rights of the operator of a street car and the operator of an automobile to the use of the street are coexten- sive, and their duties in reference to the observance of precautions against injury are reciprocal.^ The measure of duty on the part pf both being reasonable care under all the circumstances of any given instance.* Each must exercise his rights with diligence and care, and with regard to the rights of the other.' The one that can most readily adjust himself to the exigencies of the situation must do so, when necessary to avoid injury.* It has been held that where a street car and an automobile approach a crossing, more or less frequently used by street cars and automobiles, so near and at such a rate of speed that they are powerless to stop short of the crossing whatever might be the situa- tion they find confronting them there, and there is a collision between the two, both are guilty of negligence per se; such con- duct not being within the exercise of equal rights of travel.* In a case in which the injury complained of was caused by a collision between a street car and a motor truck, the court said: "It was just as incumbent upon the motorman to exercise due 1 Alabama: Armour & Co. v. Ala- bama, Power Co., — Ala. App. — , 84 So. 628 (1920). Maryland: United Rys. & El. Co. v. State to Use, 127 Md. 197, 96 Atl. 261 (1915). Michigan: Travelers Indemnity Co. V. Detroit United Ry., 193 Mich. 375, 159 N. W. S28 (1916). Washington: Reed v. Tacoma R. & P. Co., — Wash. — , 188 Pac. 409 (1920). West Virginia: Helvey v. Princeton Power Co., — W. Va. — , 99 S. E. 180 (1919). The rights of street railroads and driv- ers of other vehicles in the highways are mutual. King v. Grand Rapids R. Co., 176 Mich. 645 (1913). 2 Arnold v. San Francisco-Oakland Ter. Rys., 175 Cal. 1, 164 Pac. 798 (1917); Langford v. San Diego El. R. Co., 174 Cal. 729, 164 Pac. 398 (1917) ; Phillips v. Denver City Tr. Co., S3 Colo. 458, 128 Pac. 460, 7 N. C. C. A. 487, Ann. Cas. 1914B 29 (1912) ; Deslandes v. Rhode Island Co., — R. I. — , 100 Atl. 393 (1917); Texas El. Ry. v. Williams, — Tex. Civ. App. — , 213 S. W. 730 (1919). 8 Holmes v. Sandpoint & I. R. Co., 2S Idaho 345, 137 Pac. 532 (1913) ; Travel- ers Indemnity Co. v. Detroit United Ry., 193 Mich. 375, 159 N. W. 528 (1916) ; Blanchard v. Puget Sound Tr., L. & P. Co., IDS Wash. 226, 177 Pac. 822 (1919). * Helvey v. Princeton Power Co., — W. Va. — , 99 S. E. 180 (1919). 6 Sutton V. Virginia R. & P. Co., — Va. — , 99 S. E. 670 (1919). 582 LAW OF AUTOMOBILES care in running the cars over the crossing^ as^ it was upon the chaiif- feur to act prudently in the management of the motor truck as it drew near to that place of possible danger. A due regard for the interests of those having an equal right to the use of the crossing required that the usual signal should have been given as the cars approached the junction of jthe. streets, and that their speed, should have been reduced and under, ready control, especially as the pres- ence of trees aftd foliage ol?S;trycte4ith^ view of. the track frpm the position which the drivers of motpr trucks and other vehides are accustomed, to occupy." ® ' : ,: ,The rights of the public and.qf a street, car operator at crossings are equal in respect to the use of the crossings, subject to priority on its, tracks, in the street car.'' Neither,, the operator of a stpeet car nor the driyeir of an automobile has,, a superior right .to cross. Each must exercise his right an^ perform his duty with due; regard to the safety and convenience qi th§: other.* Nor has the street car any superior right of passage where a street intersects but dqes not cross th« street in which the railway tracks are laid.' If one sees ,1iiat, the other intends to cross ■first, it is his duty to stop if necessary, and he can do so by thejexercise of due dili- gence, to avoid a collision.^" .In view of_ the circumstances, however, under which both are operated, and the greater ease with which, an automobile can, be operated, when a street car and automobile are approaching a street SUnited Rys, & El, Co. v, State, to , the street; but the, duties ;ot all who Use, 127 Md. 197, 96 Atl. 261 (1915). use the streets are reciprocal, and the 'Hedmaiik v. Chicago Rys. Co., 192 paramount right of the street railway 111. App. S84 (191S) ; Indiana Union Tr. cpmpany is subject to , fie reciprocal Go. V. Love, 180 Ind. 442, 99 N. E. 1005 rights and duties of others, and no one (1912) ; Louisville Salvage Corps v. Weh- user, of the street, has a right to pursue ner, 153 Ky. 190, 154 S. W. 1087, (1913) ; his^ course without anticipating the pos- Cobb V. Cumberland Co. P. & L. Co., 117 sibility of danger to others." Ward v. Me. 455, 104 Atl. 844 (1918); Harlan v. Ft. Smith L. & T. Co., 123. Ark. S48, Joline, 77 Misc. 184, 136 N. Y. Supp. 185 S.W. 1085 (;i916). , 72 (1912).' Street car has mperior right to use A vehicle is not equally, entitled to of its track ajt' crossing. Bpwen v. Buf- cross at the same moment the car is falo & L. E. Tr. Co., 54 Pa. Super.- Ct. crossitag without regard to the speed of 1,28 (1913). , :, , the car. Hedmark v. Chicago Rys. Co., . Spigrce v; Lincoln Tr. Co., 92 Nek 192 111. App. 584 (1915). 797. "A street car company has the para- ^ Scfiiffmacher v. Brooldyn Heights , R. mount or preferential right of way along Co., 138 N. Y, Supp. 142 (1912.). the place occupied by its tracks, when- 10 Pasca'go^il^ St. R. & P. Co. y. Mct ever the point arises that one must yield, Eachern, 109 Miss.- 380, 69 So. 18S either the company in the operation of (1915). ., its cars, or the traveler along or across COLLISIONS WITH STREET CARS 583 intersection, th6 street car ordinarily has the right of way, and, if it is necessary to avoid an acddent, it is the duty of the automobile to stop and allow the street car to pass ahead of it.^^ The rule seems to be that, while the right of a street railway company to that part of the streets in which its tracks are laid isi not an exclusive one, its rights are superior to those of the gen- eral public, except at street crossings, where the rights of both /are equal .^^ But their respective rights are to be measured by the manner in which they are exercised. The street car company can only exercise its right to occupy the street by keeping on its track, while an automobile may be operated in any part of the street with safety.^* The fact that a street car must run on a fixed and unalterable course gives it a right to require slower vehicles ahead to ; turn off its track on proper warning being given." As the street car cannot turn put of the track to pass a vehicle which it overtakes on the track, it is the duty of the driver of such vehicle, upon notice of the approach of the car, to turn out of the track and make way for the car.^* Where an automobile and a street car approach each other from -opposite directions, the motorman of the street car may assume that the automobile will be turned off the track and out of danger, l^Westover v. Grand Rapids R. Co., elusive right to use of portion of street 180 Mich. 373, 147 N. W. 630 (1914). occupied by its tracks. Capital Tr. Co. "It is not to be doubted th^t street v. Crump, 3S App. D. C. 169 (1910). railway companies have a superior right "While street railway companies have to the use of that portion of the street not the exclusive use of their tracks occupied by their tracks. This rig"bt is either at crossings or at any other part qualified, however, by that of pedes- of the street, their rights are Superior trians and travelers with vehicles to to those of the public.'' Oberholzer v. cross the track in the exercise of care. Philadelphia R.. T. Co., 27 Pa. Dist. 209 It does not absolve a railway company (1918). from the exercise of care in like man- A driver may cross a street car track ner when using the public crossings. The between street intersections. Fisher v. public right is not extinguished, it is Cedar Rapids & M. C. R. Co., 177 la. only subordinated to that of the rail- 406, 1S7 N. W. 860. way company." Bickley v. Southern P, 1* Holmes v. Sandpoint & I. R. Co., Tr. Co., S6 Pa. Super Ci. 113 (1914). 25 Idaho 345, 137 Pac. S32 (1913);' 12 Farnsworth v. Tampa El. Co., 62 Blanchard v. Puget Sound Tr., L. & Fla. 166, 57 So. 233 (1911) c'oggin v. P. Co., 105 Wash. 226, 177 Pac. 822 Shreveport R. Co., 147 La. —,84 So. (1919). 902 (1920) ; Ferrell v. Beaumont Tr. Co., H Bruening v. Metrof)olitan St. R. Co., — Tex. Civ. App. — , 207 S. W. 654 180 lilo. App. 434, 168 S. W. 248 (1914). (1918); Clark's St. Ry. Ace. Law, §103; "Wilfin v. Des Moines City R. Co.; Nellis, St. R. Ace. Law", 270. ' 176 la. 642, 156 N. W. 842. Street car has preferential but not ex- S84 LAW OF AUTOMOBILES until the danger of a collision becomes imminent.^® So, the motor- man may assume that a motorist, approaching a crossing with a view of the street car track, and at reasonable speed, will stop in time to avoid a collision, until the contrary appears.^'' § 589. Duty of street car motorman. No inflexible rule can be laid down as to what specific acts of precaution are necessary to be done or omitted by the operator of a street car in order that he may be within the general requirement of due care.''" It is well settled that the law does not require a higher degree of care of motormen operating street cars than is required of other users of the public streets, a!nd the reasonable care which is re- quired must be measured by all the conditions, rights, and circum- stances of each particular case.^' The motorman is bound to keep a lookout for vehicles and if he sees a vehicle on the track, or in the exercise of ordinary care should see it, it is his duty to bring his car under such control as to avoid a collision, if the driver of such vehicle does not turn out.*" 1« Pantages v. Seattle El. Co., SS Wash. 453, 104 Pac. 629 (1909). 17 Fillmore v. Rhode Island Co., — R. I. — , 105 Atl. 564 (1919). 18 Garrett v. Peoples R. Co., 6 Pennew. (Del.) 29, 64 Atl. 254. It was error to instruct the jury that it was the duty of the motorman and conductor of a street car to use a "high degree of care" to avoid a collision with plaintiff's automobile. Clark v. Public Service R. Co., 83 N. J. L. 319, 85 Atl. 189 (1912). "The duty of taking added precautions to avert a collision was not cast upon the motorman by the mere fact that he saw the automobile. It was essen- tial, too, that he should have seen that it was in a position of danger. He had the right to assume that it would stop before coming to the track, and a realiza- tion of danger would arise only when it appeared, either that the automobile was being driven in ignorance or disregard of the possibility of meeting an approach- ing car, or that it had gotten so near the trs^ck that it could no Ibnger be stopped." Taylor v. Pacific El. R. Co., 172 Cal. 638, 158 Pac. 119 (1916). 19 Taylor v. Pacific El. R, Co., 172 Cal. 638, 158 Pac. 119 (1916). ^OWilfin V. Des Moines City R. Co., 176 la. 642, 156 N. W. 842; Good Roads Co. V. Kansas City R. Co., — • Mo. App. — , 217 S. W. 858 (1920); Alshuler v. Milwaukee El. R. & L. Co., 169 Wis. 477, 173 N. W. 304 (1919); Brien v. Detroit United R. Co., 247 Fed. 693 (1917). It is the motormarfs duty to look out for automobiles and other vehicles and pedestrians. , "If the motorman's view should be obstructed or insufficient, by reason of his position on the car or otherwise, and his lookout duty could not for that reason be performed with- out assistance, he should have the neces- sary assistance; otherwise, he could not perform his whole duty. But the duty is his; from the very nature of the case he cannot be relieved of that duty by having it imposed upon some person not in charge of the operation of the car." Ohio Valley Mills v. Louisville R. Co., 168 Ky. 758, 182 S. W, 955 (1916). "It is negligence on the part of a motorman, approaching a street cross- ing, not to reduce the speed of his car and have it under such control aS to be COLLISIONS WITH STREET CARS 585 "When his car is approaching a crossing, the motorman's duty is twofold: First, to keep a lockout and use reasonable care to warn travelers approaching and about to use the crossing; and, second, to begin to stop or slacken speed the moment it is appar- ent to him, in the exercise of reasonable care, that the warning or a warning is not going to be effective to prevent the collision. Of course, if the traveler gets into danger at a period so shortly before the collision that the motorman, exercising ordinary care, has not reasonable time in which to act, the defendant will not be liable." " A motorman is not absolved from negligence in failing to sound his gong in approaching a crossing merely because a motorist should have seen his car approaching.^*^ An ordinance providing that the driver of all vehicles must look out for and give right of way to vehicles approaching simulta- neously from their right at street intersections, did not relieve a motorman from the duty of keeping a lookout for automobiles approaching from his left.*' When he is following behind an automobile approaching a crowded crossing, he should have his car under such control that he can stop at any time without striking the automobile.** The motorman may assume, until the contrary, is apparent, that persons in the street are possessed of their faculties, and will exer- cise them to ayoid collision with his car.*^ He cannot assume that a motorist approaching the track will stop before going on the track and on that account neglect to give warning of the street car's approach, unless it is reasonably appar- ent that the motorist is aware of the car's approach.*® For the purpose of showing the care which a motorman should able to avoid colliding with a heavily Misc. 669, 171 N. Y. Supp. S3 (1918).' loaded auto truck crossing the track slowly 25 Armour & Co. v. Alabama Power in front of the car in plain view and at an Co., — Ala. App. — , 84 So. 628 (1920) . apparently safe distance." Peterson v. "A motorman may, within the limits New Orleans R. & L. Co., 142 La. 835, of reasonable prudence and fair judg- 77 So. 647 (1918). ment, presume that an adult either will *1 Good Roads Co. v, Kansas City R. not enter the range of danger created Co., — Mo. App. — , 217 S. W. 858 by an approaching street car, or that (1920). he will remove himself or his vehicle 22 Bernhardt v. City & S. R. Co., 263 therefrom before an impact occurs." Ross Fed. 1009 (1920). v. Brannon, 198 Ala. 124, 73 So. 439 28 El Paso El. R. Co. v. Benjamin, (1916). — Tex. Civ. App. — . 202 S. W. 996 26 Good Roads Co. v. Kansas City R. (1918). Co., — Mo. App, — , 217, S. W. 858 24Reines v. New York Rys. Co., 103 (1920). 586 LAW OF AUTOMOBILES have exercised at the place of a collision, it is proper to show that the street there was much traveled, and that both roadway and tracks were used indiscriminately by the traveling public.^'' The speed of street cars must be so regulated as not to jeop- ardize Uiose who are passengers, and of others who have rights in the streets.^* Proof of the running of a, street car at excessive speed across a public street, or of failure to give proper warning of its approach, is evidence of negligence.^' , : Where a motorman was blinded by the lights of an approaching automobile, it was held to be negligence for him to fail to reduce the speed of the car to the slowest possible speed or to stop it, and to allow it to continue at 6 to 8 miles an hour.*" Although the motorman 9f a' street car does everything .m,his power to avoid an accident after discovering the dangerous posi- tion of an automobile, and finds , it to be impossible to do so, he will not be excused from prior negligence which rendered it impos^ sible for the accident to be so avoided.*^ § 590. Same— Instruction. "It was the duty of the motor- man, in charge of the south-bound car in the testimony referred to, to run his car at a reasonable rate of speed, to keep lookout ahead for persons upon the track in front of him or so near the track as to be in danger of being struck by the car, and to have his car under reasonable control, and, as he approached the inter- section of Eighteenth and St. Louis avenue, to give timely warning of the approach of the car to the intersection, and, 'generally, to exercise ordinary care, as he approached and crossed over the intersection, to so operate his car as to avoid colliding with persons or vehicles using the intersection; and, if you believe from the evidence in this case that the motorman in charge of said car failed in any one or more of these duties, and thereby negligently caused his car to collide with the automobile in which the plaintiff was rid-, ing, and she was thereby injured, the law is for the plaintiff, and the jury should so find. But, unless you so believe from the evi- dence, the law of the case is for the defendant, the Louisville Riail- way Company, and you should so find." '* 27 Capital Traction Co. v. Coutner, 120 SO Foster v. Cumberland Co. P. & L. Md. 78. Co., 116 Me. 184, 100 AO. 833. 28 Indiana Union Tr. Co. v. Love, 180 31 Chappell v. United Rys. Co., 174 Ind. 442, 99 N. E. lOOS (1912). Mo. App. 126, 156 S. W. 819 (1913). 29 Indiana Union Tr. Co. v. Love, 180 32 Rgseberry v. LouisyiUe R. Co,, 168 Ind. 442, 99 N. E. lOOS (1912); Pierce Ky. 277, 181 S. W. 1117 (1916). V. Lincoln Tr. Co., 92 Neb. 797. COLLISIONS WITH STREET CARS 587 An instruction that, "It is the duty of the operator of a street car to use every reasonable effort, with all the means at hand^ to avoid running into or colliding with another vehicle, and it is the duty of such operator, if he has time so to do, to have the car in such control that he may stop it promptly upon the appearance of danger," was upheld when qualified by other instructions charg- ing the jury that the motorman had a right to assume that the driver of the truck would get off the track, and that he was not required to stop his car until the danger became imminent.'* §591. Duty of automobile operator. Persons using vehicles in streets in which street cars are operated must exercise reasonable care to avoid collision with the cars.'* However, it is not negli- gence as matter of law to drive a vehicle along a street car track,'* even in the direction from which the cars will approach,?' In driving across the street car tracks the degree of care to be exercised depends upon the circumstances, such as the speed of an 38Stotts V. Puget Sound Tr. L. & P. Co., 94 Wash. 339, 162 Pac. S19 (1917). ^* Arkansas: Hot Springs St. R. Co. V. Johnson, 64 Ark. 420. California: Commonwealth B. & C. Ins. Co. V. Pacific El. R. Co., — Cal. App. — , 184 Pac. 29 (1919) ; Street car moving west on south track. Busch v. Los Angeles R. Co., 178 Cal. 536, 174 Pae. 66S, 2 A. L. R. 1607 (1918). Illinois: Hausafus v. St. Louis, S. & P. R. Co., 199 111. App. 4 (1916). Massachusetts: Scannell v. Boston Ele- vated R. Co., 176 Maps. 170, 57 N. E. 341. Michigan: Miller v. Detroit United Ry., 200 Mich. 388, 166 N. W. 870 (1918). New York: Luedecke v. Metropolitan St. R. Co., 60 N. Y. Supp. 999. Tennessee: Memphis St. R. Co. v. Wilson, 108 Tenn. 618. Texas: Austin Dam & Sub. R. Co. v. Golstein, 18 Tex. Civ. App. 704. Washington: Spurrier v. Front Street Cable R. Co., 3 Wash. 659: It is negligence for a motorist to mo- mentarily forget that he is approaching a street railway crossing. Pascagoula St. R. & P. Co. V. McEachern, 109 Miss. 380, 69 So. 185 (1915). The person in charge of an automo- bile would be guilty of negligence if he is unfamiliar with the ' safety appliances thereof, or being familiar does not use them to prevent collision. Garrett v. Peoples R. Co.. 6 Pefinew. (Del.) 29, 64 Atl. 254. S8 California: Mahoney v. San Fran- cisco & S. M. R. Co., 110 Cal. 471, 475; Langford v. San Diego El. R. Co., 174 Cal. 729, 164 Pac. 398 (1917). Illinois: West Chicago St. R. Co. v. O'Connor, 85 111. App. 278. Massachusetts: Vincent v. Norton & Taunton St. R. Co., 180 Mass. 104, 61 N. E. 822. Missouri: Bindbeutal v. Street R. Co., 43 Mo. App. 463. New York: Fishbach v. Steinway R. Co., 11 App. Div. 152, Reines v. New York Rys. Co.^ 103 Misc. 669, 171 N. Y. Supp. S3 (1918). SBRascher v. East Detroit & G. G. R. Co., 90 Mich. 413, 30 Am. St. Rep. 447; Delaney v. Yonkers R. Co., 13 App. Div. 114; Cannon v. Pittsburg & B. Tr. Co., 194 Pa. St. 159, 44 Atl. 1089. S88 LAW OF AUTOMOBILES approaching car, its proximity or remoteness, and the like.*'' Ordi- narily, he should slow down his machine and have it under com- plete control, and look and listen for an approaching car." He is not bound, to wait because a car is in sight. If it is at such a distance that he has reasonably ample time to cross, if it is run at a proper, or its usual, rate of speed, it cannot be said as matter of law that he is negligent in going on.'* Vehicles may cross street car tracks in full view of approach- ing cars if it is consistent with ordinary prudence to do so.*" Before passing into the line of danger from his place of safety, where he has ample opportunity to observe, it is his duty to assure himself that there is not a car so close upon him that in the exer- cise of ordinary judgment he would know that he cannot drive onto the track and avoid a collision. Of such situation, the fact that he was struck may be conclusive proof .*^ "We think it can be said as matter of law that, when an ordi- narily prudent person is about to cross a highway, whether on foot, or in a carriage or automobile, and he observes an approaching street car or any other vehicle which may obstruct his passage, he *'' Chicago City R. Co. v. Martensen, 100 HI. App. 306, aff'd 198 111. Sll; Con- solidated Traction Co. v. Lambertson, 59 N. J. L. 297 ; Blate \. Third Ave. R. Co., 44 App. Div. 163. 38 Coggin V. Shreveport R. Co., 147 La. — , 84 So. 902 (1920); Lindley v. Fries M. & P. Co., 1S3 N. C. 395, 69 S. E. 274 (1910) ; Merrill v. Chicago, N. S. & M. R. Co., — Wis. — , 177 N. W. 613 (1920). "Upon observing a car in the distance the driver of a vehicle can neither reck- lessly drive upon the crossing in a race with the car, nor is he arbitrarily re- quired to stop his vehicle and wait for its passage. The right of each to the use of the highway is protected, and nei- ther k permitted recklessly to expose the other to danger. If the driver ob- serves a cay on the line at such distance that in the exercise of ordinary prudence he believes he can safely cross, and in undertaking to do so a collision occurs, this cannot be attributed to negligence on his part." Adams v. Union EI. Co., 138 la. 487, 116 N. W. 332. SBBickley v. Southern P. Tr. Co., 56 Pa. Super. Ct. 113 (1914). *» Virginia R. & P. Co. v. Slack Gro- cery Co., — Va. — , 101 S. e. 878 (1920). *1 Colborne v. Detroit United Ry., 177 Mich. 139, 143 N. W. 32, 4 N. C. C. A. 12n (1913). "Where a traveler at a public railway crossing or on a street over which rail- ways are operated sees a train or street car approaching, misjudges its speed, or, for any reason, his own ability to cross before it reaches the point of his cross- ing thereof, sCiid makes the attempt and is injured thereby, he is guilty of con- tributory negligence, barring a recovery for his injury for any initial negligence of the operative of the train or street car, unless such operative is guilty of simple negligence or the more aggra- vated wrong, proximately causing the injury after discovery of the traveler's peril." Ross v. Brannon, 198 Ala. 124, 73 So. 439 (1916). COLLISIONS WITH STREET CARS 589 is watchful of it or them until he has passed the danger point and reaches a place of safety.'" *^ A driver is not negligent in turning at street intersection in front of car, where before starting to turn he stopped the automobile and saw the car about half a bl6ck away discharging passengers.*' But a motorist who speculates on the chances of getting across the track ahead of a street car, and is struck, cannot recover.** The mere use for driving thereon of the part of a street occupied by a street car track is not negligence,** even though it is done as a matter, merely, of convenience.*® But the driver of a vehicle making use of the car track must leave the track with reasonable expedition upon the approach of a car,*'' and the motorman, seeing his effort to drive off the track, must delay, if he can do so in reason, until the vehicle is clear, of the track,*' as the street car company's right of way on its tracks is superior to the rights of the general public.*' That the driver of an automobile, which had become stalled, re- leased his brakes and the machine moved backwards so that the wheels rested against a street railway track, the brakes being released at a time when no street car w^ in sight, did not amount to contributory negligence on his part.*" It is held that he is not excused from exercising reasonable cau- tion by the fact that it is the duty of the motorman to ring a bell upon approaching the crossing.®^ The fact that he violates an ordinance regulating the use of automobiles will not prevent recovery, unless such violation proxi- mately contributed to cause his injury.*^ § 592. Duty under stop, look and listen rule. While a mo- torist about to cross the track of a street railway is not held to that *2 Westover v. Grand Rapids R. Co., *« Pantages v. Seattle El. Co., 63 Wash. 180 Mich. 373, 147 N. W. 630 (1914). 1S9, 114 Pac. 1044 (1911). "It is negligence per se for the driver " Rascher v. East Detroit & G. P. R. of an automobUe to stop on a street car Co., 90 Mich. 413, 30 Am. St. Rep. track or to go slowly over the track '*'*'■ when an oncoming street car is close at *« Wingert v. Detroit United Ry., 177 hand." Garden v. Chicago Rys. Co., 210 Mich. 199, 142 N. W. 1063 (1913). 111. App. 15S (1918). *9Hot Springs St. R. Co. v. Johnson, *3Margolis -v. Chicago Rys. Co., 205 64 Ark. 420. 111. App. 286 (1917). SOLuttenton v. Detroit, J. & C. Ry., 209 Mich. 20, 176 N. W. SS8 (1920). , WGoan V. Ogden, L. & I. R. Co., - 51 gtate v. Baltimore & B. El. R. Co., Utah -, 169 Pac. 949 (1917). 133 ^j ^u^ igj ^y 533 (j^jg) "Johnson v. Springfield Tr. Co., 176 62 Kramer v. Chicago & M. El. R. Co., Mo. App. 174, 161 S. W. 1193. — Wis. — , 177 N. W. 874 (1920). 590 LA\¥ OF AUTOMOBILES high degree of care which is required when approaching a public crossing of an ordinary steam railroad running through the country, on which heavy' trains of cars are moved at a high rate of speed and cannot be quickly stopped or controlled,®* he must exercise care that is reasonable in view of the conditions confronting h'im.^* Street railway tracks, like the tracks of a steam railroad, are said to be a signal of danger, and one must look and listen, or look or listen, before going upon them.®'' The stop, look, and listen rule ^applicable to travelers approach- ing steam railroad crossings, does not apply with, equal force to motorists approaching street railway tracks in a city, although in some circumstances ordinary care may require all three acts to be doiie.®^ The fact- that he goes onto ■ a street car track without looking ' for a car, will not as matter of law, in all cases, bar him from recovery on account of injuries received in a collision with a car.®'' His failure to look and listen before going upon a street car track does not constitute negligence per se; negligence in this respect depending upon the circumstances of the particular case.®* A motorist who could have seen a car approaching 600 feet away, but did not look, and was struck, cannot recover.®® Failure of a motorist to look and see if there was a car coming within such distance as to deprive him of the right of way across the tracks was negligence.®" It has been held that a motorist who attempts to drive over street car tracks at a crossing in front of a rapidly approaching BSHoff V. Los Ailgeles-Pac. Co., 1S8 ascertain if a car is coming and seeing Oai; 596, 112 Pac. 53 (1910) ; Flannery v. none, pay no further, attention to his , Ihterurban Ry. Co., 171 la. 238, 153 N.. safety and proceed .blindly across, trust- W, 1027 (1915) ; Week v. Reno Tr. Co., ing to the railroad operatives to obey 38 Nev. 285, 149 Pac. 65 (1915); Oswald their orders and the rules of the road.'' V. Utah L. & R. Co., 39 Utah 245, 1J7 Shore v. Dunham, — Mo. App. — , 178 Pac. 46 (1911). ' S. W. 900 (1915). B^Hoff V. Los Angeles-Pac. Co., 158 56 Union Tr. Co. v. Moneyhun, — Cal. 596, 112 Pac. 53 (1910). Ind. App. — , 127 N. E. 443 (1920). BBChappell V. United Rys. Co., 174 57 steubenville & W. Tr. Co. v. Bran- Mo. App. 126, 156 S. W. 819 (1913) ; don, 87 Ohio St. 187. Jackson v. Southwest Missouri R. Co., 58 Farnsworth v. Tampa El. Co., 62 171 Mo. App- 430, 156 S. W. 1005 Fla. 166, 57 So. 233 (19-11); Capital (1913) ; aff'd in — Mo. — , 189 S. W. 381 Tr. Co. v. Crump, 35 App. D. C. 169 (1916); Bongner v. Ziegenhein, 165 Mo. (1910). ,; App. 328, 147 S. W. 182 (1912). 59 Nicholson v. Pittsburg Rys. Co.,, 58 "One cannot approach a railroad cross- Pa. Super. Ct. 106 (1914). ing, a place of known danger, and, after 60 King v. Rhode Island Co., — R. looking once from a point of safety to I. — , 110 Atl. 623 (1920). COLLISIONS WITH STREET CARS 591 street car, his view of which was unobstructed, is guilty of negli- gence as matter of. law, and that the failure of the motorman to signal the approach of the car, did not affect the question if the motorist could have avoided the accident by the use of reasonable care.^^ . Where, for a distance of 80 feet, a motorist had a clear view of a street car track for more than a block, unless it was obscured by a car going in the opposite direction^ and he drove onto the track and into collision with a car, he was negligent as matter of law.®^ Where a motorist, approaching a street car track, looked for a car when about 60 feet distant from the track, and proceeded onto the track without again looking, and was struck by a car which he could easily have seen, it was held that he was guilty of con- tributory negligence.®* Where a motorist looked only one way of a track for an approach- ing car, and drove on the track and was struck by a car which he could not have failed to see had he looked the other direction, while approaching the track, his negligence barred recovery.®* Attempting to cross a street car track when there is no car within view (250 feet) is not negligence.®* While the failure to look and listen before crossing the tracks of a street railway does not necessarily constitute negligence, this rule does not .mean that one can heedlessly and carelessly cross the track without using his senses for his protection; "nor does it mean thiat those who have eyes to see but see not and ears to hear but hear not, are exercising due care." Reasonable care is the test of this conduct at all tirfles.®® The duty to look and listen for danger will not be regarded as performed by one approaching street car tracks through merely attempting to look only from a point at which the view is ob- structed. The duty is a continuing one until the crossing is reached, and if there is a point between /the obstruction and the track which gives opportunity to see, it is the duty of the traveler fiiHedmark v. Chicago Rys. Co., 192 173 Mich. 193, 139 N. W, 19 (1912). , III. App..S84 (1915). 64HambIy v. Bay State St. R. Co., "It is negligence for the driver of an — R. I. — , 100 Atl. 497 (1917). automobile to attempt to cross a street B5 Reichle v. Detroit United Ry., 203 in front of an approaching street car Mich. 276, 168 N. W. 972 (1918). without looking." Garden v. Chicago 66 Bardshar v. Seattle El. Co., 72 Rys. Co., 210 HI. App. ISS (1918). Wash. 200, 130 Pac. 101 (1913);; Bee- 62Spencq V. Milwaukee El. R. & L. man v. Puget Sound T., L. & P. Co., Co., 163 Wis. 120, 1S7 N. W. S17 (1916). -79 Wash. 137. 63 Puffer V. Muskegon Tr. & L. Co., 592 LAW OF AUTOMOBILES to look. He cannot closie his eyes and thereby relieve himself of the consequences of his own neglect.*'' An instruction, in an action to recover for damage to an auto- mobile, due to a collision with a street car, that if the driver in the exercise of due care could and should have looked and seen the car and avoided the collision and did not, the finding should be for the defendant, was held to properly state the law.®' While the rule of stop, look, and listen, as applied to one about to cross a steam railroad, does not ordinarily apply with equal force to one about to enter upon a street railway track, where the conditions at the crossing of a street railway or interurban track are similar to those at steam railroad crossings, and the operation of the road is similar, the rule applies.*' §593. Same— Where view is obstructed. "To approach with an automobile the track of a street railway where the vision is obstructed at so high a rate of speed as to make it impossible to stop before the track is reached, where, after the machine has reached the street, the sense of seeing is for the first time available, and without theretofore taking any precautions to ascertain whether a car is coming, is not the exercise of that reasonable care for the protection of the driver himself and other occupants of the auto- mobile as common prudence and the law requires." ''" "It is the duty of a traveler on, a public street ovef which street cars are operated to look for an approaching car, and, if the street is obstructed, to listen, and in some instances to stop." '^ , Where a motorist approaching street railwgiy tracks did not look in one direction after passing an obstruction, although he could have seen far down the track had he looked, and could have seen an approaching car in time to have stopped and avoided a collision, which he did not do, he was guilty of contributory negligence.'* Where a motorist, approaching a street car track at 8 or 10 miles an hour, looked for an approaching car when he was 30 feet from the track and where his view was limited, and did not look again, but drove on the track and was struck by a car, he was contribu- torily negligent, it appearing that he could stop in 6 or 8 feet.''* 67Voelker Products Co. v. United 'O Donlin v. Detroit United Ry., 198 Rys. Co., 18S Mo. App. 310, 170 S. W. Mich. 327, 164 N. W. 447 (1917). 332 (1914). 71 Ross v. Brannon, 198 Ala. 124, 73 SSMcEniry v. Tri-City R. Co., 179 So. 439 (1916). 111. App. 1S2 (1912). 72 Union Tr. Co. v. Moneyhun, — 6»0dbert v. Webster, M., B. & F. Ind. App. — , 127 N. E. 443 (1920). C. St. R. Co., SO Pa. Super. Ct. S2S 78 Brien v. Rhode Island Co., — R. (1912). I. — , 99 Atl. 761 (1917). COLLISIONS WITH STREET CARS 593 Where the plaintiff testified that as he approached defendant's tracks his view was partly obstructed by a building, but that the building was 10 or 12 feet back from the track; that after passing the building line one could see a car 75 to 100 feet away; tfiat his automobile was moving about 3 or 4 miles an hour, and could have been stopped in four or five feet, it was held that these facts were properly considered by the jury in determining whether he exer- cised due care in driving on the track, where he was struck by a car.''* Where a motorist stopped his machine before crossing a street railway track, and looked and listened for a car, and heard none, but his view was obscured so that he could see only 63 feet of the track, and he started his machine slowly and was struck by a street car before he got across, and it appeared that nearer the track and in a place of safety he had a view of the track for severel blocks, but he did not look, it was held that he was contributorily negli- gent as matter of law and could not recover.'''' Plaintiff was injured and his automobile damaged in a collision with one of defendant's interurban cars. The accident occurred on a September evening between 5 and 6 o'clock, at a public road crossing. Plaintiff had frequently passed over the crossing, and knew that defendant was operating its cars over the crossing every hour of the day. He stopped his machine about 15 feet from the track, or between 15 and 30 feet. If he had stopped when 15 feet from the track, he could have seen the car approaching in time to have avoided the collision. The motorman was but 20 feet from the automobile when he first discovered plaintiff about to cross the track. He immediately threw off the power and set the emergency brake, but it was then impossible to stop the car in time to pre- vent the collision. The motorman signaled his approach to the crossing when 1,750 feet distant therefrom, by two long and two short blasts of the whistle. The car came from the west, and for about 1,700 feet west of the crossing the track ran in almost a direct line. Plaintiff was prevented from seeing the approaching car from the point where he stopped by a field of corn. If he had stopped between 5 and 14 feet from the first rail of the track, he could have seen and heard the approaching car in time to have prevented the accident. The jury also found that if plaintiff had approached the crossing at a reasonable speed he could have seen the car in time to have avoided the injtiiy. It was held that plain- TiChappell V. United Rys. Co., 174 76 Weil v. Detroit United Ry., 186 Mo. App. 126, 1S6 S. W. 819 (1913). Mich. 614, 152 N. W. 959 (1915). B. Autos. — 38 \ 594 LAW OF AUTOMOBILES ,, tiff 's contributory negligence precluded recovery, and judgment in his favor was reversed with instructions to render judgment for defendant.''^ § 594. At what distance from track motorist should look. It has been held that the duty of a motorist in approaching a street car track "is hot performed by looking when first entering oh" the street, but continues until the track is reached." '"'' "The question of contributory negligence is to be determined by the situation when plaintiff was at such a distance before going on the track that he could control his machine and avoid the danger, rather than by probabilities." ''* When his view is obstructed as he approaches the track it is neg- ligence for him to attempt to cross without looking' along the track immediately before going onto it.''® The driver of a motor truck who did not look for a street car approaching' at right angles until he was within 3 or 4 feet of the; track, was guilty pf negligence as matter of law.*" 'Looking at a point where he could not see for more tlian 60 feet was held ' insufficient to establish Ms exercise of care. The question of his care, it was held, depends upon his precaution when he was at such a distance, from the track Uiat he could control his automobile and avoid the danger of an approaching car.*^ The driver of an automobile truck, which with its contents weighed more than six tons, reached the house line of a street in which a car line was operated, looked and saw a car approaching. He proceeded, and next looked when he was within one foot of the track, at which time the car was two or three car lengths away, coming at full speed. He then put on speed' in order to cross in front of the car, but failed and was struck. Held, that the owner t)f the truck could not recover for the damage done. "The chauf- feur should have looked before going upon the track, arid when he looked his riiachine should have been under such control as to enable him to stop before entering the tracks, for it would be use- less to have looked when he by his own act had put himself in such a position that the danger could not be avoided. The duty is not , 76 yt. Wayne & N. I. Tr, Co., v. Schoeff, TgLevein v. Rhode Island Co., — R. 56 Ipd,, App. 540, 105 N. E. 924 (1914). I. — , 110 Atl. 602 (1920). "Bane v. .Pittsburgh Rys. Co., 243 80 Kane v. Philadelphia R. T. Co., 6i Pa. St. 427^ 90 Atl. 201; Miller North Pa. Super. Ct. 80' (1917). ' Broad S. Co. v. Philadelphia R. T: Co., 81 Hedmark v. Chicago Rys. Co., 192 62 Pa. Super. Ct. 568 (1916). 111. App. 584 (1915). 'i'SHack V. Chicago & I. Tr. Co., 201 111. App. 572 (1916). COLLISIONS WITH STREET CARS 595 performed by looking when first entering on the street but con- tinues until the track is reached." *^ A chauffeur who does not look for a street car within two min- utes before attempting to drive his automobile" across a street car track is guilty of contributory negligence as matter of law.^* An instruction, in an action for damages growing out of a colli- sion- between a street car and automobile, which fixed the time during which the plaintiff was required to exercise due care as "at and just prior to the collision," was held apt to mislead when the evidence tended to show that plaintiff applied his brakes when 25 to 70 feet from the car track and owing to the speed of the auto- mobile he could not stop it, and that he knew the location of the track and should have seen the car before he did.** ■ It has been held to be the duty of the driver of an automobile to look along a street railway track' irhmediately before crossing it. Of tourse, this rule is not applicable to all cases regardless of whether the driver has knowledge that the track is clear for a safe distance, but it was applicable to the facts of the case in which it was applied. In that case the driver looked along the track some li-ttle distance before reaching it, and then his view of the trapk was obscured until within a few feet of the track. He did not look, again, after having a view of the track, until his front wheels were on the first rail, and his automobile was struck by a car as the rear wheels were passing onto the first rail.*^ In another case somewhat similar to the foregoing, it appeared that on a bright afternoon, plaintiffs approached defendant's street railway where it crossed a country road, driving in their, autortio:; bile at about 20 miles an hour; that the top of the autpinobile was up, and the side curtains on the left; that when about 150 to 175; feet from the crossing, they looked up and down the track but saw no car coming and heard no whistles or other signals of an ap- proaching car; that they did not again look, but reducing the speed of the automobile to about 15 miles an hour, drove onto the cross- ing; and that, as they reached the track, the car, seen then for the first time, came upon them from the left, hitting the autmobile at' about the front seat. The driver of the automobile, one of the plaintiffs, was familiar with the crossing, and testified that at a point 100 feet from the crossing he could see a car 200 feet away; 82 Miller North Broad S. Co. v. Phila- 81 L'ichter v. Aurora, E. & C! R. Co., delphia R. T. Co., 62 Pa. Super. Ct. 568 179 III. App. 216 (1913). (1916). 85Frey v. Rhode Island Co., 37 R. I. / 83 Ashland Auto ' Garage v. Chicago 96, 91 Atl. 1 (1914). Rys. Co., 183 111. App. 207 (1913). 596 LAW OF AUTOMOBILES that at SO feet he could see a car 250 to 300 feet, and at 40 feet a car 300 feet away would be in plain sight. There was evidence that the car and automobile were moving at about the same rate of speed, and that the car sounded two short whistles before reach- ing the crossing. On this evidence, all given for the plaintiffs, it was held error to deny the defendant's motion for a nonsuit. "The driver of an automobile, approaching such a crossing as the one in this case, must make reasonable use of his senses to guard his own safety, and the failure to do so is negligence. Such a person cannot take a last look at 150 to 175 feet distance from the crossing, and then shut his eyes and go blindly forward. While we shall not attempt to say within what distance respondents should have looked for an approaching car before attempting the crossing, the law does require that such a look must be taken within such a distance as to enable one to ascertain whether or not there is an approaching car in sight." '® The fact that he looked and failed to discern an- approaching car when he was a considerable distance from the track will not relieve him from a charge of negligence.*'' § 595. Street car having right of way at crossing. A statute providing that the driver of any vehicle approaching or crossing a street or highway intersection shall give the right of way to any other vehicle approaching from his right on the intersecting street or highway, and shall have the right of way at such crossing over any vehicle approaching from his left, was held to apply to street cars. And where a motorist drove onto a street car track without looking to his right until too late to avoid a collision with a street car approaching from that direction, he was contributorily neg- ligent.** §596. May assume that street car will be operated with due care. An operator in charge of an automobile is justified in acting on the presumption that an approaching car is not travel- ing at an excessive rate of speed unless he has knowledge to the contrary.*' And ordinarily he may assume that a street car at a 86 Bowden v. Walla Walk V. R. Co., 89 Metropolitan St. R. Co. v. Slayman, 79 Wash. 184, 140 Pac. S49 (1914). 64 Kan. 722; Maritzky v. Shreveport 87 Kelly V. Wakefield St. R, Co., 17S R. Co., 144 La. 692, 81 So. 2S3 (1919); Mass. 331; Schilling v. Metropolitan St. King v. Rhode Island Co., — R. I. — , R. Co., 47 App. Div. SOO; Keenan v. 110 Atl. 623 (1920). Union Traction Co., 202 Pa. St. 107. 88 Syck V. Duluth St. R. Co., — Minn. — , 177 N. W. 944 (1920). COLLISIONS WITH STREET CARS S97 safe distance away will be so controlled by the motorman as not to collide with his machine in crossing the track in a reasonable manner." But he cannot so assume if he sees the car and its speed is apparent to him.®^ He may also assume that the car is furnished with appliances to reduce the speed and to stop, and with one in charge of the run- ning of the car to make use of such appliances, and he is not bound to refrain from crossing for fear that no use will be made of the appliances provided to reduce speed.** He may assume, until the contrary appears, that the motorman is keeping a proper lookout, and can and will see him as far as he can see the car.®' However, he cannot close his eyes to danger, resting upon this assumption, but he may act upon this assumption if a reasonable use of his faculties does not warn him of danger.** If he drives upon a street car track, after seeing a car approaching, with the intention of compelling the car to stop, he is guilty of negligence.®* He is not negligent in attempting to cross a car track if it is reasonable for him to believe he can cross in safety ; and in form- • ing a judgment he has a right to assume that the motorman will exercise a reasonable degree of care according to the prevailing conditions.®® § 597. Stopping of street car as invitation to motorist to cross. It has been held that the stopping of a street car at a cus- tomary place for discharging and taking on -passengers is no invi- tation to the traveler to cross ahead of it; and that if he is sq situ- ated that the car can safely start and safely continue if he yields the right of way and can safely do so, the car may proceed upon its trip, otherwise street car traffic might be blocked indefinitely by travelers on the street.®^ In a case in which it appeared that the street car had stopped in the middle of a block, it was held that such stopping might be 90 Harlan v. JoUne, 11 Misc. 184, 136 Pacific El. R. Co., — Cal. App. — , 184 N. Y. Supp. 32 (1912); Reed v. Ta- , Pac. 29 .(1919). coma R. & P. Co., — Wash. — , 188 9S McEniry v. Tri-City R. Co., 1^9 Pac. 409 (1920). 111. App. 152 (1912); Scheffel v. Wil- 91 Haleen v. St. Paul City R. Co., 141 liamsport Passenger R. Co., 67 Pa. Super. Minn. 289," 170 N. W. 207 (1918). Ct. 272 (1917). 9* Consolidated Tr. Co. v. Lambert- 96 Travelers Indemnity Co. v. Detroit son, S9 N. J. L. 297, 299. United Ry., 193 Mich. 375, 159 N. W. 93Brien v. Detroit United R. Co., 247 528 (1916). Fed. 693 (1917). 97 Dering v. Milwaukee El. R. & L. 94 Commonwealth B. & C. Ins. Co. v. Co., — Wis. — , 176 N. W. 343 (1920). 598 LAW OF AUTOMOBILES cbnstrued as an invitation to a man driving a team out of an alley to cross ahead of it." §598. Street cars operated on private right of way. A street railway company may operate its cars on its private right of way at any speed it sees fit, so as not to endanger the passen-. gers thejreon; a,nd this, too, without sounding a gong or signal of its approach, unless the circumstances of the situation are such as to suggest the precept of ordinary care for the rights of others probably present on or about its tracks. But where the tracks cross a public street, and the cars approaching such street cannot be seen until near the crossing, they must be operated at a rea- sonq,ble rate pf speed and with ordinary care to avoid injuring per- sons crossing the, tracks on the street; which includes the sound- ing of signals of' the cars' approach.^ The fact that a trolley car is running on the company's private right of way does not le^seii the duty of the motorman on approa,ch- ing a public highway crossing to have his car under such control as the circumstances seem to require, in view of the nature ^pd sit- uation, of the crossing and tjie extent of its use by the public.^ §599. Liability of street railway company for injury to passenger struck by automobile. It is the duty of a street railroad company to provide a reasonably safe place for the land- ing of its passengers; but this rule is held to have no reference to independent agencies operating in the street, such as motorcycles or automobiles. "The carrier," it is said, "is no more responsible for them than is the passenger."' Exceptional circumstances, however, may vary this rule, as pos- sibly, for instances, in the case of blind or crippled passengers. § 600. Duty of employees not in charge of street car. In an action wherein it appeared that one of the defendant's electric cars collided with plaintiff's automobile at a crossing near a station of defendants, and that employees who were not engaged in the oper- ation of the car were on the station platform and saw the collision and saw the plaintiff's danger in time to have, prevented the colli- sion, had they warned him in time, but they did not do so, it was held error to refuse to give the following instruction: 98 Canning v. Chicago & M. E, R. N. C. R. Co., — Pa. St. — , 109 Atl. Co., 163 Wis. 448, 157 N. W. 532. 619 (1920). 1 Turney v. United Rys. Co., ISS Mo, 3 Hammett v. Birmingham R. L. & Ap^. 513, 135- S. W. 93 (1911). P. Co., — Ala. — , 81 So. 22 (1919). 2Knbbeloch v. Pittsburgh, H. B. & COLLISIONS WITH STREET CARS 599 "If the defendants' servants operating and controlling their ex- press car with which the plaintiff's automobile collided saw the ■ same when it was reasonably far enough away from defendants' track to have stopped in time to have avoided a collision, they had the right to presume that the plaintiff would stop the same before it collided with the defendants' car. It was only after the defend- ants' servants and agents operating and managing their said car realized that the plaintiff was in danger, and that he could not or would not stop his automobile in time to avoid a collision with de- fendants' car, that the duty devolved upon them to use all the means in their power and at their command consistent with the safety of defendants' car to avoid injuring the plaintiff. And if you find and belieye from the evidence that the defendants' servants who were then operating and managing their said car at the time, after they saw and, realized that plaintiff could not or would not stop said automobile in time to avoid such collision, did use all the means in their power and at their command to avoid injuring the plaintiff, the defendants would not be guilty of negligence on the charge of discovered peril, and on this issue you should find for said defend- ants; and in this connection you are told that, if some one or more of the defendants' servants other than the one or ones who were Operating and managing the car at the time in question saw, or could have seen, the plaintiff's peril sooner or in time to have avoided in- juring the plaintiff, then the failure of such servant or servants who were not engaged in operating such car at the time to give notice could not be charged or considered as negligence on the part of defendants."* § 601. Law of road not applicable. A statute providing that a vehicle avertaking and passing another moving in the same direc- tion on the highway shall pass to the left of the latter, has no appli- cation to an automobile passing a street car going in the same direction.* The "law of the road" generally has no application to street cars and trains.® It has been decided that the law of the road requiring drivers of vehicles who shall meet on a public highway to turn to the right of the center of the road has no application to vehicles meeting street cars.' * Texas Traction Co,, v. Wiley, — Tex. estate v. Baltimore & B. El. R. Co., Civ. App. — , 164 S. W. 1028 (1914). 133 Md. 411, 105 Atl. S32 (1919). 6 Marsh v. Boyden, 33 R. I. 519, 82 7 Spurrier v. Front Street Cable R. Atl. 393, 2 N. C. C. A. 410, 40 L. R. Co., 3 'Wash. 659; Culbertson v. Metro- A. (N. S.) 582 (1912). politan St. R. Co., 140 Mo. 35, 55. 600 LAW OF AUTOMOBILES The provisions of the Traffic Act of 1915 (New Jersey), requir- ing every driver of a vehicle approaching the intersection of a street or public road to grant the right of way at such intersection to any "vehicle" coming from the right, does not impose this duty upon the motorman of a street car.* § 602. Automobile stalled on track — Mutual oblig'ations. It has been held that when an automobile becomes stalled on a street car track it is the duty of the person in charge to signal with reason- able promptness to the motorman of an approaching car, in order that he may know that the the automobile cannot be gotten off the track. It was accordingly held that it was error for the trial court to charge that in such circumstances, as matter of law, the driver of the automobile was not required to get out and go upon the track to warn the motorman of the danger ; what signal ought to have been given being dependent upon all the circumstances, and there- fore a question for the jury.® Where the plaintiff's automobile became stalled on the defend- ant's electric railway track at night, and the plaintiff, seeing the headlight of an approaching car about a quarter of a mile distant, ran toward the car in the glare of the headlight waving his arms for it to stop, and continued to do so until he was compelled to step aside out of the car's way, which was about 175 feet from the auto- mobile, and as the car passed him he stood on the traveled way wav- ing his hands, and the car passed without slackening speed, and moving at the rate of 35 or 40 miles an hour, and ran down the auto- mobile, it was held that the case was for the jury, and a verdict in plaintiff's favor was sustained.^" If the automobile was stalled on the track by reason of the defec- tive construction of the crossing by the defendant, the latter is liable for the damages resulting from a collision caused thereby. The defendant was charged with knowledge of the defective condi- tion of the crossing, which was of its own construction.^* Where an automobile stalled on a street car track at a point where the motorman of an approaching car, 250 feet away, had a full view of it, and the chauffeur remained in the machine trying to start the engine, and the machine was struck by the car, the case was for the jury.*^ 8 Reed v. Public Service R. Co., 89^ "Burr v. United Railroads, 173 Cal. N. J. L. 431, 99 Atl. 100 (1916). 211, 1S9 Pac. 584 (1916). 9 Mead v. Central Penn. Tr. Co., S4 12 Mead v. Central Pa. Tr. Co., 63 Pa. Super. Ct. 400 (1913). Pa. Super. Ct. 76 (1916), 66 Pa. Super. lOKeeney v. Springfield St. R. Co., Ct. 343 (1917). 210 Mass. 44, 96 N. E. 73 (1911). COLLISIONS WITH STREET CARS 601 Where both the plaintiff and his chauffeur saw and knew of the approach of a street car when it was 600 feet away from the place where their automobile was stalled on the track, the failure of the employees in charge of the car to sound a warning of its ap- proach was not a proximate cause of plaintiff's injuries received by him when the car collided wi,th his automobile. "The purpose of sounding a gong or ringing a bell is to give notice of the ap- proaching car. If the party has this notice, without the sound- ing of the gong or ringing of a bell, we have universally declared that the failure to sound gong or ring bell is not the proximate cause of that injury, and should not be rnade the predicate for a re- covery. Under such circumstances the sounding of a gong or ring- ing of a bell could not impart more notice than the party already had. If one, at a crossing, sees a rapidly approaching train, no amount of whistling or bell ringing will give him more notice than that which his eyes have brought home to him. Indeed it would tend to confuse rather than help such a person." ^^ It was not necessarily negligent for one to remain a, short time in an automobile which had stalled on a street car track after seeing an approaching car, while his companion alighted to crank the engine.^* While the general rule is that no one need have warning of an approaching danger which he sees, such rule does not necessarily apply where an occupant of an automobile, stalled on a street car track, within plain view of the motorman of an approaching car for a distance of 600 feet, took no^ heed of the car after seeing it at considerable distance until too late to avoid an injury therefrom, thinking that the motorman would no doubt avoid hitting the auto- mobile in plain view on the track; it being held that it might have been negligence on the part of the motorman in failing to sound a warning of the approach of the car.*^ § 603. Same— At bottom of grade at night. The automobile, in which were the plaintiff, his wife, and two men, stalled on the track offdefendant's car line at the bottom of a perceptible grade, about 9:30 o'clock at night. By direction and assistance of a police officer the automobile was m6ved a few feet to the side. A street car of defendant then passed safely, at a signal from some of the auto party, but going very slowly. The engine of the automobile 13 Peterson v. United Rys. Co., 270 16 Peterson v. United Rys. Co., 183 Mo.(67, 192 S. W. 938 (1917), rev'g. 183 Mo. App. 71S, 168 S. W. 254 (1914); Mo. App. 71S, 168 S. W. 2S4 (1914). Westermayer v. United Rys. Co., — 14Brien.v. Detroit United R. Co., Mo. App. 715, 168 S. W. 254 (1914). 247 Fed. 693 (1917). 602 LAW OF AUTOMOBILES could hot be started by cranking, and plaintiff stepped on the run- ning board to release the emergency brake, which was set, in order to allow the car to be pushed nearer the curb. As he did so, and before his hand reached the brake lever, another car of the defend- ant, coasting down the grade; at a rate of speed stated by some of the witnesses to be 30 miles per hour, collided with the automobile, and, striking the plaintiff, inflicted the injuries complained of. The front part of the street car cleared, but the rear step struck the rear left-hand hub of the automobile. The automobile had not moved after the first street car passed. The night was clear, the view of the motorman was unobstructed, the street car was equip- ped with a tungsten headlight in perfect order, and the tail light of the automobile was burning brightly. None of those working around the automobile heard the approaching street car, or any bell ringing until just before the collision. In affirming judgment for plaintiff, the court in part said: "The evidence is not only sufficient to support the verdict of the jury, but warrants a conclusion that at the time of the accident the car of the defendant was being operated in a manner amounting to a negligent disregard of the rights of persons using tiie street." ^* §604. Neither driver nor motorman attempting to stop. Where the men in charge of an auto struck, when 7 or 8 yards from a street car track, saw a car about 30 yards distant ap-i proaching at full speed, kept on, contenting themselves with signal- ling the car to stop until too late to avoid a collision; the driver of the truck and the motorman depending upon the other to stop, it was held that the owner of the truck could not recover for damage to the truck resulting from the collision; neither party having the right of way, and it being as much the duty of the driver of the truck to avoid a collision as it was the duty of the motorman.^'' § 605. Taxicab running against street car— Failure to sound gong on latter. Where a taxicab ran against the side of, a street car immediately after the latter had stopped on a crossing in front of it, and it appeared that the plaintiff, a passenger in the taxi- cab, saw the street car when it was about three car lengths from the place of the accident and when the taxicab was an equal distance therefrom, no recovery could be had from the street car company, 16 Turner v. Los Angeles R. Corp., York Rys. Co., ISl N. Y. Supp. 90S — Cal. App. — , 188 Pac. S'6 (1920). (191S). • ' ' 1'' James Everard's Breweries v. New COLLISIONS WITH STREET CARS 603 its failure to ring a gong on approaching the crossing not consti- tuting negligence in the circumstances.^' §606. Salvage corps automobile— Injury to employee. An automobile belonging to the defendant salvage corps and in charge of one of its officers was on its way to a fire, moving at the rate of 30 or 35 miles an! hour. As it approached a street crossing a street car was approaching the same crossing on the intersecting street. Seeing the danger of a collision, a policeman signaled the car to stop, but it was unable to do so until the frorit end of the car was near the center of the crossing. Those in charge of the automobile seeing the street car and assuming that it was going to continue, undertook to pass it; but as the car stopped, the autor mobile, when it was turned for the purpose of passing, skidded against the car. , It was practically destroyed in the collision. The plaintiff, a subordinate employee of the salvage corps, wh^ was in the automobile in the line of his duty, was thrown out an,d injured. The place of the collision was a much frequented point. The defendant was a private corporation conti-oUed by insurance companies; its purpose being the saying of life and property. It was held that the proximate cause of the accident was the rate of speed at which the automobile was driven, which was reckless and negligent in the ' circumstances ; that the plaintiff, riding in the v^ automobile being driyen by a chauffeur under the direct control of an officer of the defendant who sat beside him, did not assume the risk of such an accident. Judgment for the plaintiff was af- firmed.^® It was held in a different proceeding that the salvage corps could not recover from the street railway company for d,amage to the automobile mentioned; that the salvage corps does not perform a public service entitling it to use the streets in preference to other persons.*" § 607. Fire apparatus having right of way. An ordinance giving fire apparatus the right of way in the public streets places on other users of the streets the duty to yield the same for the passage of siich appiaratus, and a violation of that duty by a street car motorman constituted negligence per se on the part of the railway , 18 Camozzi v. Puget Sound Tr., L. & ^O.Louisville R. Co. v. Louisville F. P. Co., 94 Wash. 545,162 Pac. 987 & L. Pro. Assn., 151 Ky. 644, 152 S. (1917), ^ ^ W. 799 (1913). 19 Louisville Salvage Corps, v. Wehner, 153 Ky. 190, 154 S. W. 1087 (1913). 604 LAW OF AUTOMOBILES company. City firemen have the right to rely upon the observ. ance of such ordinance by others.*^ ACT OR OMISSION OF MOTORIST § 608. Duty of motorist to look to the rear for street cars. It is not negligence per se for the operator of an automobile, driv- ing along a street car track, to fail to look back or to anticipate the approach of a street car from that direction. Although he is charged with a greater degree of care, in such circumstances, than ordinarily, he is not required to keep a lookout to the rear to the exclusion of his duty to look ahead; the latter duty being para- mount;^^ It is held that he may assume that the motorman of a car will not collide with his machine without giving him warning and an opportunity to turn off of the track; that to divide the at- tention of the autoist by requiring him to keep a lookout to the rear as well as in front would be fraught with dangerous conse- quences.*' So, a motorist who drove on a car track in order to avoid a coal wagon, and who was struck by a street car approaching from the rear, was held not to be guilty of negligence as matter of law in failing to look to the rear at any time, but depending on the sound of the gong of any approaching car.** It has been held not to be negligence, as matter of law, for one, while operating an automobile on a street car track in a city street, at IS miles an hour, to fail to look back for an oncoming car.** A motorist driving on a street car track on a dark, foggy night, with a red light on the rear of his machine, when there was danger of striking people on crossings, and a cross street was torn up and could be crossed only on the tracks, was not, as matter of law, guilty of negligence contributing to his injury in failing to look back for a car, which approached from the rear at a dangerous rate of speed and without warning and struck his machine. In such a case the street car has not the right of way as matter of law, and the question of the motorman's negligence is for the jury.*' But in a Pennsylvania case it was held that where a motorist 21 Indianapolis Tr. & Ter. Co. v. How- 2* Capital Tr. Co. v. Crump, 35 App. ard, — Ind. — , 128 N. E. 3S (1920)> D. C. 169 (1910). 22 Capital Tr. Co. v. Crump, 35 App. 26 Hirsch v. Cincinnati Tr. Co., 32 D. C. 169 (1910). Ohio Cir. Ct. R. 68S (1910). 23 Bruening v. Metropolitan St. R. Co., 26 Baldie v. Tacoma R. & P. Co., 52 180 Mo. App. 434, 168 S, W. 248 (1914), Wash. 75, 100 Pac. 162 (1909). 181 Mo. App. 264, 168 S. W. 247 ,(1914). * ' '• COLLISIONS WITH STREET CARS 60S drives with rear and side curtains down, at 10 or IS miles an hour, in the daytime,, and too close' to a street car track for a passing car to clear the machine, and the machine is struck by a car ap- proaching from the rear, and the driver could easily have avoided the car if he had looked back, he is guilty of contributory negli- gence as matter of law."'' There is a difference, however, in driving on the track and in driving close to it, but the court made no such distinction, and seemed to think that the driver should have looked back if he had been driving on the track. § 609. Ignorant of tracks— Car in view. Where one drove a truck onto interurban tracks, of which he was ignorant, and was struck by a car ,moving 2 S miles an hour, and which was in plain view for a long distance before reaching the crossing, and he could have seen the poles and wires, he was contributorily negligent as matter of law, and could not recover, although the tracks were obscured by snow."* §610. Excessive speed— Unable to stop after seeing car. "It is manifest that the character and measure of care and precau- tion a traveler in an automobile must observe is not observed if he approaches a crossing of a street railway, with his machine run- ning at such a speed as that he cannot, after seeing an approach- ing street car, stop his automobile before entering the zone of danger that is created by the street car. It is clear, beyond any sort of doubt, that the driver was guilty of contributory negligence, barring recovery for any initial negligenc-e on the part of the oper- ative of the street car, not only in attempting to 'beat', the street car over the crossing at the point toward which he was moving, but also in approaching at such speed as that he could not stop his automobile before it reached the railway or dangerous proximity to it after he saw or could with due diligence have seen the street car approaching." "® § 611. Driving against moving car. Where a motorist drove his machine directly against a moving street car, after seeing it when he was at least 40 feet from the track, and had ample oppor- tunity to turn either to the left or right, or to have stopped, it was held that "no other conclusion follows than the^t by the lack S'Speakraan v. Phaa'delphia & W. C. R. Co., — la. — , 166 N. W. S6S (1918). Tr. Co., 42 Pa. Super. Ct. SS8 (1910). 29 Ross v. Brannon, 198 Ala. 124, 73 M Beaver Valley M. Co. v. Interurban So. 439 (1916). 606 LAW OF AUTOMOBILES of ordinary skill or ordinary care he failed to take either course," and that he could not recover.'" Where a motorist drove against a slowly moving street car, which was crossing the street diagonally, strikirig the car at the right I front comer, and there was ample room to avoid the car, he was guilty of negligence barring recovery.'^ § 612. Turning automobile so as to receive glancing blow. It is not negligence per se for a motorist to turn his machine so as to receive a glancing blow instead of direct impact of a street car when a collision with the car is imminent.** § 613. Vision of sprinkling truck driver obscured by tank. Where the vision of the driver of a motor sprinkling truck was re- stricted by the tank to only 15 or 20 feet, and seeing no street car coming Within that distance, drove on the track, where his truck was almost immediately struck by a street car, no recovery could be had for damage to the truck on account of the driver's con- tributory negligence.'* § 614.; Turning suddenly from one track onto the other. Where, the plaintiff's chauffeur drove his automobile onto a south- bound street car track, when there was a north-bound car within a few feet of the automobile, and continued toward a rapidly ap- proaching south-bound car, and when the latter car and the auto- mobile were close- together, the chauffeur turned onto the north- bound track and was i struck by the north-bound car, it was held that the accident was due to the negligence of the chauffeur, and judgment for plaintiff was reversed and the cause dismissed.'* § 615. Turning suddenly while paralleling track. There was ho liability on the part of a street railway company where plain- tiff had been driving his automobile parallel to tiie track, and turned across the track so close in front of a street car that the motorman could not stop, although he had his car under control when plaintiff started to drive on the track.'^ § 616. Turning from behind one car in front of another on parallel track. Plaintiff's evidence showed that, while drivihg his so Arnold V. San Francisco-Qak^and , S3 Smith, v. Somerset Tr. Co., 117 Me. ter. Rys. 175 Cal. 1, 164 Pac. 798 407, 104Atl. ,788 (1918). . , , (1917)- '" ' 34 Tremaine V. Joline, 14S N. Y. Supp. 81 Harvey v. Philadelphia Rapid Tr. 46 (1913). Co., 255 Pa. St. 220, 99. Atl. 796 (1916); 8B West Helena CoBsol. Co. v. McCray, 82Reichle v. Detroit United Ry., 203 168 C. C. A. 99, 256 Fed. 753 (1919). Mich. 276 168 N. W. 972 (1918);. COLLISIONS WITH STREET 'CARS 607 automobile at a speed of about 10 miles an hour, he suddenly turned it from behind a standing west-bound car, and came upon the east-bound track, upon which, as he knew, east-bound cars were operated, without taking any precautions whatsoever for his own safety, acting upon the supposition that another east-bound car would not follow so closely upon tliat which had passed him shortly prior thereto. And though the approaching car was near at hand, in plain view, he did not observe it until he had driven halfway past the standing car. • It was held that plaintiff was guilty of contributory negligence which barred recovery, notwithstanding an ordinance relied on by him provided that, "Whenever any car is about to pass another car going in the opposite direction, at a point where it is permissible to passengers to alight from or to board a car, said car shall proceed at a rate of speed not over three miles an hour," and it was con- ceded for the sake of argument that the defendant had violated this ordinance. In part the court said : "There is ntithing to indi- cate that his eyesight was poor; and, if for any reason he could not discern the real conditions present, he was extremely negligent in going blindly upon the south track, upon which, as he well knew, a car might be coming at any time. In attempting to pass the west-bound car, by improperly going to the left side thereof, and thus swerving his automobile directly in the path and immedi- ately in front of the other car, without taking any precautions what- soever, he must be held chargeable with the consequences resulting from his own negligence. To hold otherwise would be to put a premium upon recklessness." ^^ ' ' A motorist who crossed behind a street car and was struck on the adjacent track by a car coming from the opposite direction in plain view, held not entitled to recover, though no signals were given.*' Where the plaintiff, driving his automobile, before crossing de- fendant's double track of street railway, looked to the west and saw an east-bound car about a block away, and continued to cross, his vision of the east-bound car being obstructed by a west- bound car which had stopped at the crossing, and when he pro- ceeded far enough to see past the west-bound car, the other car was so near that he could not avoid it, and there was evidence that the car was moving at a very high rate of speed and did not slow up for the crossing, and that no warning was given of its Approach 36 Van Cleave V. United Rys. Co., — 37 Schrankel' v.- Minneapolis St. R. Mo. App. — , 181 S. W. 1084 (1916). Co., — Minn. — , 174 N. W. 820 (1919). 608 LAW OF AUTOMOBILES before it struck the automobile, it was held that the questions of negligence and contributory "negligence were for the jury." A motorist who crossed so closely behind a moving street car that when he saw a car coming from the other direction on the other tracji it was so close upon hihi that it was impossible for him either to stop or to accelerate his speed and get across the tracks in time to avoid a collision, was guilty of contributory negligence bar- ring recovery for injuries so received. This was held to be true, although the street car was being operated at an unlawful rate of speed.*' The plaintiff was driving an automobile southerly along a street in which the defendant operated two street car lines. He was fol- lowing a street car going in the same direction on the westerly track; the automobile traveling between the westerly track and the curb, and about six feet behind or about even with the rear end of the car. Both were moving, three to five miles an hour. Upon reaching an intersecting street in the business part of the city, the speed of the automobile was slackened, and plaintiff turned to the left to go into the intersecting street. When the automobile was turned it was about within the intersection of the two streets, and the car that it had been following was about 1 S feet past the north- erly intersection line. The automobile turned to the left behind the south-bound cat diagonally across the street, apd just as it reached the westerly rail of the easterly track it was struck by a north-bound car running on the easterly trackj which was not seen in time to prevent a collision. When the collision occurred the south-bound car had not quite passed, or was just passing out of the iiitersectipn, and the car that struck the automobile had passed , the other within the intersection. No bell or gong was sounded. The car that struck the automobile was moving at IS to 20 miles an hour. The south-bound car obstructed the view of the one northerly bound. Ordinances prohibited street cars from being run in that part of the city faster than ten miles an hour; required a bell or gong to be sounded on every street car when approaching any street crossing within a distance not exceeding 60 feet from the crossing, and that such bell or gong should be sounded whenever the rnotorman would have reason to believe that there was danger of the car running against a vehicle; and that two cars going in opposite directions should not pass each other upon any street in- tersection, but that the car fartherest from the intersecting street 88Day V. Duluth St. R, Co., 121 Minn. 39 Zeis v. United Rys. Co., — Mo. 445, 141 N. W. 795 (1913). App. — , 217 S. W. 324 (1920). COLLISIONS WITH STREET CARS 609 should stop and remain stationary until the approaching car should have entirely passed the intersection. It was held that the trial court was in error in instructing a ver- dict for defendant on the ground of contributory negligence, be- cause the plaintiff had a right to assume that the street car company would comply with the ordinances mentioned; and that the jiiry might properly regard this assumption as sufficient to induce in plaintiff a feeling of safety and to lull any apprehension of danger in turning the automobile to cross the street as he did.*" § 617. Turning onto opposite-bound track on bridge in cloud of smoke. There was ample evidence to sustain the following facts : On May 29, 1917, shortly after midnight, defendant's heavy auto- mobile truck, lighted only by two small oil lamps in front, was being operated eastwardly on the east-bound car track of Spring Garden street, Philadelphia. An east-bound street car came up behind the truck at a point 30 feet east of Thirty-first street, upon the Spring Garden street bridge over the Schuylkill river; in response to a signal from the motorman of this car, defendant's chauffeur turned his truck to the left and entered upon the west-bound track. At the point in question there was sufficient space to accommodate the truck on the right, between the east-bound track and the curb, and no necessity existed for turning in the other direction. Just as the east-bound car passed the truck, a cloud of smoke was thrown over the street railway tracks by a locomotive, which at that moment passed under the bridge; the smoke being so dense it completely concealed from the view of defendant's chauffeur the approach of a west-bound trolley car upon which plaintiff was acting as iliotor- man, and, from the vision of the latter, the former's motor truck. Notwithstanding these conditions, the chauffeur ran directly on, in the west-bound track for a distance of nearly 70 feet from the point where he first turned in, and, just as the truck emerged from the eastern edge of the smoke cloud, a collision occurred between it and plaintiff's car. The truck' was still coming head-on, in the west- bound track; when only 10 feet away^from the car; but, judging from the position of the former after the accident, the chauffeur, immediately before the actual collision, must have attempted a *" Phillips V. Denver City Tr. Co., S3 the intersection, all contrary to ordi- Colo. 4S8, 128 Pac. 460, 7 N. C. C. A. nances, are each sufficient to warrant a 487, Ann. Gas. 1914B 29 (1912). jury in finding that the defendant was "The excessive rate of speed at which guilty of actionable negligence.'' Phil- the , car that struck the automobile was lips v. Denver City Tr. Co., S3 Colo, going, the failure to sound a gong or 4S8, 128 Pac. 460, 7 N. C. C. A- 487, bell, and the passing of the cars within Ann. Cas. 1914B 29 (1912): B. Autos. — 39 610 LAW OF AUTOMOBILES quick turn to the right, too late, however, to change the situation- of danger which he had created. The trolley car was running not more than 4 miles an hour, and, immediately upon seeing the auto- mobile in the track, plaintiff threw off his power, apparently doing all he could to avoid the collision, having previously rung his bell. There was evidence to show that, under ordinary circumstances, the bridge upon which the accident happened was sufficiently illumi- nated to permit of seeing "a square away." Held, to sustain a judgment for the .plaintiff.*^ §618. Crossing behind standing car in front of car on parallel track. The plaintiff's automobile was proceeding south- erly on First avenue, approaching Union street, in Seattle, Wash. It- was passed by a car oil the west or south-bound track which stopped on the south side of Union street to take on await- ing passengers. The, chauffeur, desiring to cross First avenue at Union street, slowed down his automobile, and drove on behind the south-bound car, reaching Union street. He made the turn tg the east as requiried by an ordinance by going to the south of the street intersection. At this point he was behind the standing car a dis- tance variously estimated at from IS to 30 feet. As the front wheels of the automobile ran onto the west rail of the east or north- bound track, it was struck by a north-bound car. The chauffeur testified that, from the time the south-bound car passed him in the middle of the block, there was no car ahead of him, and nothing to obstruct his view, and that he could see down First avenue a dis- tance of about 8 blocks; that he didn't look, and supposed if he had looked he could have seen this car approaching; that in cross- ing as he did the front of his machine would be on the north-bound track before he could see down the track in the direction from which the street car approached. Held, that the contributory neg- ligence of the chauffeur barred the plaintiff from recovery for dam- age to his automobile.** § 619. Turning around other vehicles and colliding head-on with car. It appeared from the evidence that the plaintiff was driving his automobile between the car track and the curb line of a street in which the defendant operated a single line of cars; that immediately ahead of him were two other automobiles going in the same direction; that as these machines approached a cross street they stopped ; that the plaintiff, instead of stopping, which he could *l Smoker v. Baldwin Locomotive ** Bardshar v. Seattle El. Co., 72 Works, 261 Pa. St. 341,, 18 N. C. C. A. Wash. 200, 130 Pac. 101 (1913). 967, 104 Atl. S97 (1918). COLLISIONS WITH STREET CARS 611 have done, immediately turned his machine and ran upon the street car track in an atteriipt to get around the other automobiles, where he collided head-on with a street car; that plaintiff could have seen the street car before he went on the track, had he looked ; that when he was on the track the car was within 15 feet of him before he first applied the brake. Held, that plaintiff was negligent as matter of law and could not recover.*' § 620. Driving onto track after seeing car. Whether or not it was negligent for an autoist to attempt to drive across a street railway track after seeing a car 150 to 200 feet distant and ap- proaching at the rate of 30 miles an hour, and which collided with him in such attempt, was held to be a jury question.** The plaintiff, about 10 o'clock at night, was driving his auto- mobile at about 8 miles an hour along a city street approaching a crossing in a thickly settled business and residence district. The defendant operated two street railway tracks in the intersecting street, which extended north and south. As plaintiff approached the crossing, at some points his vision to the south was obstructed by buildings. He saw no car approaching from that direction, but did see a south-bound car stop and discharge passengers at the crossing. He kept on at about the same rate of speed, and when he reached the sidewalk crossing discovered a street car approach- ing from the south, some 500 feet away. He testified that he then slowed his speed to three miles an hour, moved to the westerly or south-bound track, looked around the car, which was "standing there or probably moving," and discovered the north-bound car some 125 or 150 feet away. The ^front of the automobile was then on the easterly track, and plaintiff attempted to increase his speed and get over the track, but was unable to do so, "perhaps because of the condition of the crossing." He tried to give the motorman warning by sounding his horn, but the car struck him, demolishing the automobile and seriously injuring him. Held, that the questions of negligence and contributory negli- gence were for the jury, and judgment for plaintiff was affirmed.** Where, after looking for and seeing an approaching street car, the plaintiff's wife drove an electric automobile slowly a distance of eighty-one and a half feet toward the track, and then on the track, and was struck by the car, and it appeared that she could have 43Reid V. Reading Tr. & L. Co., 66 *6Hedlund v. Minneapolis St. R. Co., Pa. Super. Ct. 101 (1917). 120 Minn. 319, 139 N. W. 630 (1913). "Brandt v. New York Rys. Co., 85 Misc. 40, 147 N. Y. Supp. 17 (1914). 612 LAW OF AUTOMOBILES turned the automobile away from the tracks or have stopped it almost instantly, it was held that sjhe was contributorily negligent as matter of law.*® Where a motor Tcyclist approached a car track at 3 or 4 miles an hour, and attempted to cross after seeing a car approaching 20 to 3,0 feet away, and was struck, he was barred from recovery by con- tributory negligence.*'' ' In an action for injuries incurred in a collision between plaintiff's motor-cycle and a street car of defendant, the material facts were not in dispute, and it appeared that the plaintiff, a man, 36 years of age, familiar with the surrounding conditions, rode his machine, in daylight, at a speed of 8 miles an hour, along a street towards its intersection with a street in which were defendant's car lines; that when he arrived at the curb line of the latter street he was 27 feet from the first rail of the tracks, and at this point he looked north and saw a car approaching about SO feet away; that, know- ing if he continued in a direct line at the speed he was going he would collide with the street car, he turned south to run parallel with the car tracks; that he could have stopped his machine within that distance; that in attempting to cross in front of the car after turning south he was struck by the street car running at 20 or 2 S iniles an hour, and which ran 175 feet after colliding with him be- fore it was stopped ; that after he first looked and saw the car he did not look for it again, but was watching a man approaching on a bicycle. Held, that verdict should have been directed in favor of de- fendant, and judgment for plaintiff was reversed.** Plaintiff was driving his automobile eastwardly on Unibnport Road toward Westchester avenue, which there runs at an acute angle. When about IS feet west of Westchester avenue he looked north, and saw defendant's trolley car abbut 7S feet away, coming south. He continued on at a speed diminishing from 7 to 4 miles an hour. He had a moment before that looked and seen the trolley car about 100 feet away. When his automobile reached the west- erly rail of the south-bound track the trolley car was 2S to 30 feet away, coming, plaintiff says, at a speed of 35 miles an hour. Held, that plaintiff was negligent and could not recover.*' When a motorist attempts to cross in front of an approaching 46 Stevenson v. Detroit United Ry., *8 Bowen v. Buffalo & L. E, Tr. Co., 167 Mich. 4S, 132 N. W. 4S1, (1911). S4 Pa. Super. Ct. 128 (1913). « Di Orio v. Philadelphia R. T. Co., *» Camp v. Union R. Co., 181 N. Y. 260 Pa. St. 399, 103 Atl. 828 (1918)." Supp. 367' (1920). COLLISIONS WITH STREET CARS 613 car and miscalculates the distance it is from the crossing, he is con- tributorily negligent.^" § 621. Driving slowly across track without looking. Where a motorist started his machine from the curb, and, moving slowly, turned across a street car track, where he was struck by a car, and there was no testimony that he looked for an approaching car, and he testified that he did not know, he was held to be contributorily negligent as matter of law.*^ § 622. Failure to see car in sight. A motorist who drives onto a street car. track is chargeable with seeing that which he is boundi as an average person in the exercise of ordinary care, to see had he looked.^'' A motorist who is struck by a street car which he had ample opportunity to see in time to avoid a collision, and did not, is con- tributorily negligent.^' ^ Where a street car was approaching in view, down grade, at 20 miles an hour, when a motorist, 8 or 10 feet from the track, moving at 6 or 7 miles an hour, looked for the car, then drove on the track and was struck, it was held that he was negligent as matter of law.^* The plaintiff's automobile was truck by a north-bound street car of the defendant on Tenth street where it is intersected by Chest- nut street, in Independence, Mo. The collision occurred about 8 o'clock in the morning. The plaintiff was driving his automobile, weighing, -w^ith the occupant, about 3,600 pounds, at the rate of about 10 miles per hour, eastward on the south side of Chestnut street. He observed two men walking north toward Chestnut street on the sidewalk on the west side of Tenth street. Apparently the two men did not see the plaintiff, and he sounded his, horn two or three times before they gave indication bf seeing him. When they did see, they were just stepping off the curb into Chestnut street. The plaintiff was 'then about 20 feet west of the sidewalk on which the, two men approached Chestnut street. Up to that tini^ the plaintiff had been driving at intermediate speed. He then threw jthe lever into high gear, waved his hand at one of the men \\rhom, he knew, and then looked at the street car track. The street 60 Upton V. United Rys. & El. Co., — 63 Entwistle v. Rhode Island Co., — Md. — , 110 Atl. 484 (1920). R. I. — , 103 Atl. 625 (1918); Herrett SlGillett V. Michigan U. Tr. Co., 205 v. Puget Sound T., L. & P. Co., 103 Mich. 410, 171 N. W. 536 (1919). Wash. 101, 173 Pac. 1024 (1918). S^Devitt V. Puget Sound Tr. L. & 6*McEvilla v. Puget Sound T., L. & P. Co., 106 Wash. 449, 180 Pac. 483 P. Co., 95 Wash. 657, 164 Pac. 193 (1919). (1917). 614 LAW OF AUTOMOBILES car, whose speed was not disclosed, was approaching from the south. The plaintiff immediately turned his car as much as he could toward the north, and applied the emergency brake, but it was too late to avoid a collision. The automobile was pushed to- ward the north and to the east side of the street car track. The street car stopped with the front end about IS feet north of the automobile. As the plaintiff approached the tWo men on the side- walk the motorman of the street car had a clear view of the situa- tion, and could have seen the plaintiff when 200 feet from him. The plaintiff had the same opportunity, and could have seen the street car had he looked. Had he looked, he could have stopped his automobile before it went on the street car track. He did not look, because his attention was fixed on the two men on the side- walk. When he did look for the street car he was about even with the curb on the west side of Tenth street. Held, that the plaintiff was contributorily negligent and could not recover.** Where, in an action to recover for personal injuries incurred by the plaintiff in a collision occurring between an automobile in which she was riding, at night, and a street car of defendant, there was evidence that, before driving on the track the driver looked both ways but failed to see a lighted car approaching a short distance away in the block, although it was seen by a witness for plaintiff when it was nearly a block away from the place of the collision; that the automobile was moving slowly, under complete control; that the evening was clear, and the view unobscured; and that there were no passing vehicles to distract the driver's attention, it was held a verdict in favor of the defendant was properly directed on the ground of contributory negligence.*® In an action to recover for damages to the plaintiff's automobile, caused by its being struck by the defendant's electric car, it ap- peared that, when the autdmobile was struck, the plaintiff, in order to turn the automobile around, was backing it in a semicircle upOn the defendant's tracks on a street fifty feet wide, there being a dis- tance of thirteen feet six inches between the curb and the nearest rail of the tracks; that there was an unobstructed view for one hundred feet from where the automobile stood before it was started backward, up the tracks to a station; that previous to the accident the car had stopped at the station; that it was dusk, but that there BBShelton v. Union Tr. Co., 99 Kan. Mich. 139, 143 N. W. 32, 4 N. C. C. 34, 160 Pac. 977 (1916). , A. 383 (1913). B6 Colborne v. Detroit United Ry., 177 COLLISIONS WITH STREET CARS 615 were no lights on either the automobile or the car ; that the plaintiff knew there was a car due at that place about that time, and before starting back plaintiff had looked back but did not see the car. He did not look again until the automobile reached the tracks and was struck by the car. It was decided that the plaintiff was not in the exercise of due care because, since he did not see the car when he looked, he must have looked carelessly, and because he failed to look backward after the automobile had started towards the tracks.*'' § 623. Struck by car following close behind another. A mo- torist who failed to look for a street car in thfe direction from which the one came which struck him, having looked when 60 to 120 feet away, but assumed that no car would be following so closely behind one which had passed, was guilty of negligence; he knowing that cars were usually hurrying to the car barns at that time of day.** § 624. Motorist having right of way failing to see car until near him. A truck driver who collided with a street car at a street intersection, which he did not see until it was within 20 feet of him, was held to be cbntributorily negligent, regardless of the fact that vehicles moving in the direction he was going were en- titled to the right of way over vehicles on the intersecting street.*' § 625. Continuing on track after seeing approaching car. The plaintiff's chauffeur drove her automobile into an intersecting street in which was defendant's street car line. As he was about to enter upon the track, in turning into the street, intending to turn to the right of the track and between the track and curb, he saw a street car approaching about 80 or 100 feet away, traveling about 20 miles an hour. He then continued to travel within the danger zone of the track for some 25 feet, moving about 6 miles an hour, and as he was leaving the track the street car struck the machine, causing the damage complained of. Held, that the chauffeur was contributorily negligent, and that no recovery could be had.*" §626. Driver continuing across when car reduces speed. Plaintiff's motor-truck was damaged when struck by one of de- fendant's street cars at the intersection of two main streets. The evidence showed that the car slackend speed as it approached the W Birch v. Athol & Orange St. R. Co.,. 69 Colorado Springs & I. R. Co. v. 198 Mass. 2S7, 84 N. E. 310. Cohun, — Colo. — , 180 Pac. 307 (1919). BSCongdon v. Michigan United Tr. eOBertrand v. Milwaukee El. R. & Co., 199 Mich. S64, 16S N. W. 744 L. Co., 1S6 Wis. 639, 146 N. W. 91S (1917). (1914). 616 LAW OF AUTOMOBILES corner to 5 to 8 miles an hour, and then started forward at in- creased, though not excessive, speed. The driver of the truck as- sumed that the car would stop, and continued across at about 12 miles an hour, although he saw the approaching car in time to have stopped the truck before the collision. ' The car struck |he middle of the truck. An ordinance required street cars to reduce their speed at street crossings to not over 5 miles an hour. Held, that defend- ant was not negligent, and that the driver was <:ontributorily negli- gent, and that a non-suit was proper. "He (the driver) acted upon his assumption that he would reach the cros^sing first; that the trolley car would stop, and that the duty of avoiding a collision rested solely with the motorman. While street railway companies have not the exclusive use of their tracks either at crossings or at any other part of the street, their rights are superipr to those, of the public. The motorman was justified in assuming that he would be given the right of way and that thci truck would stop." ®^ § 627. Failure to look after passing obstruction. Action was brought to recover damages caused by a collision between one of defendant's street cars and plaintiff's automobile truck. The plain- tiff's driver was traveling north on the east side of a, public street, seated on the forward end of the truck, and moving about 12 miles an hour. As he approached an intersecting street, in which defendant operated a double line of street railway, he reduced his speed to S or 6 miles an hour. His view to the west was ob- structed, but when he was about 35 qr 45 feet south.of defendant's track he looked to the west and listened well for an approaching car, being able to see about 100 feet of the track, and saw no car. Continuing to approach the track at about 5 or 6 miles an hour, he looked to the east for a car, and, seeing none, again looked to the west, when his view for 125 feet was unobstructed, and, seeing no car, turned his attention to some children in the street, and did not again look to the west for a car. When the major portion of the truck had crossed the south track a car coming from the west collided with it. The street car was being operate4 at a high and negligent rate of speed. The driver approached the track for, a dis- tance of 25 to 30 feet without looking to the west. The trial court directed a verdict for the def endajit pn th^ ground of contributory negligence, and on appeal judgment entered on such verdict was affirmed, the court saying that, "But slight dili- gence on his part while covering the space from 25 to 30 feet south SlQberholzer v. Philadelphia R. T. Philadelphia R. T. Co., 6S Pa. Super. Co., 27 Pa. Dist. 209 (1918); Long v. Ct. 281 (19J6). ■■'■ COLLISIONS WITH STREET CARS 617 of the track at 5 or 6 miles per hour to the danger zone would have prevented the collision, and this appears to have been omitted." ®* While the appellant's automobile, driven by himself, was crossing the railway tracks of the appellee at the intersection of West Balti- more and Pulaski streets in the city of Baltimore, it was struck by an electric street car and damaged. The accident occurred in the daytime. The plaintiff testified that as he approached Baltimore street' from the north on Pulaski street, just prior to the collision, his automobile was moving on an upgrade at the rate of 12 miles an hour, and that he sounded his horn and reduced the speed of his car before he reached the corner. He was then on the west side of the street near the curb. Just be- fore reaching the building line on the north side of Baltimore street he looked toward the east, but his view was obstructed in that direc- tion by a high wall inclosing a lot of ground located at the northeast > corner of the two thoroughfares, and also by a row of trees with low branches in foliage, extending eastwardly along the outer mar- gin of the Baltimore street sidewalk. After the line of the trees was passed, and before the railway tracks were reached, the plain- tiff could have had a clear view of the tracks to the eastward for the distance of a block. According to his own testimony, he did not avail himself of this opportunity to look for approaching cars, but attempted to cross without taking that precaution, and for the first time saw the west-bound car when it was only about 14 feet distant. His automobile was then crossing the track on which the car was rapidly moving toward him, and it was only by increasing the speed of his motor, and thus alhiost clearing the track, that he was able to avert a much more serious collision. It was held that the plaintiff's testimony showed that he was guilty of contributory negligence, and that he could recover.^^ § 628. Driving on track close in front of car. Where an auto- mobilist drove his machine onto a street car track so close in front of an approaching car that there was no time to stop the car before the collision occurred, and it appeared that there was nothing to obstruct his view of the street car, it was held that the accident was due to the negligence of the automobile driver, and that no re- covery could be had by him although the street car was moving at an excessive rate of speed.^* 62Voelker Products Co. v. United 6* Briscoe v. Washington-Oregon Rys. Co., 18S Mo. App. 310, 170 S. W. Corp., 84 Wash. 29, 145 Pac. 99S (191S). 332 (1914). 68 Foos V. United Rys. & El. Co., — Md. — , 110 Atl. 849 (1920). 618 LAW OF AUTOMOBILES Where a motorist could have seen the approach of a street car as much as 300 feet away when he was 50 feet from the track, and he turned onto the track in front of a car which was going so slow- ly that it was stopped within three feet after the collision, his negli- gence was the cause of the collision, and he could not recover.^* Where the plaintiff looked before going onto defendant's track in a business portion of a city, in the daytime, and saw a black object about 50 or 60 feet away, which was an approaching electric engine, but did not see three or four flat cars being pushed in front of it, and thinking that she had an abundance of time, started to cross, no warning being given by the train, and her machine was struck, pushed along a few feet, and damaged by the first fiat car, she not seeing the flat car until it was about two feet away, it was held that her contributory negligence was the proximate cause of the acci- dent, and that she could not recover.®® § 629. Turning onto track in front of car. The plaintiff was a passenger on a street car which collided with defendant's truck, and was thereby injured. She testified that, when she first saw the truck, it was on her right, "just outside of those iron that hold the Tj road up," "coming the same way the car did," "just going to cross the street." "I am not^ sure but it came right in front of the car." "The front part of the truck was right outside of that (the support- iiig irons) and it was in that position when I saw it making for the track." On this evidence the jury could find that the driver of the truck, rnoving in the same "direction as the car, turned at this point and crossed the track. This evidence was contradicted in part by ttie driver of the truck who testified that he came from an alleyway leading from Washington street, went directly across the street and did not move alongside of the car in the same direction. He blew his horn as he approached the street, but gave no further signal; and although there was nothing to obstruct the view, he saw the car for the first time when his wheels were upon the track, and he then made no effort to change the rate of speed at which he was moving. It was held that either version of the accident showed negligence on the part of the truck driver, and verdict for plaintiff was sus- tained, the court saying: "If the driver of the truck, going in the same direction as the car, suddenly turned in front of it, and with- out warning attempted to cross the tracks, the jury could find him to have been negligerit. Or, if crossing Washington street from the 6B Yetfer v. Cedar Rapids & M. C. R. «6 Oswald v. Utah L. & R. Co., 39 Co., 182 la. 1241, 166 N. W. S92 (1918). Utah 24S, 1X7 Pac, 46 (1911). COLLISIONS WITH STREET CARS 619 alleyway, he gave no Signal after leaving it, continued at the same rate of speed, and made no attempt to avoid the car, it could also have been found that he was careless." *'' § 630. Car coming from opposite direction than expected. The g,ccident in question occurred at Iowa City at 6:30 p. m. The defendant operates an interurban railway between Cedar Rapids and Iowa Ctiy. The collision occurred at the intersection of the railroad with Burlington street, which runs east and west and in- tersects the railway line at right angles. The interurban car was proceeding south 10 minutes behind its schedule time. According to the time-table a car was at that time due from the south. From Burlington street the view of the railway track towards the north w^ obstructed by houses and other buildings to a marked degree. The view was also greatly obstructed towards the south, but to a less extent. The plaintiff resided close by, and was familiar with the general conditions. At the time in question he was driving his' automobile along Burlington street west, towards his home. As he approached the crossing he slowed down to a speed of from 4 to 6 miles per hour. At a point approximately 30 feet from the track he looked and listened for a car. He looked first to the north, but saw none. At that point his possible view up the railway track was 'less than 100 feet. He then looked to the south, and was looking south as he drove upon the track, at which instant the car came upon him from the north. After the impact the car ran a distance of about 80 feet before stopping, and thereby carried before it the plaintiff and his automobile. There was evidence in support of the allegations that the de- fendant was operating the car at an unlawful and dangerous rate of speed ; that no gong or whistle was sounded as required by statute, and that no signals of any kind were given; that, in view of the dangerous character of the crossing and the great amount of travel passing over the same, the defendant ought to have main- tained a flagman at such crossing, or some automatic signal device to warn travelers of the approach of the car. Held, that the questions of negligence and contributory negli- gence were for the jury, and judgment for plaintiff was affirmed."' §631. Turning onto track without signaling, after pass- ing car. The decedent, in an automobile, after traveling along- side a trolley car for some distance, drew slightly ahead, and, ST Regan v. Kelly Contr. Co., 226 68 Rupener v. Cedar Rapids & I. C. Mass. S8, 15 N. C. C. A. 19S, 114 N. E. R. & L. Co., 178 la. 61S, 159 N. W. 726 (1917). 1048 (1916). 620 LAW OF AUTOMOBILES ^ "without giving the statutory or any other warning," attempted to cross in front of the car to enter a farmyard. The car was running within the statutory speed on a country highway. Held, that decedent was negligent, and no recovery could be had.®® § 632. Automobile required by another vehicle to stop on track at street crossing. Action was brought to recover for personal injuries incurred in a collision between a motor trutk which the respondent (plaintiff) was driving, and a street car of defendant, which occurred at a street intersection. The court stated the facts and its conclusions as follows: "It is clear from the testimony that, when respondent first attempted to cross the street car tracks, there was ample room and time for him to do so before the car would reach the crossiag. This fact was assumed by both the motorman and respondent, atid each acted accordingly. Just as respondent drove upon, the track he w^s confronted with a new situation caused by another auto truck going west turning in front of him in an attempt to pass a slow-going milk wagon going in the same direction. Respondent would have passed in front of this milk wagon had it' not been for^ the appToach of the other truck, or had the truck remained behind the milk wagon in the relative position it was when first observed by respondent. The sudden change of course of this auto truck prevented respondent from continuing his- passage across the tracks, and jn ord^r to avoid a collision with it he stopped his auto with^ its front wheels resting on the south rail of the inbound car track, in which position the car hit him. The evidence supports the theory of the lower court that, had the motorman been alive to this changed situation, necessitating a change in action, he could have prevented the collision, and, not having done so, negligence Avas established. We find nothing in the case to establish appellant's theory of contributory negligence." Judgment for plaintiff, was affiLrmed.™ §633. Stopping automobile on track without looking for car. Plaintiff, with a young man accompanying him, drove his automobile out of a garage and onto defendant's street car track, where he stopped it, slightly turned toward the east, and with the engine running. Upon reaching the street he looked in both direc- tions, and there was no car in siglit. He watched the young man close the garage door, and waited for him to come to the machine, 89Hann v. Salem & P. Tr. Co., -^ N. 70 Anderson v; Puget Souni T. L. & J. L. — , 109 Atl. S09 (1920). P. Co., 89 Wash. 83, 154 Pac. 135 (1916). COLLISIONS WITH STREET CARS 621 ^which occupied approximately one-half minute. Just as the young man entered the automobile, plaintiff discovered a street car com- ing from the east, at what he said was a high rate of speed, and he immediately tried to get clear of the track. His machine responded, but not in time to avoid a collision, which resulted in injury to him and damage to his automobile. Both plaintiff and the motorman had an unobstructed view for a distance of 340 feet east of the place- of collision. No warning was given by the approaching car. It was held, by a court divided five^ to three, that the trial court was in error in directing a verdict for the defendant; that the case should have been submitted to the jury under the doctrine of sub- sequent or, discovered negligence; that the motorman must have seen, if he was properly attending to the work devolving upon him in operating the car, the dangerous situation of the plaintiff, and he could easily have stopped the car after discovering the same, and thus avoided inflicting the injuries which resulted from the collision.''^ § 634. Backing onto track. Where a chauffeur backed the plaintiff's automobile out of the latter's garage, which extended, to the edge of the sidewalk and was only 23 feet from the car track, and backed the same into the street and onto defendant's street car track, on which the chauffeur knew a car was run ,back and forth, and a car, which was about on schedule time, struck and damaged the automobile, it was error to instruct , the jury that the chauffeur was not under any duty to look and listen before backing, his machine across the sidewalk and street and upon the track. - , "The fact that the building or the opening to the building was so small that it required all the attention of the driver to his auto- mobile, so that he could not give any attention to what was going on back of him or in the street, does not excuse his failure to look and take observations. The railroad company did not select the garage and are not responsible for its dimensions or the difficulty of getting in and out with the car. If the owner of the machine saw fit to use that kind of a place, he and he alone must assume the risks incident to getting in and out of such place." ''^ One backing an automobile out of a garage onto a street in which a street car line is operated must use reasonable care to guard against injury from passing cars, but he may trust some- 71 King V. Grand Rapids R. Co., 176 72 Holmes v. Sandpoint & I. R. Co., Mich. 645, 143 N. W. 36 (1913). 25 Idaho 345, 137 Pac. 532 (1913). 622 LAW OF AUTOMOBILES thing to the expectation that motormen of the cars will also act with due regard for the safety of others lawfully using the street.'" From the fact that there was nothing to obstruct the plaintiff's view of an approaching trolley car at a safe distance from the posi- tion he occupied when he backed his automobile upon the railway track and was struck by an approaching car, the presumption is either that he did not look with sufficient care for the approaching car before going upon the track, or that he did not heed the danger that he should have seen if he did look.'* § 635. Driving out of garage in front of car. The driver of an automobile who, on pulling out of a garg,ge, glan<;ed down the street and saw an electric car approaching, some 300 feet away, and who, without looking again, drove heedlessly on the track, and came in collision with the electric car, was guilty of such neg- ligence as to bar his recovery of damages, in the absence of evi- dence showing with legal certainty that the motorman was operat- ing his car at a dangerous rate of speed, or, by the exercise of oi-dinary care after the discovery of the danger, could have avoided the collision.'" § 636. Driving in front of lighted car at night. Where, in an action to recover for injuries received by plaintiff in a collision between the automobile he was driving and an electric street car of the defendant, at a crossing, it appeared that the accident hap- pened on a dark night; that the electric car made considerable noise; that its windows were open, and the inside lights, as well as the headlight, were burning brightly; that plaintiff saw the headlight on the car at two different points a few seconds before the collision, but did not stop, it was held that he could not recover as matter of law, although he said that he did not know the light he saw was that of a car, it appearing that he was familiar with the location and knew that a car was due to pass there every half hour.''* § 637. Driving against street car. Where the intestate, a boy, rode his motor-cycle southerly along a street, approaching the defendant's street car tracks on an intersecting street, at 12 or 15 miles an hour, close to the curbing on the west side, and did ''S Gagnon v. Worcester Consol. St. R. 76 Martson v. Shreveport Tr. Co., 140 Co., 231 Mass., 160, 120 N. E. 381 La. 18, 72 So. 794 (1916). (1918). 76 0dbert v. Webster, M.^B. & F. C. T^Capp v., Southwestern Tr. & P. Co., St. R. Co., SO Pa. Super. Ct. 525 (1912). 142 La. 529, 77 So. 141 (1917). COLLISIONS WITR STREET CARS 623 not look for a car until he was on the north line of the intersecting street, when, without slackening his speed, he looked to the east and to the west, and turned suddenly to the east, and collided with an approaching car at a point opposite the front trucks and was thrown down and fatally injured; and where it appeared that the distance between the side of the car and the curb line was 16 or 17 feet, and from the curb to the inside walk lines was 19 feet, and that the car was very near, if not at, the street crossing when deceased first looked, and that deceased did not change his crouching position on the mbtor-cycle, it was held that the acci- dent was due to the negligence of the deceased, and that no recovery could be had. "The plaintiff has not only failed to show freedom from con- tributory negligence, but we think that the record affirmatively shows such contributory negligence on deceased's part, such want was the grourid upon which the court directed a verdict. One cannot excuse his conduct, which otherwise involves him in negli- gence, by the plea that he was confronted with a sudden peril, when it is apparent that the peril that confronted him was one of the creation of which he contributed by his own negligence." ''''' Where there was evidence that the driver of plaiiitiff's auto truck drove against the side of one of defendant's street cars, and that in doing so he was negligent, the defendant was entitled to have the question of the driver's contributory negligence; submitted to the jury under appropriate instructions.'* § 638. Unable to turn off track on account of snow. The plaintiff's automobile was struck by an electric car of the defend- ant, when it was on the car track headed in the direction from which the car was approaching. The motorman knew that for some days snow drifts had compelled drivers of vehicles to travel on the track at the place of the collision, and that they could not turn off oa either side; yet there was evidence that he ran his car at a speed of 30 miles an hour, with his view obstructed by frost on the glass in front of him. He did not see the automobile until it was only 125 feet ahead of him, although it could have been seen a quarter of a mile away by looking across a field, and there was an unobstructed view along the track for nearly 500 feet. He testified that, when his car was going at the rate he said this one was moving, he could stop it at 100 feet; yet it struck the plain- '!"!' Westcott V. Waterloo, C. F. & N. R. 78 Bayer v. St. Louis, S. & P. R. Co., Co., 173 la. 3S5, ISS N. W. 2SS (1915). 188 III. App. 323 (1914). 624 LAW OF AUTOMOBILES . tiff's automobile with such force that the latter was pushed .back- ward about 120 feet. . On the question of contributory negligence, it appeared that defendant's tracks were within the limits of the highway, and the plaintiff could use no other portion of the road, near the place of collision because pf the accumulation of snow-7-a condition due in part to the operation of defendant's snow ploughs ; that when plaintiff, saw the approaching car a quarter of a mile distant, he brought his machjne to a stop and endeavored, by means of a bulb horn and exhaust whistle, to warn the motprman of his: pres- ence, so that by conference they might arrange to pass each other; that apparently there was not sufficient time for plaintiff to back his machine to a place pf safety; that, even if plaintiff had sent his chauffeur ahead to stop the car \^hen it became apparent that his signals were unheeded, it did not appear that the chauffeur could have reached a point where his warning would prevent the collision. Verdict for the plaintiff was sustained.''' § 639. Meeting car in snow storm. Plaintiff drove an auto- mobile at a speed of IS miles an hour in a heavy snowstorm on trolley tracks covered with about 2 feet of snow on a 2 per cent downgrade, that is, a vertical drop of 2 feet in every 100 lineal feet, with snow beating in his eyes through a slight opening in the wind shield, which permitted him to see no farther than 25 feet ahead, kriowing tha't a trolley car was likely to approach him head- on from the opposite direction, and which he was looking for, which automobile, so then and there traveling, it appears could not be stopped within 45" feet, although he himself did not know within what distance he could have stopped it, when a trolley car appeared within the range of his vision, so limited, coming toward him at a speed of 8 iniles an hour, without giving any audible sig- nal, and with which he- collided, notwithstanding he did what he could to stop his automobile by working the clutch and brakes; and, as a result of the collision, his automobile was damaged and he himself was injiired. Held, that plaintiff was guilty of con- tributory negligence, and therefore not entitled to recover.*" § 640. Driving onto private right of way in center of street at night. The defendant owned a private right of way along 1'9 Richardson v. HaverhUl & A. St. 80 Savage v. Public Service Co., 89 R. Co., 218 Mass. 52, lOS N. E. 221 N. J. L. SS5, 99 Atl. 383 (1916). , (1914). COLLISIONS WITH STREET CARS 625 the center of a street, on which it operated a double line of trolley, tracks. The construction of the tracks was similar to that of steam railroads, and the right of way was inclosed by a heavy curb from four to twelve inches higher than the roadway east of the tracks. The plaintiff drove his automobile, on a moonlight night — at moderate speed, so he said-^along an intersecting street, and turned into the street in question, and onto the tracks of defendant, where the machine became stalled, and an express elec- tric car crashed into it. There was no evidence that the motor- man acted, wantonly or with malice. Held, that plaintiff could not recover for injuries so inflicted, and judgment in his favor was rpversed. In part the court said: "It must be conceded that the plaintiff had no right to cross these inclosed trolley tracks, which were for the exclusive use of the defendant company, and that he was a trespasser through his own lack of care in approaching Tyson avenue at such speed that he could not make the turn into the 16-foot roadway at the side of the tracks. He took no proper pre- cautions as he approached Tyson avenue, until, according to his own , testimony, it was too late , for him to make the turn and he did not even then stop his car, but took his chances in going over a double-track trolley line to get the roadway on the other side, at a place where there was no crossing. "The motorman on this express trolley car had no reason to anticipate the plaintiff's presence on these exclusive tracks of the company, which were constructed to expedite the travel between a large city and a popular resort. . . . The law does not require anyone to presume that another may be negligent, much less to presume that another may be an active wrongdoer. . . . , Where the company has the exclusive right to the use of its tracks, the person who enters upon the tracks becomes a trespasser, and the only duty imposed upon the company is to refrain from wantonly injuring the trespasser." *^ § 641. Driving on track to avoid vehicles in street. The plaintiff, driving his automobile in a southerly direction, approached where a number of vehicles were standing between the street ,car track and the curb on his side of the street. First there was a wagon and horse, the latter's head within three feet of the track, then an auto-truck, and a short distance beyond the auto-truck another wagon and horse standing in a similar position to the 81 Taylor v. Philadelphia R. T. Co., SS Pa. Super. Ct. 607 (1914). B. Autos. — 40 626 LAW OF AUTOMOBILES ' first. This rendered it Tiecessary for plaintiff to go on the track until past the last horse and wagon, or to go on the opposite (left) side of the track. Just as he turned in front of the firSt horse and wagon, he saw a street car of the defendant about 225 feet away, approaching from the rear at approximately 25 to 30 miles an hour. An automobile was on the other side of the track moving northerly. Plaintiff testified: "Well, I was turning around, had to go around the horse, and it put me on the track; I could not do anything else; If I had pulled across the street, it would have been against the law; I would have run into an automobile, be- sides." Plaintiff speeded up his automobile and tried to get past the second horse and wagon and turn off the track to the right, and jiist as he was leaving the track the rear of his automobile was struck by the car, and carried a distance of about 25 feet, badly damaging the machine. It was held that the case was for the jury; that even although plaintiff was negligent in going on the track, if, after he discovered the danger, he exercised reasonable care to extricate himself, his negligence ceased, and if the car was negligently caused to strike his automobile, such latter negligence was the proximate cause of the accident. Judgment for the plaintiff was affirmed.*^ § 642. Driving onto track to pass vehicle ahead. Where, in an action to recover for injuries incurred by plaintiff when a street car collided with an automobile truck which he was driving, it appeared that, knowing that the car was approcahing, he turned out to the left to pass a moving van traveling ahead of him, and which momentarily obscured his view of the car, where there was 18 feet of space in which he could have passed the van on the right, and sufficient space to the left between the van and the car if he could have straightened his truck in time, as he thought he could do in safety, it was held that he was guilty Of contributory negli- gence as matter of law.'* § 643. Conductor on running board struck by automobile. The plaintiff was conductor of an open trolley car, and while he was standing on the running board about 9 o'clock in the evening, attending to his duties, he was struck by a part of an automobile driven in the opposite direction from that in which the car was proceeding. The collision cut a deep gash in his leg, tore his cloth- ing, and threw him from the car. The trolley car was well lighted, 82 Week V. Reno Tr. Co.,v 38 Nev. 83 Brown v. Puget Sound El. R. Co., 28S, 149 Pac. 65 (191S). 76 Wash. 214, 13S Pac. 999 (1913). COLLISIONS WITH STREET CARS , 627 and the chauffeur saw it when he was some distance away. There was ample room on either side of the car for the automobile to have turned and avoided the collision. An iron hook, which extended outside the body of the automobile, and which held the top in place, was the part which struck plaintiff. Held, that the evidence was sufficient to sustain a verdict for the plaintiff.** §644. Automobile colliding with passenger riding on bumper of street car. The plaintiff, during a week of celebration in a large city, was riding on the "bumper" on the rear of a street car, which was filled to overflow with passengers. The defendant, driving his automobile, had been following the car for several blocks, stopping when the car stopped. On one occasion when the car stopped the ailtomobile did not stop until it ran against' the car, mashing plaintiff against the car and seriously injuring him. There was no obstruction between the automobile and the car, and plain- tiff was in full view of the defendant. It was held that the defend- ant could not claim that plaintiff had placed himself in a position of peril; that as to defendant such conduct of plaintiff did not amount to contributory negligence; that defendant, in performing his duty to look ahead, was bound to see plaintiff riding on the ■ bumper, arid that defendant had no right to bump against the car whether or not anyone was riding behind the dash. Accordingly, judgment for plaintiff was affirmed.** The mere ' fact that plaintiff's position made it possible for defendant's negligence to produce the injury, does not preclude recovery.*® § 645. Steering gear of automobile breaking. Where the oper- ator of an automobile made no attempt to stop his machine after learning that the steering gear would not work and that he could not guide it, which fact he became aware of just after cross- ing defendant's tracks in a northerly direction, but perpiitted the automobile to move in a circle, coming back to the south curb, from which point it immediately started back across the tracks again, and collided with a street car; and where the autpmobile was in no apparent danger until it started to approach the tracks the last time, between which moment and the collision th^ time was very brief, and there was no evidence that the motorman did not make every reasonable effort during that period to avoid the 84 Knight V. Continental Auto. Mfg. 86 Moore v. Hart, 171 Ky. 72S, 188 Co., 82 Conn. 291, 73 Atl. 7S1 (1909). S. W. 861 (1916). 86 Smith V. Heibel, 1S7 Mo. App. 177, 137 S. W. 70, S N. C. C. A. 107 (1911). 628 LAW OF AUTOMOBILES collision, it was held that the driver was negligent, and that there was po room for, the applieation of the last clear chance doctrine.*'' § 646. Following and colliding with car. Where a taxicab, moving at the rate of ten njiles an hour, can into a street car, which it was following, without the emergency brake being used, it was held that the question whether the accident was caused by the negligence of the chauffeur was for the jury.'* § 647. Stopping close to track. In an Action where it appeared that the plaintiff's automobile stopped close to a street car track and was struck by a car before he had time to crank it, it was held error to refuse to charge the jury that if the motorman saw the automobile in time to stop the car and took the risk of trying to run by without a collision, without slowing down to enable him to .stop before hitting the automobile, he was negligent.*® A motorist who stops his machine so clpse to the car track that it will be struck by an approaching street car, shQuld make an effort to save his property from damage, apd need not abandon - it to save himself from injury until it appears reasonably neces- sary.®" Plaintiff's driver, approaching an intersectiiig street, in which • defendant operated a street car line, cleared the house line, going a;t 6 to 8 miles an hour, and saw a car approachiiig at a very high rate of speed 90 or 100 feet away. He "had his automobile under perfect control and could have stopped it within three feet. The distance from Ihe curb line to the first rail was 22 feet. He stopped the automobile within a very short distance of the first rail, but so close to it that the rear end of the street car in passing, struck the front extension part of the automobile with either the overhanging step, or due to the swagging of the body of the car. Held that the driver was contributorily negligent and no recovery could be had.®^ The plaintiff's petition showed in substance that the motive power of his automobile gave out when the front of the machine was so close to defendant's street railway track that there was not room for one to stand between the end of the machine and the track without being struck by a passing car; that he stood between the 87 Kneeshaw v. Detroit United Ry., 90 Brien v. Detroit United R. Co., 247 169 Mich. 697, 13S N. W. 903 (1912). Fed. 693 (1917). 88 Swancutt v. Trout Auto Livery Co., 91 Kraus v. Beaver Valley Tr. Co., 176 III. App. 606 (1913).' 70 Pa. Super Ct. 161 (1918). 89Mertz V. Connecticut Co., 217 N. Y. 47S, 112 N. E. 166 (1916). COLLISIONS WITH STREET CARS 629 end of the automobile and the track -examining the mechanism of the -automobile; that the track was straight for a long distance both ways from the automobile; that his view was unobstructed; that he could have at any moment observed approaching cars; that while so engaged he was struck without warning by 9, street car going at high speed. Held, that a demurrer was properly sus- tained to such petition, as it showed the plaintiff to have been guilty of negligence. "A glance to the north or south, while stan4- ing in this dangerous position, would have informed him of the apjproach of any street car and enabled him to step out of the course of the car and thus have avoided the danger." '* § 648. Struck by overhang of street car rounding curve. Jp an action for injuries due to the plaintiff's automobile being struc!|l by the defendant's car, it appeared that the plaintiff had stopped his automobile .between the car track and the street curb on account of a crowd of foot travelers; that defendant's car, moving slowly and under the complete control of the motorman, turned the corner near the automobile; that the body of the car cleared the automo- bile but, in the turn, the steps, which were at the center of the car, struck the autompbile. The plaintiff testified that he thought he was far enough away for the car to pass, and that he could have moved farther away had he known he was too close; that when he saw the step would strike the automo"bile he tried to attract the motorman's attention, but without avail^ but did not try to move his automobile out of the way. The motorman saw the plaintiff, but the plaintiff was in a better position than the motorman to determine whether there was room to pass, he gave no signal to the contrary, and the motorman had a right to presume that there was no danger of a collision. It was held that the defendant's motorman was not negligent." Where, in an action for personal injuries sustained by the driver of a vehicle struck by the overhang of a street car in rounding a curve, the evidence showed that on the curve in question thA clearance between street cars using the two tracks varied from 6 inches upward, depending \ipon the position of the cars on the curve; that prior to the accident plaintiff was driving in the tracks on the proper side of the street; and that to have been struck by »2Lotharius v. Milwaukee El. R. & citing Beem v. Tama & T. El. R. & L. Co., 157 Wis. 184, 146 N. W. 1122 L. Co., 104 la. S63, 566, 73 N. W. (1914). 1045; Hayden v. Fair Haven & W. R. 93 Sharpnack v. Des Moines City R. Co., 76 Conn. 355, 364, 56 Atl. 613. Co., — la. — , (1908), lis N. W. 475, 630 LAW OF AUTOMOBILES the overhang of the car he must have turned onto the space between the two sets of tracks, as a car was approaching in plain view, it was held that he was guilty of contributory negligence barring recovery.®* § 649. Motorcyclist struck by trailer. Where a motorcyclist was overtaken by a street car, the front of which passed him at a distance of nearly two feet, and he was struck by the trailer, it was held that he must have been negligent, and recovery was denied.'^ § 650. Statutory presumption that collision was due to car company's negligence. A statutory presumption that a collision between a street car and an automobile was due to the fault of the street car company, is overthrown by evidence clearly showing that the car employees did everything possible to prevent an accident.'* ACT OR OMISSION OF STREET CAR OPERATIVES §651. Street car running on dark night without lights. The plaintiff, driving his automobile, was crossing defendant's tracks, at night, at the intersection of a street therewith, and was struck by a motor car, which was being backed over the crossing, and which carried no light of any kind, either outside or inside. His automobile was lightet^, but he did not see the car until it was within 5 feet of him, the night being dark. No warning of any kind was given of the approach of the car, which ran about 50 feet, push- ing the automobile, after the collision before it w^ stopped. Held, that the evidence was sufficient to support a verdict for plaintiff, and judgment in his favor was affirmed.^ § 652. Failure to sound warning signal. The plaintiff was a passenger in an automobile which came into collision with a car of defendant, where the wagon road on which the automobile was traveling crossed the car track obliquely, thus permitting the two vehicles to collide although both were going in a general northerly direction. The automobile, in approaching the crossing, was mov- ing about 10 or 12 miles an hour, a little ahead of the car, which was coasting down grade without any power being applied, and which was moving at about the same speed as the automobile, or perhaps somewhat faster. Shortly before reaching the crossing 94Sackai-nd v. Chicago Rys. Co., 185 96 Krebs v. Pascagoula St. R. & P. 111. App. 457. Co., 117 Miss. 771, 78 So. 753 (1918). 9B Hamilton v. Birmingham R., L. & 1 Bidwell v. Los Angeles & S. D. B. P. Co., 198 Ala. 630, 73 So. 950 (1917). R. Co., 169 Cal. 780, 148 Pac. 197 (1915). COLLISIOiSrS WITH STREET CARS 631 there was a stretch of sand in the road, and the chauffeur of the automobile, which had been coasting, put on power to carry him across the sand. When he reached a level space beyond the sand he again threw out the clutch and was carried by momentum, gradually slowing down, until he reached the foot of a rise leading to the track. At this point he again threw in the clutch, applying the power, and thus went up the ascent and on to the track, where the automobile was struck by the car, and plaintiff was injured. According to the testimony of the chauffeur and of his five or six passengers, not one of them had seen the car or heard ^ny bell or whistle giving warning of its approach. On the other hand a num- ber of witnesses, who were not impeached in any way, testified that both bell and whistle had been sounded repeatedly as the street car approached the crossing. The motorman of the car saw the automobile when it was 250 feet from the crossing. He stated that at that point he put a little pressure on the air brakes. He testified that the automobile continued at the same speed lintil it came to the rise near the crossing, where it checked its speed, lead- ing him to think it was going to stop, but that it started up again and kept right on to the track. When it started up at the point mentioned, the motorman reversed his engine (the car being pro- pelled by a gasoline motor), and applied his emergency brake. He was then only 50 feet from the crossing, and the car could not be stopped in that distance. It was held that the evidence that the motorman did not sound any warning was sufficient to take the case to the jury on the ques^ tion of the defendant's negligence, although there was positive evi- dence that such warning was given. "If they (plaintiff's witnesses) were so situated, as they undoubtedly were, as to have been able to hear a bell or whistle sounded from the car, their failure to hear is some evidence that no such signal was given. That there was positive testimony to the contrary does not conclusively estab- lish that a warning was given. It creates merely a conflict of tes- timony, which is finally resolved, so far as this court is concerned, by the verdict of the jury." It was also held that plaintiff was not chargeable' with the negli- gence of the chauffeur, the automobile being a hired one, the plain- tiff not having hired it, and having no control over the chauffeur. On the question of the plaintiff's exercise of due care, there was evidence that she was a stranger in that vicinity, did not know that their way crossed a railway track, and did not see the car that struck them. "Under these circumstances," said the court, "it cer- tainly cannot be said, as matter of law, that she was negligent in 632 LAW OF AUTOMOBILES failing to call the attention of the chauffeur to the danger of the situation." ^ The failure of the street car company to sound a warning of the approach of a car to a crossing, where the car collided with ah automobile, did not relieve the ; motorist of the consequences of his own negligence. If the motorist could have avoided the colli- sion by the exercise of ordinary care and did not do so, he was barred of recovery by such negligence.^ If a motorist sees a street car approaching, failure of the motor- man to ring gong for crossing is not the proximate cause of a colli- sion between them.* § 653. Oar backing into "Y." The defendant had two street cars standing side by side on its double tracks* on a north and south street. Just at the moment when the east car started to back across behind the west car on the "Y" which led to the power plant, plaintiff was approaching on a motor-cycle from the north between the west track and the curb. After seeing the backing car across his path, he was unable to stop before reaching it, and as a, result a collision occurred in which both plaintiff and motor- cycle received injuries. Taking as a basis plaintiff's statement that he was going 8 miles an hour, and that he was 1 1 feet north of' the west car when he discovered the backing car, defendant arrived at the conclusion that plaintiff must have been 46 feet and upwairds north of the obstructing car when he first saw it, and the argument was made that, had he used reasonable care, he could have avoided the collision. Plaintiff testified that he was in the habit of passing this point going to and from his work at the Ford automobile plant; that he had seen cars back onto the "Y" in the morning and even- ing, but not at other times of the day; that when he had seen cars back onto the "Y" a watchman was in charge to protect travelers. It was shown that the watchman was there on this occasion, but that he gave no signal nor warning; in fact, he did not claim that he did. Holding that the questions raised were for the jury, and affirming judgment for the plaintiff, the court in part said: "If it were the custom established by the defendant to guard such operations, plaintiff had a right to rely upon this being done on that occasion, a Thompson v. Los Angeles & S. D. 4 Upton v. United Rys. & El. Co., -r B. R. Co., 16S Cal. 748, 134 Pac. 709, Md. — , 110 Atl. 484 (1920); Blanchard 4 N. C. C. A. 379 (1913). v. Puget Sound Tr., L. & P. Co., 105 «Hedmark v. Chicago Rys. Co., 192 Wash. 226, 177 Pac. 822 (1919). 111. App.'S84 (191S). COLLISIONS WITH STREET CARS 633 at least up to the time when he could observe that the usual cus- tom was not going to be observed. It cannot be said as a matter of law that plaintiff was guilty of negligence for assuming that the defendant would do what it had habitually done in the past." ' In an action to recover for injuries sustained in a collision between the taxicab in which plaintiff was riding and a backing street car, evidence tending to show that the street car was stopped and suddenly, without warning, backed onto a Y, when the con- ductor, instead of being on the rear of the car acting as lookout, was in the forward portion where he could not see the taxicab, was held to support a verdict for the plaintiff.® § 654. Street car overtaking and colliding with automobile. The plaintiff, with his brother, was traveling north on a public street in his automobile, which was lighted front and rear, and turned to the left onto the east car track in order to pass some wagons that obstructed the right side, of the street. He looked back and observed a street car about 400 feet away approaching them from the rear, but they could not tell how fast it was trav- eling. They did not look again, but assumed that the car would not overtake them if run at reasonable speed, and that the motor- man, in any event, would not run into them without warning. They had traveled some 250 or 300 feet, at about 15 miles an hour, when they were overtaken by the car, which struck the automobile with- out slackening speed, and without any warning of its approach. A city ordinance introduced in evidence limited the speed of street cars to 12 miles an hour. In affirming judgment for plaintiff, the court said: "The fact that a street car must run on a fixed and unalterable course gives it a right to require slower vehicles ahead to turn off its track on proper warning being given, but its motorman has no right to run it over a public and much-used street at excessive speed and crash into other vehicles without warning. We perceive no reason for the idea that the driver of a vehicle traveling along that part of the street occupied by a car track must keep looking behind to guard against being overtaken and run down by a street car. Observing the car so far away that it would not overtake him if run at rea- sonable speed plaintiff had a right to proceed along the track until warned by a signal that the motorman desired to pass him. An automobile itself is a speedy and, if negligently handled, a dan- gerous vehicle, and a rule that would require its driver to divide fi Tiley v. Detroit United Ry., 190 « Galloway v. Detroit United Ry., 168 Mich. 7, 1S5 N. W. 728 (1916). Mich. 343, 134 N. W. 10 (1912). 634 LAW OF AUTOMOBILES his attention between the way in front and the way behind Ivould be senseless and dangerous in its consequences. Plaintiff cannot be held guilty in law of negligence either in turning on to tlie track or in failing to look back after so doing." '' There was a similar holding in a companion case to the foregoing, in which the brother of the owner of the automobile, who was in the automobile at the time of the collision, was plaintiff. The court held that this case, the facts being the same as related in the last cited case, could not be brought within iJie reason of cases where a vehicle is turned onto a street car track immediately in front of an approaching car. Further the court said: "If plaintiff was not neg- ligent' in being upon the track at the time and in the circumstances, traveling in the direction the car was coming, then, of course, he was entitled to a verdict. If it was negligence in plaintiff, it is clear that his negligence must have been observed by the motor-' man. He knew the speed he was coming. He must have known, if he looked at all, that he would strike iij a moment of so, and yet he kept on at full speed without sounding a note of warning," * § 655. Trolley pole breaking and falling on automobile. An electric street car of the defendant was proceeding southerly on the westerly side of a public highway at a speed of 40 or 50 miles an hour, and was swaying from side to side. The plaintiff was driving his automobile in a northerly direction on tJie highway, exerpising due care. The trolley wheel left the wire when the car was about 400 feet distant froi;i the automobile; the trolley pole, after some violent movements up and down, was broken off near the base, hurled into the air and thrown against the left forward wheel of the automobile, causing it to be turned sharply to the right, toward a bank, and the plaintiff, exp^ting that his machine was a:bout to "turn turtle," jumped out and was injured. The electric car was not brought to a stop until it had gone 200 or 300 feet beyond the automobile. The court held that the evidence was for the' jury, and judgment for the plaintiff was upheld. In passing upon the sufficiency of the plaintiff's evidence, the court said: "Unless some explanation was offered, the fact that the iron trolley pole, while being used for the purpose for which it was designed, broke and was thrown 'Bruening v. Metropolitan St. R. Co., SBruening v. Metropolitan St. R. Co., 180 Mo. App. 434, 168 S. W. 248 (1914). 181 Mo. App. 264, 168 S. W. 247 <1914). Also, Alshuler v. Milwaukee El. R. & L. Co., 169 Wis. 477, 173 N. W. 304 (1919). ' COLLISIONS WITH STREET CARS 635 violently from the car would warrant an inference that reasonable care had not been taken to make the apparatus safe; and that the negligence prima facie was that of the defendant, which had exclu- sive control and management of the car. If, however, the evidence explained the cause of the breaking of the trolley pole, then there was no occasion to resort to presumption, and the jury must deter- mine from the facts as shown whether the accident was due to neg- ligence on the part of the defendant. But the mere fact that the parties offered direct evidence to explain the occurrence and failed in the attempted explanation, would not deprive the plaintiff of the benefit of the presumption of culpability arising from the doc- trine of res ipsa loquitur." ' § 656. Automobile seen 100 feet distant. Where a motormaji saw an automobile truck was attempting to cross the track ahead of his car when he was 100 feet distant therefrom,, and he made no effort to stop his car until within a few feet of the truck, which his car struck before it got across, the question whether he used due care was for the jury.^" §657. Street car leaving track— Res ipsa loquitur. The plaintiff was driving his automobile on a city street, and when he came to the house line of an intersecting street he saw a car approaching. Instead of stopping or attempting to cross iii front of the car, he turned the corner so as to proceed in the same direc- tion as the car. The rear of his automobile was struck by the car, which had jumped the track, and the force of the collision car- ried the automobile 24 feet, and the street car to the curb. Held, that the case was for th^ jury, and judgment for plaintiff was affirmed. The court cited as authority a case where a pedestrian was injured by the derailment of freight cars, and in which it was held that defective condition of the tracks or cars could be inferred from the speed of the cars and the curve of the track. The court c^uoted from the opinion in that case as follows: "It no doubt will be conceded that freight cars do not ordinarily leave their tracks in rounding curves. When they do so, the natural infer- ence is either the tracks or cars were in a defective condition or the method of operating the train faulty. If circumstances are shown from which the jury would be justified in finding one of 9 Hull V. Berkshire St. R. Co., 217 lOGranader v. Detroit U. R. Co., 206 Mass. 361, 104 N. E. 747 (1914). Mich. 367, 171 N. W. 362 (1919). 636 LAW OF AUTOMOBILES these causes, rather than another, was the origin of the aecidppt, it is sufficient." ^^ § 658. Excessive speed of car. In an action to recover for personal injuries and for damage to plaintiff's automobile, it appeared that the plaintiff was proceeding, at S to 8 ^iles an hour, southerly along a much used public avenue, west of the street car tracks therein, and that when her machine turned across the tracks to enter a road which intersected the ayenue from the east, a street car of defendant struck it at the front wheels, dam- aging the machine and injuring the plaintiff; that the accident occurred about 9 or 9:30 p.m.; that just before going on the track plaintiff looked first south and then north, and, not seeiiig any car, the automobile turned toward the tracks, and as it neared the east track, plaintiff saw a car coming from the south at 30 or 35 miles an hour; that her husband, who was driving, stopped the machine, but not in time to avoid a collision, the machine being struck before he could back it out of danger; that when plaintiff and her husband first saw the car it was 220 feet away; that it was necessary for the automobile to come to a stop before it could be reversed; that to instantly supply enough gasoline to greatly increase the speed of the machine, in order to get out of the way, would have resulted in killing the engine. In affirming judgment for the plaintiff, the court in part said: "If the car could have been seen a long way down the track, plain- tiff had the right to assume that it would' be traveling at a rea- sonable, or at least not an unlawful, speed, and, consequently, in the few seconds elapsing between the look south and the look north, plaintiff would not as matter of law, be guilty of contrib- utory negligence in starting across, or in believing that, until she again looked south, she had time to get safely over before a- car would come. ... If the car had been going at a proper rate of speed it would not have been able to reach the crossing in the time between plaintiff's first look south and the time of collision, and this would show, or at least justify the jury in finding, that it was the excessive speed that caused the injury and not the alleged negligence of plaintiff." ^^ Evidence tending to show that the street car which struck the automobile in question was moving 25 or 30 miles an hour in a 11 Tommasulo v. Philadelphia R. T. l8Byerley v. Metropolitan St. R. Co., Co., 71 Pa. Super. Ct. 301 (1919), 'quot- 172 Mo. App. 470, 158 S. W. 413 (1913). ing from Janock v. Baltimore & 0. R. Co., 2S2 Pa. St. 199. COLLISIONS WITH STREET CARS 637 city, that it was equipped with a handbrake only, that it struck the automobile, which, with its occupants, weighed 3,700 pounds, aijd shoved it along the pavement sidewise for 100 feet, was suffi- cient to go to the jury on the question of the motorman's negli- gence.^* § 659. Excessive speed of car at crossing. The plaintiff's 9- year-old son was killed in a collision between a motor truck on which he was riding and a street car of defendant. The accident happened about 5:30 o'clock on a June afternoon, on Seventh street in Highlandtown, Md., just as the truck had entered that street from Claremont street on the west. The street car was pass- ing in a southerly direction. The motor truck, weighing, with its load of canned tomatoes, upwards of seven tons, was being driven at a moderate speed as it approached the place of the accident. It was the purpose of the chauffeur to turn north on Seventh street after entering it froni Claremont street, which terminated at that point; In order to accomplish this movement he intended to drive across the electric railway track, which was located along the middle of Seventh street, and then proceed northerly on the right-hand side of that thoroughfare. As lie was nearing Seventh street he sounded his horn and reduced the speed of the truck. There were trees along the sidewalk on the west side of Seventh street, t(? the north, which obstructed his view of the track in that direction. The first opportunity he had to look north along the track was when the front wheels of the motor truck were passing over the gutter extending across the end of Claremont street, and when the forward end of the truck was distant only 6 or 7 feet from the west side of the railway. The chauffeur then for the first time saw an electric car, with a second one attached, coming south towards the crossing at high speed. The leading car was then approximately 44 feet from the point at which the truck was about to cross. No signal of the approach, pf the cars had been given, and no attempt appears to have been made to lower the excessive speed, as shown by the proof, at which they were moving, In an effort to avoid a collision the chauffeur turned the motor truck towards the south, but its momentum, which he said there was not time enough to overcome with the brake, carried it partly over the west rail of the track and the foremost car struck it in the region of the left front wheel. The forward portion of the car was 13 Omaha & C. B. St. R. Co. v. Mc- Keenan, 162 C. C. A, 4S6, 2S0 Fed. 386 (1918). 638 LAW OF AUTOMOBILES thrown off the track as a result of the impact, the rear wheels remaining on the rails. After the collision the front of the car rested against a trolley pole to the east of the track and about 17 feet distant. The rear car was not derailed. The cars were in charge of a motorman and shopman who hurriedly left the scene of the accident immediately after its occurrence. It was held that the questions of negligence and contributory negligence were for the jury, and judgment for the plaintiff was affirmed.^* The running of an interurban car across city streets at 10 to 15 miles an hour is not negligence per se}^ §660. Same— Automobile reducing speed on track. The plaintiff was driving a heavy automobile at about 6 miles an hour, approaching a grade crossing of the defebdant's trolley line. When about IS feet from the nearer rail he saw a car approaching about 250 feet distant. Thinking he had time to cross in safety, he pro- ceeded at increased speed, and when at the first rail of the track, the car was 160 feet away. The front part of the automobile had crossed in safety, when the automobile was struck by the car, going 30 to 35 miles an hour, and was hurled 15 to 18 feet along the track. An ordinance of the city, offered in evidence, required the motorman to "shut off the current, slow up the car and reduce the speed to 5 miles an hour when approaching any street or road, and to have the car under full control." It appeared that when the automobile entered upon the track it would not take gas as it should, and would not go across the track as, fast as intended by the driver, which delayed in some degree the passage across the tracks. In affirming judgment for the plaintiff, the court in part said : "It is not evident that the plaintiff made a miscalculation of the time it woulci take the car to reach the crossing had it approached under the usual speed, and he was not bound to mathematical accuracy in determining this question. True it is, that he knew the crossing was a dangerous one, and that he was driving his own car, with which he was familiar. The unexpected failure of the car 'to take hold of the gas' was outside of his calculations, but he was not bound to -anticipate that this unlooked for thing should happen at that critical moment." Speaking of the duty of the motorman the court said: "He was bound to know, just as well as the driver of the automobile, that "United Rys. & El. Co. v. State to 33S, 90 N. E. 764 (1909), rev'g 87 N. E. Vit, 127 Md. 197, 96 Atl. 261 (1915). 1103. IB Union Tr. Co. v, Howard, 173 Ind. COLLISIONS WITH STREET CARS 639 machinery will at times not respond as it is desired, and to avoid such collisions by the exercise of reasonable precautions. It is the unbending rule of the law, that at such crossings, where each had a right to use the crossing and each owed a correlative duty to the othpr, the car must give timely warning and be under guarded speed, and the traveler must approach it with proper caution." ^* § 661. High speed — Mistake, in judgment by motorman. Where it appeared that a street car was being operated in a thickly settled part of the city at a high rate of speed, and when 100 feet from a crossing the motorman realized that the plaintiff's deceased was attempting to drive across the track, and that the motorman did not take extreme measures to stop because he thought that the deceased had time to cross safely, and the car struck the deceased, the case was held to be for the jury.^' § 662. High speed— No signal. Plaintiff was riding in an automobile, when, according to the testimony, a car of the defend- ant company approached the crossing at a speed of from 35 to 40 miles an hour, without giving any warning of its approach. The plaintiff testified that he approached the trolley track at very low speed; that he had a view along the track for 180 or 190 feet in the direction from which the car came; that he looked in that direction, and neither saw nor heard it coniing; that when his automobile was close to the track he saw the car for the first time coming towards him, at great speed, and it was impossible for him to stop his automobile before getting upon the track. Held, that the case was for the jury on both questions of neg- ligence and contributory negligence.^' It has been held that evidence that an interurban electric car was run 30 or more miles an hour, and that no warning signal was given until the car was within some 300 or 400 feet of, a public crossing, justified a finding of negligence.^' Where a motor-cyclist, moving at about 6 miles an hour, turned into a street, 40 or 50 feet wide, with a car track in the center of it, after having looked and listened for an approaching car, and having heard and seen none, but his view to the south was obscured by a house on the corner, and when he cleared the house he saw a car about 40 feet distant, approaching at about 20 miles iBBickley v. Southern P. Tr. Co., 56 260 Pa. St. 463, 103 Atl. 918 (1918). Pa. Super. Ct. 113 (1914). 19 Jackson v. Southwest Missouri R. "Hickey v. Detroit United Ry., 202 Co., 171 Mo. App. 430, 156 S. W. 1005 Mich. 496, 168 N. W. 517 (1918). (1913), aff'd in — Mo. — , 189 S. W. iSRothrock V. Lehigh Valley Tr. Co., 381 (1916). 640 LAW OF AUTOMOBILES an hour, and before he could pedal his machine out of the. way; he having shut off the power at the corner, he was struck by the swelled side of the car just back of the vestibule, and there was ho gong sounded on the car, and the motorman did Hot see him until after the collision, it was held that the case was for the jury.^" § 663. Same— Rainy night. Where there was evidence that a street car which collided with a taxicab was moving at a high rate of speed, and in excess of that permitted by ordinance; tha:t no wirning was given of its approach; that the accident occurred at night, during a heavy rain; that an arc light at the street intersection tended to obliterate the light on the street car; that the automobile almost stopped before going on the track, and the driver and occupants were in a position to hear a warning signal of the approach of the car had one been given, it was held that the case was for the jury, and judgment for plaintiff was affirmed.*^ § 664. High speed— View partly obscured by another car. In an action to recover for injuries resulting from a, collision be- tween the automobile in which plaintiff was riding and a street car of defendant at streets known as Piquette and Woodward avenues, the plaintiff's evidence^ended to show that the street car was being operated at the rate of 30 miles an hour; that the motorman could have observed the automobile for nearly 100 feet before the colli- sion took place; that no effort was made upon his part to stop the car, nor slacken its speed before it reached Piquette avenue, although it was shown that it could have been stopped within SO or 60 feet. It further appeared that the operation of the car at the rate of 30 miles an hour was not only unsafe in that locality on account of the density of traffic, but was in violation of the city ordinance. In regard to plaintiff's contributory .negligence there was evi- dence of the following: He looked in both directions, but saw no car, save a south-bound car, which had passed him a few moments before. A north-bound car was approaching, but was obscured from view by the" south-bound car. While he was proceeding at the rate of from 8 to 10 miles an hour across the west track,' he observed the north-bound car about 75 feet distant. He kept going as he thought he could clear it. After looking north and east, he glanced to the south again just as the automobile was entering on the east track. The street car was then not more than • \ 20 Robinson v. Springfield St. R. Co., 21 Ward v. Ft. Smith L. & T. Co., 2U Mass. 483, 98 N. E. 576 (1912). 123 Ark. 548, 185 S. W. 1085 (1916). B. Autos. — 41 COLLISIONS WITH STREET CARS 641 SO feet away. He hastened the speed of his automobile, still think- ing he could cross in safety, but before he could do so his car was struck and the injury done. At the moment he turned his car toward the east, his line of vision extended over 100 feet south on the east track, and no car was in sight. It cannot be said as a matter of law that he was guilty of contributory negligence in going onto the west track under such circumstances. The car was SO feet away when he entered on the east track. At that moment he thought he could cross before the car reachd him. Judgment for the plaintiff was affirmed, the court in part saying: "For concluding to go across the east track, we cannot say as a matter of law that he was guilty of contributory negligence, con- sidering the situation he was in. His judgment was that he could cross in safety, and there is room for believing that his judgment would have been verified had the motorman done what the driver of the automobile had a right to expect he would do under the circumstances. This is made probable by the fact that the auto- mobile was struck near the center of the rear wheel. A moment more and the automobile would have cleared. Under the testimony presented, the negligence of the driver of the automobile was obviously a question of fact and not of law, and the trial court was not in error in submitting it to the jury." ** § 665. Motorman signalling motorist to cross, then starting car. Where the motorman of a street car signaled a motorist to cross in front of the street car, and then started his car, gradually increasing its speed to about 12 miles an hour, and then tried to shut off his power, but struck the front part of plaintiff's machine, and it appeared that when plaintiff was signaled to he was about 8 or 10 feet from the track, moving 6 miles an hour, and could have stopped in five feet, it was held that such evidence showed the plaintiff to have been free of contributory negligence, as he had a right to assume that the motorman would keep the street car under control, and to show negligence on the part of the motorman.** §666. Motorman signalling motorist to cross— Struck by another car. In an action against a street railroad company for injuries to an automobile which was struck by a car, it was shown that the motorman of a stalled street car motioned to the operator of an automobile to cross the tracks in front of the car. The operator of the automobile stood up and saw another car with M Prince V. Detroit United R. Co., 192 28Kalrtowitz v. New York City I. Mich. 194, 1S8 N. W. 861 (1916). R. Co., 162 N. Y. Supp. 606 (1917). 642 LAW OF AUTOMOBILES which he later collided approaching at a distance of about seventy- five feet, and, nevertheless, proceeded to cross the track at slow speed and the automobile was hit by the car and damaged. Held: that the act of the motorman in signaling the operator was not neg- ligent; it not appearing that the motorman was acting for the general operation of the road, or that he meant more than that there was room to pass in front of his car and that he would wait.^* § 667. Street car at high speed striking slowly moving truck, visible for long' distance. In an action by the driver of a truck to recover for injuries received when a car of defendant col- lided with his truck, there was evidence that the plaintiff stopped his truck within two feet of the track when he made his first observation that could be made; that no car was then in sight; that he then started at a speed of two miles an hour, to cross the track obliquely; that when his first wheel was on the track he noticed the electric car 300 feet away; that his truck then trav- eled 27 feet, when it was struck; that the car was running at a high rate of speed, and that the motorman had an opportunity to notice the truck for a distance of 400 to 500 feet. Held, that the case was for the jury, and judgment for the plaintiff was affirmed-^' §668. Excessive speed not essential to wantonness. A motor- ist whose machine has been struck by a street car, need not show excessive speed to support an allegation of wanton injury.^® § 669. Motorman unable to stop within limit of his vision. Where a motorman ran his car at such a rate of speed in a storm that he could not stop within the range of his vision, and collided with an automobile stalled on the track, he was held to be neg- ligent as matter of law.*'' LAST CLEAR CHANCE DOCTRINE § 670. Generally— Illustrations. The trial court correctly charged that after his truck was negligently driven between the street car tracks, and the plaintiff was in a position of peril, and his own negligence had ceased, the , defendant would be liable if it saw, or by the exercise of ordinary care could, have seen him in 8* Hirsch v. Interurban St. R. Co., 26 Mobile L. & R. Co. v. McEvoy, — 94 N. Y. Supp. 330. Ala. App. —,"75 So. 191 (1917). 2B Francis v. Ardmore & L. St. R. Co., 27 Fischer v. Michigan R. Co., 203 66 Pa. Super. Ct. 497 (1917). Mich. 668, 169 N. W. 819 (1918). COLLISIONS WITH STREET CARS 643 such position in time to avoid injuring him, and failed to do so.^' If the chauffeur of a truck was oblivious of his danger because he made an erroneous estimate of the relative speed of the truck a:nd an approaching street car, the last glear chance doctrine applied, although he was aware that the street car was approach- ing.29 , Where a street car, moving at a high rate of speed, was about 90 feet from the point where it collided with plaintiff's electric automobile when the automobile initiated, the movement to cross the track, and the motorman made no effort to stop his car, and there was evidence that in that distance the street car could, with reasonable effort, have been stopped or its speed greatly lessened^ it was held that the humanitarian doctrine was applicable, and judgment for the plaintiff was affirmed.'" If a, motorist carelessly drives upon a street car track so closely in front of an approaching car that the motorman has not rea- sonable time to become aware of his presence, and by the exer- cise of ordinary care, and with due regard to the safety of those in his charge, to avert a collision, no recovery can be had under the last clear chance doctrine.'^ In an action to recover for damage to an auto truck, caused in a collision between it and a street car of the defendant, when the plaintiff's driver drove onto the track when both his and the motor- man's view was unobstructed, and there was evidence tending to show that both the driver and the motorman were negligent, and in which it was held that the showing of negligence on the part of the driver was not conclusive of the case, the court said: "It still remained to be determined whether 'this negligence on the part of the plaintiff's driver was such as entitled it to be regarded as a proximate cause of the accidSnt, thereby defeating the plaintiff's right of recovery, or only a remote cause. The answer to this question involved an inquiry into the conduct of -the two parties to the affair subsequent to the time the truck driver guided his machine into a place of danger. If the latter thereafter acted with due care, and no negligent conduct on his part complicated the situation, or entered into it as a factor, and reasonably prudent 28Atherton v. Topeka R. Co., — Kan. Mo. App. — , 204 S. W. 1129 (1918). — , 190 Pac. 430 (1920). Also, Armour 30 Flack v. Metropolitan St. R. Co., & Co. V. Alabama Power Co., — Ala., 162 Mio. App. 6S0, 145 S. W. 110 (1912). App. — , 84 So. 628 (1920) ; Reed v. SI Sethman v. Union Depot B. & T. Tacoma R. & P. Co., — Wash.. — 188 R. Co., — Mo. App. —,,218 S. W. 879 Pac. 409 (1920). (1919). 29 King V. Kansas City Rys. Co., — 644 LAW OF AUTOMOBILES conduct on the part of the motorman, after he became,, or in the exercise of due care should have become, aware of the peril to which the truck was exposed, would have prevented the collision, his failure to so conduct himself would amount to supervening negligence on his part which would be regarded as the proximate cause of the accident which resulted, and relegate the truck driver's prior negligence to thle position of remote cause only. If, on the other hand, the truck driver's subsequent conduct failed to measure up to the standard of reasonable prudence, the situation would be different, and similar conduct on the part of the motorman might . create one of concurrent negligence; both parties in that event being proximate contributors to the result." *^ In an action to recover for injuries incurred in a collision between a street car and an automobile in which the plaintiff was riding as a passenger, the court said: "The inference is strong that had the motorman done what he says he did, viz., applied the brakes when he first saw the danger, the car, then from SO to 6a feet away from the place of collision, would have been stopped in that space, or, at least, its speed would have been so materially reduced that the automobile would have cleared the crossing. The evidence of the plaintiff tends to show that the motorman did nothing towards stopping until the instant of the collision. If this is so, and the jury were entitled to find that it was so, the motorman was guilty of a breach of his duty towards plaintiff under the 'last chance' rule and defendant's liability for the consequences of such breach cannot be affected in any way by the negligence of the chauffeur, or even by the negligence of plaintiff, himself, that caused or helped to cause the danger. The humanitarian rule takes no account of how the danger was created but confines itself to the inquiry of whether or not a reasonably careful and prudent man in the situation of the operator of the threatening instrumen- tality would have discovered and averted the danger had he exer- cised reasonable care." '® Under the doctrine of discovered peril, if the motorrtian of a street car, after discovering the perilous situation of an autoist on the track ahead of him, fails to use all means and appliances at his command, with reasonable haste, to avoid an accident, he is guilty 8« Hygienic Ice Co. V. Connecticut Co., 1S7 Mo. App. 504, W S. W. 1029 90 Conn. 21, 96 Atl. 152 (1915). (1911). SSRush V. Metropolitan St. R. Co., COLLISIONS WITH STREET CARS 645 of negligence justifying a recovery against his employer for the consequent damages.'* The doctrine of last clear chance was held not to apply where it appeared that the deceased approached defendant's track on a motorcycle at the rate of SO feet a second, in a street where the motorman of the car which struck him could see him not more than a second before the collision. Recovery was accordingly denied.'* ' If the motorman cannot stop his car in the exercise of thd required care after discovering that the automobile is in danger, this doctrine does not apply .'^ One may have been negligent in backing his automobile out of a driyeway and onto a street railway track, where he was struck by a street car, and still recover under the humanitarian doctrine." § 671. Instructions to jury. In an action to recover damages for injuries caused by a collision between plaintiff's automobile and a street car of defendant, an instruction charging the jury that the plaintiff was entitled to recover for an injury due to defend- ant's negligence notwithstanding his own negligence exposed him to the risk of injury, if the injury to the plaintiff was proximately caused by the negligent act or omission of the defendant, after having such notice of the plaintiff's danger as would put a pru- dent man on his guard to use ordinary care to avoid such injury, was held to properly state the law, it appearing that there was evidence furnishing a basis for the instruction." "If you believe from the evidence that the automobile came upon or near the track in front of the car and was then in a posi- tion to be struck by the car, and the motorman saw, or by the exer- cise of ordinary care could have seen, that the automobile was in a position of danger, and that the street car was then far enough back from the automobile for the motorman, in the, exercise of ordi- nary care with the means at his command, to have slowed or stopped the car so as to have avoided striking the automobile, and he negli- gently failed to do so, the law is for the plaintiff, although the per- son operating the automobile was also negligent." " 3* El Paso El. R. Co. V. Davidson, — STDaso v. Jefferson City B. & T. Tex. Civ. App. — , 162 S. W. 937 Co., — Mo. App. — , 189 S. W. 400 (1913). (1916). *6Schoenhard v. Dunham, — Mo. SSBozinch v. Chicago Rys. Co., 187 App. — , 187 S. W. 273 (1916). 111. App. 8 (1914). '6 Arnold v. San Francisco-Oakland 89 Roseberry v. Louisville R. Co., 168 Ter. Rys., 175 Cal. 1, 164 Pac. 798 Ky. 277, 181 S. W. 1117 (1916). (1917). 646 LAW OF AUTOMCWBILES § 672. Instruction under vigilant watch ordinance, tinder a vigilant watch ordinance which makes a street railway company responsible for the failure of its motorman to exercise ordinary c^rfe to stop his car by use of the appliances at hand and with siaietf to the passengers on his car in order to avoid a collision, an instruction which perrhits recovery if the jury find that the motor- man could have avoided colliding with the motor truck in question after the motorman saw, or by the exercise of ordinary care could have seen, the truck in danger of being struck by his car, "within the shortest time and space possible under the circumstances;" con- stitutes reversible error, notwithstanding the ordinance requires that on the first appearance of danger to persons or vehicles "the car shall be stopped in the shortest time and space possible." "We think that it is misleading to incorporate the ordinance bodily; in an ..instruction to the jury, and that in its stead, when the pleadjings and the evidence call fpr it, the approved form of an instruction declarative of the humanitarian doctrine should be given." *" § 673. Concurring negligence. In Alabama the last clear chance rule was laid down in a case involving a collision between a street car and the plaintiff's automobile, that while the plaintiff's negligence in being on the track would defeat a recovery for initial or antecedent negligence, yet he could recover if defendant's serv- ants, in charge of the car, became awa,re of his pe.ril in time to avoid running him down by the proper use of preventive means to conserve his safety, provided the plaintiff was free from negligence^ after becoming conscious of his danger. In this case the following was held to be good as a plea setting up' the continuing or concurring negligence of the plaintiff: "Defend-' ant says that the driver of said automobile, at the time and place complained of, was guilty of negligence which proximately con- tributed to the alleged damage to said automobile, which negli-^ gence consisted in this : Said driver of said automobile with knowl- edge that defendant's car was approaching on said street car track, and that it was probable or likely that the said automobile he was driving down defendant's said track could not likely mount the rziils of the said track and get out of the way of danger froni being struck by said car then and there approaching, nevertheless he negligently continued to drive said autorhobile down said track at a high rate of speed in the direction of the said car, which was approaching, meeting said car, and as a proximate consequence of 40Vogt V. United Rys. Co., — Mo. App. — 219 S. W.,997 (1920). COLLISIONS WITH STREET iCARS , 647 the said negligence of said driver said car collided with said auto- mobile, causing the damage complained of." " § 674. No apparent danger until too late to stop street car. The plaintiff, in her automobile with two daughters and a chauf- feur, was riding west on a public street.. She and one daughter occupied the back seat, whil* the other daughter sat at the steer- ing wheel learning to drive, with the chauffeur seated at her left. This daughter had had but two hours' previous experience, and there was an understanding that when the chauffeur laid his hand on the wheel, the girl was to resign the wheel and exchange seats with the f hauffeur. While crossing a track in an intersecting street the automobile was struck by a street car and. it and thq plaintiff were injured. Recovery was sought under the last clear chance doctrine. The daughter who was driving testified that when the automobile was SO^feet from the track, her mother called to her that the street car was coming; that the car was then 100 feet away and coming very rapidly. The testimony showed, liowever, that the car was moving 10 miles an hour. The moment the mother warned the daughter of the car, the chauffeur and the girl exchanged places. The plaintiff testified that when she first saw the car it was 150 feet away; that she raised up and said "here comes the car," and the two in front changed seats ; that when she saw the car was getting so near it made her nervous and she rose again and Waved her handkerchief; that when she warned those in the autornpbile of the approach of the car the automobile was SO feet from the track, and the car was 100 feet away; that just about when they were about to enter on the track or some- thing like that she waved her handkerchief at the street car; and that at this time the car was crossing the street. At the close of plaintiff's evidence the trial court directed a verdict in defend- ant's favor. In affirming judgment for the defendant the court said: "As plaintiff's automobile was in the middle of the street, then the street car was only half the width of that street away when or just about when the automobile was about to enter upon the track. As the occupants of the automobile gave every indication that they saw the car and were alive to its danger, the motorman had a right to believe that they would not leave a place of safety and enter a place of danger until the car was about to enter upon the track "Birmingham R., L. & P. Co. v. Aetna A. & L. Co., 184 Ala. 601, 64 So. 44 (1913). 648 LAW OF AUTOMOBILES and the handkerchief was waved. After that he had to take in the situation, co-ordinate his muscles and stop the car, going at ten miles an hour, in the time it took the automobile to go half its own length. This is too Short a time. Human beings cannot be expected to act with the speed of electricity. Nor will it avail anything to attempt to lengthen the time in which the motorman had to act by claiming the automobile was or may have been going very slow. The slower it went the greater reason the motorman would have for thinking it was going to stop before it entered upon the track. Ten miles an hour would not be fast, and five miles an hour would be a snail's pace for an automobile, but even if the automobile -was going at this slow rate it could travel 50 feet while the street car was goitig 100. So that in going the exceedingly few feet intervening between the danger line and the middle of the automobile, the street car could not have traveled the great dis- tance plaintiff must show that it did in order to make out a case. Unless there is evidence to show that the motorman knew or o^ight to have known that plaintiff would go into danger in time to have enabled him to avoid the collision by the exercise of ordinary care, she cannot recover." *^ The doctrine of the last clear chance is inapplicable if the mot- orman has the right to assume that the motorist will not drive on th6 track when the street car is near the crossing. Neither does it apply unless the motorman saw or should have seen the motorist's peril in time to avoid a collision.*' Where there was nothing to indicate to the motorman any pur- pose or lack of ability on the part of the driver of a light auto- mobile inconsistent with the duty or intention of managing it in the ordinarily careful manner, until it was too late for the motorman to avoid a collision, the last clear chance doctrine was not appli- cable.** The last clear chance doctrine does not apply where a motorist drives onto a track so close in front of a car that it is impossible to stop the latter in time to avoid a collision.** § 675. Stopping on track. According to the plaintiff's testi- mony, in an action to recover for damage to its automobile truck,. 42 Lewis V. Metropolitan St. R. Co., *' Levein v. Rhode Island Co., — R. 181 Mo. App. 421, 168 S. W. 833 (1914). I. — , 110 Atl. 602 (1920). Also, Halliday v. Rhode Island Co., — ** Heath v. Wylie, — Wash. — , 186 R. I. — , 107 Atl. 86 (1919); Nicholson Pac. 313 (1919). V. Houston El. Co., — Tex. Civ. App. *BHambly v. Bay State St. R. Co., — , 220 S. W. 632 (1920). — R. I. — , 100 Atl. 497 (1917). COLLISIONS WITH STREET CARS 649 its driver started to cross an east and west street in which was a double line of street railway operated by defendant, and, seeing a car approaching from the west, he stopped the truck on the west- bound track to let it pass. He had looked to the east and had seen no car approaching from that direction before |driving on the track. He said that the front wheels, when he stopped, were just over the south rail of the north track, and the rear ones some distance to the north of the north rail. At this instant he heard a noise, and, looking to the east, he for the first time discovered a west-bound car running at a high rate of speed, bearing down upon him. When he first saw this car it was about 270 feet from where his truck was standing. As soon as he saw it approaching he released his emergency brake and attempted to back off the track, but was unable to do so, and the street car struck the auto- mobile just ahead of the center, pushing or throwing it something like 45 feet to the west. He testified that the street car was running at the rate of 30 miles an hour. He also testified, as an expert motorman having experience, that a car going at 20 to 30 miles per hour could be stopped within three car lengths, or approx,- imately 90 feet. This witness was corroborated, to some extent, by othei: testimony; and other witnesses stated that the automo- bile was standing still waiting for the east-bound car to pass for some little time before it was struck by the west-bound car. Other witnesses testified that the street car was running at from 12 to 15 miles per hour, and some of the testimony indicated that it was going at even less speed. The motorman testified that he was going about 8 miles per hour, and that at this rate of speed it could not have been stopped short of 100 feet. There was some testi- mony that the truck dtiver heard no ringing of bell or sounding of gong upon the street car, and also some testimony that the street car did not slacken its speed as it approached. The defendant's witnesses gave a very different version of the accident. Held, that the plaintiff's evidence justified a finding in its favor, the court saying: "There was enough, we think, to justify a finding that after the motorman discovered the automobile upon the track and in a position of peril he either was running his car at a high and dangerous rate of speed, so that he did not have it under proper control, or that the rate of speed was not excessive, but that he, the motorman, was negligent in not stopping it after seeing Ihe perilous position which the motor truck was in. In either event, the fact that the driver of the automobile had negligently driven 650 . LAW OF AUTOMOBILES his car into a dangerous position would not excuse the defendant. Moreover, although the case is not so plain as on the other theory, the jury might have found that the driver) was not guilty of. coii- tributory negligence iii going upon the track in the manner he did, having looked for cars from both directions before going upon the track. Appellant's counsel also insist that the doctrine of last clear chance is not involved, for tlie reason that the negligence. of the driver was concurrent with that of the motorneer, and that, being concurrent, plaintiff is not entitled to recover. Under defend- ant's version of the affair this would be true, but under plaintiff's testimony it is not so. The testimony tended . to show that the driver's negligence had. expended itself; that he had stopped) his machine on the north track, trying to avoid a collision with the east-bound car, that his attention was diverted by that dar, and that he was making no effort to get off the north track, at the time the west-bound car bore down upon him, as the motorneer rknew, or should have known*. Such facts bring the case clearly wiHiin the rule of 'last clear chance.' " ^ , : The following instruction was held to properly state the law appli- cable to the case in question: "The court instructs the jury that the law recognizes the fact that the nerves and muscles of men are not so co-ordinated that there can be instantaneous action to meet an emergency, and if you believe from the evidence the plaintiff's automobile was suddenly stopped on the track, you cannot. find for the plaintiff, unless you believe that the plaintiff has proved by the preponderance of the evidence that in contemplation of i the entire situation after the danger became known to the motorman or ought to have been discovered by him^ by the exercise of ordinary care, he, the motorman, negligejitly failed to do something which he had a last clear chance to do to avoid the accident." *'' § 676. Car and automobile meeting. In an action to recover, for personal injuries incurred in a collision between plaintiff's auto- mobile and one of defendant's street cars, there was testimony^ as follows : Plaintiff was driving his automobile slowly along the street car track, going less than 18 miles per hour, having just met a number of other automobiles on the street, when the street car approached from the sarne direction he was going. The car track was too close to the ditch on that side to permit hiin to turn to the right of the car, and when he got to where. he must turn to the left 46 Hutchinson Purity I. C. Co. v. Des « Norfolk S. R. Co. v. Smith, 122 Moines City R: Co., 172 la. 527, 154 N. Va. 302, 94 S. E. 789 (1918). ' .W. 890 (191S,). . - ■■ ■ , COLLISIONS: WITH STREET CARS 65 1 to avoid it, and was about to do so, he was blocked by another automobile. Two automobiles were likewise coming from the same direction as and nearly abreast with the street car, one of them 2 or 3 feet and the other 10 or 12 feet north pf the car track. Both the motorman and 'qonductor in charge of the car not only saw the automobile on the track in front of them for a whole block before striking it, but no effort was made either to stop or slow the car up until after the collision, when the mOtorman stopped , within a distance of IQ feet. . The condition of the automobile itself indi- cated that it had been struck from without on the right side, iiot that it had run into the car head-on. It was held that the evidence justified a finding that the motorman was negligent after dis- covering plaintiff's peril.** § 677. Stopping truck near track after passing car. Where there was testimony that plaintiff drove his truck past defendant's street car and then, by reason of some boys crossing the street, stopped with the wheels of the truck so close to the track that a collision was inevitable if the street car came on, and the motorman testified that he did not see the truck until it was right upon the frpnt end of the car, there was a case for the jury under the last clear chance doctrine.*® § 678. Engine "killed" on track. Where Recovery was sought for personal injuries incurred by the plaintiff' when a stre6t car collided with his automobile at a curve in the car track, the court stated the evidence as follows: "The plaintiff testifies that, when he discovered the approach of the car, he applied the brakes and stopped his autoinobile, while the car was' still 15 feet away, with the intention of backing out of dangfer, but in some mannEr he 'killed- his engine, and defendant's car continued to come on around the turn and into collision with him. In this he is corroborated by the two persons riding with him. On the other hand, defendant's motorman swears that he was making the turn very slowly, at a rate of not over a mile an hour, and that, seeing that plaintiff was not going tp stop,, he stopped the car, and that as it was standiijg still plaintiff ran his automobile into it. This witness is also, corro- borated. There is also evidence tending to show that, if defendant's car was rounding the corner at not more than a mile an hour, the motorman could have stopped it almost instantly." It was held that the case was for the jury; that "if plaintiff's *8 Houston Electric Co. v. Schmidt, — « Dyer v. Cumberland C. P. & L. Co., Tex. Civ. App. — , 203 S. W. 617 (1918). — Me. — , IIQ Atl. 357 (1920). 652 LAW OF AUTOMOBILES evidence was credible — and such the jury could properly find it — defendant's employees in charge of the car manifestly had the last clear chance to avoid the collision after the failure of plaintiff's engine had left him helpless to get out of the way." In part the court said: "As in most accidents upon a much-used crossing, the emergency arose suddenly, and plaintiff was not bound, as a matter of law, to resort )to one expedient, rather than to the other ^ He chose one which would have saved him harmless but for the un- foreseen misbehavior of his engine, and it would be going beyond all precedent to charge him with contributory negligence as a matter of law. We find no such insufficiency of evidence upon the issue of negligence or contributory negligence as will justify an interference with the verdict." *' § 679. Turning slowly onto track. The plaintiff's daughter was driving his electric coupe southerly along the west side of a much used avenue, in which the defendant operated a double line of street railway, and as she crossed the west track, diagonally, to turn into an intersecting road to the east, the coupe was struck and damaged by a south-bound car. The daughter stated that when she first turned to cross the tracks she looked back out of the side window to a point on the track, afterwards found to be 170 feet from the place of collision, and the car was not in sight. She assumed that she had a clear course, and the pavement over the tracks being a little rough, she crossed at a speed of not over four miles an hour. The bell of the car was not rung, and she did not know of its approach until the collision. The distance traveled by the coupe from the place she started to cross and looked back, to the place of collision was 42 feet. The coupe was nearly across the track when struck. The daughter's view to the rear was unobstructed, and by looking out of the rear window she could have seen the car. It was held that the evidence entitled the plaintiff to recover for damage to the coupe under the humanitarian, or last clear chance doctrine, and judgment in his favor was affirmed.*^ § 680, Looking back while driving across track. Where it was undisputed that the plaintiff, approaching a street car track in a street extending east and west, could not have failed to see an apprcJaching street car, which collided with his automobile, if he had kept his face to the front instead of the rear; that his auto- BOjoyner v. Interurb^n^ Ry. Co!, 172 168 Mo. App. 172, 1S3 S. W. 72, S N. la. 727, 154 N. W. 936 (}91S). 'c. C. A. 120n (1912). 61 Borders v. Metropolitan St. R. Co., COLLISIONS WITH STREET CARS 6S3 mobile was under control; that he had a space of 40 feet after entering the street in which the accident happened to turn either to the east or west; that there was no excuse for his looking bafck except the merest curiosity; and that he was confronted with no emergency, it was held that the case was one of simple and con- clusive negligence on the part of the plaintiff. It was further held that, it appearing that plaintiff was m control of his automobile, that he was in no apparent peril up to a moment before the collision, and it not being claimed that the motorman knew that the plaintiff's attention was directed away from his duties, there was no justifica- tion for the application of the last clear chance doctrine."* § 681. Automobile in view several hundred feet. The plain- tiff's automobile, being driven by himself, was damaged at a public crossing in a collision with one of defendant's street cars. The view as plaintiff approached the crossing was obstructed by a large bill- board, by posts and poles, and by corn growing upon the adjacent land and weeds covering the right of way up to a point close to the track. Plaintiff and the person riding with him both testified that they looked to see if any car was approaching, but, owing to the obstructions, they did not discover the car in time to prevent the collision. Plaintiff swore the car, when he discovered it, was moving at not less than 30 miles an hour, and, although the power was shut off before it struck the automobile, the motorman did not succeed in stopping it until it had overrun the crossing 160 feet or more. The automobile was being driven at about 15 miles an hour, and, as soon as pliaintiff saw the car, he released his clutch and applied both brakes; but the automobile slid up to the track and stopped just before it was struck. He said that no whistle or bell was sounded by the car.. There was also evidence that after the collision, the motorman, having stopped his car, went back to the crossing, and, in reply to plaifttiff's question why he did not ring the bell, said he did not see the automobile. The motorman, testifying for defendant, said: "I first saw the automobile when the car was 18 feet west of the crossing. I also saw it when it was down by the Northwestern track, probably four or five blocks. I was then about 500 feet west of the crossing. It is higher there; quite a little grade. I rang a. signal for thg,t crossing 200 feet back, then at 40 feet from the crossing, and again right after I saw them. The conductor was standing on the right side of the front vestibule as we came toward 62 tJnderwood v. Oskaloosa Tr. & L. Co., 1S7 la. 352, 137 N. W. 933 (1912). 6S4 LAW OF AUTOMOBILES ; the crossing. It is downgrade there, and we always cut out the power and coast down. When we were about SOO feet from the crossing; the conductor said: 'There comes an automobile.' The power was cut off then, and, after I got down to within 200 feet of the crossing, I rang the gong and started to turn on the power again. And then, when we got within probably 40 or SO feet of the cross- ftig, he was standing up, and I was sitting down on the stool, and he says: 'I don't believe that automobile is going to stop.' So I cut otit the power and started ringing the bell, but I couldn't see them, on account of the corn, until they got up to within about 18, feet of the crossing. The signboard is right across our sight, and until I got beyond that point there I couldn't see across there at all, until I was about 18 feet from the crossing. I was ringing the bell aijd reversed the power then, but the rail was damp, and the car skiddeid, and it is harder to stop the car when it is sliding than it is with brakes." . , , The conductor also testified : , : "I saw his automobile when it was, as I , should judge, 3Q0 or, 400 feet south of the crossing, and the street, car was 400 or SOO feet from the crossing. I made the assertion to Mr. Hardy,, the motorman,,that there came a 'gOrdevil,' and he started to ringing his bell shortly after that. I don't think he we^t a hundred feet till he started to xing his bell, and, as he got a little closer, I said: T don't believe that fellow is going to stop.' And he started to ringing his bell again, and by that time they were both pretty close to the track, and Mr. Hardy reversed his car, and they came together. The automobile , struck the street car. The car got to the beaten path first. Mondt's automobile was 3 or 4 feet from the car. Hardy rang the gong two or three times before he got to the crossing." He also said that the car was running perhaps IS or 20 miles an hour when they discovered the automobile, at which point the electric power was not on; the car coasting down the grade; at about 200 feet from the crossing the motor man turned on the' power, but very soon turned it off again. In affirming judgment for the plaintiff, the court in part said: "Upon this showing — ^^even upon that made by the defendant itself —we are of the opinion that at least a case was made for the jury under the rule or doctrine of the l9,st fair chance. The motorman and conductor saw the automobile while still SOO feet away, and saw that it and their own car were headed for the same crossing. Again at 200 feet they observed it, and were impressed with the COLLISIONS WITH STRE^iT CARS 655 thought ±at it was not going to stop. From that point they knew that their view of the automobile would h,e shut off imtil it should appear at the crossing, yet no attempt was made to turn off the power which was accelerating the momentum imparted to the car by the downgrade of the track, or to bring the car under control until too near the collision to avoid it. The evidence would have justified the jury in finding either or both parties chargeable with negligence, but we are satisfied the jury could also properly find that the defendant had the last clear chance to have prevented the collision." ^* BSMondt V. Iowa L. & R. Co., 178 la. 666, ISS N. W. 24S (191S)'. CHAPTER XVIII COLLISIONS WITH RAILROAD TRAINS § 682. Duty of motorist approaching railroad crossing. § 683. Relying on exercise of due care by railroad company. § 684. Evidence as to signals having been given. § 68S. Duty to stop as well as look and listen. § 686. Duty to look and listen. § 687. Time and place motorist should look and listen. § 688. Looking in only one direction. § 689. Duty to continuously look until out of danger zone. § 690. Motorist presumed to see that which he can see by looking. §691. Private crossings. §692. Duty of motorist where there are more than one track— Train moving in opposite direction from customary travel. § 693. Where view or sound is obstructed. § 694. Same — Illustrative cases. § 69S. "View obscured" defined. § 696. View obscured by rain and snow. § 697. Noise of automobile and wind. § 698. Sun shining in operator's face. § 699. Struck after having stopped, look- ed, and listened. § /^OO. Collision between railroad motor car and automobile. § 701. Poles and wires as warning of railroad. §702. §703. §704. § 70S. §706. §707. §708. §709. §710. §711. §712. §713. §714. §715. §716. §717. §718. ACT OR OMISSION OF MOTORIST Driving against standing train at night. Driving against moving freight train at night. Colliding with flat car attached to interurban car. Colliding with side of train unlaw- fully blocking crbssing — Slippery road. Motorist looking to rear. Motorist employee of railroad com- pany with knowledge of train time and in sight of semaphore. Approaching crossing, obstructed by workmen, on down grade, in fog, without stopping. Exceeding speed limit. Backing onto track — Last clear chance. Disregarding flagman's signals. Struck by train that could have been seen. Heedless of train in plain view. Same — ^Last clear chance doctrine. Driving on track at night without looking. Driving on track soon after passing of train. Same — Struck by train moving in opposite direction. Failure to look for train ap- proaching at excessive speed. 656 COLLISIONS WITH RAILROAD TRAINS 657 §719. Struck, after stopping and listen- ing, by car on far track ob- scured from view. § 720. Crossing after seeing approaching train. §721. Driving on track without looking after signal from track man. § 722. Failure to look until too late. § 723. Looking where view is limited without again looking. §.724. Looking when SO feet from track — rStruck by railroad motorcar, § 72S. Both railroad and public road in deep cuts. § 726. Automobile stalled on track. § 727. Trusting to momentum to carry automobile across track. § 728. Motorist wrapped in robe and in inclosed machine. § 729. Attempting to cross in front of car. § 730. Driver and occupants unaware of railroad. § 731. Leaving automobile too near track — Unlawful speed of train. § 732. Stopping automobile too near track — Last clear chance. § 733. Crossing track at place other than crossing. ' § 734. Relying on speed ordinance. § 73S. Relying on statute passed for par- ticular purpose. § 736. Intoxicated motorist. ACT OR OMISSION OF RAILROAD COMPANY § 737. Duty of trainmen at crossings. § 738. Same — Illustrations. § 739. Private crossings. § 740. Engineer may assume that motor- ist will take usual precautions. § 741. Rate of speed as negligencp. § 742. Duty of trainman stationed on rear of backing train. § 743. Failure to sound crossing signals. § 744. Same — Illustrative cases. B. Autos. — 12 § 74S. Same — Causal connection supplied by statute. § 746. Same — Motorist becoming con- fused. § 747. Same— Where driver's view of crossing . obscured — Excessive speed. § 748. Same — ^As to driver who sees ap- proaching train. § 749. Train near crossing suddenly back- ing. § 750. Backing train without proper look- outs or signals. § 751. Same — Automobile stopped on track in emergency. § 752. Engine backing at night without lights indicating direction of movement. § 753. No headlight at night and no signals. § 754. Failure to stop after seeing auto- mobile stalled on track. § 755. "Kicking back" or "flying switch- es." § 756. Same — Contributory negligence. § 757. Duty of crossing flagman. § 758. Duty of crossing flagman when automobile stalls on track, § 7S9. Failure to station flagman at cross- ing. § 760. Absence of customary flagman. § 761. Signaled to cross by watchman. § 762. Flagman raising gates or signalling autoist to cross. § 763. Failure of flagman to signal. § 764. Stopping on. track in obedience to flagman. § 765. Trainman signalling autoist to cross. § 766. Crossing gates up. § 767. Same — Colliding with cars stand- ing on crossing. § 768. Gates lowered on automobile. § 769. Colliding with gates lowered in front of automobile. § 770. Crossing gates down — Insufficient light. 658 LAW OF AUTOMOBILES § 7H. Crossing, bell silent. § 112. Leaving box car in street with door and bar projecting. '■ ■ § 773. Car moving south on northbound track; — Stating cause of action. § 774. Injury due to defective, crossings § 775. Sufficiency of crossing. § 776. Unnecessary obstructions to view on right of way. ■ § 777; Failure of company to remove ob- struction in compliance with order of service commission. § 778. Box car projecting into street^-Nid signals. § 779. Box cars near crossing — Excessive speed. § 780. Last clear chance cases. § 781. Discovered peril cases. § 782. Res ipsa loquitur applied. § 682. Duty of motorist approaching railroad crossing. It is the duty of a motorist approaching a railroad crossing to exercise ordinary care and prudence to ascertain whether or not a train is approaching; and if he knows, or by the exercise of ordinary care and prudence could know, of the near approach of a. train, it is his duty to stop and allow it to pass before attempting to cross,'' He '^Arkansas: Hines v. Reynolds, — Ark. — , 218 S. W. 37S (1920); St. Louis S. F. R. Co. v. Stewart, — Ark. — , 207 S. W. 440 (1918). Indiana: Lake Erie '& W. R. Co. v. Howarth, — Ind. App. — , 124 N. E. 687 (1919). Iowa: Dombrenos v. Chicago, R. I. & P. R. Co., — la. — , 174 N. W. f96 (1919) ; Hawkins y. Interurban R. Co., 184 la. 23'2, 168 N. W. 234 (1918). Kentucky: Cincinnati, New Orleans & T. P. R. Co. V. Champ, 31 Ky. L. Rep. 10S4, 10S7. Nebraska: Morris v. Chicago, B. & Q. R. Co., 101 Neb. 4'79, 163 N. W. 799 (1917). - ^ew Jersey: Dickinson v. Erie R. Co., 81 N. J. L. 464, 81 Atl^ 104, 6 N. C. C. A. 293, 37 L. R. A. (N. S.) 150 (1911). Oregon: Robison v. Oregon- W. R. & N. Co., 90 Oreg. 490, 176 Pac. 594 (1918). Texas: St. Louis S. W. R. Co. v. Harrell, — Tex. Civ. App. — , ,194 ,S. W. 971 (1917). Washington: Mouso v. Bellingham Si N. R. Co., 106 Wash. 299, 179 Pac. 848 (1919). Wisconsin: Kaufmann v. Chicago, M. & St. P. R. Co., 164 Wis. 359, 159 N. W. 552 (1916). "He may not shut his eyes and stop his ears, and rush on regardless of the peril, and hold the railroad company as the insurer of his life, not only against the acts of its servants, but against his own suicidal negligence." Noakes v. New York Cent. & H. R. R. Co., 121 App. Div. 716, 719, 106 N. Y. Supp. 522 aff'd 195 N. Y. 543 (1909), 'quoting from Gor- ton V. Erie R. Co., 4S N. Y. 660. "The duty, of a traveler about to cross a i'ailway^ to use his senses for his own protection is a continuing duty." Coby V. Quincy, O. & K. C. R. Co., 174 Mo. App. 648, 161 S. W. 290 (1913). He 'must have his machine under con- trol. Atlantic Coast Line R. Co. v. Weir, 63 Fla. 69, 74, 58 So. 641, Ann. Cas. 1914 A 126, 10 N. C. C. A. 827n, 41 L. R. A. (N. S.) 307 (1912). The duties of a railroad company and a traveler are reciprocal. Louisville & N. R. Co. V. Taylor, 31 Ky. L. Rep. 1142, 1144; Cincinnati, New Orleans & T. P. R. Co. V. Champ, 31 Ky. L. Rep, 1054; Southern R. Co. v. Hansbrough, 107 Va. 733, 741; Pendroy v. Great COLLISIONS WITH RAILROAD TRAINS 659 has an equal right with the railroad company to use the crossings- Northern R. Co., 17 N. D. 433, 117 N. W. S31. "The law imposes a duty on travelers on a highway approaching a railway crossing to use reasonable care. This duty arises out of, the relation of parties, and is declared to exist as a matter of law; but, when the question arises as to what acts or conduct ordinary care requires under the circumstances of a particular case, this must generally be determined as a question of fact. The court cannot say as a matter of law that ordinary care requires a designated act to he done, or that it required a specific act to be omit- ted, unless the act in question was of such a character as A.o be wholly incom- patible with the exercise of reasonable care when considered in the light of at- tending circumstances." Central Ind. R. Co. V. Wishard, 186 Ind. 262-, 114 N. E. 970 (1917). ' "The courts of this state have been very cautious in stating that any special acts or precautions were required . in the , exercise of ordinary care, generally leav- ing that question to the jury. This court has declared as a matter of law that ordi- nary care requires a person about to cross a railroad track to use his senses of sight and hearing, but it has never said that he must stop or that he must look or listen at any particular place, except that he should look or listen at some place where such precautions would enable him to see or hear the approach of a train." Central Ind. R. Co. v. Wis- hard, 186 Ind. 262, 114 N. E. 970 (1917). "The rights of travelers on a highway and of a railway company on its track intersecting the public street or road are reciprocal, and it is the duty equally of the traveler on the highway and those who operate the train on the railway track to use reasonable diligence to avoid collision at a crossing, with the qualifica- tion that the train has the right of way and the preference in passing the point of intersection. Automobiles and electric trairfs, especially, are self-propelled ve- hicles, measurably on the same footing in possibilities and capabilities respecting each other at crossings. Instead of being all or largely on one side, the obligation to use care, and prudence rests alike upon both parties. As its direction of move- ment is fixed by its rails and it has ac- quired thfe right of way by the exercise of eminent domain, the railway mani- festly has the preference at the point of passage, over the automobile .which can vary its course." Emmons v. South- ern Pac. R. Co., — Oreg. — , 191 Pac. 333 (1920). ' ^lowa:' Bombrenos v. Chicago, R. I. & P. R. Co., — la. — , 174 N. W. 596 (1919) ; Hawkins v. Interurban R. Co., 184, la. 232, 168 N. W. 234 (1918). " Missouri: Jackson v. Southwest Mo. R. Co. — Mo. — , 189 S. W; 381 (l?l'6). Montana: Walters v. Chicago, M. & P. S. R. Co., 47 Mont. SOI, 133 Pac. 3S7, 46 L. R. A. (N. S.) 702 <19-13),, , Texas: .Southern Tr. Qo. v. Kirksey, .— Tex. "civ. App! — , 222 S. W. 702 (1920) ; Missouri, K. & T. R. Co. v. Thayer, — Tex, Civ. App. — , 178 S. W. 988 (191S). Utah: Shortino v. Salt Lake & U. R. Co., — Utah — , 174 Pac. 860 (1918). Virginia: Southern R. Co. v. Vaugh- an's Adm'r, 118 Va. 692, 88 S. E. 305, L. R. A. 1916E 1222 (1916). "The rights of plaintiff and defendant at the railroad crossing in question were equal, subject to the precedence which the heavy and rapidly moving interurban cars may require when both parties ap- proach the crossing at the same time." Hawkins v. Interurban R. Co., 184 la. 232, 168 N. W. 234 (1918). // by a proper use of his faculties he could have escaped injury and failed to do so, and is injured, he is chargeable with contributory negligence. McCanna V. New England R. Co., 20 R. I. 439, 10 Am. & Eng. R. Cas. (N. S.) 485. 660 liAW OF AUTOMOBILES and he is under the same duty as the railroad company to avoid a collision.' However, the train has the right of way in order pro- perly to conserve the safety and convenience of the traveling public, and the motorist has no right to claim priority of passage.* Attempting to beat an approaching train over a crossing, is negligence per se} The duty to exercise care at crossings is reciprocal on the part of the person in charge of the engine and the motorist.* Each may rely to some extent on performance of duty by the other.'' The measure of precaution to be observed depends upon the circumstances and surroundings.' "The duty of vigilance to avoid accidents is incumbent upon the traveler continuously until the danger is past; that is, until he has crossed the track." ' He should not allow his attention to be attracted from a crossing which he is approaching and of which he knows, in the act of pass- ing other vehicles on the highway, or for any such cause, so that he does not see a train approaching in plain view; because this would be negligence.^" The tendency of the law is to exact greater care of those crossing railroad tracks as the consequences of a collision with a train be- come more serious. On account of the great danger, not only to the occupants of the automobile, but to the passengers on the train, likely to result from a collision between a train and an automobile, the care exacted of a motorist is correspondingly great. On account of the control he has over his machine, and the fact that horses are likely to become frightened and unmanageable upon the approach SSohl V. 'Chicago, R. I. k P. R. Co., 6 Cottam v. Oregon S. L. R. Co., — 183 la. 616, 167 N. W. S29 (1918). Utah — , 187 Pac. 827 (1919). * Olds V. Hines, — Oreg. — , 187 Pac. The comparative negligence rule ob- 586 (1920) ; McKinney v. Port Town- tains in crossing accidents in Georgia, send & P. S. R. Co., 91 Wash. 387, 158 Central of Georgia R. Co. v. Larsen, 19 Pac. 107 (1916); Helvey v. Princetown Ga. App. 413, 91 S. E. 517 (1917). Power Co., — W. Va. — , 99 S. E. 180 7 Dombrenos v. Chicago, R. I. & P. (1919). R. Co., — la. — , 174 N. W. 596 (1919). Priority of passage is in the train upon 8 Rollinson v. Lusk, — Mo. App. — , giving due notice of its approach. Lake 217 S. W. 328. Erie & W. R. Co. v. Sams, — Ind. App. 9 Olds v. Hines, — Oreg. — , 187 Pac. — , 127 N. E. 566 (1920). 586 (1920). Common sense and the public welfare 10 Atlantic Coast Line R. Co. v. Weir, dictate that trains should be accorded 63 Fla. 69, 74, 58 §o. 641, Ann. Cas. 1914- the right of way. Baker v. Collins, — A 126, 10 N. C. C. A. 827n, 41 L. R. A. Tex. Civ. App. — , 199 S. W. 519 (1917). (N. S.) 307 (1912). 6 Puhr V. Chicago & N. W. R. Co., — Wis. — , 176 N. W. 767 (1920). COLLISIONS WITH RAILROAD TRAINS 661 of a train, the motorist may be guilty of negligence . in failing to stop or approach near the track to look and listen for a train, when the driver of horses would not.^^ In the case last cited the court said: "With the coming into use of the automobile, new questions as to reciprocal rights and duties' of the public and that vehicle have and will continue to arise. At no place are those relations more important than at the grade crossings of railroads. The main consideration hitherto with refer- ence to such crossings has been the danger to those crossing. A ponderous, swiftly moving locomotive, followed by a heavy train, is subjected to slight danger by a crossing foot passenger, or a span of horses and a vehicle; but, when the passing vehicle is a ponderous steel structure, it threatens, not only the safety of its own occu- pants, but also those on the colliding train. And when to the perfect control of such a machine is added the factor of high speed, the temptation to dash over a track at a terrific speed makes the automobile, unless carefully controlled, a new and grave element of crossing danger. On the other hand, when properly controlled, this powerful machine possesses capabilities contributing to safety. When a driver of horses attempts to make a crossing and is sud- denly confronted by a train, difficulties face him to which the auto- mobile is not subject. He cannot drive close to the track, or stop there, without risk of his horse frightening, shying, or overturning his vehicle. He cannot well leave his horse standing, and, if he goes forward to the track to get an unobstructed view and look for coming trains, he might have to lead his horse or team with him. These precautions the automobile driver can take, carefully and deliberately, and without the nervousness communicated by a 11 New York Cent. & H. R. R. Co. v. "An automobile properly managed U Maidment, 168 Fed. 21, 93 C. C. A. 413, susceptible of control within very narrow 21 L. R. A. (N. S.) 794 (1909); Mills limits. It will stay where it is put. It ii V. Waters, 198 Mich". 637, 16S N. W. not to be frightened, yet, unless controlled, 740 (1917) ; Olds v. Hines, — Oreg. — , it is an engine of great danger, and the 187 Pac. S86 (1920); Robison v. Ore- larger question of safety to the public and gon-W. R. & N. Co., 90 Oreg. 490, 176 travelers upon trains requires that one Pac. S94 (1918), operating such a machine should carefully "The question is not solely between the look upon the track itself where a rail- plaintiff and the defendant corporation way train may be expected, if there be which owns the railway. So far as opportunity to so inspect the situatioti. actual duty on the part of the plaintiff The motorist who neglects this plain duty is concerned, it affects not only the labor- is guilty of contributory negligence as a ers on the moving engine, but also the matter of law." Cathcart v. Oregon- general traveling puWic." Cathcart v. Washington R. & N. Co., 86 Oreg. 2S0, Oregon-Washington R. & N. Co., 86 Oreg. 168 Pac. 308 (1917). 250, 168 Pac. 308 (1917). 662 LAW OF AUTOMOBILES frightened horse. - It will thus be seen an automobile driver has the opportunity, if the situation is one of uncertainty, to settle that uncertainty on the side of safety, with less inconvenience, no dan- ger, and more surely than the driver of a horse. Such being the case, the law, both from the standpoint of his own safety and the menace his machine is to the safety of others, should, in meeting these new conditions, rigidly hold the automobile , driver to such reasonable care and precaution as go to his own safety and that of the traveling public. If the law demands such care, and those crossing make such care, and not chance, their protection, the possi- bilities of automobile crossing accidents will be' minimized. In the case of trolleys crossing railroads at grade, the practice is:; general for the conductor to go ahead and from the track signal the halted car to advance. This would, of course, be impracticable as a rule for automobiles; but it illustrates the trend of the law, as the size of crossing vehicles makes collision with them more serious, to enforce greater safety precautions." ^^ This doctrine' was applied in a case where it appeared that the automobile driver did not stop, or even check his speed, before colliding with a passing locomotive.^* However, it has been said, in a Kentucky case: "It is a matter of common knowledge that when a collision occurs between an auto- mobile and an engine, the result is the same as when the engine strikes a wagon, buggy, or other ordinary vehicle— the occupants of the automobile or vehicle are the ones who are crippled or killed, and not the passengers on the train or its employees." ** ' The amenability to control of the motive power he is using bears upon how near he may come to the place of danger before taking the precautions that common prudence generally requires.^^ 12 Quoted with approval in Nailor v. IB Walters v. Chicago, M. & P. S. R. Maryla,nd, D. & V. R. Co., — Del. — , Co., 47 Mont. 501, 133 Pac. 351, 46 L. 97 Atl:" 418 (1916); Louisville & N. R. R. A. (N. S.) 501 (1913). Co. V. Treanor's Adm'r, 179 Ky. 337, 200 Owing to the peculiar character of his S. W. 634 (1918) ; Gallery v. Morgan's vehicle, to the noise which it produced, L. & T. R. & S. S. Co., 139 La. 763, 72 and the fact that it may be stopped So. 222 (1916); Sanford v. Grand T. close to a railroad track in safety, there W. R. Co., 190 Mich. 390, 157 N. W. may be instances where the exercise of 38 (1916) ; Washington & O. D. Ry. v. ordinary care would demand that the Zell's Adm'r, 118 Va. 755, 88 S. E. 309 driver of an automobile stop before cross- (1916). ing, while the exercise of the same care ■18 Gallery v. Morgan's L. & T. R. & would not require that the driver of a S. S. Co., 139 La. 763, 72 So. 222 (1916). team, whose horses may be frightened by "'■i* Louisville & N. R. Co. v. Treanor's the train, stop before crossing. Ft. Adm'r, 179 Ky. 337, 200 S. W. 634 Wayne & N. I. Tr. Co. v. Schoeff, 56 (1918). Ind. App. 540, 105 N. E. 924 (1914). COLLISIONS WITH RAILROAD TRAINS 663 The fact that one is driving an automobile may have an influence on the question of contributory negligence, just as the number and qualities of horses and the kind of vehicle he is driving may h^ve ; but the standard of care to be used which is necessary to absolve from contributory negligence is the same whether the traveler is on foot, on horseback, in a wagon, a carriage, an automobile, or any other vehicle. It is that degree of care which one of ordinary pru- dence would use in the particular circumstances.^® The motorist is not required to use a higher degree of care at railroad crossings than drivers of other heavy vehicles; ^'' and while the character of the vehicle may have some influence on the ques- tion of care of, the driver, still the question always is: Did the per- son attempting to cross the track use that degree of care whiclTan ordinarily prudent person would haye used situated and circum- stanced as the person who attempted to cross the track, whether on foot, on horseback, in a wagon, carriage, automobile, or any other vehicle ?^^ 16 California: Ellis v. Central Cal. Tr. Co., — Cal. App. — , 174 Pac. 407 (1918). Indiana: Pittsburgh, C, C. & St. L. R. Co; V. Dove, 184 Ind. 447, 111 N. E. 609 (1916). Kentucky: Louisville & N. R. Co. v. Treahor's Adm'r, 179 Ky. 337, 200 S. W. 634 (1918). Tennessee: Hurt v. Yazoo & M. V. R. Co,. 140 Tenn. 623, 20S S. W. 437 (1918). Virginia: Seaboard Air Line Ry. v. Abernathy, 121 Va. 173, 92 S. E. 913 (1917). "There can be no doubt that it is pos- sible for the driver of an automobile to take some precautions which are not available to the driver of horses, and the facts suggested, if they appear from the evidence, are all proper for the consid- eration of the jury in determining what precautions o(rdinary care required the driver of a motor car to use under the circumstances of the particular case. After all is said, however, the driver of a motor car is required to use only ordi- nary care; but what he should do in the exercise of due care must depend on the conditions surrounding him, as shown by the evidence, and the means available for controlling the speed and managing the car." Central Indiana R. .Co. v. Wis- hard, 186 Ind. 262, 114 N. E. 970 (1917). "It is entirely proper for the trial court, in its instructions, to advise and direct the jury that in the consideration of such questions it should take into account the character of the vehicle in which the injured party was riding, and the manner and method of its control, etc.; but, when such court in any case attempts to fix a standard or quantum of care different from that above indi- cated, it intrenches on the right of the trial of such question by the jury." Cen- tral Ind. R. Co. v. Wishard, 186 Ind. 262, 114 N. E. 970 (^917). 1'' Louisville & N. R. Co. v. TreSiior's Adm'r, 179 Ky. 337, 200 S. W. 634 (1918). 18 Central Indiana R. Co. v. Wishard, — Ind. App. — , 104 N. E. 593 (1914), 186 Ind. 262, 114 N. E. 970 (1917) ; Union Tr. Co. v. Elmore, — Ind. App. — , 116 N. E. 837 (1917); Monroe v. Chicago & A. R. Co., — Mo. — , 219 S. W. 68 (1920). • "Due care in these cases means ordi- nary care. It implies the use of such watchfulness and precautions to avoid coming into danger as a person of ordi- 664 LAW OF AUTOMOBILES The very presence of the railroad is notice to the motorist, approaching or attempting to cross it, of the danger of colliding with a passing engine or train.^' "The same reasons that require pedestrians and drivers of other vehicles to subordinate their desire to continue at a fixed rate of speed to the prudent use of their senses to discover an approaching train apply to the drivers of automobiles." *" It has been held that one approaching a railroad crossing in an automobile is bound to exercise the same degree of care that is required of a pedestrian.*^ The driver of an automobile approaching a railroad track is not in a position similar to that of a pedestrian. The different niove- ments in the handling of levers, clutches, and brakes, and the lia- bility of an automobile engine to stall, are matters which complicate its control.** nary prudence would use under the same circumstances in view of the danger to be avoided. But no greater care than that is required." Lehigh Valley R. Co. V. Kilmer, 231 Fed. 628, 14S C. 'C. A. 514 (1916). 18 Connecticut : Hayes v. New York, N. H. & H. R. Co., 91 Conn., 301; 99 Atl. 694 (1917), Delaware: Trimble v. Philadelphia, B. & W. R. Co., 4 Boyce (27 Del.) 519, S9 Atl. 370 (1913). Indiana: Waking v. Cincinnati, I. & W. R. Co., — Ind. App. — , 125 N. E. 799 (1920). Kansas: Gage v. Atchison, T. & S. F. R. Co., 91 Kan. 253, 137 Pac. 938, 4 N. C. C. A. 719n (1914). Minnesota: Pogue v. Great Northern R. Co., 127 Minn. 79, 148 N. W. 889 (1914). Utah: Lawrence v. Denver & R. G. R. Co., — Utah — , 174 Pac. 817 (1918). Washington: McKinney v. Port Town- send & P. S. R. Co., 91 Wash. 387, 158 Pac, 107 (1916). Federal: Hines v. Johnson,' 264 Fed. 46S~ (1920). "A railroad crossing is a dangerous place, and the man who, knowing it to be a prailroad crossing, approaches it, is careless unless he approaches it as if it were dangerous." Borglum v. New York, N. H. & H. R. Co., 90 Conn. 52, 96 Atl. 174 (1915); Hayes v. New York, N. H. & H. R. Co., 91 Conn. 301, 99 Atl. 694 (1917). «0 Northern Pac. R. Co. v. Tripp (C. C. A.), 220 Fed. 286, 8 N. C. C. A. 1042n (1915). 21 Sanford v. Grand T. W. R. Co., 190 Mich. 390, 157 N. W. 38 (1916). "A pedestrian about to cross a street in front of an approaching car has no right to omit any of the precautions which the law demands, nor to rely upon the strict compliance by the servants of the railway company with the speed laws. This rule of law affecting pedestri- ans applies with infinitely greater force to one crossing railroad tracks in dis- regard of a warning gong, where the view is obstructed, driving an automobile in which he carries into peril others than himself, in addition to imperiling the lives of trainmen and passengers on a train which may be wrecked by a col- lision." Griswold v. Pacific El. R. Co., — Cal. App. — , 187 Pac. 65 (1919). 22 Green v. Great Northern R. Co., 123 Minn. 279, 143 N. W. 722 (1913). COLLISIONS WITH RAILROAD TRAINS 66S After having started to cross there is no imperative rule requiring him either to stop or go ahead. He must be guided by the circum- stances and his surroundings at the time.** It has been held that where a motorist was struck by a train which was within plain view for a sufficient length of time for him to have stopped his automobile which was moving so slowly that he could have stopped it almost instantly, and avoided the accident, he was guilty of contributory negligence as matter of law.*^* The degree of care required of an automobile driver in crossing a siding, which is frequently used, is the same as that required of him in crossing the main line. It is the use of the track and not what it is called that gauges the care to be exercised.** It has been held thp,t a person driving an automobile on a dark night upon a railroad tracfej^ where it is known that trains are fre- quently passing, without the slightest concern whether or not a train is approaching, is guilty of contributory negligence.*® An operator who, while approaching a railroad crossing where he was struck by a train, was looking down and listening to the engine of the automobile, was held to be guilty of gross carelessness in the management of the machine.*'' Failure of a motorist to sound his horn when approaching a crossing is not negligence per se?^ One who goes onto a railroad track while in possession of all his faculties, cannot excuse his negligence by pleading absent- mindedness.*' If, in approaching a track, he can see a train if he uses ordinary care in looking, but drives onto the track regardless of an approach- ing train, he is guilty of negligence,'" but the rule that a person approaching a railroad crossing is bound to see what he could have seen and to hear what he could have heard, is only applicable where it appears that the person charged with the exercise of care is so 23 Witmer v. Bessemer & L. E. R. Co., 28 Louisville & I. R. Co. v. Morgan, 174 241 Pa. St. 112, 88 Atl. 314 (1913). Ky. 633, 192 S. W. 672 (1917). 24 Spencer v. New York' Cent. & H. R. 29Barnett v. Louisiana W. R. Co., 141 R. Co., 123 App. Div. 789, 108 N. Y. La. 698, 75 So. 649 (1917). Supp. 24S (1908), aif'd 197 N. Y. S07 30 Brown v. Atlantic Coast Line R. Co., (1909). 171 N. C. 266, 88 S. E. 329 (1916); 26 Peoples v'. Pennsylvania R. Co., 251 Baker v. Collins, — Tex. Civ. App. — , Pa. St. 275, 96 Atl. 652 (1916). 199 S. W. 519 (1917); Lawrence v. 26 Elder v. Pittsburgh, C. C. & St. L. Denver & R. G. R. Co., — Utah — , 174 R. Co., 186 111. App. 199 (1914). Pat. 817 (1918); Washington & O. D. 2TConant v. Grand Trunk R. Co., 114 Ry. v. Zell's Adm'r, 118 Va. 755, 88 S. Me. 92, 95 Atl. 444 (1915). E. 309 (1916). 666 ' LAW OF AUTOMOBILES • situated that be could see the train in time to escape injury, with nothing to excuse his failure to see or hear.'^ A motorist who has an unobstructed view of a crossing and the track on either side for a long distance, is charged with the duty of knowing of the approach of a train within view; and if he goes on the crossing in front of an approaching train and is struck, he cannot recover. In such circumstances he is not entitled to rely on any particular speed of the train.*^ When the motorist exercises some care for his safety, the question of contributory negligence is for the jury.** If the evidence as to the negligence of defendant is conflicting, a verdict in its favor will be allowed to stand unless clearly against the preponderance of the evidence.** One attempting to cross a railroad track in an automobile at a place other than a public or a recognized place of crossing, is a trespasser.*^ , In Wisconsin slight want of ordinary care on the part of a traveler at a railroad crossing will not bar recovery for injuries due to being struck by a train.*^ In a state where contributory negligence does not bar recovery, a motorist may recover something for injuries received when struck by a train at a crossing, on which he had negligently driven.*'' , § 683. Relying on exercise of due care by railroad company. The duty of a traveler to use care to ascertain whether a train is approaching in dangerous proximity is wholly independent of the failure of the railroad company to observe any or all duties imposed qn it; such as giving signals or running at a reasonable rate of speed.** He cannot entirely rely upori signals and the per- 81 Chicago & E. I.: R. Co. v. Van board Air Line Ry. v. Lyon, 18 Ga. App. Stone, — Ind. App. — , 119 N. E. 874 266, 89 S. E. 384 (1916). (1918). 3* Jerplleman V. New Qrleans Ter. Co., 3«Solil V. Ciiicago, R. I. & P. R. Co., 140 La. 895, 74 So. 186 (1917). 183 la. 616, 167 N. W. S29 (1918). SSWhitner v. Soutliern R. Co., 101 S. 33 Ohio El. R. Co. V. Weingertner, 93 C. 441, 8S S. E. 1064 (1915). ' Ohio 124, 112 N. E. 203 (1915). 36 Gordon v. Illinois Cent. R. Co;, 168 "There was some evidence that the Wis. 244, 169 N. W. 570 (1918; . plaintiff atteinpted to cross the track of ST Yazoo & M. V. R. Co. v. Williams, the defendant company about 105 feet in 114 Miss. 236, 74 So. 835 (1917). • front of the approaching switch engine, 38 Jackson v. Southwest Missouri R. which was moving toward him at the Co., 171 Mo. App. 430, 156 S. W. 1005 rate of only 2 miles an hour. This (1913), aff'd in — Mo. — , 189 S. W. authorized the jury to find that the plain- 381 (1916)'. tiff was exercising ordinary care." Sea- COLLISIONS WITH RAILROAD TRAINS 667 formance of duty by the train employees/' and cannot excuse the absence of care on his part by showing that those in charge of a train were negligent." However, the failure of the railroad company to give expected and required signals may excuse the motorist in relaxing somewhat in his vigilance, but it has never been held to dispense with vigilance altogether.*^ 39 Fogg V. New York, N. H. & H. R. Co., 223 Mass. 444, 111 N. E. 960 (1916). 40 Beaumont, St. L. & W. R. Co. v. Moy, — Tex. Civ. App. — , 174 S. W. 697, 8 N. C. C. A.1041n (1915). "The failure of the engineer to sound the whistle or ring the beU did not relieve the pilaintiff from the necessity of taking ordinary precautions for his and his party's safety." Lehigh Valley R. Co. V, Kilmer, 231 Fed. 628, 14S C. C. A. 514 (1916). *1 Smith V. Missouri Pac. R. Co., — Ark. — , 211 S. W. 657 (1919) ; Waking V. Cuicinnati, I. & W. R. Co., -^ Ind. App. — , 125 N. E. 799 (1920) ; Pigeon V. Massachusetts N. E.St. R. Co., 230 Mass. 392, 119 N. E. 762 (1918) ; Central Coal & C. Co. V. Kansas City S. R. Co., — Mo. .App. — ; 215 S. W. 914 (1919). "The traveler may, in regulating his conduct, have some regard to the pre- sumption that the railroad company will give proper signals, and, if he hears none, the same preparedness and caution will riot be expected of him as would be re- quired in case proper signals were given, but he cannot in any case wholly omit the duty of looking and listening simply because he hears none of the customary or required signals of the approach of a train." Pogue v. Great Northern R. Co., 127 Mum. 79, 148 N. W. 889 (1914).' "The use of the highway at these crossings by the railway and the general public IS a common one, to be enjoyed by each consistently with the rights' of the other. While the railroad has gen- erally the priority of right of way, that priority depends, not on a superior right, but solely upon the principle of equal- ity as applied to the nature of the pub- lic service it performs and the character of the machinery and appliances neces- sary to its prosecution. To secure this equality by preventing so far as possible the annoyance and delay of the general pubhc which would result from casting upon them the whole burden of pro- tecting themselves from injury in the legitimate use of the easement, the Legis- lature has seen iit to define the minimum of warning to be given by the railroad of the approach of its deadly instru- ments of traf&c. It is clear tha,t this warning would be of little utility unless the traveler for whose benefit it is de- signed is permitted to profit by it. If, in every case in which the traveler upon a public highway approaches a railroad crossing and can hear no warning be- cause no train is approaching, he must act in all respects as if there were no law requiring such notice, that law would be a dead letter as to him. Should hp hear the train he must stop and let it pass. Should he not hear it he must still assume it is there, coming stealthily like a. criminal to take his life. This is, of course, not the law; but the statu- tory duty is, in every such case, an ele- ment of the situation in determining the question of negligence between the par- ties to an accident of this character. It is true that the law requires the traveler to anticipate that the company may fail to give the statutory signals, and to act upon that theory; just as, it requires the railroad company to anticipate that the traveler will fail to hear or disregard the signal when given, and to keep reason- able watch for such instances, and be prepared to protect those guilty of such carelessness. These duties are equal and 668 LAW OF AUt6mOBILES Ordinarily a motorist may assume that the railroad company will perform the duties it owes the public,** and if the contrary does not appear, that the employees of the company will give the usual and customary warnings, and will not run at an unlawful rate of speed.*' , It has been declared that a motorist approaching a railroad crossing is under no legal obligation to shape his action on the theory that the railroad company will disregard the plain require- ments of the law respecting a signal of its coming train.** "If a motorist's view is obstructed or his hearing an approaching train is prevented, and especially if this is done by the fault of the railroad company, and the company's servants fail to warn him of its approach, and, induced by this failure of duty, which has lulled him into security, he attempts to cross the track and is injured,, having used his faculties as best he could, in the circumstances, to ascertain if there is any danger ahead, negligence will not be imputed to him, but to the company; its failure to warn him being regarded as the proximate cause of any injury he received." ** If he has no knowledge or notice to the contrary, a motorist may assume that an approaching train will not be operated in violation of a speed ordinance or statute.*^ The following instruction was approved in an Indiana case : "The decedent had the right to assume that the defendant would not operate its train in violation of law, and if you find from^the evi- dence that decedent saw the train south of Douglass street approach- ing Clinton street crossing of defendant's track, and did not know or could not know by the exercise of ordinary care that the defend- ant was operating its train in violation of law, and you also find that, if defendant was operating its train at no greater speed tiian six miles per hour at and prior to its collision with said automobile, reciprocal, and extend no further than sible wrongdoer all the benefits which the does the humane principle in which they law is intended to confer." Jackson v. have their origin, for the law is no Southwest Mo. R. Co., — Mo. — , 189 respecter of persons. While the duty of S. W. 381 (1916). watchfulness on the part of the railway ** Louisville & I. R. Co. v. Morgan, does not include the duty to stop or 174 Ky. 633, 192 S. W. 672 (19l7). moderate the speed of its train until ** Barrett v. Chicago, M. & St. P. R. danger appears, and thereby injure the Co., — la. — , 175 N. W. 950 (1920). public service in anticipation of a pos- **Swigart v. Lusk, 196 Mo. App. 471, sible wrong, so the same benign principle 192 S. W. 138 (1917). is applied to the traveler who, while *B Goff v. Atlantic C. L. R. Co., — N. in duty bound to be watchful and cau- C. — , 102 S. E. 320 (1920). tious, is not under obligation until the *6 Emmons v. Southern Pac. R. Co., necessity appears, to surrender to a pos- — Oreg. — j 191 Pac. 333 (1920). COLLISIONS WITH RAILROAD TRAINS 669 said collision would not have occurred, then I instruct you decedent had the right under the circumstances to assume that it was safe to cross said tracks." " "One approaching a railroad crossing has a right to expect the usual warnings will be given if a train is approaching, but we do not think that plaintiff's reliance upon this custom being complied with will relieve him from the charge of contributory negligence, if independent of this reliq,nce he had an opportunity to protect him- self by the exercise of reasonable care." ** When the absence of signals indicates a safe crossing, a motorist need not stop unless looking and listening are ineffectual without stopping.*' It is held that a motorist cannot assume that the employees of a railroad have performed their duty until he has performed his duty pf looking and listening for an approaching train without seeing or hearing one.*" A motorist who listened attentively for statutory signals and for the ringing of an automatic gong, while approaching a crossing at 6 to 8 miles an hour, was not contributorily negligent as matter of law." In California it is held that a motorist approaching a railroad track has not the right to assume that the operatives of approaching trains will not be negligent, or that they will sound crossing signals. Said the court, in part: "If the traveler had the right to assume that de- fendant's employees would observe the law requiring them to ring the bell and sound the whistle when approaching the crossing, he would, of course, have a right to rely upon receiving such information of approaching danger, and would be entirely excusable for neglecting to avail himself of any other source of knowledge. Again, if he had a right to so assume, if no bell as a matter of fact was rung or whistle sounded, he would have a right to assume that no train was in fact approaching, and he would not be chargeable with negligence if he actedi upon that assumption and proceeded to cross the track." « « Chicago, I. & L. R. Co. v. Lake sORobison v. Oregon-cW.' R. & N. County S. & T. Co., 186 Ind. 3S8, 114 Co., 90 Oreg. 490, 176 Pac. S94 (1918). N. E. 4S4 (1916). Bl Swigart v. Lusk, 196 Mo. App. 47,1, 48 Lanier v. Minneapolis, St. P. & S. 192 S. W. 138 (1917). S. M. R. Co., 209 Mich. 302, 176 N. W. 6* Thompson v. Southern Pac. R. Co., 410 (1920). 31 Cal. App. S67, 161 Pac. 21 (19i6). 49 Swigart V. Lusk, 196 Mo. App. 471, Also, Walker v. Southern Pac. Co., — 192 S. W. 138 (1917). Cal. App. — , 176 Pac. 175 (1918). 670 LAW OF AUTOMOBILES § 684. Evidence as to signals having been given. Positive evidence that signals were given is held. to overcome evidence that they were not heard by other witnesses.®' Testimony of a motorist, who did not cut off his engine when near- ing and going upon a crossing, that he did not hear the locomotive belli raised no conflict as against the positive testimony of the train crew that it was rung.*** However, if one who was intently listening for, and expecting the signals, and could have heard them, testifies that he did not hear them, his evidence may be of equal weight with the evidence that they were given, and it is for the jury > to determine from the evidence.®^ § 685. Duty to stop, as well as look and listen. In most of the states the rule is that reasonable care in approachiflg a railroad crossing does not ordinarily require a motorist to stop, but that it does jrequire him to look and listen, and to exercise reasonable care to select a place where the act of looking and listening will be rea- sonably effective.*® Generally, stopping is not essential unless both BS Chicago, etc., R. Co. v. Robinson, 106 111. 142, 13 Am. & Eng. R. Cas. 620; Missouri, etc., R. Co. v. Pierce, 39 Kan. 391, 18 Pac. 305; Missouri, etc., R. Co. V. Moffatt, 56 Kan. 667, 44 Pac. 607; 3 Elliott, Railroads, (2nd ed.) §1158; Sa- vannah, etc., R. Co. V. Shearer, 58 Ala. 672 ; Telfer v. Northern R. Co., 30 N. J. L. 188; Bohan v. Milwaukee, etc., R. Co., 61 Wis. 391, 21 N. W. 241, 19 Airi. & Eng. R. Cas. 276.' 64Fayct v. St. Louis & S. F. R. Co., — Ala. — , 81. So. 671 (1919). BB3 Elliott, /Railroads (2nd ed.), §115 8; Dublin, etc., R. Co. v. Slattery, L. R. 3 App. Cas. 1155; Chicago, etc., R. Co. V. Dickson, 88- 111. 431; Bunting v. Central Pac. R. Co., 16 Nev. 277; -6 Am. & Eng. R. Cas. 282; Voak v. Northern Cent. R. Co., 75 N. Y. 320; Berg v. Chi- cago, etc., R". Co., 50 Wis. 419, 7 N. W. 347, 2 Am. & Eng. R. Cas. 70. See ante, § 188. ^^ Arkansas: Smith v. Missouri Pac; R. Co., — Ark. — , 211 S. W. 6S7 (1919) ; St. Louis S. F. R. Co. v. Stpwart, — Ark. — , 207 S. W. 440 (1918). California: Young v. Southern Pac. Co., — Cal. — , 190 Pac. 36 (1920). Illinois: Gray v. Chicago & N. W. R. Co., 155 111. App. 428 (1910). Indiana: Waking v. Cincinnati, I. & W. R. Co., — Ind. App. ^, 125' N. E. 799 (1920); Pittsburgh, C, C. & St. L. R. Co. V. Dove, 184 Ind. 447, 111 N. E. 609 (1916). . Iowa: Lockiridge v. Minneapolis & St. L. R. Co., 161 la. 74, 140 N. W. 834 (1913). Kansas: Turper v. St. Louis & S. F. R. Co., — Kan. — „ 189 Pac. 376 (1920) ; Wehe v. Atchison, T. & S. F. R. Co., 97 Kan, 794, 156 Pac. 742 (1916) ; Jacobs V. Atchison, T. & S. F. R. Co., 97 Kan. 247, 154 Pac. 1023 (1916). Kentucky: Louisville & I. R. Co. v. Schuester, 183 Ky. 504, 209 S. W. 542, 4 A. L. R. 1344 (1919) ; Louisville & N. R. Co. V. T'reanor's Adtn'r, 179 Ky. 337, 200 S. W. 634 (1918). Minnesota: Pogue v. Great Northern R. Co., 127 Minn. 79, 148 N. W. 889 (1914). Missouri: Monroe v. Chicago & A. R. Co., — Mo. — , 219 S. W. 68 (1920), citing this work; Central Coal & C. Co. COLLISIONS WITH RAILROAD TRAINS 671 seeing and hearing are ineffectual without doing so.*'' Where a motorist traveled parallel with the defendant's electric railway track for 6 miles without meeting or being overtaken by a train, and on arriving at the crossing he looked in both directions and listened and neither saw nor heard a train approaching, and the time it would take an approaching train to travel over the distance he could see the track gave him plenty of time to cross if no mishap ' befell his car, he was not guilty of negligence as matter of law in failingto stop.*' V. Kansas City S. R. Co., — Mo. App. — , 21S S. W.-914 (1919). New Jersey: Dickinson v. Erie R. Co., 81 N. J. L. 464, 81 Atl. 104 (1911). New. York: . Sandresky v. Erie R. Co., 91 Misc. 67, 1S3 N. Y. Supp. 612 (1915). North Carolina: Brown v. Atlantic Coast Line R. Co., 171 N. C. 266, 88 S. E. 329 (1916) ; Hunt v. Nortlj CaroUna R. Co., 170 N. C. 442, 87 S. E. 210 (WIS)^ Oregon: Failure to look and listen is negligence per se. Robison v. Oregon- W. R. & N. Co,, 90 Oreg. 490, 176 Pac. S94 (1918) ; Cathcart v. Oregon-Wash- ingtpn R. & N. Co., 86 Oreg 250, 168 Pac. 308 (1917). Tennessee: Hurt v. Yazoo & M. V. R. Co., 140 Tenn. 623, 205 S. W. 437 (1918). Texas: Texas & N. O. R. Co. v. Hous- ton U. Co.,,— Tex. Civ. App. — , 218 S. W. 84 (1919) ; Texas & N. O. R. Co. V. Harrington, — Tex. Civ. App. — , 209 S. W. 685 (1919); Beaumont, S. L. & W. R. Co. V. Myrick, — Tex. Civ. App. — , 208 S. W. 935 (1919) ; St. Louis S. W. R. Co. V. Harrell, — Tex. Civ. App. — , 194 S. W. 971 (1917) ; Ft. Worth & D. C. R. Co. V. Alcorn, — Tex. Civ. App. — , 178 S. W. 833 (1915) ; Texas & Pac. R. Co. V. Hilgartner, — Tex. Civ. App. — , 149 S. W. 1091 (1912). Utah: Lavirrence v. Denver' & R. G. R. Co., — Utah — , 174 Pac. 817 (1918). Virginia: Washington & O. D. Ry. v. Zell's Adm'r, 118 Va. 755, 88 S. E. 309 (1916). Washington: Hull v. Seattle, R. & S. R. Co., 60 Wash. 162, 110 Pac. 804, 7 N. C. C. A. 543n (1910). Federal: Lake Erie & W. R. Co. v. Schneider, 168 C. C. A. 625, 257 Fed. 675 (1919). One must look and listen, but ,if the stopping does not aid these functions, he need not stop. Esler v. Wabash R. Co., 109 Mo. App. 580, 584, 83 S. W. 73'; Campbell v. St. Louis & S. R. Co., 175 lyro. 161, 174, 75 S. W. 86; Schum V. Pennsylvania R. Co., 107 Pa. St. 8, 12. The stpp, look and listen rule has not been aidopted in Kentucky. Louisville & N. R. Co. v. Scott's Adm'r, 184 Ky. 319, 211 S. W. 747 (1919). He rruiist stop if necessary to make listening effective. Stepp v. St. Louis S. F. R. Co., — Mo. App. — , 211 S. W. 730 (1919). In Tennessee there is a statute requir- ing drivers of automobiles to come to a full stop before crossing track at grade on public roads. Laws Tennessee, 1917, ch. 36; Carter v. Redmond, — Tenn. ■ — , 218 S. W. 217 (1920). The law imposes upon travelers ap- proaching railway crossing the impera- tive duty to look and listen where look- ing and listening would be effective, and to stop if necessary in order to avoid a collision. Seaboard Air Line Ry. v. Aber- nathy, 121 Va. 173, 92 S. E. 913 (1917). 87Swigart v. Lusk, 196 Mo. App. 471, 192 S. W. 138 (1917). B8HuII V. Seattle, R. & S. R. Co., '60 Wash. 162, 110 Pac. 804, 7 N. C. C. A. 543n (1910). 672 LAW OF AUTOMOBILES It has been hield that the stop, look, and listen rule is not applic- able where the entry upon the track was due to forces or circum- stances beyond the control of the traveler.*' In some jurisdictions, however, a traveler is ordinarily required to stop, and look and listen before going upon the crossing.®" In Pennsylvania it is held that the rule that a traveler about tb cross a railroad track must stop, look and listen is an imperative and unbending rule of law founded on public policy for the protection of passengers in trains quite as much as of travelers on the ordinary highways, and compliance with this rule- must be adopted in good faith for the accomplishment of the end in vie^.'^ On the question of stopping the Supreme Court of Pennsylvania has said: "The mere act of stopping does not of itself show that he stopped at a proper place, nor that there was not another and better place where he should have stopped again, or that his duty of look- ing and listening was performed with the proper care and attention, but stopping is opposed to the idea of negligence, and unless, not- withstanding the stop, the whole evidence shows negligence so clear that no other inference can properly be drawn from it, the court can- not draw that inference as a conclusion of law, but must send the case to the jury." ®^ "The rule to stop, look and listen, is not a rule of evidence, but a rule of law peremptory, absolute and unbending, and the jury can never be permitted to ignore it, to evade it, or to pare it away by distinction and exception." '* "When the driver of an automobile, about to cross the tracks of a passenger railway constructed upon a ptiblic highway, fails to look immediately before going upon the track, he is guilty of contributory 69 Henry V. Hack,, S3 Ind. App. 47. R. R. Co., 248 Pa. St. 193, 93 Atl. 1001 60 Bason v. Alabama G. S. R. Co., 179 (1915). Ala. 299 (1912) ; Walker v. Southern In Pennsylvania it is declared that, Pac. Co., — Cal. App. — , 176 Pac. 175 "stopping is an essential part of the rule, (1918) ; Knepp v. Baltimore & O. R. to enforce attention to the accompanying Co., 262 Pa. St. 421, i05 Atl. 636 (1918) ; duties of looking and listening, and to Cline V. McAdoo, — W. Va. — , 102 secure their performance in something S. E. 218 (1920). more than a perfunctory and heedless Darkness is no excuse for failure to way." Peoples v. Pennsylvania R. Co., stop, look and listen. Eline v. Western 251 Pa. St. 275, 96 Atl. 652 (1916). Md. R. Co., 262 Pa. St. 33, 104 Atl. 857 62 Bush v. Philadelphia & R. R. Co., (1918). 232 Pa. St. 327, 81 AU. 409 (1911). 61 Follmer v. Pennsylvania R. Co., 246 68,Atlantic Refining Co. v. New York, Pa. St. 367, 92 Atl. 340, 8 N. C. C- A. C. & St. L. R. Co., 67 Pa. Super. Ct. 320 1037n (1914); Earle v. Philadelphia & (1917). COLLISIONS WITH RAILROAD TRAINS 673 negligence, and this rule applies to the crossing of such railway tracks in the country as well as in the city.®* ' The plaintiff was driving his automobile, and at a grade crossing of the defendant's road, where there were five tracks, he stopped about IS feet from the first rail, where his view to the right in the direction from which the train came was obstructed by a watchman's house, 5 feet square, which stood 6 feet from the tracks. From this place his view was limited to ISO feet on the farthest track, and was much less on the nearer tracks. The tracks were straight, and from any point between them and the watchman's house the view was un- obstructed for half a mile. Without making any further effort to see if a train was coming, he started over the crossing, and was hit on the fifth track by a freight train running 15 or 20 miles an hour, with the headlight of the engine burning. The night was ordinarily dark ; but it was evident, from the plaintiff's testimony, that he could have seen the headlight if he had looked when he was on a line with the front of the watchman's house. Since this was 6 feet from the tracks, he apparently could have seen from his position in his car. In affirming judgment rendered -non obstante veredicto, the court said: "Where a stop has been made at the usual place of stopping, from which a view of the tracks can be had, it is generally a question for the jury whether, under the facts of the particular case, there was negligence in not stopping longer or at another and better place. But stopping where one cannot see is little, if any better than not stopping at all, and it is not a con^pliance in good faith with the un- bending rule enforced in a long line of cases, that a traveler, before attempting to cross the tracks of a steam railroad, must stop, look, and listen, and, if necessary in order to see, advance to or onto the tracks." ®* , . Where defendant's driver, who was familiar with the locality, ap- proached a crossing at night at a speed of S or 6 miles an hour, and did not stop, look or listen before going on the tracks, but relied im- properly upon a signal which he supposed a railroad employee gave him, and proceeded and was struck by a train, no recovery could be had, as the driver was contributorily negligent. "In this case, if the driver of the truck had stopped, looked and listened, all acts of negligence charged to have occurred subsequent to his having stopped, looked and listened, would be a question for the jury, 64Bready v. Philadelphia R. T. Co., Also, Knepp v. Baltimore & O. R. Co., 68 Pa. Super Ct. 298 (1917). 262 Pa. St. 421, lOS Atl. 636 (1918). 6B Craig V. Pennsylvania R. Co., 243 Pa. St. 4SS, 90 Atl. 135, 8 N. C. C. A. 1038n (1914). B. Autos. — 43 674 LAW OF AUTOMOBILES unless his negligence was very clear and undisp'uted. While this accident happened in the evening, after dark, the situation was well known to the driver of the truck, so that he was not excused from his duty to stop, look and listeh. This misleading signal of the railroad flagman would not justify his entering upon a grade crossing without fully complying with the positive rule of law above stated." ®* Where a driver stopped his car 6 feet from the nearest track, and, neither seeing nor hearing an approaching train, began to back across the tracks, he was not negligent as matter of law for failure to again stop before entering the crossing.*' A motorist who stopped to look and listen within six feet of the first rail of the near track of a double-track car line, exercised the precaution that the law requires.^' In a case in which the evidence relating to the suitability of the place where plaintiff stopped his truck to look and listen for an ap- proaching train was conflicting, and there was evidence that he pro- ceeded to cross after being signaled by defendant's crossing tender, and was struck by a locomotive, it was held that the questions of negligence and contributory negligence were for the jury, and judg- ment for plaintiff was affirmed.®^ A rule almost as stringent seems to prevail in Alabama, where it is said: "It has been repeatedly held by this court that a party is guilty of contributory negligence if he goes upon or across a railroad track without first stopping and looking and listening for approach- ing trains, and this is a continuing duty. He cannot acquit himself by stopping some distance off and then going on over, but he must Stop near the track; and his survey by sight and sound must so im- mediately precede his effort to cross over as to preclude the injection of an element of danger from approaching trains unto the situation between the time he stopped, looked, and listened and his attempt to proceed across the track." '"' The West Virginia rule seems to be the same as in Pennsylvania, for in that state the Supreme Court has said: "As many times de- cided, it is the duty of a traveler on a public highway, on approach- 86 Atlantic Refining Co. v. New York, 69 Hamilton v. Philadelphia, B. & W. C. & St. L. R. Co., 67 Pa. Super. Ct. 320 R. Co., 2S2 Pa. St. 61S, 97 Atl. 850 (1917). (1916). 67Wingert v. Philadelphia & R. R. 'O Bason v. Alabama G. S. R. Co., Co., 262 Pa. St. 21, 104 Atl. 8S9 (1918). 179 Ala. 299 (1912). 68Knobeloch v. Pittsburgh, H. B. & N. C. R. Co., — Pa. St. — , 109 Atl. 619 (1920). COLLISIONS WITH RAILROAD . TRAINS 675 ing a railroad crossing, to stop, look, and listen, without which, if injured, he will be guilty of contributory negligence." '^ § 686, Duty to look and listen. It is the duty of a motorist, approaching a railroad crossing, to look and listen, or look or listen, for trains. "To look and listen for cars at crossings is a positive, fixed duty, when by such precautions they may be seen or heard, and in such cases a failure of observance will bar recovery. Where, however, in exceptional cases, because of conditions not created by, nor under the control of a traveler, these precautions would not apprise one of danger, their exercise may be excused." '^ Whether or not his failure to stop constitutes negligence is to be determined from all the facts of the particular case.'* And in order for a failure to stop to constitute negligence, there must be a place where the motorist may stop in safety.'* "Travelers upon a public highway, in attempting to pass over rail- road crossings, must look and listen attentively for the approach of trains. If such a traveler, by the exercise of reasonable care, could have seen the approach of a train by looking, in time to have avoided injury, by the use of reasonable efforts, it will be presumed, in case he is injured by a collision therewith, that he either did not look, or. 71 Cline V. McAdoo, — W. Va. — , 102 S. E. 218 (1920). 'Z Stem V. Nashville Int. Ry., — Tenn. — , 221 S. W. 192 (1920). ^3 Alabama: Central of Ga. R. Co. V. Faust, — Ala. App. — , 82 So. 36 (1919). Arkansas: Smith v. Missouri Pac. R. Co., — Ark. — , 211 S. W. 657 (1919) ; St. Loiiis S. F. R. Co. v. Stewart, — Ark. — , 207 S. W. 440 (1918). North Carolina: Shepard v. Norfolk & S. R. Co., 166 N. C. 539, 82 S. E. 872, 8 N. C. C. A. 1049n (1914). Oklahoma: St. Louis & S. F. R. Co. V. Model Laundry, 42 Okl. SOI, 141 Pac. 970, 8 N. C. C. A. 104 7n (1914). Tennessee: Hurt v. Yazoo & M. ■ V. R. Co., 140 Tenn. 623, 205 S. W. 437 (1918). Texas: Beaumont, S. L. & W. R. Co. V. Myrick, — Tex. Civ. App. — , 208 S. W. 935 (1919). In Hecker v. Oregon R. R. Co., 40 Or. 6, 66 Pac. 270, 23 Am. & Eng. R.R. Cas. (N. S.) 33, the traveler was ex- cused from -the duty of stopping as a matter of law and his case sent to the jury because the vehicle in which he was traveling was running in sand so as to make practically no noise at all, and be- sides he could see the railway traclf at intervals, and was in a position to hear' if a train was coming. In Kunz v. O. R. & N. Co., 51 Or. 191, 93 Pac. 141, 94 Pac. 504, 52 Am. & Eng. R. Cas. (N. S.) 721, the plaintiff had looked and listened and had heard blasts of the locomotive whistle, but mistook them for those usually given when pass- ing points far enough away for him easily to have crossed the track in safety. Besides this, his hitherto trusty team un- expectedly balked on the track. 74 Whitney v. Northwestern Pac. R. Co., — Cal. App. — , 178 Pac. 326 (1919). 676 tAW OF AUTOMOBILES if he did look, that hejdid not heed what he saw. Mental absorbtion or reverie, induced by business, grief, or other causes, will not excuse such traveler from his duty to look and listen." ''^ Where a motorist slowed down before attempting to cross a rail- road track, and looked and listened, and then proceeded to cross, and was struck by a slowly backing train,', the question of contributory negligence was for the jury, although he did not stop; the night being so dark that he could not see the train, which displayed no lights.^* A railroad track is itself a signal of danger, and one attempting to cross it must, in order to avoid the imputation o^ negligence, first look and listen, and if necessary, stop, look and listen for an ap- proaching train. This rule expresses the standard of necessary caution and care, and has for its object the protection not only of those who travel on the public highways, but also those who travel in steam and electric cars. Since the introduction into common use of automobiles there is even greater reason for adherence to the rule stated. The great size and weight of these machines, the speed at which they are driven, and the temptation to the operator to dash over railroad crossings without stopping to look or listen for an approaching train, subject those in cars and trains to increased danger. Both from the standpoint of their own safety, and from that of the menace they are to the safety of others, the obs'ervance of this rule is especially incumbent upon the drivers of automobiles.''"' He is not relieved of the duty to look and listen for trains by rea- son of his ignorance of the existence of such crossing, if the presence of the railroad is obvious to anyone making reasonable use of his ordinary powers of observation.'''* The plaintiff's automobile was struck by a train of the defendant at a public crossing. The train came from the east, and the plaintiff, when approaching the tracks, looked to the east when his view was somewhat obstructed, but he could see over a section of the main track in that direction at a distance of 700 or 800 feet, and he said that he saw no train. He continued at about 5 miles an hour, and when within 43 feet of the nearer rail of the main track, and from 76 Waking v. Cincinnati, I. & W. R. Click v. Cumberland & W. Elec. R. Co,, Co., — Ind. App. — , 125 N. ,E. 799 124 Md. 308, 92 Atl. 778, 8 N. C. C. A. ■ (1920). 1036n (1914). Te Mills V. Waters, 198 Mich. 637, 165 '8 Horandt v. Central R. Co., 78 N. N. W. 740 (1917). J. L. 190, 73 AU. 93 (1909), 81 N. J. L. "Kirkland v. Atchison, T. & S.'F. R. 488, 83 Atl. 511 (1911). Co., — Kan. — , 179 Pac. 362 (1919); COLLISIONS WITH RAILROAD TRAINS 677 that point until the track was passed, his view to the east was unob- structed, and he could see an approaching train for at least 800 feet. He did not look to the east after clearing the obstruction, but con- tinued to look to the west, listening for the approach of a train, but he did not still the noise of his automobile. He heard the rumbling of the train when he was some 16 or 18 feet from the main track, and then in some excitement attempted to drive across in front of the train, and was struck by it. Plaintiff had had 15 years' expe- rience as a brakeman and freight and passenger conductor. It was held that the plaintiff was guilty of contributory negligence as matter of law, and could not recover. In part the court said : "If the speed at which he was driving was such that he had not enough time , to look in both directions along the railway track, reasonable care required that he should control that speed until his safety could be assured. If one traveling in an automobile at S miles an hour may continue toward a railway track for a distance of 43 feet after passing an obstruction without looking in each direc- tion, then one traveling in such a vehicle at 25 miles per hour need not look out for a distance of 235 feet, and a pedestrian walking at the not unusual rate of 3 miles per hour would be authorized to travel 2 5 feet while having opportunity for a clear view and neglect- ing it." ^9 In the absence of statute, it is a general rule that the driver of an automobile is not negligent as matter of law in failing to stop, look, and Ms ten before going upon a railroad crossing, without regard to whether ordinary prudence requires such a course.*" , The circumstances may not require that he both look and listen, but common prudence requires that he do one or the other, and a failure to do so renders his act negligence in law.*^ It has been held to be gross negligence for a chauffeur to drive onto a railroad track without looking and listening for trains.*^ 79Northern Pac. R. Co. v. Tripp (C. New York: Baxter v. Troy & Boston C. A.'), 220 Fed. 286 (191S). R. Co., 41 N. Y. 502. 80 Walters v. Chicago, M. & P. S. R. Virginia: Southern R. Co. v. Hans- Co., 47 Mont. 501, 133 Pac. 357, 46 L. brough, 107 Va. iii,'1A2, 60 S, E. 58. R. A. (N. S.) 702 (1913). 82 Broussard v. Louisiana W. R. Co., ii Kentucky: LouisviUe & N. R. Co. 140 La. 517, 13 N. C, C. A. 910, 73 So. V. Taylor, 31 Ky. L. Rep. 1142, 1144. 606 (1917). Massachusetts: Hennessey v. Taylor, "Looking and listening are so easily 1891 Mass. 583, 586, 76 N. E. 224, 3 L. R. and readily accomplished that a failure to A. (N. S.) 345. do so in entering upon a place of dan- Missouri: Schmidt v. Missouri Pacific ger, such as a railroad track, is negli- R. Co., 191 Mo. 215, 229, 3 L. R. A. gence, even when the absence of signals (Ni S.) 196. indicates a safe crossing. But stopping . 678 LAW OF AUTOMOBILES Thus, where deceased was fatally injured by driving his automobile in front of a train at a crossing where a view of the track for a dis- tance of three hundred and forty feet in the direction from which the train was approaching could be had one hundred feet before reaching the railroad; and at a distance of sixty feet from the track a view of the track could be had for thirteen hundred feet, and twenty-two feet from the track the road could be seen a distance of two ipiles, he was held guilty of gross negligence.** Where a driver approached within 10 or 12 feet of the track before he discovered the approach of a train, then only SO to 75 feet distant, when it was too late for him to stop in, time to avoid a collision, and he could have discovered the train in tiihe by exercising ordinary care, he could not recover for resulting injuries. "The appellate courts of this state have never held that a failure on the part of one" approaching a railroad crossing to stop, look, and listen, or to do either, in order to ascertain whether or not a train ftiight be ap- proaching, would, as matter of law, constitute contributory negli- gence. But such is not the point here raised, and which we are discussing. A person approaching a railroad crossing is required to use ordinary care to ascertain, by some means, whether a train might be approaching such crossing, with a view to avoid contact with such train." ** Where both driver and passenger of an automobile failed to see the smoke of an approaching train, and to hear the signals or noise, when they were approaching a crossing with which they were famil- iar, they were negligent.'* Where there was evidence that other tracks near the crossing were blocked with cars, that plaintiff slowed down and looked and listened, and that the locomotive which struck him was not working steam and gave no warning signal of its approach, the question whether plaintiff should have stepped his machine before attempting to cross was for the jury." The "look and listen" rule applies as well in the city as in the country.*' It has been held that the look and listen rule is not applicable in is not held essential unless both seeing , U. Co., — Tex. Civ. App. — , 218 S. and hearing are ineffectual without so W. '84 (1919). doing.'' Swigart v. Lusk, 196 Mo. App. 86 Lawrence v. Denver & R. G. R. Co., 471, 192 S. W. 138 (1917).' — Utah — , 174 Pac. 817 (1918). «8Turck V. New York Central & H. 86Hines v. Gunnells, — Ark. — , 222 R. R. Co., 108 App. Div. 142, 95 N. Y. S. W. 10 (1920). Supp. 1100. «7 Jacobs v. Atchispn T. & S. F. R. «4 Texas & N. O. R. Co. v. Houston Co., 97 Kan. 247, 154 Pac. 1023 (1916). COLLISIONS WITH RAILROAD TRAINS 679 the absence of evidence tending to show that looking and listening would have given notice in time to avoid the accident.*' In those states in which contributory negligence is an affirmative defense,"it is presumed that a motorist, killed on a railroad crossing by a train, looked and listened for its approach before going on the track; 6r, in other words, that he exercised reasonable care.*' §687. Time and place motorist should look and listen. A motorist must not only look and listen at a railrokd crossing but he must do so at a time when to look and listen is effective.®" But he is not required in all circumstances and conditions to look or listen at a particular time, in a particular direction, or from a particular place.®^ He must be guided by the requirements of ordinary care and caution.'* ' It has been held that he is not required to look at the most ad- vantageous place; for this would be putting upon him the burden of not" only kpowing the most advantageous point, but also of exercising the highest degree of care, while all that is required of him is ordi- nary care." If he looks and listens at a place where people usually do so, it cannot be said as matter of law that it was not a proper place from which to look.'* The fact that he can stop near the track with greater convenience than can the driver of horses, will be considered in determining the reasonableness of the manner in which he looks and listens.'* ' § 688. Looking in only one direction. A motorist must look and listen in both directions for approaching trains, if not prevented 88 Union Tr. Co. v. Haworth, — Ind. with conditions, he is required to use — , lis N. E. 7S3 (1917). reasonable care to select a place ^to look 89Emens v. Lehigh Valley R. Co., 223 and listen where the looking and listen- Fed. 810 (191S). ing will be effective, and in some in- SOAskey v. Chicago, B. & Q. R. Co., stances to stop. Ft. Wayne &, N. I. Tr. 101 Neb. 266, 162 N. W. 647 (1917); Co. v. Schoeff, St Ind.'App. 540, lOS Thompson v. Philadelphia & R. R. Co., N. E. 924 (1914). 263 Pa. St. S69, 107 Atl. 330 (1919); 91 Union Tr. Co. v. Haworth, — ilnd. Southern R. Co. v. Hansbrough, 107 Va. — , US N. E. 7S3 (1917) ; Lake Erie & 733, 742, 60 S. E. 58. W. R. Co. v. Sanders, — Ind. App. - -, To look too late is not to look at all. 125 N. E. 793 (1919). Walker v. Rodriguez, 139 La. 2S1, 71 MLake Erie & W. R. Co. v. Sanders, So. 499 (1916). — Ind. App. — , 125 N. E. 793 (1919). The law requires persons about to 98 AUoggi v. Southern Pac. Co., — cross railway crossings to use ordinary Cal. App. — , 173 Pac. 1117 (1918). care to avoid injury. The exercise of 94Knepp v. Baltimore & O. R. Co., ordinary care will not require one to 262 Pa. St. 421,, 105 Atl. 636 (1918). look and listen at any precise distance 98 Chase v. New York C. & H. R. from the crossing, yet in instances where R. Co., 208 Mass. 137, 94 N. E. 377 vision is obstructed, and one is familiar (1911). 680 LAW OF AUTOMOBILES from doing so by the fault of the railroad company, and if he has tinie to do so; and this should be done before he has taken a posi- tion exposing him to peril or has come within the zone of danger, this being required so that his precaution may be effective.^ A motorist, familiar with a crossing and the fact that no flagman was stationed there, who confined his attention to the track in one direction, in which direction the view was somewhat obstructed, and who was struck by a train coming from the other direction, which could easily have been seen, was held to be barred from recovery by his contributory negligence.^ § 689. Duty to continuously look until out of danger zone. It has been held in Pennsylvania to be the duty of a motorist after having stopped at a crossing and looked and listened fof approach- ing trains, to continue to look.* A motorist who, after looking both ways at a cros&ing for an,ap- piroaching train, and seeing none, was not negligent as matter of law, because he could possibly have seen the train in time to stop had he continued to keep his eyes constantly on the track, as the crossing was rough and in bad condition, thereby requiring at least part of his attention, and there being no absolute duty upon him to stop.* § 690. Motorist presumed to see that which he can see by looking, If a motorist, who was struck by a train at a crossing, could have seen the train had he looked, the presumptipri is that he did not look.* And a motorist who testifies that lie looked for approaching trains will be presumed to have seen a train that was in plain view.* He is chargeable with having seen a train which he was bound to see had he looked, and in such case, if he proceeds and is struck by a train j he is negligent whether or not, he looked. This is true although from one position his view was obscured by telegraph poles; there being anlple time for observation after passing the obstruction.' 1 Goff V. Atlantic C. L. R. Co., — N. * Louisville & I. R. Co. v. Schuester, C. — , 102 S. E. 320 (1920), quoting 183- Ky. S04, 209 S. W. S42, 4 A. L. R. from Johnson v. Railroad, 163 N. C. 1344 (1919). 443, 79 S. E. 69S, Ann. Cas. 191SB BMorenci S. R. Co. v. Monsour, — 598. Ariz. — , 18S Pac. 938 (1919).' ZBarnasky v. New York, O. & W. R. 6 Waters v. Chicago, M. & St. P. R. Co., 226 N. Y. 43S,. 123 N. E. 745 Co., — la. —, 178 ISP W. 534 (1920). (1919). 7 Jones v. Southern Pac. Co., 34 Cal. 8 Jester v. Philadelphia, B. & W. R. App. 629, 168 Pac. 586 (1917). Co., — Pa. St. — , 109 Atl. 774 (1920). , COLLISIONS WITH RAILROAD TRAINS 681 If he can see an approaching train by looking and does not look he is guilty of negligence.' § 691. Private crossings. In Kentucky it is a well-settled rule that a railroad company may run its trains at such speed as suits its convenience over private crossings^ and that it is not required to give notice of the approach of trains to such crossings unless it has been customary for the signals to be given. Where it has been customary for sigrlals to be given of the approach of trains to a private crossing, and these are relied upon by persons using the crossing, and a traveler on the crossing is struck by reason of a failure to give the customary signals, a recovery may be had." No recovery could be had for the death of a motorist, who was struck by a train at a private crossing on his farm, where he drove on his crossing without looking or listening, and was struck by a regular train running on time, and the track was straight and open for nearly half a mile.^" Where an interurban company erected a station at the inter- section of a private road with its tracks, it thereby impliedly in- vited the public to use the road. And in approaching such cross- ing at times when persons may reasonably be expected to be there- on, it was required to keep a reasonable lookout, and keep its cars under control.^^ The statutory rule requiring signals by trains, approaching pub- lic crossings, does not apply to private crossings.^* § 692. Duty of motorist where there are more than one track —Train moving in opposite direction from customary travel. West Virginia holds the traveler to very strict adherence to the stop, look, and listen rule, and to quite exacting precautions at crossings. The following law is taken from that state. When the railroad consists of a double track, on which the trains run in opposite directions are operated, the obligation of the stop, look, and listen rule is not discharged by the traveler looking only in one direction. It is his duty to look in both direc- tions; and when there is nothing to obstruct his view or hearing, the question of his negligence is generally one of law for the court, and not of fact for the jury. The fact that the engine or train doing the injury complained of may have been moving backwards SPuhr V. Chicago & N. W. R. Co., — Wash. 64S, 178 Pac. 808 (1919). Wis. — , 176 N. W. 767 (1920). "Louisville & I. R. Co. v. Cahtrell, 9 Louisville & I. R. Co. y. Cantrell, 17S Ky. 440, 194 S. W. 353 (1917). 17S Ky. 440, 194 S. W. 3S3 (1917). 12 Hawkins v. Interurban R. Co., 184 10 Miller v. Northern Pac. R. Co., 105 la. 232, 168 N. W. 234 (1918). 682 LAW OF AUTOMOBILES on the track not regularly used by trains going in that direction does not excuse the traveler, as a general rule, from discharge of his duties, for he is bound to take notice that the railroad may operate trains on either track in either direction.^' § 693. Where view or sound is obstructed. If a motorists' view of the track is obscured, or if noise makes the sound of an approaching train inaudible, he must take such precautions as will render sight or hearing effective before moving into a position from which he cannot extricate himself in the event of the near approach of a train.^* If, on account of the continuing noise of his vehicle and the obstruction of his vision, it is necessary to stop in order to listen effectively, then it is his duty to stop.^^ But even when ISCIine V. McAdoo, — W. Va. — , 102 S. E. 218 (1920). ^^ Alabama: Rothrock v. Alabama Great So. R. Co., ^ Ala. — , 78 So. 84 (1918). ; Califbrnia: Young v. Southern Pac. Co., — Cal. — , 190 Pac. 36 (1920). Delaware:. Nailor v. Maryland, D. & V. R. Co,, 6 Boyce (Del.) MS, 97 Atl. 418 (1916). Indiana: Baltimore & O. R. Co. v. Mangus, — Ind. App. — , 126 N. E. 863 (1920). Kansas: Turner v. St. Louis & S. F. R. Co., — Kan. — , 189 Pac. 376. Michigan: Hardy v. Pere; Marquette R. Co., 208 Mich. 622, 17S N. W. 462 (1920). ' Washington: Benedict v. Hines, — Wash. — . 188 Pac. S12 (1920); Golay V. Northern Pac. R. Co., lOS Wash. 132, 177 Pac. 804 (1919). Where there are permanent obstruc- tions to sight that may make danger in- visible, and a transient noise that may make it inaudible, it is negligence to go forward from a place of safety to a place of possible danger, without wait- ing for hearing to become effective. Dickinson v. Erie R. Co., 81 N. J. L. 464, 81 Atl. 104 (1911). "The general rule that one who at- tempts to cross a railroad track must reasonably use his own powers of ob- servation to assure himself that there is no danger from approaching trains is clear. And. the rule applies to one from whom a train approaching on a second track is hidden by a train whcb has just passed." Griswold v. Pacific El. R. Co., — Cal. App. ^, 187 Pac. 6S (1919). "^^ Arizona: Morenci S. R. Co. v. Monsour, — Ariz. — . 18S Pac. 938 (1919). California: McClure v. Southern Pac. Co., — Cal. App. — , 183 Pac. 248 (1919). Kansas: Turner v. St. Louis & S. F. R. Co., — Kan. — , 189 Pac. 376; Wehe V. Atchison, T. & S. F. R. Co., 97 Kam 794, 1S6 Pac. 742 (1916). Maryland: State v. Baltimore & B. El. R. Co., 133 Md. 411, lOS Atl. 532 (1919). Missouri: Central Coal & C. Co., v. Kansas City S. R. Co., — Mo. App., — , 215 S. W. 914 (1919). Ohio: Ohio Tr. Co. v. Smith, 33 Ohio Cir. Ct. R. 6W. Oregon: Robison v. Oregon-W. R. & N. Co., 90 Oreg. 490, 176 Pac. 594 (1918). Washington: Kent v. Walla Walla V. R. Co., — Wash. — , 183 Pac. 87 (1919). Federal: Philadelphia & R. R. Co. V. Le Barr, 265 Fed. 129 (1920). "It is not required in this state in all cases that one about to cross a rail- way track must stop, look, and listen COLLISIONS WITH RAILROAD TRAINS 683 the view of the motorist was obsciired, it has been, held that whether or not his failure to stop was negligence is for the jury." In Kansas, the driver of an automobile approaching a railroad track where he cannot see along the track until his machine is in a place where it will be struck by a passing engine or cars, must stop his automobile to ascertain whether or not there is danger, and it is insufficient to listen before he goes into a place of danger, although he does not hear any engine or cars coming.^'' The duty of an automobile driver, approaching tracks where there is restricted vision, to stop, look, and listen, and to do so at a time and place where stopping and where looking and where listening will be effective, is a positive duty." to assure himself that he can cross in safety; but where obstructions to his view prevent him from otherwise ascer- taining the fact of safety, then it is his duty to stop to make sure of his safety before crossing." Williams v. lola El. R. Co., 102 Kari. 268, 170 Pac. 397 (1918). "We think it (the law) does require of him, where he cannot see the track, to listen, and, if necessary for that pur- pose, on account of the noise made by his wagon (or any other cause), to stop and listen for the train before ven- turing blindly upon it." Swigart v. Lusk, 196 Mo. App. 471, 192 S. W. 138 (1917). "Conceding that defendant's servants were guilty of simple negligence in omit- ting to ring the bell or blow the whistle, and also in leaving box cars on its side track so as to unreasonably obstruct the view of approaching trains by those who might cross its tracks, nevertheless it is clear beyond dispute that the fail- ure of plaintiff's chauffeur to stop his car and look and listen before attempting to cross the main track was the proxi- mate cause of the collision, and hence that as matter of law he was guilty of such contributory negligence as to bar a recovery. Had the chauffeur stopped, he must have heard the rumble of a train then almost upon him. Had he looked Up and down the track, as he should have done before driving his car ahead, he must have seen the head- light. Bailey v. Southern R. Co., 196 Ala. 133, 72 So. 67 (1916). // there is anything to obstruct his view he should stop until he can ascer- tain whether he can cross with safety. Chase v. Maine Central R. Co., 167 Mass. 383, 388; Turck v. New York Central & H. R. R., Co., 108 App. Div. 142, 95 N. Y. Supp. 1100; Young v. New York, L. E. & W. R. Co., 107 N. Y. SOO, SOS; McCanna v. New England R. Co., 20 R. I. 439, 442, 10- Am. & Eng. R. Cas. (N. S.) 48S. "// he could not see an approaching train because his view was obstructed ordinary care for his own safety re- quired him to stop in order that his hearing should not also be obstructed." Pepper v. Southern Pacific Co., IDS Cal. 389, 399. If a person is under physical infirm- ity, that imposes upon hini the duty of increased vigilance in the employment of the faculties he possesses. Fusili "v. Missouri Pacific R. Co., 4S Mo. App. S3S, S43 ; Purl v. St. Louis, K. C. & N. R. Co., 72 Mo. 168,, 172. 16 Brooks V. Erie R. Co., 177 App. Div. 290, 164 N. Y. Supp. 104 (1917). "Woodward v. Bush, — Mo. — , 220 S. W. 839 (1920). ISCallery v. Morgan's' L. & T. R. & S. S. Co., 139 La. 763, 72 So. 222 (1916) ; Ohio El. R. Co. V. Weingertner, 93 Ohio 124, 112 N. E. 203 (191S); Golay v. 684 LAW OF AUTOMOBILES The existence of the obstruction, rather than relieving the motor- ist from the duty to look and listen for an approaching train, is notice to him, when he knows of such obstruction to his view, that additional care is required." When his sense of hearing cannot be depended upon to disclose the presence of a train, on account of the noise made by his engine, or for any other reason, it is imperative that he use his sense of sight to the utmost.^" If there is a point in his approach to the crossing from which he has a view of the tracks, he must so operate his machine that he can take advantage of the opportunity thus afforded.^^ If the conditions are such that a driver cannot determine whether or not a train is approaching, he must approach the crossing at such speed and with his automobile under such control that he can stop short of danger, after reaching a point where he can know of the near approach of a train. If he caknot see the track a sufficient distance to determine this before reaching the danger Northern Pac. R. Co., lOS Wash. 132, 177 Pac. 804 (1919) ; Brommer v; Penn- sylvania R. Co., 179 Fed. 577, 103 C. C. A. 13S, 29 L\ R. A.. (N. S.) 924 (1910) ; New York Cent. & H. R. R. Co. V. Maidment,' 168 Fed. 21, 93 C. C. A. 413, 21 L. R. A. (N. S.) 794 (1909) ; Delawjate, L. & W. R. Co. v. Welsh- man 229 Fed. 82, 143 C. C. A. 3S8 (1916). "But it does not necessarily follow as a rule of law that he is remediless because he did not look at the precise place and time when and where looking would have been of the most advantage." Lehigh Valley R. Co. v. Kilmer, 231 Fed. 628, 14S C. C. A. 514 (1916). "Where the view is unobstructed, a traveler who attempts to cross a rail- road track under ordinary and usual conditions without first looking, when by doing so he could note the approach of a train in time, to save himself by reasonable effort, is guilty of contribu- tory negligence. Where the view is ob- structed, a traveler may ordinarily rely upon his sense of hearing, and if he does listen and is induced to enter on a public crossing because of the negligent failure of the company to give the ordi- nary signals, this will usually be at- tributed to the failure of the company to warn the traveler of the danger, and not imputed to him for contributory negligence." Brown v. Atlantic Coast Line R. Co., 171 N. C. 266, 88 S; E. 329 (1916). 19 Trimble v. Philadelphia, B. & W. R. Co., 4 Boyce (27 Del.) 519) 89 Atl. 370 (1913) ; Sunnes v. Illinois Cent. R. Co., 201 111. App. 378 (1916) ; Blanchard V. Maine Cent. R. Co., 116 Me. 179, 100 Atl. 666 (1917) ; State v. Baltimore & B. EI. R. Co., 133 Md. 411, 105 Atl. 532 (1919). 20 Green v. Great Northern R. Co., 123 Minn. 279, 143 N. W. 722 (1913). Ariything which impedes the exercise of the sense of hearing, renders more imperative the duty to use the sense of sight. Pogue V. Great Northern R. Co., 127 Minn. 79, 148 N. W. 889 (1914). 21 Fayet v. St. Louis & S. F. R. Co., — Ala. — , 81 So. 671 (1919) ;' Central of Ga. R. Co. V. Faust, — Ala. App. — , 82 So. 36 (1919); Sanford v. Grand T. W. R. Co., 190 Mich. 390, 157 N. W. 38 (1916) ; Washington & O. D. Ry. v. Zell's Adm'r, 118 Va. 755, 88 S. E. 309 (1916); Golay v. Northern Pac. R. Co., 105 Wash. 132, 177 Pac. 804 (1919). COLLISIONS WITH RAILROAD TRAINS 685 zone, and cannot know Jay the exercise of hig sense of hearing whether there is danger from a train, he must stop, go forward on foot, and look from a place where he can determine that fact.^^ And if he approaches a railroad crossing, where his view of ap- proaching trains is obstructed, at such k rate of speed that he cannot stop before reaching the rails, he is negligent.^^ One who was familiar with the crossing in question, and knew that~switching was being done in the locality of and on the cross- ing, was negligent in driving thereon when the bell on a standing engine was ringing so that he could not hear an engine approaching on a parallel track, and of which his view was obstructed, until he was almost on the track, and by which his iMachine was struck.^* If a motorist's view of a crossing is obscured by fog he must listen for trains with the care of an ordinarily prudent person in such circumstances. If his engine makes so much noise that he cannot hear an approaching train, he must muffle his engine.^* . If he stops, looks and listens for an approaching locomotive, and hears no warning signal, he may presume that the railroad company will act with appropriate care, that the required signals will be given if a locomotive should approach, and he is justified in proceeding to cross the track without again looking. In the 28 Gage V. Atchison, T. & S. F. R. was interfered with in a material degree Co., 91 Kan. 253, 137 Pac. 938, 4 N. by the ringing o! the bell on the standing C. C. A. 719n (1914) ; Follmer- v. Penn- locomotive went forward experimentally sylvaijia R. Co., 246 Pa. St. 367, 92 Atl. and collided with the switch engine. He 340, 8 N. C. C. A. 1037n (1914). cannot complain if the experiment turned 23 Christirtan v. Southern Pac. R. Co., out disastrously. Warned of danger by — Cal. App. — , 17S Pac. 808 (1918) ; his thorough familiarity w^ith the sur- Bowden v. Lehigh Valley R. Co., 178 roundings, he passed the zone of safety App. Div. 413, 16S N. Y. Supp. 454 without efficiently looking from there (1917). I upon the only place from which danger "It is the duty of one approaching would come and went forward into the in an automobile a railroad crossing with accident which happened. If he had col- which he is familiar, where his view is lided with an innocent pedestrian com- obstructed until he gets within a short ing from the direction pursued by the / distance of the railroad track, to keep his locomotive the footman could easily have car under control and drive at a speed established negligence on the part of the which will enable him to stop in time present plaintiff. His act was none the to avoid a collision after discovering a less negligent in the instant juncture, train. A speed which prevents such con- and must defeat his recovery." Cathcart trol under the circumstances is negli- v. Oregon-Washington R. & N. Co., 86 gence as a matter of law." Askey v. Oreg. 250, 168 Pac. 308 (1917). Chicago, B. & Q. R. Co., 101 Neb. 266, 26 Central Coal & C. Co. v. Kansas 162 N. W. 647 (1917). City S. R. Co., — Mo. App. — , 215 ^^"There can be no reasonable ques- S. W. 914 (1919). tion but that the plaritiff whose hearing 686 LAW OF AUTOMOBILES instant case the automobile was stopped 21 feet from the nearest rail.*^ Where there is no evidence that the noise from an automobile is any greater than that made by engines of the kind generally, or that it would drown the sound of a locomotive bell, it cannot be held as matter of law that it would prevent the occupants of an automobile approaching a railroad crossing from hearing the bell of an approaching engine.^'' The existence of an obstruction to view at a railroad crossing is an element to be taken into consideration in determining the degree of care to be exercised. It imposes a like degree of care on both the railroad and the public.** A penal statute relating to the speed of motor vehicles at rail- road crossings where the view of the crossing is obscured, was held not to apply to an obstruction to view, not of the crossing, but of an approaching train.*® § 694. Same— Illustrative cases. California.— Where there were obstructions which made it impossible for a motorist to see the track in the direction from which the train came that struck him, he was guilty of negligence barring recovery in driving on the track without stopping to listen, and if necessary to get out of his machine and look for a train.'" Where a motorist, who was familiar with a crossing, could have stopped, stilled his engine, and listened for a train, at a safe dis- tance from the track, which was partly obscured, but did not do so, and was struck, he was held guilty of negligence barring recovery.*^ A similar application of the law was made in very similar citcumstances; although signal was given by the approach- ing train. In this case the motorist was held negligent for not stopping, getting out and going forward to look for a train.'* *6 Advance Thresher Co. v. Chicago, 81 Rayhill v. Southern Pac. Co., — R. I. & P. R. Co., — Mo. App. — , 19S Cal. App. — , 169 Pac. 718 (1917). S. W. S66 (1917). S2'7„ this case, as has been shown, the "T Advance Thresher Co. v. Chicago, driver of the machine, though confronted R. I. & P. R. Co., — Mo.' App. — , 195 by an obstructoin to such a view as S W. 566 (1917). would enable him to see and ascertain 28 Lake Erie & W. R. Co. v. Douglas, whether there was an approaching en- — Ind. App. — , 125 N. E. 474 (1919) ; gine, did not stop, and thus by his own McKinney v. Port Townsend & P. S. R. act of negligence failed to avail himself Co., 91 Wash. 387, 158 Pac. 106 (1916). of a position where he could have used 29 Schaff V. Bearden, — Tex. Civ. App. his 'faculties of observation to advan- — , 211 S. W. 503 (1919). tage.' And thus he failed to exercise 80 Thompson v. Southern Pac. R. Co., ordinary care in attempting to cross 31 Cal. App. 567, 161 Pac. 21 (1916). the defendant's railroad tracks, and in COLLISIONS WITH RAILROAD TRAINS 687 The plaintiff approached an electric railway crossing in his automobile, slowed down and looked and listened for an approach- ing car before attempting to cross. The view was so obscured by the line of trolley poles between the two tracks that he failed to see a car approaching on the east track until he was on the west track, moving at 2 or 3 miles an hour. He then saw the car at a distance of 250 or 300 feet, approaching at 60 feet a second. The tracks being but 9 feet apart he was unable to stop in time to avoid a collision. Held, that a verdict in plaintiff's favor was justified.'* Kansas. — Plaintiff was driving his automobile along a public street and approached a railway crossing, but, owing to obstruc- tions to his view, could not ascertain whether there was any car coming on the railway track, and he did not stop to ascertain that fact. At 15 feet from the track nothing prevented him from seeing an approaching car, but he did not see it until the front end of his automobile was 8 feet from the track, and he was then unable to stop his automobile in time to prevent a collision. Held, that plaintiff was guilty of contributory negligence barring, recovery of damages against the trolley car company.** Maryland. — The defendant operates an interurban railroad which, in respect to that portion in question, extends along the side and occupies a part of a public road, which extends north and south. At a place where the public road makes a sharp curve and crosses from the west to the east side of the railway track, defend- ant erected a car barn just north of the curve of the public road, and for the entire length of the barn the track extends between the barn' and the driveway of the road. A person driving north on the road has an unobstructed view of the track for a long dis- tance before reaching the crossing, but for some distance before reaching the crossing, and until he reaches the point where the rOad turns to cross the track, his view of the track north of the crossing is partly, if not completely, obstructed by the car barn. The barn also interferes with the sound of a car approaching from the north, and of its warning signals, and obstructs the motorrnan's view of the road for some distance south of the crossing. so doing met with the accident and Southern Pac. Co., — Cal. — , 169 Pac. resultant injuries of which the plaintiff 675 (1917). complains. Of course, under these cir- S3 Loftus v. Pacific El. R. Co., 166 cumstancea the plaintiff has no legal Cal. 464, 137 Pac. 34 (1913). ground for claipiing compensatory dam- ** Williams v. lola El. R. Co., — Kan. ages, and cannot recover." Murray v. — , 170 Pac. 397 (1918). 688 LAW OF AUTOMOBILES On the day in question the plaintiff, accompanied by his wife and two friends, was returning home in his automobile, which was driven by an experienced chauffeur, along the road in question, and traveling in a northerly direction. Both plaintiff and the chauffeur were familiar with the crossing and its surroundings, and with the fact tliat defendant's cars were operated at a high rate of speed. The chauffeur was driving at the rate of about iS miles an hour until the machine was within about 30 feet of the crossing, when he reduced the speed to 8 or 10 miles an hour and changed from high to second gear in order to get sufficient power to carry them up a slight ascent to the track. Plaintiff and the chauffeur testified that as they approached the crossing they were looking and listening for a car, but did not see or hear one. The chauffeur testified that when he "got almost on the track" he saw a car coming from behind the barn, "and when I got stopped the front wheels were on the track and the car struck me." He further stated that the automobile was not making noise enough to drown the sound of a car or its whistle; that it was a clear day, and that he could hear the sound of a car whistle half a niile away ; that the automobile made more noise in second than in high gear; that the bar obstructed the view of the track beyond the cross- ing; that he did not stop the machine to look or listen for a car. The motorman of the car testified, and his testimony was corroborated by a number of other witnesses, that he blew the whistle for a road crossing a short distance north of the bam, and blew it again as he approached the barn, and reduced the speed of the car to 7 or 8 miles an hour ; that when he cleared the barn, which was about 20 feet from the crossing, he saw plaintiff's automobile about IS feet from the track; that he did everything he could to stop the car, and that the car and automobile met on the crossing,*and the car shoved the automobile two or three feet. The plaintiff stated that the automobile was shoved 8 or 10 feet. As a result of the collision the automobile was damaged and the plaintiff suffered personal injury. At the conqlusion of the testimony the trial court withdrew the case from the jury and entered judgment in favor of the defendant on the ground that the plaintiff was contributorily negligent. On appeal this judgment was affirmed, the court holding that a rail- road track is a signal of danger, and one attempting to cross it must, in order to avoid the imputation of negligence, first look and listen, and, if the view be obstructed, stop, look and listen COLLISIONS WITH RAILROAD TRAINS 689 for an approaching car; and that this rule applies as well to an electric as to a steam railroad.^? Michigan. — A motorist who stopped within 10 feet of a side track, and then proceeded to cross, without again stopping, a main track 20 feet farther than the side track, although his view was, partly obstructed, was not contributorily negligent as matter of law for not stopping again before attempting to cross the main track.^® Minnesota. — In an action in which it appeared that plaintiff's automobile was struck by an engine on a street crossing, evidence that buildings obstructed plaintiff's view in the direction from which the engine was backed until he was within a short distance of the track, that he was moving five or six miles an hour, that he looked and listened when -approaching the track, and neither saw nor heard the engine Until it struck the automobile, was held to make his contributory negligencp a question for the jury.*'' Missouri. — The plaintiff, a motorcyclist, approached ' the defend- ant's in terurban electric road from the west where his view of the, track was somewhat obscured by a cemetery wall, vines, etc. He was struck by a southbound car, and brought suit to recover for the injuries sustained. He recovered judgment in the Circuit Court, which was affirmed by a majority of the judges of the Court of Appeals, but owing to the dissenting opinion of one of the judges, who declared that the plaintiff was barred from recovery by contributory negligence, and who based his conclusion on a decision of the Supreme Court, the case was certified to the latter court. The court stated the facts bearing on Ihe question of con- tributory negligence as follows: "Plaintiff says he came over the top of the hill a few hundred feet west of the crossing, and when he began to come down the grade, which was very easy, he closed out his spark, and coasted down to and over the 100 feet of level ground between the foot of the grade and the tra&ks, so that when he came out from behind the cemetery wall he was going not to exceed 4 or 4J4 miles per hour. He then looked toward the north, to -which his attention was drawn particularly on account of the wall and brush; he then looked toward the south, where the view was clear, and cannot remember what followed. We know from 35 Click V. Cumberland & W. Elec. R. 203 Mich. 372, 168 N. W. 1046 (1918). Co., 124 Md. 308, 92 Atl. 778, 8 N. C. 37 DeVriendt v. Chicago G. W. R. Co., C. A. 1036n (1914). — Minn. — , 175 N. W. 99 (1919). 36 Nichols V. Grand Trunk W. R. Co., B. Autos. — 44 690 LAW OF AUTOMOBILES the motorman, however, that he looked north at the corning car, tried to stop, failed, was thrown off as his machine bumped upon the track in front of the car, seized the wheel of his machine with both hands, and with what must have been a supreme effort, stopped it, and at the same time, with its aid, drew himself far enough across the track to save his life. It is evident that, had he not been thrown from the machine he woul(d have saved him- self from injury. The testimony of these two men, which is sur- prisingly clear when we consider their opportunities , for observa- tion, renders speculation as to the line of sight past and into the posts and vines and shrubbery unnecessary by informing us of the exact position of the car when they could first see each other. When the motorcycle wafe SO feet from the track, traveling at liie maximum speed estimated by its rider, the car must have been at least ISO feet or between three and four seconds beyond the limit of plaintiff's vision, and noiselessly approaching, so that he had time to look deliberately ,in that direction, as he says he did, ' without seeing or hearing it. He then, as he should have done, glanced south, and when he looked back to the north, and the two men saw each other, there is no questipn that each did everything in his power to stop his machine and prevent the collision." Heldy that the case was properly submitted to the jury, and judgment for the plaintiff was affirmed.** New Jersey. — Where the plaintiff approached defendant's rail- road tracks moving in a northerly direction, and at 4 or S miles an hour, and after passing a point 200 feet from the tracks his view of the tracks to the east was obstructed until a point was reached where the front wheels of his automobile would be just about to the first or south rail of the east-bound track, and the plaintiff looked and listened constantly from the time he passed the point 200 feet from the tracks, and when the last obstruction was passed a train was suddenly seen approaching from the east at 40 or; SO miles an hour, and plaintiff, to save himself, jumped from the automobile and injured his knee, and there was evidence that no signal was given of the train's approach, it was held that the case was for the jury, and that the trial court was in error in granting a nonsuit on the theory that when plaintiff jumped he was in a place of safety and that he was negligent in not stopping the automobile ihstead of jumping." 88 Jackson v. Southwest Mo. R. Co., 89 Dickinson v. Erie R. Co., 81 N. J. — Mo. — , 189 S. W. 381 (1916). L. 464, 81 All. 104 (1911). COLLISIONS WITH RAILROAD TRAINS 691 Pennsylvania. — On one side of the street on which the plaintiff was riding in an automobile with members of his family, his view of the defendant's railroad south, in the direction from which a train was coming, was cut off by factory buildings and a high board fence until a point was reached at the end of the fence, fourteen feet from the first track. On the space intervening be- tween the fence and the track there was a watch box, four and a half feet square that stood one and a »half feet from the fence. Beyond this box there was an unobstructed view south of several hundred feet. The plaintiff had crossed the tracks at this place almost daily for many years, and he had full knowledge of the situation and of its danger. When the automobile was 54 feet from the first track it was stopped and the plaintiff, after listening for a train directed the chauffeur to go on. When about 10 feet ^from the first track he heard a warning cry from someone on the street, and in looking south he saw a train approaching on the second track and he jumped from the machine. Before the auto- mobile was stopped it ran to the second track where its front end came into collision with the engine. Because of the impact with the engine, or because the chauffeur reversed it, the automobile ran back, striking and running over the plaintiff. It was held that a verdict was properly directed for the defend- ant on the ground that the plaintiff was contributorily negligent. The court said: "The plaintiff stopped where he knew he could not see a train south of the street on which he was riding and th^n went on without exercising the slightest care. The inconvenience or difficulty in stopping after he passed the watch box did not relieve him from the duty the law exacted of him, nor is it a valid excuse that he was committed to the act of crossing before he saw the train. His negligence was in attempting to cross without first looking at a place where he could see." " Texas. — Evidence which showed that a motorist neither looked nor listened for an approaching car, but that his view was some- what obstructed in the direction from which the car came, did not establish negligence per se.*^ Where a motorist was struck on a crossing by a train running at excessive speed and which did not give the statutory signal, and who looked first to the right and then to the left after he passed the last obstruction in approaching the track; and it appeared that 40Follmer v. Pennsylvania R. Co., 246 41 Galveston-H. El. R. Co. v. Patella, Pa. St. 367, 92 Atl. 340, 8 N. C. C. A. — Tex. Civ. App. — , 222 S. W. 615 1037n (1914). (1920). 692 LAW OF AUTOMOBILES had he looked first to the left he could have avoided the collision, it was held that the case was for the jury, and judgnierit for plain- tiff was affirmed.*'' Where a motorist failed to look. for an approaching train when he had an unobscured view, 65 or 70 feet from the- track, and did not look until so close to the track that he could not stop in time to avoid a collision with some freight cars which had been kicked over the crossing from considerable distance away, his negligence barred his right to recover for the injuries so received.*^ In an action to recover for the death of a motorist, struck by a trolley car at a public crossing, testimony that deceased was familiar with the schedule of the cars, that the car which struck hii;n was behind scheduk time, and approached the crossing with- out warning signal .required by law, and at 60 miles an hour, and that view of the track was obstructed, was sufficient to take the question of deceased's contributory negligence to the jury.** Virginia. — The fact that the defendant's engine was equipped with a powerful headlight, which illuminated a long distance ahead, did not charge the operator of an automobile with contributory negligence as matter of law in driving on the track at night and into collision with such engine, where the engine approached, the crossing in a deep cut, and there was a sharp curve 'a short dis- tance from the highway which caused the light to shine on the wall of the cut instead of the track, until the engine rounded the curve.*® Federal. — When the deceased's automobile reached a point 40 feet from the rail, the buildings and the standing cars on the driver's left had so far ceased to obstruct his view that he could see 120 feet along the straight track upon which the car was approaching, and at that moment the car was not more than 100 feet from the point of collision. It was broad daylight, there was neither smoke nor dust to obscure the view, there was no other moving train to drown the noise of the approaching car, nor was there anything to distract the driver's attention. It is not to be disputed that, if the driver had looked at the first instant when looking would do any good, he would have seen the car coming. He was familiar with the crossing, and knew that, by reason of 42Hines v. Messer, — Tex. Civ. App. 44Kirksey v. Southern Tr. Co., — —,218 S. W. 611 (1920). Tex. — , 217 S. W. 139 (1919). 48 Ft. Worth & D. C. R. Co. v. Hart, • 45 Southern R. Co. v. Vaughan's — Tex. Civ. App. — , 178 S. W. 79S Adm'r, 118 Va. 692, 88 S. E. 305 (1916) (191S). COLLISIONS WITH RAILROAD TRAINS 693 the obstructions, it was a dangerous , crossing and must be ap- proached cautiously. Held that it was his clear duty not only to look as soon as he could see, but to have his machine under such control that, if necessary, he could stop before getting into the danger zone, and that his negligence in failing to do so barred recovery for his death.*« "This court is of the opinion that a person driving an automo- bile, ^ stranger to the locality, who approaches a railroad crossing and stops, or substantially stops, at a point 145 or ISO feet from the actual crossing, being less than SO feet in a direct line from SiUch tracks, and looks and listens, exercising due and reasonable and ordinary care in so doing, hears no train and no signal, and no signal is given, and who then proceeds at reasonable speed, continuing to look and listen and who neither sees nor hears the approaching train which is coming nearly head on behind him on a downgrade, gliding or floating at from 40 to 60 miles per hour, without sounding bell or whistle, is not necessarily guilty of con- tributory negligence in not again stopping or in failing to see or hear the approaching train." *'' Where a motorist approached a crossing where his view of the track was obscured until within 40 feet of it, but at this point he could see SOO or 600 feet of the track in the direction from which a train approached, but without stopping to look or listen he pro- ceeded onto the track, where he was struck by the train mentioned, he was guilty of negligence barring recovery.** §695. "View obscured" defined. The view at a crossing may be said to be obscured when one approaching Uie track is not able to see an approaching train at a sufficient distance to enable hirh, in the exercise of ordinary care, to take the necessary steps for his safety.*' § 696. View obscured by fain and snow. An experienced motorist, conscious of the conditions, was driving his car at about 10 miles an hour when within IS feet of a railroad track. The highway was wet^ and his vision was so obscured by rain and snow that he could see only about 300 feet. When IS feet from the track he saw a train approaching about 300 feet away. He then 46Fluckey v. Southern R. Co., 155 C. 179 Fed. 577, 103 C. C. A. 135 (1910). C. A. 244, 242 Fed. 468 (1917). « Texas & N. O. R. Co. v. Harrington, « Lehigh Valley R. Co. v. Kilmer, — Tex. Civ. App. — , 209 S. W. 685 231 Fed. 628, 145 C, C. A. 514 (1916). (1919). 48 Brommer v. Pennsylvania ' R. Co., 694 LAW OF AUTOMOBILES tried to stop his automobile, but it skidded onto the track and was struck by the train. It was held that he was barred from recovery by his own negligence; that ordinary prudence red[uired him to control his car so that he could use his faculty of sight near the track where it would be of most benefit to him, and so that he could stop before going on the track if a train should appear within the distance he was able to see.*" § 697. Noise of automobile and wind. In an action to recover for personal injuries Incurred in a collision between plaintiff's auto- mobile and one of defendant's trains, it appeared that plaintiff had lived for eleven years near the city in which the accident occurred, and was familiar with the crossing, which was the scene of the col- lision, and its surroundings^ and that he had owned his automobile about a month and understood its operation. There was evidence tending to show that it was 1 70 feet from where he turned into the street in which the collision occurred and the first of the four tracks of defendant; that plaintiff was driving northprly at about five miles an hour, with his automobile running in low gear and making considerable noise; that a 29-mile an hour wind was blow- ing from the southeast; that plaintiff's view of the tracks to the west was obsciured by buildings, and his view of track No. 1, on which the accident happened, was obscured, in addition, by freight cars standing on other tracks, until he was within 24 feet of the track; that the train approached from the west, with steam shut off, at a speed variously estimated by witnesses at 12 to 30 miles an hour. There was a regular passenger train due, or overdue, from the west, but plaintiff had no knowledge of the train that struck him. This train had no schedule time and it was not in- tended to stop it at this city. Plaintiff testified that he looked and listened for a train as he was entering upon the tracks, but saw none, and heard no signal; that his automobile was in good condition and that he could have stopped it, running at five miles an hour, in a foot and a half with the foot brake. There was evi- dence that the engineer did not blow the whistle until close to the automobile. It was contended that plaintiff was necessarily guilty of negligence because for a distance of between 23 and 27 feet before reaching the track the train was in his range of vision. It was held that the case was properly submitted to the jury, and judgment for plaintiff was affirmed.*^ BO Gage V. Atchison, T. & S. F. R. Co., Bl Stone v. Northern Pac. R. Co., 29 91 Kan. 253, 137 Pac. 938, 4 N. C. C. N. D. 480, ISl N. W. 36, 8 N. C. C. A. A. 719n (1914). 1040n (1915). COLLISIONS WITH RAILROAD TRAINS 695 § 698. Sun shining in operator's face. In an action to re- cover for injuries received in a collision between an automobile and a train, consisting of 7 or 8 freight cars and an engine, being backed over the crossing, there was evidence that the plaintiff approached the crossing slowly, with his automobile in high gear, and making but little noise; that he looked both ways of the track and heard and saw no train; that it was between 4 and S o'clock of a bright October afternoon, and the sun was shining directly into plaintiff's face when he looked in the direction from which the train came, and prevented him seeing the train; that no whistle or bell was sounded by the train; that when he first saw the train it was so close that he could not prevent a collision, although he maide every effort to do so; that he was moving slowly when he looked and listened, but he did not stop; that the train was run- ning very quietly. Held, that the case was for the jury, that it could not be said that plaintiff was contributorily negligent as mat- ter of law.** §699. Struck after having stopped, looked, and listened. Where there was evidence that the plaintiff's automobile, approach- ing a crossing with defendtot's railroad, was stopped at a proper place before attempting the crossing; that plaintiff and the driver, who was under plaintiff's direction, looked and listened, and an approaching train was not then in view; that the automobile then started across the double line of tracks, and was struck by a train, it was held that the question of the contributory negligence of the driver of the car was for the jury.** It is not negligence as matter of law for a motorist to proceed to cross a double-track railroad, after having stopped, looked, and listened with the front of his automobile only 2 or 3 feet from the first track, where he had a view of 600 to 700 feet to the right, although had he stopped on the first track he could have seen a train approaching on the other track from the right.** In approaching a crossing the driver of an automobile stopped at the customary place and looked and listened for an apprbaching train. He then proceeded, and immediately after starting his view of the track to the right — the direction from which the train was coming — became restricted by a frame structure. He went on without again looking for a train, and his machine was struck, 62 Ft. Worth & D. C. R. Co. v. Al- Co., 241 Pa. St. 112, 88 Atl. 314 (1913). corn, — Tex. Civ. App. — , 178 S. W. 64 Jester v. 'Philadelphia, B. & W. R. 833 (191S). Co., — Pa. St. — , 109 Atl. 774 (1920). 63Witmer v. Bessemer & L. E. R. 696 LAW OF AUTOMOBILES resulting in the death of his employer, who was riding with -him. When he passed the building in question he had a view of the track for more than .400 feet, and, had he looked, could have seen the train and stopped in time to avpid a collision. Held, that recovery for the death was barred by the negligence of the driver. "Though the automobile stopped at a point on the road where people usually stopped, looked, and listened before proceeding to cross over the railroad tracks, the duty rested upon the driver to continue, until he reached the railroad, to look for an approachiiig train and to observe the precaution which the danger of the situa- tion required." ®* The plaintiff, who was familiar with the crossing of defendant's tracks, both east an^l west bound, and with the fact that trains fre- quently passed in either direction, approached the crossing, going south, between 7 and 7:45 o'clock in the evening, driving his auto- mobile. He stopped 15 or 20 feet north of the north rail of the north track, which was about 27 feet north of the center of the south track, and from which point he could see the south track 1 50 feet to the west. There was a train approaching, however, on that track from, the west, but it could not be seen or heard by plaintiff, although making considerable noise, because of an embankment ob- structing the view and. sound, and because of the noise his auto- mobile was making. He then proceeded onto the crossing and was struck by th^ train approaching from the west on the south track, at about 40 miles an hour, and without giving any warning signal of its approach. The jury returned a general verdict in favor of plaintiff, but found that by stopping his automobile S or 6 feet north of the north rail of the west-bound track he could have heard and seen the train in time to avoid the collision. It was held that the evidence supported the general verdict, which was not inconsistent with the jury's special finding.^* Where a motorist stopped 45 feet from the track to look apd listen, and then proceeded without further stop with the result that the ,train collided with his car the moment he reached the track, although just before entering upon the track he had an unob- structed view in the direction from which the train came for a dis- tance of 480 feet, he could not recover for resulting injuries. "In such a case it is vain for the plaintiff to assert that he looked and WLuken v. Pennsylvania R. Co., — v. Dove, 184 Ind. 447, 111 N. E. 609 Pa. St. — , ilO Atl. 151 (1920). (1916). «6 Pittsburgh, C, C. & St. L. R. Co. COLLISIONS WITH RAILROAD TRAINS 697 listened before entering upon the track, and did not see or hear any train." " § 700. Collision between railroad motorcar and automobile. The law relating to the mutual rights and duties of the driver of an automobile and fhe operator of a railroad motorcar, at a public crossing, has been judicially stated as follows; "The driver of the motorcar had the right of way over the crossing. The railroad itself was a warning of danger' to the driver of the automobile, and it was his primary duty to use his eyes and ears to look and listen for engines, cars, motorcars, and other vehicles operating upon the railroad and to stop his car before it could collide with any of them. The driver of the motorcar had the right to rely upon the legal presumption that the driver of the automobile would faithfully discharge this duty and stop his machine in time to pre- vent a collision. If Green had seen the automobile approaching, and had driven his motorcar steadily on until the collision occurred, in the faith that the driver of the automobile would stop it before it reached the railroad track, as it was his duty to do. Green would have been guilty of no breach of duty or negligence, unless he per- ceived that the driver of the automobile would not stop it in time to prevent the collision, and theresrfter failed to exercise reasonable care to stop his motorcar so as to avoid it." ^* , In an action brought by an employee of a railroad company to recover for injuries received in a collision at a highway crossing between a railway motor car on which he was riding and an auto- mobile, the action being against the railroad company, arid grounded on the alleged negligence of the employee who was operating the motor car, it was held that the court erred in refusing to give the fol- lowing instruction at the request of the railroad company: "The operator of the handcar was under no obligations to stop his car because he saw, or might have seen, the autqmobile ap- proaching the crossing. He had a right to presume that the driver of the automobile would stop, and not attempt to cross the rail- road track; and the mere fact, if it be a fact, that the operator of the car saw the automobile approaching the track is not sufficient to warrant a recovery in this case." *' B7Sefton V. Baltimore & O. R. Co., 64 69 Kansas City, C. & S. R. Co. v. ■pa. Super. Ct. 218 (1916). Shoemaker,. 1S7 C. C. A. 413, 245 Fed. 68-Kansas City, C. & S. R. Co. v. 117 (1917). Shoemaker, 249 Fed. ASS, 161 C. C. A. 416 (1917). 698 LAW OF AUTOMOBILES § 701. Poles and wires as warning of railroad. Telegraph or telephone poles and wires may not be a warning of the presence of a railroad, as such linps of poles and wires are frequently seen along ordinary highways far from any railroad .®'' ACT OR OMISSION OF MOTORISt' § 702. Driving against standing train at night. The plain- tiff was proceeding in his automobile, on a clear, dark night, at 12 to IS miles an hour, towards defendant's railroad. He was familiar with the road and crossing. His automobile was equipped with electric headlights of ordinary brilliancy, and they were lighted. When he was 20 feet away, he observed something on the crossing. He could have stopped his automobile in 12 to IS feet; but, think- ing it was a van or wagon, he did not slacken speed or stop, but attempted to go around the obstruction. When he had gone S or 6 feet farther he applied his brakes, but nevertheless hit a freight car of the defendant's train, which was momentarily standing on the crossing. His automobile was slightly damaged. It was not claimed that defendant violated any statute. Held, that there was no evidence of negligence on the part of the defendant, and that nonsuit should have been granted.®^ Where the plaintiff was driving his automobile at' night in a street with which he was unfamiliar, and just after he had turned out upon meeting another vehicle and was in the act of driving back to the center of the street, he discovered a freight car, standing partly in the street on a team track, about 10 feet distant and too close to avoid colliding with, the question of his negligence was held for the jury.^'^ The plaintiffs were riding in an automobile driven by one of their number, who was an experienced chauffeur, about one o'clock at night, when the automobile collided with a trairi of box cars which was stemding on defendant's spur track across the public street, and plaintiffs suffered the injuries complained of. There was evidence that the street extended in a straight line several hun- dred feet from the crossing in the direction from which the plain- tiffs approached; that the automobile approached the crossing at 20 or 2 S miles an hour; that it could have been stopped in a dis- tance of /40 to SO feet; that the headlights on the machine shone eONailor v. Maryland, D. & V. R. Co., 87 N. J. L. 378, 94 Atl. S77 (1915)'. Co., 6 Boyce (Del.) 14S, 97 Atl. 418 62 Galveston, H. & S. A, R. Co. v. (1916). Marti, — Tex. Civ. App. — , 183 S. W. 6iJacobson v. New York, S. & W. R. 846 (1916). COLLISIONS WITH RAILROAD TRAINS 699 100 feet ahead; that the driver did not see the cars until he was about 40 feet from them, when he attempted to stop,, but failed to do so in time to avoid the collision; that the night was dark and hazy, and that the glare of an electric arc lamp, located almost 160 feet from the crossing, affected the driver's ability to see until he had passed from under it; that there were no lights or other warn- ing of the presence of the train on the crossing, and no flagman was stationed there. The evidence did not disclose the length of time the train had been standing on the crossing. It was held that the evidence failed to show any negligence oh the part of the defendant, and directed verdicts in favor of defend- ant were susta:ined, the court in part saying: "A railroad is not required to have a gate or flagman or brakeman, or to maintain signals and lights at every crossing of a highway, but only at places where such precautions may be regarded as reasonably necessary for the protection of travelers. What might be considered as reasonably necessary for such protection at one crossing might be deemed wholly needless and unnecessary at another, the determi- nation of the question in each case depending upon the amount of travel upon the highway, the frequency with which trains passed over it, upon the view which could be obtained of trains as they approached the crossing, and upon other conditions. It could have been inferred that this train was upon the spur track for the pur- pose of taking out other cars which had been loaded with ice on the day before. This crossing was upon a highway in the country. The accident occurred at one o'clock in the morning, at a time when and at a place where it could not reasonably have been anticipated that there would be a great amount of travel, if any, upon the high- way. Besides, the spur track was little used. "The defendant and its servants, in the exercise of reasonable care, were justified in believing that travelers in automobiles, prop- erly lighted and driving at reasonable speed, would observe the cars upon the crossing in time to avoid coming in collision with them.'"" The facts in a case, in which the operator of an automobile was denied recovery, on the ground of contributory negligence for in- juries incurred when he ran his machine into a freight train stand- ing partially across the street, on a dark, rainy night, sufficiently appear from the following language of the court: "The night was dark and rainy when as he drove his automobile at high speed over eSTrask v. Boston & M. R. Co., 219 Mass. 410, 106 N. E. 1022, 8 N. C. C. A. 104Sn (1914). 700 LAW OF AUTOMOBILES a country road, which for a considerable distance ran straight be- fore him, he reached the point where the railroad crossed the high- way at grade, and the car came into Collision with the rear end of a freight train standing partially within the roadway. It is undis- puted that from previous use he was thoroughly familiar with the route, and aware that automobiles might be intercepted by passing trains liaving the right of way. If to some extent he could rely upon the ringing of the crossing gong to warn him of approaching trains, and his testimony that he did not hear it was some evidence that it did not ring, this fact did not relieve him from taking ordi- nary precautions for his own safety. The side curtains were down, and the wind shield up because of inclement weathet, and he must be held to have known that to operate his car safely under such conditions he mu^t depend largely if not wholly on his sense of sight, aided by his intimate knowledge of the location. The front lamps were lighted, and from his own testimony the car which was on an ascending grade could have been stopped within 30 feet, a distance of twice its length. To go on inclosed as he was without slackening speed, or taking any notice of the path before him except to keep within it, or perceiving that he was at the crossing until confronted by the train, evinces an entire absence of that degree of reasonable care required of travelers upon the public ways, where in the ordinary operation of the railroad trains may be expected to pass at any time. "The evidence offered by the plaintiff, and excluded, that on a previous occasion another motorist going over the road did not see a stationary freight car at the crossing, had no tendency to prove due care on the part of the plaintiff." Judgment on a directed verdict for defendant was accordingly upheld.^* : . § 703. Driving against moving freight train at night. The plaintiffs were riding in a hired automobile which, shortly after mid- night, at a crossing of the highway with defendant's railroad track, collided with the fourteenth car of a slowly moving freight train. There were no gates, lights, or crossing tender at the crossing. There was evidence that it was a dark night, and somewhat foggy, which prevented the chauffeur from discovering the trairi upon the crossing until he was within about 35 feet of it. He testified that ihe was then going about 14 miles an hour, and that when run- 64 Farmer v. New York, N. H. &' H. R. Co., 217 Mass. 1S8, 104 N. E. 492, 8 N. C. C. A. 104Sn (1914). COLLISIONS WITH RAILROAD TRAINS 701 ning at that rate he could bring his machine to a stop in about 27 feet, but for some reason he was not able to do so at the time of the collision. In holding that the trial court should have sustained defendant's motion for a nonsuit, on the groi^nd that no negligence was shown, the court in part said: "In order to charge the defendant with negligence as the cause of the collision, upon the ground that the trainmen did not have the crossing lighted or take some other extraordinary precaution, it must be held that the jury could find that men of ordinary prudence in charge of the train at the time would have known that an automobile coming toward the crossing at the rate of 14 miles an hour, in charge of an experienced chauf- feur, could not be stopped in going 35' feet, and would therefore crash into the train, unless they used some special signals which could be see'n more than 35 feet away. It is upon this ground that it is sought to charge the defendant with a duty it did not per- form. But why the trainmen should be chargeable with the knowl- edge that an automobile could not be stopped within a given dis- tance, when the expert chauffeur in charge of the machine said that it could, is not apparent. While they were bound to exercise ordi- nary care not to injure others seeking to use the crossing, their knowledge of the situation and its attendant danger, upon which their duty is based, is the knowledge of the ordinary man in similar circxmastances. Certainly it does not include a knowledge as to the time within which an automobile can be stopped not possessed by expert chauffeurs. If the trainmen had known that the plaintiffs were approaching at the rate of 14 miles an hour and that they could see ahead 35 feet^ they would have been justified, upon the plaintiff's evidence, in assuming that they would come to a stop before reaching thp crossing. Reasonable men could not find otherwise. The fact that the chauffeur was unable to stop the machine may have been due to some accident for which no one is responsible. The machinery, for some undisclosed reason, may not have responded to his efforts to control it as quickly as usual. In view of the statement in the plaintiff's brief that the chauffeur 'understood that his lights would enable him to discover any ob- struction ahead of him in season to avoid a collision,' it would be strange to say that the trainmen were in fault for not understand- ing that an automobile in charge of a competent chauffeur, driven at the rate of 14 miles an hour, and equipped with such headlights, was liable to run into the side of the train, and that it was incum- bent on them as reasonable men to takfe some extraordinary precau- 702 LAW OF AUTOMOBILES tion to prevent such a collision. Evidence of this character does not warrant the conclusion that the plaintiffs' injuries were due to . the defendant's negligence." *'' In an action to recover for injuries caused by a collision between plaintiff's automobile and a train of defendant, there was evidence that the plaintiff was proceeding in Jiis automobile along a street 100 feet wide, at night, at about IS miles an hour, with his head- lights burning and illuminating objects for a distance of 100 feet ahead, when his machine crashed into. the side of a box car, about 8 feet from the west end thereof; that the car was being pushed by an engine westerly across the street, and when the end of the car was about even with the sidewalk on the east side of the street it was stopped to let a street car pass; that it was then started again upon signal by a' brakeman stationed on top of the car and signalling with a lighted lantern; that the speed of the train was about 3 or 4 miles an hour; that a red light was on the northwest corner of the box car; that one of two brakemen stationed on the box car saw plaintiff coming and signaled to him with his lantern to stop ; that when he did not do so, a signal was given for the train to stop, and the train came to a standstill within about 4 feet; that there were two arc lamps at not very great distances, which helped to light the place of the accident; that the track on which the train was run- ning was a spur, on which defendant was authorized to operate trains between 1 and 5 o'clock a. m.; that plaintiff knew of the existence of the track, and had frequently passed over it, but had never seen cars on it. The plaintiff testified that one of the arc lamps was not lighted; that he did not see the box car until he was right into it; and that he could have sitopped his machine with- in IS feet. The lights on plaintiff's automobile would light a zone IS feet wide. It was held that the plaintiff was contributorily neg- ligent as a matter of law, and judgment in his favor was reversed with direction to dismiss the action. The court called attention to the fact that the end of the box car came within the zone covered by the headlights on the automobile when the automobile was more than 30 feet distant.®^ §704. Colliding with flat car attached to interurban car. A motorist who attempted to cross behind an interurban cai: and collided with the second of two flat cars attached to the other car, could not recover for the death of his wife, who was riding with 8BGage V. Boston & M. R. Co., 77 . ssAUison v. Chicago, M. & St. P. R. N. H. 289, 90 Atl. 8SS, L. R. A. 191SA Co., 83 Wash. S91, 14S Pac. 608, 8 N. 363, 8 N. C. C. A. 1043n (1913). C. C. A. 1044n (191S). COLLISIONS WITH RAILROAD TRAINS 703 him, due to such collision, as his own negligence was the proximate cause of her death, even though the operator of the car failed to give the appropriate \yarning for the crossing.®'' §705. Colliding with side of train unlawfully blocking crossing— Slippery road. A railroad company was held not liable for damage caused by an automobile colliding with the side of a train, which had blocked the crossing longer than allowed by law, the driver of the automobile being unable to stop after dis- covering the train owing to the slippery condition of the oiled road.®' § 706. Motorist looking to rear. Where a motorist, approach- ing a crossing at six miles an hour, was looking to the rear for a sufficient length of time to have stopped the machiiie before going on the tracks, no recovery could be had for his injuries due to being struck by a train.®' § 707. Motorist employee of railroad company with knowl- edge of train time and in sight of semaphore. The fact that an occupant of a motor truck who was killed by a train at a cross- ing, was an employee of the railroad company, knew when the train was due, and could see a semaphore which indicated that the train was within a block, did not render him per se contfibutorily negli- gent.^" § 708. Approaching crossing, obstructed by workmen, on down grade, in fog, without stopping. The plaintiff testified that on the morning of the accident it was quite foggy; that as he approached the crossing he slowed down his car, looked and lis- tened, and hearing nothing, he approached the tracks down a steep grade; that when he was about 35 feet from the track a workman on the crossing signaled him to stop ; that he attempted to do so but could not come to a stop before his front wheels were on the track ; that he jumped from the machine, which was struck by the engine and entirely demolished, and that he was prevented from crossing the tracks in time to avoid the collision by the fact that the cr'oss- ing was obstructed by workmen who were engaged in repairing it. Held, that a nonsuit was properly entered. "He did not stop until he was upon the track. This, imder all our authorities, is too late. The contention that the obstruction of the crossing by defendant's 67Frush V. Waterloo, C. F. & N. R. R. Co., — Mo. — , 213 S. W. 818 (1919). Co., — la. — , 169 N. W. 360 (1918). 70 Louisville & N. R. Co. v. Scott's 68 Oilman v. Central Vt. R. Co.,. — Adm'r, 184 Ky. 319, 211 S. W. 747 Vt. — , 107 Atl. 122 (1919). (1919). 69Tannehill v. Kansas City, C. & S. 704 LAW OF AUTOMOBILES workmen was negligence for which it is responsible is untenable. It was defendant's duty to keep the crossing in repair, and there is no evidence of negligence in the work, or that it could have been done without obstructing public travel." ''^ § 709. Exceeding speed limit. One whose automobile was damaged in a collision with a railroad train is not precluded from recovering therefor, as matter of la\v, by the fact that he was exceeding the statutory speed limit at the time. To hold other- wise would withdraw from the jury the question of proximate cause.'* § 710. Backing onto track— Last clear chance. A truck driv- er who backed his truck in front of a train where, if he had looked, he could have seen the train 75 feet away when he was 25 feet from the track, was guilty of negligence barring recovery, al- though it appeared that the truck skidded six or 'eight feet after the brakes were applied. It was also held that the last clear chance doctrine was not applicable, the truck appearing to be in no danger until the train was 60 feet from the crossing, the truck moving three to three and a half miles, and the train four or five miles an hour, and there being no evidence that the train was not stopped as quickly as practicable.''' §711. Disregarding flagman's signals. Where decedent drove onto a railroad track in front of an approaching train in spite of the fact that a flagman was at the crossing waving a flag, recovery could not be had on the theory that notwithstanding any supposed negligence on the part of the decedent the effective proxi- mate cause of the injury was the flagman's •intervening negligence in not attempting to stop the decedent's automobile after the flagman knew or ought to have known that the decedent was unconscious of the danger of crossing the track. Since the continuing active negli- gence of the decendent contributed, up to the last moment, toward the final catastrophe, the theory' of an intervening cause distinct from that negligence was wholly inapplicable to the case. It was further held that the fact that the flagman waved a white flag instead of a red one did not constitute negligence.''* ''I Farmer v. Pennsylvania R. Co., 67 TSMouso v. Bellingham & N. R. Co., Pa. Super. Ct, 399 (1917). 106 Wash. 299, 179 Pac. 848 (1919). '^Shepard v. Norfolk & S. R. Co., TiBorglum v. New York, N. H. & H. 169 N. C. 239, 8S S. E. 277, 8 N. C. C. R. Co., 90 Conn. 52, 96 Atl. 174 (191S). A. lOSOn (191S). COLLISIONS WITH RAILROAD TRAINS 705 § 712. Struck by train that could have been seen. Action was brought by the plaintiff to recover for the death of his son, and it was shown that decciased was the driver of a public auto- mobile, and an experienced and competent chauffeur; that at the time of the accident he approached defendant's track at a public crossing at a slow rate of speed; that the crossing was rough and there was a sharp ascent to the level of the track; that a freight train of the defendant was doing some switching, and the engine and a number of cars were standing near the crossing, with the nearest car about 80 feet distant; that a brakeman threw a switch which was located a few feet from the crossing and signaled the engineer of the train to come on, that the engine with the cars in front approached the crossing slowly, a,nd at about the same rate of speed that the automobile was traveling ; that there was noth- ing to obscure deceased's vision of the train where it was standing, nor between that point and the crossing, and that he could have seen the movements of the brakeman who threw the switch had he looked; that no signal of the approach of the train was given; that when the front wheels of the automobile were on the track the train struck the machine, demolishing it and killing the de- ceased; that the automobile was moving when it was struck, and at the rate of speed at which it approached the track it could have been stopped within its length, or within 30 feet at most. It was held that the deceased was contributorily negligent as matter of law, and judgment for plaintiff was reversed, and judg- ment entered for the defendant.''* Where a motorist drove onto a crossing and was struck by a train which he could . have seen for 800 feet when 90 feet from the track, and for an indefinite distance when 40 feet from the track, he was contributorily negligent, although he testified to looking and listening without seeing or hearing the train.''® A truck driver testified that he approached a crossing at 2 miles an hour, that he looked both ways along the track, with an unob- structed view a distance of 600 feet, when he was yet 12 or IS feet back from the track, but that he did not look again until the front wheels of his truck were on the track and the train was within 30 or 40 feet of him. The complaint declared that there was no obstruction to the view, and that the men in charge of the train could easily have seen the truck. He also stated that 76 Beaumont, St. L. & W. R. Co. v. ^eBeemer v. Chicago, R. I. & P. R. Moy, — Tex. Civ. App. — , 179 S. W. Co., 181 la. 642, 162 N. W. 43 (1917). 697, 8 N. C. C. A. 1041n (1915). B. Autoa. — 48 706 LAW OF AUTOMOBILES . i the train was moving 30 miles an hour. Held,' that he could not recover owing to his contributory negligence.'''' Where it appeared that a motorist must have seen a slowly approaching locomotive if he had looked before starting to cross, a directed verdict for the defendant was held proper, although two persons riding with the motorist testified that he stopped about three feet from the first track and did not see it.''* A motorist who had a view of the track, at a crossing, of a quarter of a mile, in the direction from which a train was approach- ing, when he was 17 feet from the track, was held to be contrib- utorily negligent, although the railroad company was negligent in failing to give warning of the train's approach, and the headlight on the locomotive was defective.''^ Where the plaintiff drove his automobile west along a public street at S or 6 miles an hour, and when he was about 650 feet from a crossing with' a steam railroad track he looked both ways along the track, being able to see south along the track about 700 feet, and when he was within 300 feet of the track he looked again, but saw no train on either occasion, and did not look again south,' because he knew where the railroad crossing was, and had never seen a train coming fast from that direction, and when the front wheels of his automobile were within 2 or 3 feet of the track, he saw the end of a box car, 15 or 20 feet distant, being backed from the south along the track at 10 or 20 miles an hour, in violation of an ordinance, and as it was too late to stop the automobile, he put on 'all power and was just past the middle of the track, when the box car struck the automobile, and plaintiff had not heard any bell or whistle or other sound of the approaching train, it was held that lie was not contributorily negligent as matter of law.*" § 713. Heedless of train in plain view. Where an autoist,^ familiar with. the conditions, drove his machine at the rate of 10 miles an hour onto a crossing and against an interurban electric car traveling at high speedj w'hen the approaching car could have been seen for a distance of half a mile after the autoist passed a point, 210 feet from the crossing, and could have been heard by him after passing that point, it was held that he was guilty of con- "Olds V. Hines, — Oreg., — , 187 80 Hauff & Stormo , v. South Dakot^, Pac. S86 (1920). ' Cent. R. Co., 34 S. D. 183, 147 N. W.' TS Smith V. McAdoo, — Pa. St. — , 986, 8 N. C. C. A. 1041n (1914). 109 Atl. 759 (1920). ' TSEddlemon v. Southern Pac. Co., — Cal. App. — , 182 Pac. 811 (1919). n COLLISIONS WITH RAILROAD TRAINS - 707 tributory negligence which barred recovery for his death, resulting from the collision.*^ Where a motorist had stopped his machine S or 6 feet from the nearest rail of a crossing, and then started to cross, and when he was on the track he saw an engine approaching about 30 feet away, and his car was struck before he could clear the track, it was held that there was no evidence that the defendant was negligent or that the plaintiff was free from contributory negligence, the track being straight for a distance of 900 feet in the direction from which the engine came, and the view being . unobstructed, although the plaintiff testified that he looked both ways of the track and listened before starting to cross. It was also held that the last clear chance doctrine was not applicablie to the facts.*^ In driving oyer a familiar crossing, where there , were two tracks 114 feet apart, at 12 to 15 miles an hour, the plaintiff failed to slow down after crossing the first track, after crossirig which he had an unobstructed view of the second track, he was contributorily neg- ligent, and could not recover for injuries sustained in a collision with a train on the second track.*' According to the only eyewitnesses to a collision between defend- ant's train and a motor truck driven by plaintiff's intestate, the latter drove the heavy truck over the crossing in front of the approaching train, and was .first seen when the train was about 100 feet from the crossing, and the truck about 45 feet from its position when struck. There was no evidence as to the rate of speed at which the deceased had approached the position in which he was first seen. At that time the train was running about' 35 miles an hour. There was no substantial obstruction to the view of either the deceased or the engineer. There was evidence that thp statutory whistle was blown for the crossing and that the engine bell was ringing continuously. It was held that, assuming that the engineer was negligent in not sooner seeing the deceased, it was apparent that the deceased was also negligent in attempting to pass in front of the train or in not knowing that the train was approach- ing; and recovery was denied. "Plaintiff's theory is that the truck was moving so slowly. that the engineer knew, or should have known, of the decedent's peril and of the fact that he was making no effort to avoid it in time to have prevented the collision; but this, theory involves an assumption as to the relative rate of speed 81 Southern Tr. Co. V. Kirksey, — 83 Lanier v. Minneapolis, St. P. & S. Tex. Civ. App. — , 181 S. W. 545 (1915). S. M. R. Co., 209 Mich. 302, 176 N; W. 82 Virginia & S. W. R. Co. v. Harris, 410 (1920). ^ 119 Va. 843, 89 S. E. 887 (1916). 708 • LAW OF AUTOMOBILES of the truck and the train, which is contradicted by the evidence of the only witnesses who saw the relative positions of the truck and train just before the collision." '* Defendant railroad company was held to be entitled to a directed verdict where it appeared that the plaintiff approached a crossing at 10 miles an hour where he had an unobstructed view for 225 feet of a train approaching at 40 miles an hour, and he could have seen the train when he was 45 feet from the track, and he did not apply his brakes in time to prevent a collision with the train. '^ § 714. Same— Last clear chance doctrine. Where the plain- tiff was driving his automobile westerly along a public road, ap- proaching a crossing of the highway with defendant's inter- urban railroad, at IS miles an hour, during daylight, and continued at the rate of 10 or 12 miles an hour to within IS feet of the track, when he was told by an occupant of the automobile that a car was almost on them, approaching from the south, and plaintiff did all in his power to stop the machine, but was so near to the track when he succeeded in stopping it that the car struck his machine and damaged it, and it appeared that plaintiff had a view of 400 feet of the track towards the sotith when and after he was within 92 feet of the track, and that he looked to the south at that point, and that he did. not see the car until told of its approach, it was held that the plaintiff was negligent as matter of law. The plaintiff also testified that when he saw the car it was 75 or 100 feet away from him, and that it had slowed down almost to a stop when it struck his machine. It was held that the evidence was not sufficient to take the case to the jury on the last clear chance doctrine. "On this question the court in part said: "But, in order that there may be a recovery on this principle, it must be shown that the property was in a place of danger, and that by the exercise of ordinary care such fact could have been discovered, and, furthermore, it must be shown that after notice of the danger is fastened on the defendant it is within his power by the exercise of ordinary care with the appliances and means at hand to avoid the injury. In our case the* automobile at some time anH place before the interurban car struck it had entered the danger zone, and, admitting for a disposition of this appeal that the motorman at some time in his approach to this crossing became cognizant of the fact that the automobile was in the danger zone or about to 8* Lassen v. New York, N. H. & H. R. Co., 206 Mich. 304, 172 N. W. 530 R. Co., 87 Conn. 70S, 87 Atl. 734 (1913). (1919). 8B Pershing v. Detroit, G. H. & M. COLLISIONS WITH RAILROAD TRAINS , 709 enter the danger zone, there is yet lacking the evidence to sustain the allegation in the petition that by the exercise of ordinary care the motorman could have avoided the collision., , "Merely seeing an automobile approaching the crossing, and seeing that its apptoachj if continued would bring it dangerously near the crossing, would not of itself up to a certain point charge the motorman with knowledge that the driver of the automobile would not act as an ordinarily prudent man would act under the same or similar circumstances. He had a right to presume tha,t the driver would or had used his eyes, and was therefore aware of the danger. The witnesses testified, and it is more or less a ihatter of common knowledge, that a speed of from 10 to 12 miles an hour is not fast for an automobile. The driver- of this automobile had looked, at the 9 2 -foot point where the physical facts demonstrate that the operatives of the two cars could see each other, and had after that time slackened the speed of the automobile from some- thing like IS miles an hour to something like 10 or 12 miles an hour. If the motorman saw this, he could reasonably infer and had a right to infer that the driver of the automobile was not oblivi- ous to the approach of the street car, but was aware of its pres- ence. Just when the knowledge of the peril came to the motorman, if it did come to him, before he saw the automobile stop near the track, is not shown. Indeed, it may be argued that the exact spot would not have to be shown, and that that would be a matter for the jury to determine. But wherever it was and whenever it was, with these two cars approaching each, other, the negligence on which defendant can be held "must have occurred after that point had been reached by the automobile, and bfefore negligence can be established it must be shown that by the use of the means and appliances at hand the motorman could have stopped his car in time to have avoided the accident." *' • The duty ofi a motorman to act under this doctrine does not arise until the peril of the motorist is apparent.*'' § 715. Driving on track at night without looking. Where, in an action to recover for damage to an automobile resulting from a collision with a railroad engine at a street crossing, the evidence showed that servants of the plaintiff attempted to drive the auto- mobile over the crossing on a dark night without looking to see if a train was approaching, and that there was nothing to prevent •6 England v. Southwest Missouri R. 'T Fillmore v. Rhode Island Co., — Co., — Mo. App. — , 180 S. W. 32 R. I, — , 105 Atl. S64 (1919). (191S). 710 LAW OF AUTOMOBILES them from seeing the approachihg engine with its headlight burn- ing had they looked, it was held that a judgment for jilaintiff could not b^ sustained, for the reason that his servants in charge of the automobile were guilty of contributory negligence." § 716. Driving on track soon after passing of train. A mo- torist who, without stopping to look and listen for an approaching train, after the passing of a regular passenger train, drives a slowly moving automobile making but little noise, onto a railroad track at a street crossing in an unincorporated village at a point where his yiew of the track was obsti-ucted, is not as matter of law guilty of contributory negligence, where the automobile was struck by a wild train following the regular train, and running backwards . at a speed of 25. or 30 miles an hour without giving any warning sig- nals and without having any lookout. It was also held that such conduct on the part of the railroad company did not amqunt to such gross negligence as to preclude contributory iiegligenee as a defense.*® § 717. Same— Struck by train moving in opposite direction. Where it appeared that the driver of an automobile neither looked nor listened for the train which struck him; that he paid no attention to a warning given him, but drove upon the track immediately behind a train that had just passed and was 40 or 50 feet away without attempting to ascertain whether a train was about to pass in the opposite direction, it was held that he was guilty of negligence which precluded recovery.®" § 718. Failure to look for, train approaching at excessive speed. Where a motor-cyclist approached a railroad crossing at about 8 or 10 miles an hour, where his view of the track for a time was obscured, and ran to within 2 or 4 feet of the track before look- ing for a train, when he saw one almost upon him, and he turned his machine down the track in front of the train about 8 or 10 feet a,nd tried to cross, and. as his front wl^eel crossed the s^cqndL rail the engine struck him, it was held that he could not recover, although he testified that he heard no warning signal of the ap- proach of the train, and therefore was not expecting a train, and there was evidence that the train was run at excessive speed. 88 Elder v. Pittsburgh, C. C. & St. L. 90 St. Louis, B. & M. R. Co. v. Paine, R. Co., 186 111. App. 199 (1914). — Tex. Civ. App. — , 188 'S. W. ' 1033 89 Rouse V. Blair, 185 Mich'. 632, S (1916)'. N. C. C. A. 1033, 1S2 N. W. 204 (1915). COLLISIONS WITH RAILROAD TRAINS 7 1 1 "The imprudence of the plaintiff below in not taking the pre- caution which under the ; circumstances might have avoided the accident, but, instead, heedlessly riding his motor-cycle up to and directly in front of the approaching train, and then turning down the track between the rails in front; of it, exhibited a lack of pru- dence which the known risks demanded that he should exercise. The engineer in charge of the approaching locomotive had the right to presume that the defendant in error was in possession of his faculties ; th^t he would iiot; attempt to cross the track ahead of the train with such a narrow margin of time in which to acpom- plish it, under such circumstances the speed of. the train, even if it exceeded four miles an hour, and it was the 4uty of the plaintiff in error to operate it as such speed, could not be considered the proximate cause of the injury." *^ §719. Struck, after stopping and listening, by car on far track obscured from view. The plaintiff was driving a heavily loaded motor truck, approaching a crossing of a double-trafck elec- tric road which he knew to be dangerous. He stopped near the crossing and saw that the track for north-bound cars was clear, but he could see only a few feet along the south-bound track in the direction from which cars would approach. He then started to cross and was struck on the far (south-bound) track by a car. Held, that he was precluded from recovering as rhatter of law by contributory negligence in failing to listen or to stop on the near track to again make sure that there was no danger in proceeding, or, there being two persons with him, one his son, seven years old, to send one of them ahead to ascertain whether the track was clear.®^ § 720. Crossing after seeing approaching train. The fact that a motorist continues over a crossing after seeing an approach- ing train does not as matter of law render him guiltj^ of contrib- utory negligence. "Persons with reasonable minds might very well have differed as to the nature of'his act when viewing it, as it should have been viewed; in connection with other circiimstances testified to by witnesses. Therefore, the question as to whether deceased was guilty of negligence or not was one that should have been, as it was, submitted to the jury, notwithstanding it may have conclusively appeared from the testimony that deceased saw the "Seaboard Air Line R. Co. v. Tom- 92Siejak v. United Rys. & El. Co., berlin, 70 Fla. 43S, 70 So; 437 (1915). — ,Md. — . 109 Atl. 107 (1919). 712 LAW OF AUTOMOBILES train moving toward the crossing as he approached the same." ** A motorist is not necessarily negligent in proceeding to cross a track in front of a trolley car which he sees approaching. It is his duty to guard against injury from a car approaching at an ordi- nary and reasonable speed. He is not bound to anticipate the approach of a car at excessive speed. He has the right to assume that the motorman will exercise reasonable care and hold his car under control in approaching the highway.'* § 721. Driving on track without looking after signal from track man. One who attempted to cross a railroad track with curtains up on his automobile, stopped 115 feet from the crossing and upon signal from a section man drove the intervening distance without' looking for a train and was struck on the crossing, was held negligent as matter of law."" § 722. Failure to look until too late. Where it was either undisputed or proved by the greater weight of the evidence, that the plaintiff knowingly approached a railroad crossing, moving- slowly in an automobile, which he could have stopped within a dis- tance of 10 feet; that a train was approaching from the north, and when plaintiff was within 42 feet of the track he had a clear view along it for 900 or more feet; that he did not look along the track in the direction from which the train approached until he was very near the track; that a number of persons who were farther from the crossing than he saw the train coming, and shouted warnings to him; and that he drove onto the crossing and was struck by the train, it was held that he could not recover on account of his own negligence.®* Where a motorist drove his machine to within about 15 feet of a crossing, with which he was familiar and where he knew a train might come from either direction at any moment, and then saw an approaching train, which struck him when he attempted to cross, his negligence precluded recovery, although the railroad company was negHgent in running the train at a high rate of speed and in failing to give crossing signals.''' § 723. Looking where view is limited without again looking. A truck driver approaching a crossing looked north along the track when he could see only a distance of ISO feet. Then relying M St. Louis, S. F. & T. R. Co. v. 'S Sturgeon v. Minneapolis & St. L. R. Morgan, — Tex. Civ. App. — , 220 S. Co., — la. — , 174 N. E. 381 (1919). W. 281 (1920). 9fl Shoemaker v. Central R. R., — N. 84Knobeloch v. Pittsburgh, H. B. & J. L. — , 89 Atl. S17 (1913). N. C. R. Co., — Pa. St. — , 109 Atl. " Chase v. New York C. & H. R. R. 619 (1920). Co., 208 Mass. 137, 94 N. E. 377 (1911). COLLISIONS WITH RAILROAD TRAINS i 713 upon a warning signal from any approaching train, he proceeded to cross without again looking, although a little nearer the track he could have seen a distance of ISOO feet, and could have seen an approaching train in time to stop and avoid a collision. Held, that he was precluded from recovering for injuries, due to being ■ struck by a train coming from the north, by his contributory neg- ligence.^ § 724. Looking when 50 feet from track— Struck by railroad motorcar. In approaching a railroad crossing at some 5 miles an hour, a motorist looked to his right when SO feet from the track, and, although he had a clear view of the track, did not look again, and was struck by a section hand's motor car approaching him from that direction. Held, that he was guilty of contributory neg- ligence, although he looked to the left, in which direction his view was obscured by a curve in the road. The court quoted from other cases as follows: "It was his duty, under the circumstances, not only to look, but to look just before entering the danger zone, so as to make sure that it was safe to cross the track." * * * "The fact that the view to the south was obscured was not a sufticient reason for his failure to cast his eyes again to the north before going upon the track." ^ §725. Both railroad and public road in deep cuts. The plaintiff approached a crossing with defendant's railroad where both the public road and railroad extended through cuts, which crossed at right angles. The railroad extended through the cut for about 1000 feet east of the crossing, while the public road was depressed to make the crossing gradually from a point about 125 feet from the track. Before entering the cut where his view for the greater part of the way would be obscured, the plaintiff looked both ways of the track without seeing a train. He saw approach- ing from the opposite direction another automobile, which he did not want to meet on the crossing, and he descended slowly and quietly toward the track, listening for an approaching train. He saw the other machine cross in safety, and met and passed it about 20 or 30 feet from the crossing and, still listening for a train, reached the track, where he was struck by a train approaching from the east at not less than 45 nor more than 55 miles an hour. He testified that to see a train after once entering the approach to the grossing he would have to proceed to a point where his front 1 Provost V. Director General, "- Pa, * Groves v. Grand Trunk W. R. Co., St. — , 109 Atl. S9S (1920). 21Q Micb, 409, 178 N, W, 232 (1920), 714 ^ : I LAW OF AUTOMOBILES wKeels would be on the track; that there was a curve in the tvmk where it entered the east end of the cut, and that to stop his: car, walk, forward to the crossing to view the track, return to the car atnd make the crossing \yiould require from two to five minutes. - . It was held that the evidence was sufficient to support a verdict for the plaintiff, and judgment in his favor was affirmed.* '• ; m ■• § 726. Automobile stalled on track. The plaintiff approached a crossing with defendant's tracks, where there werfe four f racks. It was growing dark, and his lainp's were lighted. When he was oil the first track he discovered that a car stood ©n the crossing on lie third track, which would necessitate his leaving the planked crossing and driving over the rails where there ' were ho planks, if he wished to continue. This he attempted, and succeeded in getting the front w'fieels over the first rail of the third ti^ack when his engine stopped. While cranking the engine and attempting to get the machine across the track, cars apptdached on that track and struck the car that was standing on the crossing, which in turn struck and damaged the automobile. A moment later an engine came back against these cars and ' caused them to strike the automobile again. Plaintiff testified that he looked and saw no engine or cars in the direction from which these came. No one was riding the cars ,tha.t struck the car on the crossing, and no warning was 'given, of their approach. There was no eviderice that the rails over which the plaintiff attempted to cross were so,alppve| . the leyel, of the ground as to make the, attempt difficjilt or dan- gerous, if the qar on the crossing was not, moved. Held, Ijiat.tlie questions of negligence and contributory negligence were for. the jury. Verdict for plaintiff was accordingly, sustaiiied.* Where the plaintiff's automobile became stalled on defendant's railroad track, by reason of the defective condition of the crossing, and after failing to, start the engine with the selfrstarter; he told his young lady companion to get out of the, car, and she stood up, looked around,; and fainted, falling against plaintiff, who was thus rendered unabje to at once get out of the machine which was then struck I by a traip coming from a direction where there, was a straight track for a distance of a mile or two from the crossing, with an unobscured view, which train was not in sight at the time the automobile went on the track, and no signal of its , ap- S Walters v. Chicago, M. & P. S. R. 4 Gambell v. Minneapolis, St. P. & Co., 47 Mont. SOI, 133 Pac. 357, 46 L. S. S. M. R. Co., 129 Minn. 262, 152 R. A. (N. S.) 702 (1913). ■ N. W. 408 (1915). COLLISIONS WITH, RAILROAD TRAINS 7f5 proach was given, judgmentlfor the plaintiff was afiirmed.* , An engineer of a train may; presume that an automobile cross- ing the railroad track a quarter of a mile ahead of the train will be over and away in ample time before his train reaches the cross- ing, and he i& not called upon to presume that the automobile will choke down and stop on the track. However, when he sees that it has stopped on the track, he must stop his train to avoid a colli- sion if he can do so.® § 727. Trusting to momentum to carry automobile across track. A motorist is not; negligent as, matter of law in trusting to the momentum; of his car to carry hirn over a railroad crossing, where his engine stopped -Fhilei approaching the t^ack; the ques- tion depending upon lie -circumstances at the time.'f § 728. Motorist wrapped in robe and in inclosed machine. That a motorist attempted to drive over a grade crossing, where he was struck by a train, while he was wrapped in a robe and in an inclosed machine, did not render him guilty of contributory neg- ligence as matter of law, even if such wrapped and enclosed condi- tion would have prevented him from hearing the statutory signals had they been given. He may have used such a degree of care, notwidistanding 'such condition, as to relieve himself -from the charge of contributory negligence.* § 729. Attempting to cross in front of car— Slowing down on track. The plaintiff approached a crossing of defendant's electric road in his automobile, at the rate of 5 or 6 miles ah hour. After passing some obstructions to his view he could have seen the car in question approaching, which he discovered when close to the track, when he concluded that the best thing for him to do was to cross in front of the car. The motorman blew the whistle ' when about 300 feet from thje crpssing, and approached at about 12 miles an libur; When he saw the automobile his powei: was shut off, and he applied the brake and almost succeeded in stopping before the collision, but struck the rear of the automobile, which came on the track and almost stopped, then started up again, owing to plaintiff feeding too much gasoline in an attenipt to increase his speed. Held, that the evidence failed to show negli- gence on the part of defendant; that the last clear chance doctrine 6 Taylor V. Lehigh. Valley R. Co., 87 Wash. 162, 110 Pac. 804, 7 N. C. C. N. J, L. 673, 94 Atl. S66 (191S). A. S43n (1910), 6 Louisville & N. R. Co. v. Harrison, * Baltimore & O. R. Co. v. Mangus, — Fla. —,83 So. 89 (1919). — Iiid. App. — , 126 N. E. 863 (192d). 'Hull V. Seattle, R. & S. R. Co., 60 716 LAW OF AUTOMOBILES did not apply; that the plaintiff failed to exercise due care when he drove his automobile onto the track of the defendant; that, if he had exercised due care he would have heard the whistle and the hum of the wires and the noise of the approaching car in time to have avoided the accident; that he failed to exercise due care in the operation of his automobile, and was guilty of contributory negligence.' § 730. Driver and occupants unaware of railroad. In actions to recover for the death of the driver of an automobile, and injuries to several passengers in the automobile, which collided with the engine of one of defendant's trains, it appeared that the automobile was moving northerly on a main thoroughfare called Broad street, about 4 o'clock of a bright Sunday afternoon; that Broad street is crossed by defendant's single track on an angle on the left or west of Broad street of 66 degrees 29 minutes, and on the right of 113 degrees 31 minutes; that on the northerly side of the rail- road, and less than 200 feet west of the center of Broad street, was a railroad station with its semaphore signal; that on each side of the railroad ran a line of telegraph poles and their wires; that the track and its rails showed plainly on both sides of Broad street; that there was a standard warning sign reading, "Look out for the Locomotive," t)n the west curb of Broad street some 23 feet south of the track, and that on the other side of Broad street was a post with an alarm bell, which bell was not ringing, and a sign which was undecipherable, except that the word "Danger" clearly ap- peared in large letters in the center; that Broad street is straight and almost level for a long distance south of the railroad, from which direction the automobile approached; that looking toward the right the view of the railroad was unobstructed after approach- ing within 96 feet of the track; that on the left, until within 75 feet of the track a clear view of the railroad and of the station was shut off by buildings, but that from this point onward the station and track for a lon^ distance were in full sight; that there were no safety ga,tes or flagman; that it was a quiet afternoon, and there was no traffic of consequence^ on Broad street, and the wind was blowing from the train; that the automobile was moving about 12 miles on hour, and collided with the locomotive of a special train, which was going northeasterly or toward the right at about 25 miles an hour; that neither the driver nor anyone in his party knew of the existence of the railroad, or heard or saw the train until too 9 Thompson v. Lewjston, A. & W. St. Ry., lis Me. 560, 99 Atl. 370 (1916). :OLLISIONS WITH RAILROAD TRAINS 717 late to avoid a collision. There was some evidence tending to show that the statutory crossing signals were not given by the train. A verdict was directed in each of the cases in favor of the defend- ant, and on appeal the judgment entered on the verdict in the case in which recovery was sought for the death of the driver was affirmed, on account of his contributory negligence, but in the cases of the passengers in the automobile the judgments were reversed, the court holding that they should have been submitted to the jury, the negligence of the driver not being attributable to them." § 731. Leaving automobile too near track— Unlawful speed of train.' The facts show that the plaintiff's automobile had been driven upon the, right of way of the defendant along its depot and . in front of a hotel situated to the south of the right of way of the railroad company, and from which hotel to the place of the injury was a driveway, which was used for many years by the public in going from the depot to the hotel and vice versa. The chauffeur left the automobile near enough to the track to be struck by one of its trains and went into the hotel for some purpose. On coming out of the hotel he perceived the train of the defendant approaching from the east, and ran to the. automobile and attempted to crank it and get it moved out of the zone of danger. The automobile failed to fire at the first three crankings, and the train was so near that the chauffeur could not make another effort. The train approached from the east, entered the corporate limits some three-fourths of a mile from the place^ of the injury, and was running at a high rate of speed, variously estimated at 2S to 40 miles per hour, and was rurming at a rate of speed, at the time of the injury, of from IS to 2S,rniles per hour, according to the testimony of witnesses. The chauffeur testified that if the train had been running at 6 miles an hour, as required by statute, from the time he discovered the approach of the train some 600 yards to the east of the place of the injury, he could have gotten the automobile out of the way and the injury would not have occurred. It was in testimony, by several witnesses, that if the automobile had been placed 3 or 4 feet further north than where it was, the injury would not have occurred regardless of the rate of speed at which the train was being operated. Section 4043 of the Code of 1906 limits railroads to 6 miles an hour within incorporated limits of a city, town, or village, and pre- lOHorandt v. Central R. Co., 81 N. J. L. 488, 83 Atl. 511 (1911), former - appeal in 78 N. J. L. 190 (1909). 718 LAW OF AUTOMOBILES scribes that the company shall be liable for damages or injury which may be sustained by any one from such locomotive orj cars while they are running at a greater rate of speed than 6 miles an hour through any city, town, or village. Held, that whether or not the. injury would have happened had the train been operated at lawful speed was for the jury, and, that it was error to order nonsuit.^^ §732. Stopping automobile too near track—Last clear chance. The fact that a driver backed an automobile so close to a house track that it was struck by a train, did not show contribu- tory negligence as matter of law, where it appeared that such track was habitually afid almost continuously used by the public in re- ceiving and delivering freight.''^ Where a inotorist stopped his machine in dangerous proximity to' dfeferidant's track to change tires, when by' going a little farther he would have been in a placie of safety, he was held to be negligent. Recovery was permitted in this case, however, for the death of the niotorist, struck by defendant's car, under the last clear chance doctrine.^* §733. Crossing track at place other than crossing. In Georgia the rule has been- laid down, that the driver of an automo- bile who undertakes to cross a railroad elsewhere than at a public crossing cannot recover for injuries to the automobile, received in consequence of a collision with a passing train, solely upon the ground that the railiroad company's servants failed to comply with the statutory requirements in reference to ringing the bell or blow- ing the whistle and checking the speed of the train. The only duty which the company owes to a person in such a situation is not to injure him or his property wantonly or wilfully, and to use ordinary care to prevent such injury after the person or his property is discovered." • § 734. Relying on speed ordinance. In an action to recover for the death of a motorist, struck by a train running, at excessive speed, there is a presumption that he knew of an ordinance limit- llBrinkley v. Southern R. Co., 113 iSTuUock v. Connecticut Co., — Miss. 367, 74 So. 280 (1917). Conn. — , 108 Atl. SS6 (1019). 12 Turner v. Missouri, K. & T. R. Co., 1* Central of Georgia R. Co. v. Mc- — Tex.- Civ. App. — , 177 S. W. 204 Key, 13 Ga. App. '477, 79 S. E. 378 (191S). (1913). COLLISIONS WITH RAILROAD TRAINS 7 19 ing the r^te of speed Of trains at that place and that he relied upon the defendant complying therewith." § 735. Relying on statute passed for particular purpose. It is a rule of law that when a statute creates a duty with the object of preveilting a mischief of a particular kind, a person who, by reason of another's neglect of that statutory duty, suffers a loss of a different kind, is not entitled to maintain an action in respect of such loss solely under the statute. Accordingly, where a collision occurred between an automobile, in which the plaintiff was riding, and a switch engine, due to the obstruction of the automobile driver's view by box cars left stand- ing partly across the street in violation of a statute prohibiting railroad companies from allowing cars to stand upon streets for^ more than 10 minutes at a time, in such a way as to reduce" the opening in the traveled part to less than 30 feet, and the plaintiff relied alone upon such violation of statute for recovery, it was held that she could not recover on that theory, as the evident purpose of the statute was to prevent obstacles to travel, and not to sight; that the injury in mind of the Legislature was that resulting from delay in crossing, not from collisions with a moving train.^* A section foreman who was struck by defendant's automobile at a railroad crossing, could not rely upon the failure of defendant to stop before proceeding across the tracks, as required by statute; the statute not being intended for the protection of persons on the highways, but to prevent collisions between automobiles and trains.^' § 736. Intoxicated motorist. In an action to recover for death of a motorist, who was struck by a train at a railroad crossing, the jury were held entitled to consider the fact that deceased was under the influence of intoxicating liquor in determining whether he was guilty of contributory- negligence, but the fact alone would not necessarily CQnvict him of such negligence.^' , ACT OR OMISSION OF RAILROAD COMPANY § 737. Duty of trainmen at crossings. Due care on the part of trainmen ordinarily, means the timely employment of sufficient signals or warnings, giving notice of the approach of trains to public ' 15 Rollinson v. Lusk, — Mo. App., — , 1'' Carter v. Redmon'd, — Tenn. — , 217 S. W. ,328. ,,, 218 S. W., 217 (1920). 16 Denton v. Missouri, K. & T. R. 18 St. Ljouis, S. F. & T. R. Co. v. Mor- Co., 90 Kan. SI, 133 Pac. SS8, 4 N. C. gan, — Tex, Civ. App. — , 220 S. W. C. A. 381 (1913). See aHte,,^ 208. 281 (1920). 720 LAW OF AUTOMOBILES places, such as highways or street crossings.^' They miist exercise the care that the circumstances of a crossing reasonably require."" 19 Delaware : Trimble v. Philadelphia, B. & W. R. Co., 4 Boyce (27 Del.) S19, 89 Atl. 370 (1913). Illinois: McDonell v. Lake Erie & W. R. Co., 208 Ul.App. 442 (19171. Pennsylvania: Wingert v. Philadel- phia & R. R. Co., 262 Pa. St. 21, 104 Atl. 859 (1918). Wisconsin: Kaufmann v. Chicago, M & St. P. R. Co., 164 Wis. 3S9, IS9 N. W. SS2 (1916). Federal: Hines v. Johnson, 264 Fed. 465 (1920). ^0 Arkansas: Hines v. Reynolds, — AA. — , 218 S. W. 375 (1920) ; Bush v. Brewer, 136 Ark. 246, 206 S. W. 322 (1918). Florida: Atlantic Coast Line R. Co. V. Weir, 63 Fla. 69, 74, 58 So. 641, Ann. Cas. 1914A 126, 10 N. C. C A. 827n, 41 L. R. A. (N. S.) 307 (1912,. Kentucky: Louisville & I. R. Co. v. Schuester, 183 Ky. 504, 209 S. ,W. 342, 4 A. L. R. 1344 (1919) ; LoUsiville & N. R. Co. V. Treanor's Adm'r, 179 Ky, 337, 200 S. W. 634 (1918). Missouri: Central Coal & C. Co. v. Kansas City S. R. Co., — Mo. App. — , 215 S. W. 914 (1919). Texas: Galveston-H. El. R.' Co. v. Patella, — Tex. Civ. App. — , 222 S. W. 615 (1920). "The agents and servants of railway companies in charge of engines and trains are held and duty bound to a higher degree of care and watchfulness when approaching the crossing of a public street in a town, village, or city, where persons and vehicles are presumed to be more numerous, than on public cross- ings in country districts more thinly populated." Allison v. Chicago, St. P., M. & O. R. Co., 37 S. D. 334, 158 N. W. 452 (1916).' "The duty on the part of a railway company of exercising due care in the operation of trains at railway crossings necessarily includes the duty of look- ing out for and discovering 'any traveler in the lawful use of the crossing and in checking the speed of the train or using other means to avoid injuring him." Lyon v. Phillips, — Tex. Clv. App. — , 1-96 S. W. 995 (1917). "To run a train through this deep cut, debouching immediately upon a much- used public crossing, where any ade- quate view of the track from the road- way was much obstructed, at anything like SO miles an hour, with no warn- ing save the faint sound of a whistle justan instant before reaching the cross- ing, was palpable negligence." Huben- thal v. Spokane & I. E. R. Co., 97 Wash. 581, 166 Pac. 797 (1917). "The duties of u, railroad company when one of its trains is approaching a public crossings is broadly and correctly stated to be to give such warnings of the approach of the train, and to take such precautions to avoid injury to per- sons using the crossing as is commen- surate with the danger of the particular crossing. This does not, however, mean that the means of warning employed shall be effective, so as to amount to a guaranty of the safety of persons using the crossing, but the means should be such as an ordinarily prudent person would adopt in the roperation of a rail- road train at the particular crossing. If the crossing is exceptionally danger- ous on account of the contour of the surface of the ground or on account of obstructions, which obstruct the view or hearing in an exceptional way, and which renders the usual and statutory signals of the approach of a train in- adequate for the protection of travelers upon the crossing, a greater degree of care devolves upon both the railroad and the traveler in approaching the cross- ing, in accordance with the increased danger, and it is to be considered in determining whether or not there was negligence in the operation of the train COLLISIONS WITH -RAILROAD TRAINS 721 If the company has created extra danger at a crossing, it is bound to use extra precautions."^ The motorman of an interurban car must keep a lookout ahead fpr persons on or near the track at crossings."^ Enginemen were held not to be guilty of wantonness in running a train over a crossing at a high irate of speed, without ringing the bell or blowing the whistle, where it appeared that the service appli- cation of air was applied and the steam shut off a quarter of a mile before reaching the crossing, and that they supposed an electric bell at the crossing was ringing an alarm of the train's approach."' The fact that no signal was given by an approaching train, and that it was moving at an unusually high rate of speed, are proper for the consideratioii of the jury in the determination of the ques- tion of contributory negligence of a motorist in going on the crossing."* Evidence that the train in question crossed a city street at 30 miles an hour, and that no whistle was blown or bell rung, was held to raise a question of negligence for the jury."* Changes in signals or warnings by the railroad company for additional safety may not be shown to prove negligence."* §738. Same— Instructions. The following instruction was held to be a correct presentation of law: "You are instructed that which causes an injury, and also as to Co., 97 Kan. 247, 1S4 Pac. 1023 (1916). whether or not there was contributory "The mere fact that a train approached negligence, as the railroad company and a town iro'ssing, over which several hun- the traveler have a mutual and recipro- dred people and vehicles pass daily, with- cal duty of keeping a lookout to avoid ' out warning signal of bell or whistle, giving or receiving injury, and it has does not constitute wanton or wilful been held that where the facts justified, wrong, unless it does so at a high and it was proper to submit to the jury dangerous rate of speed. In the present the question whether the railroad, in case it must be said, as a conclusion the exercise of proper care, should keep o/ law, that, in approaching this cross- a flagman at the crossing, or adopt some ing at a speed of three or four miles other precautions to protect the public." an hour, without actual knowledge of Piersall's Adm'r v. Chesapeake & O. R. the approach of the automobile, the Co., 180 Ky. 659, 203 S. W. SSI (1918). engineer was not guilty of wantonly or The train has the preference and the intentionally striking the plaintiff's car." right of way. Emens v. Lehigh Valley Bailey v. Southern R. Co., 196 Ala. 133, R. Co., 223 Fed. 810 (191S) ; Piersall's 72 So. 67 (1916). , Adm'r v. Chesapeake & O. R. Co., 180 «4Snlith v. Missouri Pac. R. Co., — Ky. 6S9, 203 S. W. SSI (1918). Ark. — , 211 S. W. 6S/ (1919). 21 Ross v. Director General, — N. J. 26 Zimmerman v. Pennsylvania Co., L. — , 110 Atl. 70S (1920). 164 C. C. A. 487, 2S2 Fed. 571 (1918). 28 Louisville & I. R. Co. v. Morgan, 26 McMillan v. Atlanta & C. A. L. R. 174 Ky. 633, 192 S. W. 672 (1917). Co., 172 N. C. 8S3„ 90 S. E. 683 (1916). 23 Jacobs V. Atchison, T. & S. F. R. B. Autos. — 46 722 ■ LAW OF AUTOMOBILES if ithose in charge of the; engine which struck plaiiitiff's automobile failed to exercise ordinary care to keep a lookout \n the direction the engine was moving to prevent injury to persons going along the public road and onto its, said crossing at which plaintiff's vehi- cle was struck, and that the same was nfegligence on their part, and such negligence, if any, was the proximate cause of the acci- dent and injury, if any, to plaintiff and his vehicle, and that' thie plaintiff was not guilty of negligence on his own part contributing 'to such injury, you will find for plaintiff against the defendant." ^'' "In determining whether the defendant railway company Was negligent or not, you must remember that it was the legal duty of the defendant to give some adequate or suitable warning of the approach of the train in question to the crossing, where the acci- dent occurred, and that at a suitable distance therefrom to give warning. As to the speed of the train, it was the duty ■ of the defendant to run the same at such a rate of speed, and to have this train under such: control, and to give such warnings in approach- ing the highway crossing, as to avoid doing unnecessary damagfe to those lawfully and properly using the same or about to use the same." ^^ ' §739. Private crossings. The care required of trainmen at public crossings does not apply at private crossings, so it is held in Kentucky. "The use of a private crossing by many persons does not put upon the railroad a lookout duty as to them, nor require an anticipation of their presence upon the track or dangerously near to it, unless the use is with the knowledge and acquiescence of the railroad. It may, however, be said that wherever, from the nature and use of a crossing by the public, the duty is imposed upon the railroad of anticipating the presence of persons upon the crossing, the duty of the ones operating a railroad train to maintain, a look- ' out, to give warnings of the approach, and to have the train under control follows." ^® § 740. Engineer may assume that motorist will take usual precautions. A locomotive engineer may assume that a motorist, whogi he sees approaching a crossing at reasonable speed, with the approaching train in sight, will act in the usual manner, use his 27 Adams v. Galveston, H. & S. A. R. 231 Fed. 628, 14S C. C. A, 514 (1916). Co., — Tex. Civ. App. -^, 164 S. W. ZSLouisvUle & I. R. Co. v. Morgan, 853, 8 N. C. C. A. 1043n (1914). 174 Ky. 633, 192 S. W. 672 (1917). 28 Lehigh Valley R. Co. v. Kilmer, COLLISIONS WITH RAILROAD TRAINS 723 senses, and stop before his machine gets within the zone of danger.'" This is true when the automobile is being backed towards the crossing.*^ He may assume that the motorist is in full possession of his senses, and he is not required to anticipate that the motorist will be negligent.*^ §741. Rate of speed as negligence. Whether or not the speed of a train amounts to negligence depends upon surrounding con- ditions. At coxmtry crossings, speed, .hQwev^ great, is^ not in itself a negligent act; but, when great speed is reached, notice of the train's, approach must be commensurate with it. The ;\varning must be adequate to the increased speed.** ^ In the abseijce of peculiar circumstances or particular condi- tions at a crossing, a speed of SO miles ^n hour on an injerurban electric line is not negligence per se. Ordinary care would, of course, require a signal of the approach of such car to the crossing.** No rate of speed of a train at an infrequently traveled, country crossing is of itself negligence.*^ But the running of a train in violation of a, speed ordinance is negligence per se?^ The fact that an interurban car was operated at 3 6, to 35 miles 30 Johnson v. Louisville & N. R. Co., — Ala. — , 82 So. 100 (1919) ; Fayet v. St. Louis & S. F. R. Co., — Ala. — , 81 So. 671 (1919) ; Miller v. Northern Pac. R. Co., 105 Wash. 64S, 178 Pac. 808 (1919) ; Mouso v. Bellingham & N. R. Co., 106 Wash. 299, 179 Pac. 848 (1919); Helvey V. Princeton Power Co., — W. Va. — , 99 S. E. 180 (1919). "In the absence of knowledge to the contrary or some fact which ought to arouse his suspicion that this is not true, the man in charge of the train has a right to presume that any one seen at a public crossing or elsewhere on the track is in possession of all of his senses, and that care for his> own safety will induce him to use them, and then to act on the warnings conveyed through them." Emmons v. Southern Pac. R. Co., — Oreg. — , 191 Pac. 333 (1920). 31 Mouso V. Belliiigham & N. R. Co., 106 Wash. 299, 179 Pat. 848 (1919). 32 Chicago, R. I. & G. R. Co. v. Went- zel, — Tex. Civ. App. — , 214 S. W. 710 (1919). 33 "Tlie mere circumstance of speed of the train, standing alone, may not be, and probably is not, conclusive on the question of the negligence of the de- fendant; but the high rate of speed at which this engine was going, and the failure to give! the required warning of its approach to the crossing, is substan- tial evidence of defendant's negligence." La Goy v. Director General, 181 N. Y. Supp. 842 (1920). ; • 34 Jordan v. Osborne, 147 Wis. '623, 133 N. W. 32, (1912). i It is not negligence per se to run a steam train or interurban car at 30 miles an hour over a country crossing, in the absence of statute limiting i speed. Indiana Union Tr. Co. v. Love, 180 Ind. 442, 99 N. E. 1005 (1912). 36 Piersall's Adm'r v. Chesapeake & O. R. Co., 180 Ky. 659, 203 S. W. 551 (1918) ; Robison v. Oregon-W. R. & N. Co., 90 Oreg. 490, 176 Pac. 594 (1918). 36 Emmons v. Southern Pac. R. Co., — Oreg. — , 191 Pac. 333 (1920). 724 LAW OF AUTOMOBILES an hour approaching a crossing in the heart of a town and near a station, justified a finding of negligene.*'' § 742. Duty of trainman stationed on rear of backing train. A trainman stationed on the rear of a backing train, upon dis- covery that an automobile is about to go on the tracks, is bound in the exercise of ordinary care to use all means at hand to avert a collision; but he is not required at all hazards to use all means at hand.** § 743. Failure to sound crossing signals. Failure of a rail- road company to give notice of the approach of one of its trains to a much-used public crossing, amounts to negligence.*' Its fail- ure to sound statutory signals is negligence per ^e.*" The giving of signals not required by law will not excuse a failure to give those required by law to be given.*^ "Failure of the railroad company to ring the bell or blow .the whistle as the train approached the crossing, even though it may liave been negligent, woUld not make the railroad company liable for the death of the automobile driver, in a collision a,t the cross- ing, if he recklessly failed and neglected to have his car under control and by looking and listening at the proper time and place could have seen the approaching train in time to stop before reach- ing the track, but recklessly failed and neglected to do so, whereby there was a collision." *' ^1 Cowaij V. Salt Lake & U, R. Co., company to cause a bell or whistle to — Utah — , 189 Pac. S99 (1920). be sounded as its engine approaclied such 58 Chicago, R. I. & G. R. Co. v. Shock- crossing, it is not enough for the injured ley, — Tfex. Civ. App. ^ — , 214 S. W. 716 person to show that he was injured at (1919). the crossing, and that no signal of a 59 Goff V. Atlantic C. L. R. Co., — bell or whistle was given, and that such N. C. — , 102 S. E. 320 (1920). default of the railroad company was *<' Lake Erie & W. R. Co. v. Howarth, negligence ; but, to recover, the injured — Ind. App. — ,124 N. E. 687 (1919). person must further show that the de- Where there is no statutory require- fault and negligence of the railroad ment it is generally for the jury to de- company were the proximate cause of termine what noticei is reasonable under the injury sued for." Morris v. Chicago, the circumstances of the particular case. B. & Q. R. Co., 101 Neb. 479, 163 N. 3 Elliott, Railroads (2nd ed.), §1158. W. 799 (1917). *1 Union Tr. Co. v. Haworth, — Ind. "Where a suit for damages against a — , lis N. E. 753 (1917). railroad company is based upon a fail- *2Askey V. Chicago, B. & Q. R. Co., ure to observe the 'blow-post law,' 101 Nfeb. 266, 162 N. W. 647 (1917). what may in fact have been the proxi- "To recover for an injury alleged to mate cause of the injury, and whether it have been sustained at a railroad cross- could have been avoided by the exercise ing by a collision with an engine on of ordinary care on the part of the account of the neglect of the railroad injured person, are questions of fact for COLLISIONS WITH RAILROAD TRAINS 725 » Statutory signals required of railroads inure to the benefit of any one who happens lawfully to be within the zone of danger created by a non-observance of the statute.*' But where the motorist was not at a crossing when struck by a train, a statute requiring whistle to be blown for crossings was held to have no application.** "Unless the duty is imposed by statute, the failure to give such signals is not as matter of law a neglect of duty. In such a case the failure to give the signals would be a question of fact for the jury to decide whether, under the circumstances, the omission amounted to a failure to exercise due care." *'' On the other hand, it has been held that^ persons operating cars on an interurban electric railway are required, regardless of statute, to give effective and timely warnings of their approach to public crossings commensurate with the speed and danger likely to result from running the same.*® § 744. Same— Illustrative cases. The plaintiff, driving his automobile at night across defendant's railroad track, where it crossed a city street, was struck by the foremost of a number of cars being backed across the street. The engine crew failed to ring the bell as the train approached the crossing, as required by statute. The plaintiff testified that he saw the headlight on the engine when he was about 140 feet from the track, but thought the engine was standing still; that he looked again and was cross- ing slow when he was hit; that there was an arc light over the main line, "and one of those arc lights will blind a fellow"; that determination by the jury, except where that no others could recover for injur- the undisputed testimony authorizes no ies resulting from a failure to give the other conclusion than that the plaintiff signals, but other courts have gone furth- failed to exercise ordinary care." Sea- er and hold that the duty is for the board Air Line Ry. v. Hollis, 20 Ga. App. protection of all persons lawfully at or SSS, 93 S. E. 264 (1917). near the crossing from any danger to be ** Louisville & N. R. Co. v. Abercrom- apprehended from the sudden approach bie, — Ala. App. — , 84 So. 423. of a train without warning." 3 Elliott, "There is conflict of authority as to Railroads (2nd ed.) § 11S8. who may claim the benefit of the stat- **Gulf, C. & S. F. R. Co. v. Whit- utory signals, and it may depend some- field, ^ — Tex. Civ. App. — , 206 S. W. what upon the language of the particular 380 (1918). statute. Where the statute does not spe- *6 Lehigh Valley R. Co. v. Kilnier, cifically designate the class to whom the 231 Fed. 628, 145 C. C. A. S14 (1916). djjty is owing, the courts have usually ** Jackson v. Southwest Missouri R. construed it to be due only to those Co., 171 Mo. App. 430, 156 S. W. IOCS who are about to use, are using, or have (1913) ; aff'd in — Mo. — , 189 S. W. lately used the crossing, and have held 381 (1916). 726 LAW OF AUTOMOBILES he did not see the cars, arid did not hear their approach, though he looked and listened. , : It was held that the questions of negligence and coritribuitory negligence were for the jury. In part the court said: "The law made it the duty of the persons in charge of the erigine to ring; the bell thereof as it approached the crossing. The testimony of appellee that they failed to discharge the duty authorized the find- ing that they were guilty of negligence. Aj^ellee testified that j^ he approached the crossing he listened for noises, but heard hone. The trial court had a right, w^ think, to conclude that appellee would have heard the bell had it been rung, and, being thus warned, would have I so operated his automobile as to avoid' the collision which occurred. Therefore we are of the opinion that a finding that negligence in failing to ring the bell was a proximate cause of the accident was authorized." *'' In an action to recover for the death of plaintiff's decedent, who was killed in a collision between'his automobile, and one of defend- ant's trains, on behalf of. plaintiff there was testimony tending to show that neither a bell was rung nor a whistle blown by the loco- inotive engine in approaching the crossing; that there were no gates at the crossing, but that an automatic bell had been installed there to give warning of trains approaching the crossing, and which bell was out of order and did not ring; that a view of the approachiiig train was obstructed by a line' of trees so that it was hot visible to the occupants of the automobile until they were within SO "feet of the crossing; that wjien the motor car was within 40 feet of. the crossing a companion of the decedent observed the coming of the train, called the attention of the decedent to it and jumped from the car; that the decedejit made a prompt but unsuccessful at- tempt to stop the car, \yhich was traveling at the rate of 12 miles an hour, from going onto the crossing; that the train was going at a speed, according to the engineer's testimony, of SS miles an hour; and that when the decedent was apprised of the approach of the train he had about three seconds in which to prevent the car from going onto the crossing. There was also testimony to the effect that the decedent, before reaching a point where the train first became visible and was seen by him, listened and had his car under control, and that his failure to bring the car to a stop in time to avoid the collision was due .47Texarkana & Ft. S. R. Co. v. Rea, — Tex. Civ. App. — , 180 S. W. 94S (191S). COLLISIONS WITH RAILROAD ; TRAINS 727 to the brake of his car failing to work properly in response to his effortSi .'In affirming judgment for the plaintiff, the court said:: "It is manifest that in this state of the evidence the appellant was not entitled to succeed on his motion for a nonsuit. For upon this evidence a jury might properly haye ' found, that the appellant's engineer failed to give either of the statutory signals, by ringing a bell or blowing a whistle, and that this failure to ring a bell or blow a whistle was the proximate cause of bringing the decedent's car so near to the crossing and into a position of peril. This being so it became a further jury question whether the decedent, under all the circumstances then present; exercised ; reasonable care to avoid the collision. It cannot be properly said as a matter of; law that the failure of the decedent to stop his. car, which . was going at moderate speed and which .under ordinary circumstances he could have stopped in time to have averted the accident, was, in the emergency that confronted him, coupled with the ■ unexpected failure of the brake of the car to work properly and to respond to his efforts, , negligent conduct; of the , deceased contributing to his injury and death. Whether it was or not was pre-eminently a question fpr; the jury's determination." ** , , The plaintiff was injured in a- collision between defendant's train, on its electric railway, and an automobile in which she was riding as an invited guest of the owner, who was an experienced driver and who was in charge of the machine. The accident occurred at ,a crossing which was difficult to see at any distance; and where the view of the track in the direction from which the car approached was obscured by timber until the traveler was nearly upon the track, and the same timber obscured the motor- man's view of the highway. The driver of the automobile knew there was a track in the vicinity of this crossing, but did not know its exact location. He stated that he and a man seated beside him were o_n the lookout for the crossing for about three quarters of a mile before reaching it. They did not see the track until they were practically upon it, and at such time, according to the testimony of the driver, he heard the rumbling of a car coming at a high rate of speed, and, looking, saw the car practically within a few feet of him. He thought that the only thing he could' do was to turn short and run with the car, which he did, but did not avoid a collision with the front car, striking the same about "Wilson V. Central R. Co., 88 N^ J. L. 342, 96 Atl.,79 (191S). 728 LAW OF AUTOMOBILES even with the front trucks. The only negUgence that the plaintiff could recover on was the failure of defendant's employees to sound a whistle for the crossing, which omission was testified to by several occupants of the automobile, some testifying that they heard no whistle, and one, the driver, that no whistle was sounded. For the defendant a number of witnesses testified . positively to hearing the whistle blown for that crossing, and the motorman tes- tified positively to having sounded it. It was held, however, that, in view of the positive statement that no whistle was sounded, as distinguished from a statement that the witness "did not hear" any signal, the case on this question was for the jury. The court in part said: "Where the attention of those testifying to a negative was not attracted to the occurrence which they say they did not see or hear, and where their situation was not such that they probably would have observed it, their testimony is not inconsistent with that of credible witnesses who were in a situa- tion favorable for observation and who testified affirmatively and positively to the occurrence. But if it be shown that the witness could have observed the signal, had it been given, and that his attention was attracted thereto because of a duty imposed upon him in connection therewith, or because of the known position of danger in which he was at the time placed, naturally suggesting that he, for his own safety and protection, should look and listen for the warning or signal of danger; or if it be shown from the facts and circumstances of the case that for any cause or reason his attention was attracted thereto and that he at such time was listening for the ringing of the bell or the sounding of the whistle, the fact that he did not hear the signal is evidence sufficient to go to the jury tending to show that such warning or signal was not given." *' § 745. Same— Causal connection supplied by statute. In Missouri, by statute, when the plaintiff, in an action growing out of a crossing collision, proves failure of the defendant to give the required signal, he is relieved of the burden of showing causal con- nection between such neglect and his injuries. "The statute sup- plies the causal connection. It thrpws upon defendant the burden of proving the violation of the statute did not cause the injury." When a court instructed the jury, in such an action, that the plain- tiff must prove his case by a fair preponderance of the testimony, it deprived him of the benefit of the statute, and was erronedus.*' « United Rys. & El. Co. v. Grain, BO Monroe v. Chicago & A. R. Co., — 123 Ind. 332, 91 Atl. 405 (1914). Mo. — , 219 S. W. 68 (1920). COLLISIONS WITH RAILROAD TRAINS 729 § 746. Same— Motorist becoming confused. Where, owing to defendant's failure to give statutory signals, plaintiff, a motorist, became confused when he saw the train approaching and failed to stop in time to avoid a collision, although he was 20 feet from the track when he first saw the train and could have stopped within 5 feet, he was not contributorily negligent as matter of law.*"^ §747. Same— Where driver's view of crossing obscured— Excessive speed. The plaintiff was injured in a collision between an interurban train of defendant and an automobile in which she was riding as a guest of the owner. As the automobile neared the double track line of defendant the owner reduced the speed of the automobile to about two to four miles an hour, and ascended a slight grade of about 18 inches to the westerly track. According to his testimony it was not until he had partially passed .over that track that he. became aware of the approach of the train on the easterly track. The train was then only 2 SO or 300 feet away, approaching at 40 miles an hour. The owner then put on his emergency brake and disconnected his clutch, but the machine moved forward far enough to be struck by the train and thrown more than 30 feet. There was evidence that to one standing near the westerly rail of the westerly* track at this crossing the poles supporting the trolley wires presented a continuous obstruction to the vision of the easterly track from a point some 400 or 500 feet away. The farther west from such rail one stood, the farther away would be the point at which the line of poles would so run together as to completely obstruct his view of the easterly track. There was also evidence that a waiting room would for a moment prevent one approaching the westerly track from seeing a car on the easterly track in its vicinity. The crossing was much used by automobiles, and the accident occurred on Sunday afternoon when there was an increased traffic. There was no warning signal given of the approach of the train until the motorman discovered the automobile, which was at or after the driver had seen the train and was trying to stop his machine. It was held that there was evidence of negligence on the part of defendant, and that plaintiff was not guilty of contributory neg- ligence as matter of law. Accordingly, judgment for plaintiff was affirmed.'^ Defendant's railroad crosses a public highway at an angle, and BlGillispie v. Pryor, — Mo. App. — , Cal. 457, 137 Pac. 31, 8 N. C. C. A. 204 S. W. 83S (1918). 1034n (1913). S^Tousley v. Pacific E. R. Co., 166 730 LAW OF AUTOMOBILES there is a sharp curve in the track just before reaching thie highway. The engineer is not able to see the crossing until within 100 feet of it, though one on the other side of the cab can see it some 400 feet away. The highway approaches' the crossing at a steep grkde; and the view in the direction from which the train in question came is cut off from persons approaching the track until they are within a few feet , of it. At about ? o'clock in the evening of September 27, 1914, plaintiff C. J. Laurisch and, his wife, plaintiff in the^sec- on,d case, were traveling this highway in the former's automjobile.. As they approached the track at the crossing described they pro- ceeded up the grade at a slow rate of speed, looking and listening for trains. Th^y saw arid heard nothing until within 6 or 8 feiet of the track, when they discovered a train cpming tq-yvg,r^ them from the left. Mr. "Laurisch, who was driying the ^utpmobile, applied the brake and threw his engine into reverse. Mrs. Laurisch jumped out. The automobile was struck by the pilol beam of the engine, and completely dernolished. Mr. Laurisch was bruised, and his, wife thrown to the ground and injured. There was evi- dence that the engine did not have a headlight as required by statute, that the crossing signals were not given, and that the train was running at excessive speed. , . it was held that the e^vidence, justified a finding that the d.efendl- ant was negligent and that plaintiffs were not contributorily neg- ligent, and judgments in favor of plaintiffs were affirmed.** The plaintiff, driving his automobile in a westerly direction, was struck on a public crossing by one of defendant's electric trains, moving from the south at a high rate of speed; the a!uto- njobile being thrown about 40 feet and its occupants a much greater distance. Although plaintiff's view of the track was partly obscured by a house and a sign, he looked south until he passed the sign, when, his view beipg entirely obstructed in that direction by a hedge, lie looked north. He did not se6 the train until he was within 8 feet of the track, although at one point between the house and the sign a view of the track could be had for 450 feet, and the train would have been in sight unless , it was travel- ing 60 miles an hour. The tTain had stopped at a station 1,000 feet south of the crossing. There was evidence that the train gave no warning signal of its approach to the crossing, and that plain- tiff listened, but did not hear it. 68 Laurisch v. Minneapolis, St. P., R. & D. E. T. Co., 132 Minn. 114, ISS N. W. 1074 (1916). COLLISIONS WITH RAILROAD TRAINS 731 Held, that a judgment of dismissal should not have been entered ; that, taking into account the constantly increasing speed of the train after it had stopped at the station mentioned, it could not be said, as matter of law that it was not moving 60 miles an hour/* § 748. Same— As to driver who sees approaching train. It is held that the failure of a locomotive engineer to give the sig- nals required by statute whe^ approaching a public crossing will not impose liability upon the railroad company to a person who is fully aware of the approach of the train. So, where the un- disputed evidence disclosed that the driver of an automobile saw an approaching train at a distance of about a mile from where a collision occurred between the train and his autorriobile, it was held that the trial judge should have instructed the jury that the failure of the engineer to ring the bell and blow the whistle would not be such negligence as would afford the plaintiff ground for complaint.*^ §749. Train near crossing suddenly backing. The rule that it is negligence as niatter of law for the driver of an automobile to attempt to cross a railroad track without stopping, where with- out doing so he cannot assure himself that no train is approaching, does not apply where, as the automobile approaches the crossing, the train is standing still, the rear car being near the highway, and a Collision results from a sudden startitig of the engine. There was evidence tending to show these facts: The automo- bile came , from the north along a highway which crossed eight' or nine, tracks, the first and second being nine, or ten feet apart. The traveled part of the road was nine or ten feet wide. An icehouse stood just east of the highway and north of the first track. A coal car was standing on the first track, its west end being three or four feet east of the traveled part of the road, the east end being about even with the icehouse. A box car was. standing still on the second track the same distance east of, the road. The automo- bile crossed the first track, and as its wheels reached the second track an engine backed two other box cars against the one al- ready referred to and threw it against the automobile, or else the^ engine, haying previously been standing still, coupled to the three cars, suddenly started up with the same result. The whistle was not sounded nor the bell rung. In holding that the questions of negligence and contributory negligence were for the jury, who were justified in finding in plain- tiff's favor, the court said: "Where one end of a string of cars 64 Loomis V. Brooklyn Heghts R. Co., 65 Central of Georgia R. Co. v. Mc- 133 App. Div. 247, 117 N. Y. Supp. 292 Key, 13 Ga. App. 477, 79 S. E. 378 (1909). (1913). 732 LAW OF AUTOMOBILES is standing still near a crossing, an engine being at the other end, ordinary prudence does not require a traveler to stop and look up the track before attempting to cross, because whatever risk he runs is that the engine may suddenly start up, and stopping his own vehicle and going upon the track to look would not give him any additional information as to the likelihood of that taking place. Where a single freight car, or a small group of cars, is standing near the crossing, it would be possible to ascertain, by looking from a point in the road close to the track, whether a train is about to run into it and drive it across the highway. But we do not think it can be said as a matter of law that the driver of an approaching vehicle is guilty of negligence if he neglects to take this precaution. He is bound to act upon the assumption that a train may at any ^ moment be approaching upon an otherwise unoccupied track, until he has employed all reasonable means to assure himself to the contrary. He may not rely on the fact that no signal has been given, for that affirmative precaution on the part of the trainmen may be thoughtlessly omitted. But if he |ees that the track is obstructed by a detached car or string of cars, the probability of injury resulting to him from a train coming from that direction is so far diminished that we think the question whether ordinary prudence forbids his attempting to cross without further invfestigation is a fair one for a jury." ** § 750. Backing train without proper lookouts or signals. The plaintiff was driving an automobile, containing six other occu- pants, southerly^ along a public streiet, approaching defendants' railroad tracks. A cut of freight cars had been stopped a short distance west of the street for the purpose of entering a switch. As soon as the switch was set the engine, pushing 7 or 8 cars, pro- ceeded east in charge of the engineer, the fireman and one brake- man, who was holding to and riding on the side of the foremost car. The foreman was about other duties, and the crew was short one brakeman. The train was moving about six miles an hour. The plaintiff was driving about 8 miles an hour. He testified, as did others traveling with him, that he first saw the foremost car when the automobile was 75 to 100 feet from the track, and that he had not seen it sooner because the view was obstructed by trees and standing corn; that the cars appeared to be standing still; and that he heard no bell or whistle, and saw no smoke of the B6De Hardt v. Atchison, T. & S. F. R. Co., 100 Kan. 24, 163 Pac. 650 (1917). COLLISIONS WITH RAILROAD TRAINS 733 engine, nor any person to warn them that the train was approach- ing. He further testified that as he approached nearer the track he noticed a man hanging on the north side of the first car and waving his left hand; that the car still appeared to him to be standing still; that he understood that the brakeman was motioning him to proceed across the track; that he continued to approach the track, in the belief that the train was motionless, until he was within a few feet of the track, when the brakeman jumped down from the car, called to plaintiff to stop, and waved his arms up and down, giving the emergency signal to the engineer to stop the train. The train was in a curve, due to being partly on the main track and partly in a switch, and the brakeman was obliged to and did run to the fence adjoining the right of way in order to enable the engineer to see his emergency signals. As soon as the engineer saw the signals he put on full force of the brakes and stopped the train within the length of a car or a car and a half. As soon as the plaintiff heard the brakeman calling to him to stop he did so, with the front wheels of the automobile on the track. He reversed his engine, and the automobile had started back off the track when it was struck- by the train, and plaintiff was injured. In holding that the questions of the negligence of defendant and contributory negligence of the plaintiff were for the jury, the court said: "In our judgment the evidence warranted the jury in find- ing that defendant was guilty of negligence in the manner in which this train was operated. If there had been two brakeman on these cars, one at the head end and the other on the car near the engine, it seems entirely probable that the first signal by the head brakeman would have been passed on to the engineer so quickly that this train would have been stopped without striking the auto- mobile. Especially was such a disposition of the brakeman on the train essential when the train was obliged to pass over a crooked piece of track in passing into this switch." *'' The plaintiff, whose automobile was damaged in a collision with a train of defendant, testified, that he was traveling easterly along a public street, about 10:30 o'clock at night, returning home from church, with his wife and son and two guests in the automobile besides himself; that there were houses on the north side of the street extending for about a block to near the track at the cross- ing in question, which greatly obstructed the view of the track; that he was familiar with the crossing, and regarded it as a danger- BTBoggs V. Iowa Central R. Co., 187 111. App. 621 (1914). 734 LAW OF AUTOMOBILES ous one, and for that reason approached it, slowly, as slow as he could without stopping, and looked and listened;, that there was nothing in the way, and no man or light or signal in sight; that he saw no train and heard none, and there was no man on the track with a lantern or otherwise to notify him of the approach- ing train; that he approached the track at about 8 or 10 miles an hour; that the houses mentioned were built to within 15 or 16 feet: of the track, arid until this line of houses was passed it; was not possible to see in that direction along the track at all; that just as he approached the track, and was about to rise the little slope to it, one of defendant's, cars backing from the north loomed up on the track about the; length of a car from him; that he threw out the dutch and applied the brakes,: but the momentum carried hirh into collision with th^ car; that the train was moving, fast, and there was no person or light on the front end of the foremost back- inig car; that' he. commenced looking as he approached the track, but was looking for a light, mot a train;: that seeing no light he did not expect a train; that he listened ; for *a train ;'^ that his ma- chine was making noise, but not any Undue noise. In respect of the; crossing in question, the Corporation Com- mission of the state, having authority so to do, made the following order: "Whrii any of its cars or erigines are approaching : said crossing, if going forward, it shall stop its engine at all 'times on arriving at atpoint SOfeet frofti the edge of said street, and when going backward it shall stop its cars as soon as the first one reaches a point SOfeetlfrom the edge of , the said street, and said cars and engine shall remain standing until a man is sent forward to said street ahead of same to see that no one' is approaching, such man at night to carry a lantern as a signal.' No cars or engine shall be moved across said' street until signaled so to do by the man sent ahead as above required." ' , The trial court instructed, the jury that if they ' believed the ~ plaintiffs testimony to find himi contributorily negligent. This on account of his failure to stop. On appeal it was held that "it is not always imperative on a traveler to come to a complete stop before entering on a railroad crossing; but, whether he must stop, in addition to looking and listening, depends upon the facts and circumstances of each particular case, and is usuallly a questidn for thesjury;" and that the question in this case of plaintiff's contribu- tory • negligence should have been submitted to the jury.** 68 Shepard v. Norfolk & S. R. Co., 166 N. C. S39, 82 S. E. 872, 8 N. C. C. A. 1049n (1914). ' COLLISIONS WITH RAILROAD TRAINS 735 §751. Same— Automobile stopped on track in emergency. As the plaintiff's automobile was in the act of crossing defendr ant's railroad track a pedestrian stepped suddenly in front of it and the driver immediately applied the brakes with one foot and took the other foot off the accelerator, by means of which alone gasoline was being fed to the engine, arid with this, foot dis- connected the engine from the t^-ansmission, thereby stopping the c^,!-; and avoiding striking the pedestrian, 'This caaised thejengiiie to stop, and the car to stall on the track. There was a tra,in of box cars standing nearby on the track, and the driver testifi,ejd that he had observed no indications that it was about to be moved, but that then hearing the bumper come together he realized that the train was backing ; that as his car was riot supplied with a self- starter, he hurriedly changed the gears, i and turning the swi|ic;h ran to the front of the car, cranked the engine, returned to his seat, but the train struck the niachine before he could avoid it. There were two methods of supplying gasoline to the engine, one by hand throttle on the steering wheel, the other by tlie foot accele- rator, and it was practicable tp use both methods in cory'unction. Had both been in use on this occasion releasing the acceleratqr pedal with his foot would not have wholly cut off the supply of gasoline from the engine, and stalling of the car would have been avoided, and as soon as danger of striking the pedestrian had passed, the driver could have started his car and cleared the track before the train reached him. There was evidence that the train backed without any warning signal being given, and without any one or a light being on the first car of the train, although the time was' between 8 and 9 o'clock at night. - ■- ■ It was held that the question of defendant's negligence was for the jury, as, was likewise the question of the negligence of the driver in the manner of operating the automobile,^* In this case the court in part said: "The driver in operating the car, had the right to rely upon the defendant exercising rea- sonable care, by giving necessary signals, to wfarn any person at- tempting to cross its tracks that the line of freight cars was 9.bQut to be backed down over the crossing. It can hardly be said thajt it was reasonably to be apprehended by a prudent man that the defendant would not exercise such degree of care in the conduct of its business as the law required, and that a necessity would arise for the immediate stoppage of his car upon the track." B9 Packard v. New York, O. & W. R. Co., 160 App. Div. 856, 146 N. Y. Supp. 878, 7 N. C. C. A. S44n (1914). 736 LAW OF AUTOMOBILES §752. Engine backing at night without lights indicating direction of movement. It was held to be an act of negligence to run a railroad engine backward? - over a crossing, on a dark night, without lights to indicate in which direction the engine was moving.'" § 753. No headlight at nig^it and no signals. The plaintiff, driving his automobile in a small village, came into collision With one of defendant's freight trains about 6 o'clock of an October evening. There was evidence that the headlight of the engine was not burning; that no bell was rung until almost the moment of the accident; aiid that ho crossing whistle was blown. There was also evidence that plaintiff's view of the train was obscured by a long line of box cars until he had passed them, and that they were a distance of 30 feet from the passing track; that after passing these cars plaintiff stopped his automobile and looked up and down the track, and did not see a train, and then went ahead; that he did not discover the train until "just like a flash of your eye it was right there, and then a blow ; " that it was dark, the evening being cloudy; that the street lamps were lighted, as were also the lamps on the automobile. It was held that this evidence, both as to the negligence of defendant and the contributory negligence of plain- tiff, was for the jury.®^ §754. Failure to stop after seeing automobile stalled on track. Where there was testimony that the engineer in charge of a, train saw the plaintiff's automobile go upon the track and stop when the train engine was 1,400 feet away, the jury were justified in finding' that the engineer was negligent in failing to stop in time to avoid striking the automobile.** §755. "Kicking-back" or "flying-switches." In operating trains over and across streets of cities and towns, a railroad company is bound to keep a lookout when switching cars by means known as the "kicking-back" or "flying-switch" process, or methods equiva- lent thereto, and when it is apparent, or when in the exercise of reasonable diligence commensurate with the surroundings, it should be apparent to the company that the driver of a vehicle which is on defendant's track or about to be driven on its track is unaware of his danger or cannot get out of the way, it becomes the duty of the sOHines v. Chicago, M. & St. P. R: 68 Allison v. Chicago, St. P., M. & 0. Co., 105 Wash. 178, 177 Pac. 795 (1918). R. Co., 37 S. D. 334, 158 N. W. 452 filPogue V. Great Northern R. Co., (1916). 127 Minn. 79, 148 N. W. 889 (1914). COLLISIONS WITH RAILROAD TRAINS 737: ciompany to use such' precautions by . warnings, application of brakes, or other means as may be reasonably necessary to avoid injury; to the person or property, and this requirement is not dis^ pensed with merely by ringirig the engine bell.®^ ' Where there was testimony that before entering upon a rail- road' crossing the driver of an automobile checked his speed and. lookedi both ways of the track, as did other occupants of the ma- chine, and none of them heard or saw the box cars, which were, making a flying switch, and which struck the automobile, and; heard no signal of their approach to the crossing, and that no ohe was on top of the cars, which, had some one been on top and in charge of them, could have been stopped in time to avoid the col^; lision, it was held that the case wag for the jury.** § 756. Same— Contributors^ negligence. Plaintiff's chaufeur was not guilty of contributory negligfence as matter of law, in' appfoaching a railroad crossing at night at the intersection of twd city streets, in plaintiff's automobile, which was a covered car with ;losed sides having glass panels,^ when itappeared that he was driv- ing the automobile at a speed of 7 or 8 miles ah hour and could' have stopped the same in a space of 4 or 6 feet; that the lights of the automobile were burning ; that the street intersection was lighted by an electric light; that he could see through the glass' panels of the car ; -that upon approaching the crossing lie sounded the automobile horn; that it was his custom in approaching railroad crossings -to look out for trains and on the occasion on which plain- tiff's automobile was injured he did look and listen- as soon as he reached the intersection of the streets, a view of the street on wOiich defendant was switching its' freight cars being prevented be- fore he reached the intersection by buildings, but had no reason to believe a train was approaching ; that the crossing appeared to be clear, and he did not see a freight car of defendant, which was mov- ing of its Own momentum across the street on which he was travel- ing, and which struck plaintiff's automobile and damaged the same; and the question was properly submitted to the jury.®* § 757. Duty of crossing 'ftagman. Where by ordinance a rail- road company is required to keep a flagman at a dangerous cross- ■ ing, such flagman must give warning to the public, including per- sons traveling in automobiles, w'hen a train is about to use the 63 Louisville & N. R. Co. v. English, 65 Louisville & N. R. Co. v. English, — Fla. — , 82 So. 819 (1919). ■ — Fla. — , 82 So. 819 (1919). , 64 Ft.. Smith & W. R. Co. v. Eence, 122 Ark. 611, 182 S. W. S68 (1916). B. Autos. — 47 738 LAW OF AUTOMOBILES crossing, in order that travelers may be on their guard and afforded an opportunity to protect themselves from the danger created by the train. Such flagman must be where persons are expected, and where they may expect to find him. He is required to keep on the alert, so as to be able, from the proper place and within the proper time, to jive the warning expected of him. The operator of an automobile', approaching such crossing, may assume that, if a train is about to cross the highway, the flagman will, from a proper place, give him warning thereof.®® Where a crossing watchman signaled three automobiles to cross wh^re there were four tracks, it was his duty to allow time for them to cross with a fairly clear margin of safety.®'' § 758. Duty of crossing flagman when automobile stalls on track. The plaintiff's automobile became stalled so near the track of defendant that the step of a passing train struck and damaged it. The plaintiff and several others, including the defendant's flag- man at this crossing, tried to push the automobile back, but without avail. The petition charged negligence on the part of the de- fendant in that the crossing flagman stated to plaintiff that no train was due "for a long time," when in fact the train arrived within four or five minutes, and in the failure of the flagman to go up the track sooner than he did to flag and stop the train. In affirmftig judgment in favor of defendant, the court held that the statement of the flagman as to when the next train was due was entirely outside of his authority as a flagman, it not being his duty to know such things, and was not binding on the defendant; and that his duty was at the crossing to protect the public from trains approaching from both directions, and to leave his post would be an act of negligence for which his employer would be liable if an accident was occasioned thereby. "To prevent a catas- trophe or loss of human life by an obstruction on the track that might endanger a trainload of people would undoubtedly justify and require the flagman leaving his crossing unguarded to, stop the on- coming train and thereby prevent a great calamity. That would be his moral duty, as it is the duty of every man, to save others from peril — common humapity would demand it — but for the failure of a crossing flagman to so act the railroad company would not be liable." «» 66 Roby V. Kansas City S. R. Co., 68 Carnochan v. Erie R. Co., 1S9 App. 130 La. 880, S8 So. 701, 41 L. R. A. Div. 406, 144 N. Y. Supp. 1108, 7 N. (N. S.) 3SS, 4 N. C. C. A. 32S (1912). C. C. A. 54Sn (1913), aff'g 73 Misc. 131, 67 Philadelphia, B. & W. R. Co. v. 130 N. Y. Supp. S 14. Pantley, 2S9 Fed. 163 (1919). COLLISIONS WITH RAILROAD TRAINS 739 § 759. Failure to station flagman at crossing. The rule has been laid down that in cases of unusually dangerous crossings and intersections of wagon roads or Streets with railroad tracks at grade, arising from the large travel or operation of cars, or the existence of obstructions or conflicting noises calculated to mislead or confuse those passing over such crossings, it is proper to submit the failure of the railroad company to maintain a flag- man at such point as actionable negligence predicated on the hypothesis that a person of ordinary prudence, operating trains under such circumstances, would have done so. The plaintiff, driving her automobile, approached a crossing of the public street with defendant's railroad tracks, where her view of approaching trains from the west was obscured. The crossing was a dangerous one, many trains and engines, and many vehicles on the street, crossing it daily. There was no watchman or flag- man stationed there, and plaintiff was wholly unfamiliar \frith it. There were gongs at the crossing which rang constantly when engines approached. A switch engine with a coach attached was backing towards the crossing. The plaintiff testified that she ap- proached the crossing at 5 or 6 miles an hour; that she did not hear bell or whistle or see the train; that as she neared the crossing her attention was attracted by men shouting, which con- fused and startled her; that she looked to the east and then to the west, and as she did so the engine coming from the west struck her machine. The engineer in charge of thie engine testified that the engine was moving 5 or 6 miles an hour; that it was in good order and could have been stopped in 12 or IS feet, and possibly 8 feet; that he got the stop signal when the west end of the engine was even with the west sidewalk of the street. The street at -this place was shown to be 80 feet wide between property lines, and 48 feet between curb lines. The engineer also testified that, "I guess I stopped possibly in about 8 feet, because I shoved the automo- bile about 8 or 10 feet." ' The court held that, while the margin was yery close, the ques- tion of plaintiff's contributory negligence was for the jury; but that if her negligence was conceded, the verdict in her favor was amply supported on the issue of discovered peril. It was also held that the failure of defendant to have a flagman at the crossing was prop- erly submitted as a basis of recovery.*' 69 Southern Pac. Co. v. Walker, — Tex. Civ. App. — , 171 S. W. 264, 8 N. C, C. A. 1049n (1914). 74Q . ;LAW OF AUTOMOBILES The court may, under proper circumstances, submit to the jury the question , whether ordinary care requires that a railroad com- pany, when approaching a busy city street crossihg, shoul'gates is simply one means of notifying a traveler of danger, the traveler' cannot rely exclusively on the fact that the gates^ are open, but must to some extent use his senses before going on to ffife railroad track."'" It has been held that a motorist is not cOntributorily negligent as matter of law in proceeding over a crossing where safety gates are up without stopping to look and listen for approaching traiiig, there being no obvious danger' at the time. The court held that it makes no difference in ptinciple whether the gates are required by law or voluntarily maintained.'^ MGepffroy V. ]^ew York, N. H. & H. R. Co., — R. I. — , 104 Atl. 883 C1918).' 90 Geoffrey v. New York, N. H. & H. R. Co.; — R. I. — , 104 Atl. 883 (1918). 91 Director General v. State ; — Md. — , 109 Atl. 321 (1920). The ' court in the above, case quoted from Baltimore & O. R. Co. v. Stuihpf, 97 Md. 78, S4 Atl. 978, as follows: "This is the first case in this court in which it has been sought to apply the rule of stop, look, and listen arbi- trarily to a case where safety gates, re- quired by law to be kept closed on the approach of a train, were open as the traveler approached the crossing, and we have given it careful consideration. It may be conceded unhesitatingly that the mere fact that such gates are open cannot, alone and in all cases, justify a. traveler in going upon the track at the crossing, and that there are cases in which it may be the traveler's dut^f to make independent observation by stop- ping, as well as by looking and listen- ing, before doing so. The case of Pa. R. R. V. Pfeulb, 60 N. J. Law, 278 (37 Atl. 1100), is such a case. ' There the proof was that, though lihe gates were up ?.s plaintiff approached, an east-bound train was then passing, jand he,yaited until it passed, and then went upon the track and was struck by a train coming in the opposite direction,' which he could not have failed to see if he had looked; and the court properly said: 'He knew the gateman had neglected his duty, arid that he could not rely with confidence upon the fact that the gates weire up.' So also,' if one seeing the gates up, but also seeing an approaching traiti near at hand, should' attertipt to cross be- fore it, merely te'cau^e the gates were open, or because he chose to risk the ex- periment, the open gate could not re- lieve him of the consequences of his own want of due and ordinary carfe. None of the cases in this court, in which the failure to stop, look, and listen before crossing a railroad track ! has been de- clared negligence per se,' ftom Hoge- land's Case, 66 Md. 149 (7 Atl. lOS, S9 Am. Rep. 1S9) , to Roming's Case, 96 Md. 67 (S3' Atl. 672);' have involved the question of safety gates, and none of them have announced any principle which would either require, or in our oi|iilion justify, the application of the rule in- voked to such a case as the present. In COLLISIONS WITH RAILROAD TRAINS 749 If the driver knows of the near approach of a train to the cross- ing, the gates being up cannot be considered as an invitation to him to cross .®^ Where a traveler drove on to a dangerous crossing, when the crossing gates were lipi 'and when, had he looked' down the track at a time he Was in a place of safety,* he could have seen an ap- proaching train and could have stopped his car in safety, and he did not look, arid was struck- by the train, he was guilty of negli- gence.®* It has been held that where a raili-oad company is required to maintain flagmen or watchmen, or gates at public ■ crossings, a motorist has the right to presume, when no warning is given him as he approaches, that he may proceed with safety .^^ The plaintiff, driving his autornobile, approached a crossing of defendant's railroad where there were six tracks. The approach and crossing were on a descending grade^in a westerly direction — the direction in which he was traveling. The crossing was pro- tected on either side by safety gates j operated by a towerman. Finding the gates raised, he pr'Oceedfid until his machine was partly on the Second tralck, when he discovered that the gates on both sides 'were being lowered, arid that a train was passing in front of him on the track next to the' west gate.' He stopped his machine, and while waiting for the way to clear he discovered that his fnachine needed cranking. This attended to, and before he cduld get from in front of his machine, another train was passing between him and the west gate, on the track immediately in front of the machirie. The passing engine caused ' such a vibration of the Roming's Case, the Baltimore & Ohio and that, except, where the traveler at- Railroad , Company volmitafily maintain- tempts to cross in the face of obyi9ns ed a gate, at the crossing in question, but danger, if he be injured while crossing it was operated only, in the daytime, and through an open gate, the question did not enter inlo the consideration of whether he was guilty of contributory thiat case. The rule has been so applied negligence is for the jury. The ruling in Pennsylvania, but the great weight on this point in the Stumpf Case was of authority in England and America is cited and approyed in the Gilmore Case, the other way." iOO Md. at page 413, 60,Atl. 19, 108 Am. ''Continuing," Judge Pearce reviewed the St. Rep. 439, 3 Ann. Cas. 445." Director authorities in England and* in- other General v. State, — Md. -^, 109 All. 321 states of this country, from which it (1920). ;, may be gathered that, where such gates 9*Lang v. Northern Pac R. Co., 118 are maintained, an open gate is a sub- Minn. 68, 136 N. W. 297. stantial assurance of safety, and it is 94 Geoffrey v. New York, N. IJ. & H. not the duty of a traveler to stop, ex- R. Co., — R. I. — , 104 Atl. 883 (1918). cept when danger in crossing is ap- 95'Lockridge v. Minneapolis & St. L. parent, notwithstanding the open gate, R. Co:, 161 la. 74, 140 N. W. 834 (1913). 750 LAW OF AUTOMOBILES ground as to start the automobile, which was on a slightly descend- ing grade toward the train. Finding that he could not hold the automobile, he jumped onto the running board and attempted to turn it away from the trairj, but failed to avert a collision, which injured him and damaged his machine. There was also testimony that there was no warning given of the approach of the last men- tioned train, which plaintiff could not see or hear, owing to obstruc- tions, until it was in front of him. Defendant's testimony contra- dicted this statement in many respects, and tended to show that the starting of the machine was due to plaintiff's own acts. It was held that the case was for the jury; that if by keeping up the crossing gates, when they should have been down, defend- ant's servants induced plaintiff to go upon the crossing when it was not safe for him to do so, and while thereon he was injured by a train, also in charge of defendant's servants, which in passing gave him no warning of its applroach, such acts would constitute negligence.'® In an action to recover for personal injuries sustained in a col- lision between the automobile in which the plaintiff was riding and a train of defendant, there was evidence on behalf of plain- tiff tending to show that the automobile was proceeding along a public street in a westerly direction, approaching a crossing with defendant's tracks; that there were gates on both the east and west sides of the tracks; that the gates on the east side were not down when the automobile came to the crossing; that the west gates were down, and the automobile came to a stop at the west gates, the rear end standing on the west track; that a train was approaching from the north, and when it was discovered the driver of the auto- mobile tried to start it but failed, and all the occupants started to get out; that the train struck the automobile before plaintiff could get clear of it, and he was injured; that the automobile was not damaged at the east gates, nor were those gates damaged in any way. There was testimony for the defendant that the east gates were down and that the automobile ran through them, that it "sprung" the gates and went right through. A young lady tes- tified (and the court stated that it was not at all improbable that the jury found in her testimony a suggestion for a reconciliation of all the testimony) that she saw the accident; that the east gates were down, but were several feet higher than the west gates, and sufficiently high to admit an automobile passing under them; and SBLouisvUIe & N. R. Co. v. Eckman, 137 Ky. 231, 125 S. W. 729 (1910). COLLISIONS WITH RAILROAD TRAINS 751 that at that crossing the west gates were usually lowered first. Held, that the evidence was sufficient to' support the verdict in plaintiff's favor.*'' In Pennsylvania, where the rule "stop, look, and listen" is held to be imperative and unbending, it is held that the fact that safety gates at a crossing are open does not relieve a motorist of the duty of stopping his machine before attempting to make the crossing, and that if he does not stop but drives his machine at a rapid rate until he is so near the tracks that he cannot stop in time to avoid a collision, he is barred of recovery. "Such gates are for the pro- tection of the public but do not absolve the public from exercising proper care to protect themselves." '* § 767. Same— Colliding with cars standing on crossing. A motorist cannot recover for injuries due to colliding with cars standing still on a crossing on tlie ground that the company failed to sound the crossing gong, required to be placed there by statute; the gong being for the purpose of giving warning of approaching trains.^ §768. Gates lowered, on automobile. It is the duty of a motorist approaching a railroad crossing to exercise reasonable care to discover whether the arms of the gates are down, or are being lowered, and to keep out of their way.* It is the duty of the railroad company to give reasonable warn- ing of an intention to lower crossing gates, and at night to have svrfficient lights, either on the gates or elsewhere, to enable d per^ son exercising reasonable care for his own safety, to see the arm of the gate.' 1 97 Louisville & N. R. Co. v. Nethery, use a safety appliance, adopted as a 160 Ky. 369, 169 S. W. 883, 8 N. C. C. protection against some particular dan- A. 1048n (1914). ger, cannot be relied upon to prove neg- 9* Earle v. Philadelphia & R. R. Co., ligence when the injury is caused by an- 248 Pa. St. 193, 93 Atl. 1001 (191S). other danger which the appliance was 1 The fact that the defendant main- not designed to guard against ; and the tained this electric appliance to warn the • responsibility voluntarily assumed to public against the danger of approaching maintain these signals imposes no cars and engines, and voluntarily assumed higher duty upon a railroad company the duty without an order or request from than the statute requires." McGlaufiin v. the railroad commissioners, does not show Boston & M. R. R., 230 Mass. 431, 119 that the arrangement was intended to pro- N. E. 9SS (1918). tect travelers against the danger of col- 2 Louisville Bridge Co. v. Iring, 180 lision with a car standing still on the Ky. 729, 203 S. W. 531 (1918). track, or that the mechanism was oper- * Louisville Bridge Co. v. Iring, 180 ated for any such purpose. A failure to Ky. 729, 203 S. W. 531 (1918). 752 ^ LAW OF AUTOMOBILES ' 'In a case' in which the plaintiff contended that when he attempted to cross, the safety gates being up, the gates were.. suddenly low- ered onto his machine, causing him to lose conttol of same and collide with a train, it 'was held that the case was. -for the jury.* Where one was riding with the driver on the front seat of ; a tour- ing car when she was injtired at a railroad crossing by the lowering of a gate on the car, and there was evidence that the j driver stopped the car and looked and listened for a train before attempt- ing to cross; that there was a man in the watchhouse,- which stood near the crossing; that when the gate was lowered a bell was rung, and a train was* approaching within 200 or 300 feet; that the acci- dent occurred at noon, and the automobile' was in plain view of the gatekeeper; that, the gate did not start dpwn until the, car' was under it, when it came down rapidly, striking the car near the front, it wa;s'held that the case wasfdr the jury, and judgment for plaintiff was affirmed. , . ' .. ' In this case the court said:" "While there was' no direct evi- dence' that the gate in questioii was lowered by an employee of defendant, the circumstances warranted that conclusion. The gates were tjiere to be operated on the approach of trains, lalid one ^^as then -coming and a bell ringing. A man had just been, seen in the gatehouse, and, so far as appears, the -gates do not opetate auto- matically. Where a railroad appliance is in its proper place and performing its intended function, it is prima facie ..evidence that it is under the contr.pl of, the company, and this applies as well, to a, safety gate as to a locomotive. The purpose of the gate is to protect the public, by moving downward and upward; and the presumption is that such movements are under the control of the railroad company, and there is no evidence here to the contrary. It bears no analogy to the accidental fall of a trolley pole or of an electric wire. It is the duty of a railroad company to exercise reasonable care in operating safety gates so as to protect the traveler on the highway from the cars and from the gates. While the mere happening of the accident did not raise a presumption of negligence, the circumstances shown were such as to make that a question of fact." ^ § 769. Colliding with gates lowered in front of automobile. There was testimony • tending to show that plaintiff occupied a place on the rear seat of the automobile in questiori; the driver of 4 Director General v. State, — Md. — , 260 Pa. St. 343, 103 Atl. 730 (1918): 109 Atl. 32 r( 1920). ' Also, Sikorski v. Philadelphia & R. K. fiSgier V. Philadelphia & R. R. Co., Co., 260 Pa. St. 24'3, 103 Atl. 618(1918). COLLISIONS WITH RAILROAD ' TRAINS 753 the vehicle exercised due care ; i, wheiij he approached the railroad tracks, the. gates we;re,down; the car wasi brought to, a standstill, for , several minutes ;• the railroad flagman raised the gates and beckoned in sjich. a manner as to indicate that, the (wayi was safe, thus inviting the chauffeur to make the crossing; the machine, started and, when; about halfway over, the tracks,; a locomotive was observed approaching the crossing; at the same, moment, the flagman started to, lower the gates, which "suddenly'! ; came "down fast" and were broken, by collision with, the .autompbH^, before the latter could clear them;; in anticipation of this impending collision with /the gates, plaintiff "made an. effort, to, get out, *. * * collapsed, and * * * fell to the ground." Held, to support a verdict in plaintiff's favor .*i , , § 770. Crossiflg gates down— Insufficient light. The plaintiff was driving his automobile along a ' city, street at 12 or IS' miles an' hour, with his headlights burning, approaching a railroad 'Crb^s- ing. He had been over 'that' road only bncfe or twice befofe and' at the time did not remember 'the Crossing,' and did not see the .gates, which were down, until he was about 25 feet from the crossing. He turned his machine suddenly to' avoid striking the gates, and ran it against' an iron trolley pole^ causing the damage complained of. It appeared that one or both the lanterns hanging on the gates were out, and that iErom sevetal causes the artificial light at that point was so dim that the gates were not plainly visiblie. Held, that a finding for the plaintiff was proper, and judgment for him was sustained.'' '■' , ' ' ' t ' . ' I, § 771,. Crossing beU silent. The. silence of a crossing; gong is, ' in a measure,, an invitation to travelers to cross. It does not relieve ;the. traveler . of the, .duty to look and listen, but it .does authorize him to, rely in a ..njeasure ; on, the. safety which the silence of the gong , indicates.* ' ■ 6 SikoJski V. PhUadelphia & R. R. Co., ; of hearing to inform them of apprbach- 260 Pa. si. 243, 103 Atl. 618 (IMS). inp trains, and this- hearing: includes the ,'' Record v. Pennsylvania R..- Co., 75 ihearing of such warping signals as law N.J. L. 311, 67 Atl. 1040. or.custom, or.both, require. And in, such 8 Birmingham S. R. Co. v. Harrison, a case, when a person is , regulating- his — Ala. — , 82 'So. 534 (1919); Bush v. speed and conduct so as to make hear- Brewer,, 136 Ark. ; 24.6, 206 S. W. 322 ing effectual and listens attentively and (1918). ;„ , hears no train, because, of defendant's "The Jaw accords with common ex- fault in not giving the required , signals, perience , and reason that persons ap- then he may proceed at an ordinarily preaching a railroad ,Qi;ossing when';the safe speed; on the theory that the, cross- view. is obstructed depend qn the. sen^e ing is safe,; and where the evidence tenfjp B. Autos. — 48 , 754 LAW OF AUTOMOBILES Tbe fact that a motorist knew of an automatic signalling device at a crossing, and was induced by its silence to believe the cross- ing clear and free from danger, should be taken into consideration by the jury in deciding whether he exercised ordinary care in at- tempting to cross.® An automatic bell at a railroad crossing is out of repair when it sometimes fails to ring when trains approach and pass the cross- ing; and evidence of this fact is admissible to show constructive knowledge of its condition on the part of the railroad company.^" After placing a bell at a crossing it is the duty of the railroad company to keep it in working condition, or give notice in some way that it is out of repair .^^ The rule that a traveler apptoaching a railroad crossing where a flagman is stationed or a watchman is present to lower gates upon the approach of a train may relax somewhat from the degree of care that otherwise is imposed upon him, was held not to apply where there is only an automatic electric bell intended to give warning of approaching trains. In such a case the court said: "In the present case an electrical, mechanical device was intended to give warning of approaching trains. Sometimes this bell would not ring when trains were passing, and at other times it rang when no train was in sight. An electric bell, which at most can be noth- ing but a warning of an approaching train to those who listen, cannot be classed with a gate thrown across a street to prevent passing over railroad tracks; neither can it be classed with a flag- man who stands in the street and stops those who desire to cross when there is danger. It is more nearly analogous to the locomo- tive bell and whistle. Failure to ring the engine bell or sound the whistle does not relieve a traveler from the duty to look and listen before attempting to cross a railroad track. If the plaintiff's contention in this respect is correct, a railroad increases its respon- sibility and liability by putting in electric bells at highway and street crossings. The object in putting in electric bells is to pro- mote public safety, not to increase railroad liability. Silence of such a bell is not an invitation to cross railroad tracks without taking the ordinary precautions." ^* The distinction made between crossing gates and automatic to show that he did this, the court can- 10 Lake Erie & W. R. Co. v. Howarth, not declare him guilty of contributory — Ind. App. — , 124 N. E. 687 (1919) negligence." Swigart v. Lusk, 196 Mo. H Birmingham S. R. Co. v. Harrison, .\pp. 471, 192 S. W. 138 (1917). — Ala. — , 82 So. S34 (1919). »Brose v. Chicagb G. W. R. Co., — 12 Jacobs v. Atchison T. & S. F, R. ra. — , 171 N. W. 149 (1919). Co., 97 Kan. 247, 1S4 Pac. 1023 (1916). COLLISIONS WITH RAILROAD TRAINS 755 gongs at crossings, however, is one of degree and not of kind." Where a motorist drove onto the second track at a crossing and was struck by a train which could have for some time been seen, his negligence was the proximate cause of the collision, and not the neglect of the company to have automatic signal working, or failure of trainmen to sound signal.^* It has been held that evidence tending to show that there are practical automatic devices for signalling the approach of a car or train is admissible on the question whether the defendant com- pany ought to have maintained such a device at a crossing where the plaintiff's automobile was struck by a car.^' Although the law does not impose upon, a railroad company in a specific instance the duty to install and maintain an automatic bell at a crossing to warn travelers of the approach of trains, yet, having installed such bell, the duty rests upon it, while nlain- taining the same, to exercise reasonable care to keep it in good con- dition, and its failure to do so will be an act of negligence.^* In order to fasten liability on the railroad company for failure to use due care in this respect, it must appear that it had knowl- edge, or ought to have had knowledge, that the bell was out of repair, and that the person injured was without such knowledge.^' Under a statute which related to the degree of care to be used by travelers at railroad crossings protected by flagmen or safety appli- ances or both, but which did "not increase the obligations of the railroad company, it was error to instruct that, the company hav- ing installed a crossing bell that would ring when a train ap- proached, "it was the duty of the company to use reasonable care to keep the bell in order and to notify the public when it was out of use." " In New Jersey and New York, one is not barred from recovery because of his failure to stop, look, and listen before going onto a crossing guarded by a flagman, who gives no indication of danger; the question of his negligence being for the jury.^' Under statute law in New Jersey a motorist who approaches a railroad crossing when the crossing bell is not ringing may ISSwigart v. Lusk, 196 Mo. App. 471, — Ind. App. — , 127 N. E. 804 (1920). 192 S. W., 138 (1917). , "Lake Erie & W. R. Co. v. Howarth, l4LoiseIIe v. Rhode Island Co., — R. — Ind. App. — , 1^7 N. E. 804 (1920). I. — , 110 Atl. 407 (1920). "Johnson v. Central R. Co., — N. "Rupener v. Cedar Rapids & I. C. J. L. — , 109 Atl. 3S9 (1919). C. R. & L. Co., 178 la. 615, 1S9 N. W. 19 Brink v. Erie R. Co., 190 App. ,Div. 1048 (1916). S27, 179 N. Y. Supp. 848 (1920). 18 Lake Erie & W. R. Co. v. Howarth, 756 LAW OF AtlTOMOBILES assume thiat no train is approaching; being absolved from the duty of stopping, looking and listening^ On the dthief hand he is guilty of contributory negligence if he attempts to cross when such bell is ringing.^" ' ' § 772. Leaving box car in street with door and bar project- ing.. The defendant , left one of its refrigerator qars,, after it was unloaded, standing on a track in a public street, with a door: open, at right angles' to . the car, and on the, door was an iron bar or cleat yvhich extended out from, the car ,aboqt six feet. The plaintiff, was riding in an automobile, driven by another pecspn, along such .street, ^t night, and, the driver, drove the' automobile iritp 'and against ; the. door , and, bar witho,ut. knowing ;pf such obstruction, causing, iiijury (to, the plaintiff., , The questions of negligence and contributory negligence were held, to be , for the jury, . and judg- ment fpr, plaintiff ^as; affirmed; The, court approved an instructigm which told,the:jury that, "after ithe car in question , was unloaded •in the ipanner.asshown by the, eiyidqijipe, .you are • in3tr.nG,ted as a matter of law that then it beparne ^nd was thereafter the duty of t];iei defendant company and. its agents, servants and employees i to exercise ordirjary care; to prevent said car or any portion thereof frpn;i injuring the plaintiff or, any pedestrian or vehicle, while using that portion pf the strjee,t, adjacent . thereto as a, higljiway, and thp failure to exercise such care on the part of the, defendant. , or any of its servants, agents,ror employees would be- negligence,"; ?V, §773. Car moving south on northbound track— Stating cause of action. In an action to rpcoveir for irijuries occurring in a collision' between a tirollfey car and automobile at a crossing of an electric railway, , and a public highway, allegations that' the defendant negligently operated ' a trolley car on the north-bound track in a southerly' direction, causing the collision, did not' sta'tfe facts constituting a cause of action; but with the additional alle- gations that defendant negligently failed to have a' watchrpari, at the crossing or to' give, any other suitable warning of the approach of the car, causing the collision, a cause of action was stated.^* §774. Injury due to defective! crossing. It is the duty of a railiroad company to provide crp^ssings reasppably safe for the aOBaer v. Lehigh & H. R. R. Co., 93 (:.1920). ': ■- N. J. L. 8S, 446, 106 Atl. 421 (1919), 22 Gardner v. Wilmington &.p;'Tr. 21 St. Louis S.-Wi R. Go. v. Ristine, Co., — Del. — , 108 Atl. 740 (1920). — Tex. Civ. App. — , 219 S. W. SIS -■■' '■ ' ' <'l X I !,: . COLLISIONS WITH RAILROAD TRAINS 757 passage of 'ti*avel thereover in the usual mode at those points where public highways cross its tracks.** A motorist attempting to pass over a railroad at a public cross- ing is not a trespasser, and the railroad company owes him the active duty of keeping a lookout for him. It owes the same duty in respect to the automobile or other property rightfully using the crossing.** , The plaintiff brought suit to recover for damage to his automo- bile, which was struck by onepf defendant's freight trains, while the a,utomobile was stalled on the track, due, it was' alleged, to the roughness and unevenness ofjthe crossing causing the engine of the automobile to stop. • There wasj, evidence justifying a finding that the employees in charge of the ,train discovered th,e presence ,qf. the automobile, on the, (track, in,; time to have stopped the train and .avoided tlie accident. A witness, wl;io was, defendant's sqct^on foreman at the time of the trial ancj was a section hand at the time of the accident,, testified that every morning tlie sectiop crew placed cinders at tjiis crossing; that on account of the heavy travel over the crossing, the, cinders yvould blow out; that they piit cinders on this crossing on the, morning before the accident ;and the morning thereafter. He further testified that it was true tha,t, some material rnight have been used which would; not so readily blow away. Further, the testiniony of plaintiff a,nd other >yitn,es^ps I tended to show that in addition to there being "chug lioles'^' find other yiequalities in the crossing, caused by the absenqp of svifficiePjt fill, the boards placed, next to the rails had become warped and broken. It was held that a verdict for the plaintiff was justifie4, and judgment in his favflr, was, a,ffirrned.** , Where plaintiff's automobile was stalled on a crossing, by rea- son of the defective condition of the crossing, when it was struck by a train, his failure to look and listen, before driving onto the ■track, was not the cause of his injuries.*® • .:: ; The fact that planks in a railroad crossing extended two to three inches above the road surface, does not show negligence as mat- ter of law on the part of the railroad company, which was required 23 Southern R, Co. v. Flynt, — Ala. 26 Kansas City, M. & Q. R. Co. v. Cole, — , 82 So. 2S (iOlQ); Harrison E. & C. — Tex. Civ. App. — , 183 S. W. 137 Co. V. Director General, — W. Va. — , (1916) . 103 S. E. 3SS (1920). J ' 26Cottam v. Oregon S. L. R. Co., — 24Monson v. Chicago, R. I. & P. R. Utah — , 187 Pac. 827 (1919). Co., 181 la. 1354, 1S9 N. W. 679 (1916). 758 LAW OF AUTOMOBILES tpmain^in the crossing in reasonably safe condition for travel.*'' In an action to recover for the death of plaintiff's intestate, which occurred when the automobile in which he was riding was struck by a train of defendant, the negligence alleged, among other things, was in maintaining a defective crossing. The testimony relating to the question was stated by the court as follows: "In this re- spect, there was evidence tending to show that, just before the accident, one or two days, the track at this crossing having become depressed or sunk in, the section master of defendant company and his assistants had raised the track at this crossing some eight inches, put new cross-ties under it, and filled it in with cinders, allowing this to settle overnight. They returned in the morning and filled it up again, and there had been a lot of passing over it during the day with vehicles and machines, having a tendency to pack it. This witness testified that he regarded cinders as about the biest thing that could be used for making a good crossing and that he always used them for that purpose when they could be had. True, another witness testified that he thought plank or fine rock would niake a better crossing; but the witness also said that he had had no experience in repairing crossings." The court held that, "on perusal of the entire testimony, we find no sufficient evidence to carry the question to the jury of any neg- ligent breach of duty on the part of the company in reference to the condition of the crossing, either as to the material or the man- ner in which it was applied, and there was, as stated, prejudicial errpr in allowing the jury to consider the case in that aspect." ** Where a person attempts to drive an automobile over a rail- road crossing in front of a fast speeding train, which he could have seen approaching for a distance of a quarter of a mile or more, and the crossing grade is muddy, steep, and slippery, and has a depression of three inches between the rails, whereby his engine loses power and stops in the depression between the rails, and the train is then so near that it cannot be stopped in time to avoid a collision, such person is guilty of contributory negligence, which bars his recovery for damages notwithstanding the negligence of the railway company in maintaining the defective crossing.*® § 775. Sufficiency of crossing. The duty of the railroad is sufficiently discharged if the crossing is maintained in a reasonably safe and convenient condition, so as not to materially impair the ST Peterson v. Chicago, M. & gt- P. R. MBunton v., Atchison, T. & S. F. R. Co., — la.,—, 170 N. W.'4S2 (1919). Co., 100 Kan. 16S, 163 Pac. 801 (1917). 28 Hunt V. North Carolina R. Co., 170 N. C. 442, 87 S. E. 210 (191S). COLLISIONS WITH RAILROAD TRAINS 759 usefulness of the highway, or interfere with its safe enjoyment by travelers, who exercise ordinary care and prudence for their safety in using it.'" There being no statute specifically defining what a "good and sufficient" crossing consists of, the question of whether a certain crossing is good and sufficient is ordinarily one for the jury to determine from the evidence adduced, unless it clearly appears that but one conclusion only can be reasonably drawn from the evidence respecting the condition of the crossing, in which case . it becomes a question of law for the court.'^ In an action to recover from a railroad company for damages to an automobile in a crossing accident, the following instruction was held to properly state the law: "Before the plaintiff can recover in this action any sum whatever, he must establish by a preponderance of the evidence that the defendant railway company, at the highway crossing complained of, did not maintain a safe and convenient crossing for public use." Said the court: "Complaint is made because of the use of the word 'convenient.' Appellant says that the law provides that a railway company shall construct and maintain a good, sufficient, and safe crossing. It occurs to us that the requirement of the statute in requiring a good, sufficient, and safe crossing i^ a greater requirement than that stated in the instruction which requires a safe and convenient crossing. The word 'convenient' in the sense in which it is used in this instruction, means suitable, appropriate, or fit for the purpose. Webster defines convenient: 'Fit, adapted, suitable, proper, becoming, appropriate.' " ** § 776. Unnecessary obstructions to view on right of way. The presence on a railroad right of way of wholly unnecessary obstructions to the view of travelers approaching a crossing, may in itself constitute negligence on the part of the railroad fcompany; and where such an obstruction is the proximate cause of a collisiotl between a train and an automobile the company may be held liable for the resulting injuries.'* »OSouthern R. Co. v. Flynt, — Ala. Kan. — , 179 Pac. 323 (1919). — , 82 So. 2S (1919). Liability of a railway company for in- *1 Denkers v. Southern Pac. Co., — juries to those riding in an automobile, Utah — , 171 Pac. 999 (191?). sustained in a collision wfith a train at S^Monson v. Chicago, R. I. & P. R. a highway crossing, may be founded on Co., 181 la. 1354, 159 N. W. 679 (1916). the company's negligence in allowing '8 Corley v. Atchison, T. & S. F. R. weeds, grass, and brush to grow on its Co., 90 Kan. 70, 133 Pac. 555 (1913); right of way so as to obstruct the vision Schaefer v, Arkansas V. I. R. Co., — of those riding in the automobile while 760 ; , LAW iOB"! AUTOMOBILES i i* ; . This, rule seems npt.to be uniform throughout ,the states, whether or not he saw it iindeir such conditions, that he was justified in believing that it would stop before entering upon the track, or that it wo|^ld pass over, in time to avoid collision with the train, or the contrary, were issues for the determination of the jury.*® , ,m - ./ In California the "last clear chance" rule never applies in rail' road cases unless there isr some evidence that the engineer or, motor- man actually saw the obstruction in time to have a,yoided the injury by stopping the car or train. , This is the dpQtrine, of discovered peril .*^ , , If the engineer of a train, seeing an automobile^ stopped on a crossing, could have stopped the ; train by using proper means and thereby avoided a collision, and did not do ,§o, the- oifpner of the automobile can recover for injuries due to such collision.*'' ,/Wher-e the plaintiff was guilty pf negligence in driving on 'the track, and the train operatives did not discover him, and could not by the, iepcercise of ordinary care have discovered him, in time to avoid the accident, he pouldinot recover for danaage to his auto- mobile by collision of the train." , , , , . A motorist stated; that he saw the ,train approaching about 1 20 feet away, that he was moving slowfly, an^ CPul4i have stopped in three feet; that he did not reverse and go back, because he didn't have timCj and, because he thought the quickest way was; tGjvgo ahead, was in effect an assertion thajt there was • no discovered peril.*' -,;!,; - >.; >i - ii •■,-,: „ ,,.,., ■;,,', V;,; , In an action to recover fqr injuries incyr^ed in a poUision , be- tween the plaintiff's automobile and the defendant's locomptiye; the driver of the car testified, in substance, that he w^ traveling south on Rice street at about the speed of 10 Pr 12 miles p:er hour, and that when he reached a point 10 or 1^ or possibly IS feet from the railway track he saw the locomotive, then at a distance 46 Texas Cent. R. Co. v. D'rimis,"— "San Antonio & A. P.' R. Co. v: Tex. Civ. App. — , 149 S; W'. 543(1912). MoOre, i-^. Tex. Civj App, --, 208' S. W. 46Griswold v. Pacific EI. R. Co., — 754 (1919). Cal. App. — , 187 Pac; 65 (1919). « Andrews, v. Mynier, — Tex. Civ. In Texas the doctrine applies w*en App. — , 190 S. W. 1164 (1917). , , such facts are shown. Galyeston,) H, & *9St. Louis, B. & M. R. Co. v. Paine, H. R. Co. v. Sloman, — Tex. Civ, App. — Tex. Civ. App. — , 188 S. W. 1033 — 165 Pac. 321 (1917). (1916). COLLISIONS WITH RAILROAD TRAINS 765 of about il 50 ifeg't from the crossing, and coming at a rate of speed of about 25 miles per hpur; that, realizing the danger of a collision, h^e put the autpmobile into reverse and tried to stop, but that, on account of the street being wet and slippery,, the wheels slipped: and the automobile continuied its forward motion; that, seeing he could not $top in time to avert a collision, he put the automobile, in for- ward motion and tried to hurry across,; but. without success, and the collision resulted. He further teSitified. that there was no slack- ing of. the speed, of the locomotive from the time he first saw it until the impact, and that he was watching the locomotive from the time h€ ;fijst_ saw it until the collision occurred. He further .tes-i tified: ., ,;: : .;, ,,., "They apparently didn't see me at all, * * ,* I sat, there listen- ing, and I said, 'Ain't he ever going to see me; ain't he ever going to stop?' but he just kept on. coming down there, and never did see me." The evidence sufficiently showed that at the time the locomotive and automobile reached points from which the operator of each could have seen the other, there was nothing to obstruct the view of the engineer, and he testified that he was keeping a lookout on the side of the track from which the automobile was approaching, but that he did not see the automobile until he was within 15 feet of it, and tl^at he then threw the brakes into emergency and used all the means at his command to stop before striking the automobile, but could not stop. He further testified that when he discovered the automobile, he was traveling at a speed of 6 or 8 miles per hour, and that at that rate of speed he could have stopped in the length of his engine. There was other testimony from which the jury might have concluded that the locomotive, if going at the rate of 6 miles per hour, could have been stopped in the space of 8 or 10 feet, and still other testimony that it could have been stopped within 15 or 20 feet. But the locomotive did not, in fact, stop after the collision until it had run 75 feet, according to the testimony of one witness, 100 feet according to the testimony of another, and 150 feet according to the testimony of a third. Two witnesses testified that the automobile was knocked 30 or 40 feet up the track from the crossing. Held, that the question of discovered peril was for the jury, and judgment for plaintiff was affirmed.^" so Houston B. & T. R. Co. v. Hardin Lbr. Co., — Tex. Civ. App. — , 189 S. W. 518 (1916). 766 LAW OF AUTOMOBILES §782. Res ipsa loquitur applied. In Georgia the following instruction was approved in an automobile case: "When a personal injury has been shown to have been done by the locomotives, or cars, or other machinery of a railroad company, or by any per- son in its employment or service, the presumption is against the company, but it may defeat a recovery by establishing either of the following defenses : That its agents have exercised all ordinary and reasonable care and diligence to avoid the injury; that the damage was' caused by the negligence of the person injured; that he con- sented to it; or that the person injured, by the use of ordinary care, could have avoided the injury to himself, although caused by the defendant's negligence." *^ 61 Murphy v. Georgia R. & P. Co., 146 Ga. 297, 91 S. E. 108 (1916). CHAPTER XIX COLLISIONS BETWEEN AUTOMOBILES §783. Turning to left on meeting. § 784. Unable to turn to right out of rut. § 78S. Automobile on wrong side of high- way. § 786. Automobile on wrong side collid- ing with motor-cycle. § 787. Skidding onto left side of street. § 788. Head-on collision. § 789. Rear wheels of automobile sliding in ruts. § 790. Colliding with automobile parked at curb. § 791. Colliding with motor-cycle while passing vehicle moving iff same direction. § 792. Front car stopping or slackening speed without warning. § 793. Evidence as to custom of drivers to signal intention to stop. § 794. Driving close behind another car. § 79S. Front car turning without signal. § 796. Front car turning into intersect- ing way. § 797. Requirement to look to rear before turning — Occupant looking. § 798. Attempting to pass in front of turning car. § 799. Driver's failure to comply with own signals as contributory neg- ligence, § 800. Automobile struck by street car causing it to collide with another machine. § 801. Backing automobile causing motor- cycle to collide with another ma- chine. 767 §802. Racing in highway, §803. Motor-cyclist looking down at en- gine. §804. Plaintiff seated off floor between seat and hood when injured in coUision. § 805. Jitney passenger riding with leg over rear door. § 806. Leaving opera house on signal from vehicle officer. OVERTAKING AND PASSING Generally. , > Failure of front car to give room. Turning too short after passing. Passing on right as forward car turns in same direction. Automobile standing on left side of road struck by another headed in same direction. AT STREET INTERSECTIONS , Generally. Same — Illustrative cases. Rights and duties when one vehicle has right of way. 815. Same — Illustrative cases. 816. Same — Construction of provisions of statutes and ordinances. 817. Fire department vehicles. 818. Failure to give right of way to car entitled thereto moving at excessive speed. 819. Driving in front of automobile en- titled to right of way. 820. Cutting corner. §807. §808. §809. §«10. §811. 812. 813. 814. 768 LAW OF AUTOMOBILES J821. Plaintiff driving on wrong side of street. (822. Swerving to left side of street. ! 823. Turning to left at intersection to avoid a collision. , , j824. View obscured by other vehicles. (825. Skidding on wet .street, at cross- ing where view . obscured. i 826. Failure to, slacken speed or signal , a]t , intersection. § 827. Failure to see automobile in view. §828. Unlighted truck colliding with automobile stopped near corner. § 829. Reducing speed at intersection then ['[■!,- ,■ starting faster. § 830. Excessive speed. . §/831. Truck moving at excessive speed without signalling. § 832. Acting'in emergency.-' ' ' § 833j Last clear chance. § 783. Turning to left on meeting. It is not necessary to the exercise of due care on the part of the operator of ah auto- mobile that he anticipate that the driver of anothef automobile, which collides with his machine, will violate, the law by driving on the wrong side of the stre^t.^ Where the proximate cause of a collision between automobiles ^as the act of. plaintiff in turning to the left of the road, because of his belief that defendant did not intend to : turn , out but purposed to drive his machine directly upon him. a belief that subsequent events proved was hot well founded, when he could haye turned to the right, the plaintiff cannot recover damages resulting there- from.^ :, Where there was testimony to the effect that tl^e' defendant's automobile made a Sudden and unexpected turn to the left, which brought the car into collision with the motor-cycle on which plaintiff was riding, the question of defendant's ; negligence was fqr ,the jury.^ '"'■'' §784. Unable to turn io right out of riit. Where a motorist saw that ail automobile he was meeting could not be driven out of a rut when six rbds Etway, and he did nothing to avoid a collision therewith, he could not recover for resulting damages.* §785. Automobile on wrong side of highway. A motorist who is driving on the right side of' the road may assume that one whom he is meeting, , driving, on the wirofig side, will turn to the right, and not force, him to violate the law of the road in order to 1 Trout Auto Livery Co. v. Peoples Gas L. & C. Co., 168 111. App. S6, 4 ,N. C. C. A. 11,(1912). , ,, .,,,, 2 Lloyd v. Calhounr82 Wash. 3S, 143 Pac. 4S8 (1914), rev'g 78 Wash. 438, 139 Pac. 232 (1914). SParmenter V. McDougill, 172 Cal. 306, 156 P.ac. 460 (1916)^ *Dircks V. Tonne, 183 la. 403, 16!? N. W. 103' (1918)': ' '"' COLLISIONS BETWEEN AUTOMOBILES 769 avoid a collision; and he is not negligent in turning to the left at the last moment to avoid a collision.* The plaintiff introduced testimony tending to show that on De- cember 21, 1913, in company with her husband, brother and a friend, she left her residence in the northeastern part of Kansas City, Mo., in an automobile ; that while the automobile was headed west on Linwood boulevard, the same being a street running east and west in Kansas City, and when at a point a few feet west of the intersection of said boulevard with Euclid avenue, said automobile was struck by an automobile being driven by defendant east on said boulevard. The automobile in which plaintiff was seated belonged to her husband and was being driven by her 14 year old brother. Plaintiff introduced further testimony tending to show that when the car in which plaintiff was riding reached the west curb of Euclid avenue, and was rurining within three or four feet south of the north curb of Linwood boulevard, defendant's car was seen ISO feet to the west and, on the south -side of Linwood boulevard, approaching at a rate of 25 to 30 fniles per hour; that the boulfevard was oval in shape, the highest point being in the center thereof, and that it was icy; that the boulevard sloped upward toward the west from the intersection of Euclid avenue therewith; that immediate- ly across the street and south of the car in which plaintiff was seated were two cars, headed toward the east, which appeared to be standing; that, when the defendant reached a point on Linwood boulevard 50 or 75 feet west of Euclid avenue, he was still going very fast; that about the time he reached two cars standing on the sputh side of Linwood boulevard, in order to avoid striking them, the car was turned suddenly to the left, skidding into the (;ar in which. plaintiff was seated, throwing plaintiff therefrom and injuring her. Plaintiff's testimony further tended to show that, from the time the driver of the car in which she was seated first saw de- fendant's car until the collision, he had proceeded westwardly about 10 or 15 feet. It was held that the case was for the jury, and judgment for the plaintiff was affirmed.® Proof that, at the time of a collision between defendant's auto- mobile and another machine, defendant was driving on the wrong side of a street at a speed of about 20 miles per hour, establishes the charge of negligence.''' B Columbia Taxicab Co. v. Roemmich, T Yellow Cab Co. v. Carlsen, 211 111. — Mo. App. —,'208 S. W. 8S9 (1919). App. 299 (1918). See ante, § 23S. ^Nafziger v. Mahan, — Mo. App. — , 191 S. W. 1080 (1917). ,; B. Autos. — 19 770 LAW OF AUTOMOBILES § 786. Automobile on wrong side colliding with motor-cycle. In an action by a motor-cyclist to recover for injuries incurred in a collision with an automobile, he testified, in substance, that he saw the defendant coming toward him for a distance of 800 or 900 feet; that he was going on a slightly rising grade, at a speed of possibly 20 miles per hour; that defendant was coming on the wrong side of the road; that he could have stoppfed the motor-cycle before the collision occurred, but thought that when he got near enough to justify' it the defendant would turn and give him half of the road; and that defendant did not change his course or yield any portion of the road, and when it was too late to avoid the col- lision he was struck and crowded into the ditch. It was held that the plaintiff was not negligent as matter of law, but that the ques- tion was for the jury; and judgment in his favor was affirmed.* § 787. Skidding onto left side of street. The plaintiff was driving her automobile, at about 6:30 o'clock on an Qctober even- ing, about three feet from the curb on the right hand side, and Tivas driving in a careful and lawful manner, when her machine was struck by an automobile of defendant driven by its chauffeur. There was a verdict for defendant, and plaintiff appealed, alleging error in the trial court's refusal to direct a verdict in her favor. It ap- peared from the evidence, however, that defendant's automobile was being driven along the right hand side of the street, in the opposite direction from that in which defendant was driving; that it was about six feet from the right curb, and going 10 to 15 miles an hour; that an electric car,' without lights and without warning, backed out of an alley in front of defendant's machine; that de- fendant's chauffeur saw the car suddenly loom up ahead, applied his brakes arid attempted to make a quick turn to the left to go around the rear of the car; that the pavement was wet and slip- pery because of the weather, and the rear wheels of his automobile skidded to the right, striking the right rear wheel of the electric car, at substantially the same moment the fcont of de:fendant's car collided with plaintiff's machine. The verdict was sustained, the court holding that the statute requiring all vehicles to keep to the right of the center of the street, was not applicable to these facts, and, consequently, that defendant had not : violated the law of the road.' 8 Finder v. Wickstrom, 80 Oreg. 118, 9 Chase v. Tingdale Bros., 127 Minn. 156 Pac. 583 (1916). 401, 149 N. W. 654 (1914). COLLISIONS BETWEEN AUTOMOBILES 771 § 788. Head-on collision. The mere fact that a motorist was driving on the right side of the road when a collision occurred be- tween his and another automobile, does not determine the presence or absence of negligence. The right of a traveler to occupy any part of the road is not absolute and continuously' exclusive as to others lawfully upon the highway; he is charged with the duty of exercising ordinary care according to the circumstances. However, where the testiniony on the part of the plaintiff was that h.e was driving his car along the south side of a road, which was the right side, and that defendant approached from the opposite direction on the same side, at a high rate Of speed, and rail head- on into plaintiff's machine, a judgment for the plaintiff will be sustained.''" § 789. Rear wheels of automobile sliding in ruts. The plain- tiff, a motorcyclist, met the defendant in his automobile on a road that was somewhat rough. The defendant attempted to turn to the right, but succeeded in getting only his front wheels out, while the rear ones remained in the ruts sliding along, but not mounting the ruts. Seeing defendant turning out, plaintiff assumed that the automobile would be off of his side of the road, until too. late to avoid striking the rear wheel, which caused the injuries complained of. Held, that the evidence failed to show any negligence oh the part of defendant, and that plaintiff was contributorily negligent, barring recovery .■'^ § 790. Colliding with automobile parked at ctirb. While the plaintiff's automobile was parked along the curb of a village street, the defendant's heavily loaded truck was being driven along the street. There was a ditch which had been constructed by the vil- lage part way across the street. The driver of' the truck allowed one wheel to gO into the ditch, the steering wlieel was wrenched from his hands, he lost control of the truck, and it struck the plain- tiff's automobile, causing the damage complained of. Held, that recovery was properly allowed. ^^ §791. Colliding with motor-cycle while passing vehicle moving in same direction. Where there was testimoriy on be- half of the plaintiff, who was riding his niotor-cycle westerly on the right side of a. public street when he came into collision with de- 1* Hoover v. Reichard, 63 Pa. Super, 12 Denson y. McDonald Bros., — Minn. Ct. S17 (1916). , — , 17S N. W. 108 (1919). "Nordby V. SorUe, 3S N. D. 39S, 160 N. W. 70 (1916). 772 LAW OF AUTOMOBILES fendant's automobile, going in the opposite 'direction, that the auto- mobile crossed from the south, or right, side of the street to the north side, at a rate of speed of l4 miles an hour, in order to pass a team and wagon traveling in front of the automobile and in the same direction; that it struck plaintiff's -motor-cycle close to the north side of the street and was going so fast that it carried the motor-cycle 30 feet beyond the point of collision, it was held that the jury were warranted iii finding that the defendant's driver was negligent; and judgment in favor of plaintiff was affirmed.^' §792. Front car stopping or slackening speed without warning. The plaintiff's automobile was following at a distance, behind defendant's automobile, on a public highway, during day- light. At a certain point in the highway there was a rise to meet a bridge, and defendant's car slowed down. Plaintiff's car did likewise, and blew its horn; but asi the crest of the incline was reached, defendant's car, for some reason, suddenly stopped, with plaintiff's car about 6 feet in the rear. Brakes were applied to plaintiff's car, but a collision occurred which damaged the latter car. Plaintiff claimed that by the custom of the road defendant, knowing that plaintiff's machine was not far in the rear, should have given a warning signal of an intention to stop on the bridge either from volition or necessity; and that by turning about two feet more to one side a sufficient space would have been left for plaintiff's car to pass and escape collision. Held, that the question of plaintiff's contributory negligence was for the jury, and that it was error to dismiss the complaint on the ground that plaintiff had not shown himself free from contributory negligence. In New York the duty is upon the plaintiff to show that he was not contributorily negligent.^* In an action for^ personal injuries suffered by plaintiff as a result of a rear end collision with a motor truck by his motorcycle, which was caused by the sudden slackening of the speed of the truck in turning in the middle of a block, without notice by extending the hand of the operator or otherwise, it was held that verdict for the plaintiff was supported by the evidence, and judgment for him was affirmed.^* If the driver of a vehicle, with knowledge that another is so close behind him that an abrupt stop or slackening of speed will prob- iSRazzard v. Carstairs, 244 Pa. St. 122 iBgtrapp v. Jerabek, — Minn: — , 175 POAtl. SS6 (1914). N. W. 1003 (1920'), following O'Neil v. i4Earle v. Pardington, 116 N. Y. potts, 130 Minn. 3S3 10 N. C. C. A. Supp. 675 (1909). 562, 153 N. W. 856 (1915). COLLISIONS BETWEEN AUTOMOBILES 773 ably result in the rear vehicle colliding with him, and he suddenly and without warning stops or materially lessens his speed, and a collision follows resulting in injury to him, he is guilty of contribu- tory negligence barring recovery.^® As the plaintiff's automobile was bearing a bridge it was mov- ing 12 to 15 miles an hour. The car was slowed down to about 10 miles an hour, and to 4 to 6 when the driver began to bring it to a standstill. This was done owing to two teams coming from the other end of the bridge and near the east end about 18 inches from the north side. Neither the driver nor plaintiff was aware of de- fendant's car being in the rear, nor did either give any signal or other warning that thie car was about to be stopped. But defend- ants' automobile came against the rear end of plaintiff's, causing the injuries complained of. The situation was such that defend- ants must haVe seen the car ahead. The driver of plaintiff's car testified : "I had got stopped probably half a minute before this auto , struck. It was not over a minute at the longest. I think if I had not had my foot on the brake — I hadn't taken my foot off the brake yet — I think this heavy car would have pushed us into the railing and possibly over the bridge. It pushed and shoved our car straight ahead. I did not use the emergency brake. The car is 11 or 12 feet long. From the time I applied the brake until it Stopped it went between 11 and 12 feet. Think I had stopped my car a half minute before the collision; something like that. My best judgment is that the car had come to a complete standstill a good half minute before the collision. I could not measure it in seconds." The plaintiff's wife testified: That as the car was about to stop, she looked back and saw defendants' car, following at the distance of about 200 feet at a speed of 25 or 30 miles an hour, and supposed it would be stopped. "Q. How Iqng was that be- fore the car was stopped? A. Not a minute. Our car was go- ing to stop when I looked back, just before it stopped. I looked back and saw him coming at quite a rate of speed about 200 feet back, and then in something like a minute he struck our car. I would judge his rate of speed between 25 and 30 miles an hour. It did not seem to be a minute before he was right on to us. It was not a minute, less than a minute." 16 Strever v. Woodard, 178 la. 30, 158 N, W. S04 (19161. 774 LAW OF AUTOMOBILES A statute provided: "The operator of a motor vehicle shall, before stopping, turning or changing the course of such vehicle, first see that there is sufficient space to make such movement in safety and shall give a visible or audible signal to the crossing officer, if there be such, or to the drivers of vehicles following, of his intention to make such movement, by raising the hand and indicating with it the direction in which he wishes to turn." In sustaining judgment on a directed verdict for defendant, the court in part said: "As defendants' car was but 200 feet bapk, those in it must have seen and recognized such signal had it b^en given, and likely wOuld have had ample time to have stepped their car before reaching the automobile ahead. Until aware of what was happening, they had the right to rely on the driver of plaintiff's car complying with the statutory mandate by giving timely warning by an appropriate signal of his purpose to stop the car. Some difficulty always is experienced in detecting an in- crease or decrease in the speed of an object directly in front, mov- ing in the same direction, and especially in determining whether the decrease is with the purpose of stopping." ^"^ §793. Evidence as to custom of drivers to signaL intention to stop. It is proper to show a custom among automobile driv- ers, of holding out an arm as a signal that he is going to stop, or slow down, or change his course, and a failure of the defendant to follow the custom, in a case in which it is material, as such evidence tends to show a want of ordinary care.^* § 794. Driving close behind another car. A motorist follow- ing thr'ee feet behindanother machine moving 8 to lO miles an hour, approaching a street intersection where a traffic officer was sta- tioned, and whose car was damaged by the sudden stopping of the car in front, was held to be guilty of contributory negligence, which barred any right to recover for such damages.^^ Where one rode his motorcycle so close behind an automobile that its sudden stop rendered it necessary for him to make a right angle turn across the street, immediately in front of an automo- bile moving in the opposite direction, he was negligent.^" § 795. Front car turning without signal. The plaintiff, with his wife, was proceeding along a street behind and near defend- 17 Clark V. Weathers, 178 la. 97, 1S9 1^ Phillips v. Thornton, 170 N. Y. Supp. N. W. S8S (1916). S33 (1918). "O'Neil V. Potts, 130 Minn. 3S3, 10 SOstubbs v. Edwards, 260 Pa. St. 7S, N. C. C. A. 562, 1S3 N. W. 856 (191S). 103 Atl. 511 (1918), citing this work. COLLISIONS BETWEEN AUTOMOBILES 775 ant's motor' truck, and there was evidence tending to show that when thq :truck reached a little beyond the center of the block, and while defendant was traveling near to the right-hand curb, and too near the curb for the plaintiff to pass on that side, and while the plaintiff was a short distance in the rear of the same, the truck sud- denly and unexpectedly, and while running at least 10 miles an hour, was negligently turned by the defendant to the left without any signal, and ran in a short half circle across Broadway directly in the path the plaintiff was traveling; that plaintiff turned his motorcycle to the left in an effort to' avoid the truck but was unable to do so, but, when the truck had turned so it was facing in a northeasterly or northerly direction, plaintiff's motorcycle collided therewith, throwing him to the ground, and injuring him. On the other hand, there was testimony for the defendant that he was driving southerly at a rate of speed not exceeding 4 or 5 miles an hour close to the west curb; that he looked back to the right and saw and heard nothing, and proceeded to turn his truck to cross Broadway, and that, when the front wheels of his truck were at the) east rail of the west street car track, there was a collision with the plaintiff's motorcycle, but that he heard or saw nothing of the plaintiff up to that time; that the plaintiff was riding his motorcycle at a high rate of speed and could have avoided the collision if he had been paying attention to his business, and run- ning his motorcycle at a moderate rate of .speed; that there was plenty of room for plaintiff to have gone by on either side of said truck; that the defendant was completely across the west car track before plaintiff's motorcycle reached the last intersecting street, and that plaintiff saw defendant, but sounded no alarm ; that one of the men on the truck held up his hand to give a signal, but plaintiff ran into the left front wheel of defendant's truck, causing the injury which plaintiff complains of; and that in making the turn defendant was not traveling to exceed three miles an hour. It was held that the questions of negligence and contributory negligence were for the jury, and judgment for the plaintiff was affirmed .^^ , ' § 796. Front car turning into intersecting way. In an action to recover for damage to an automobile, resulting from a collision between the plaintiff's and defendant's machines, there was evi- dence that both vehicles were being driven westerly along a public avenue, about 35 feet wide between curbs, with plaintiff's machine 21 Greenleaf v. Lambert, 192 Mich. 411, 158 N. W. 868 (1916). 776 LAW OF AUTOMOBILES running ahead; that as the plaintiff's' machine was being turned from the avenue into a private road leading from the south side of the avenue, the defendant's car overtook it from the rear and col- lided with it; that the plaintiff's machine was moving about 8 miles an hour along the right of the center of the avenue," when it turned a little to the right and started to turn to the left,' in order to enter the road; that when it had reached a point nearly opposite the road, and before it turned to the right, the driver gave the customary signal (holding out his left hand), so that it could plainly be seen by any driver behind that he was going to turn to the left; that he had gone about 6 or 7 feet to the left, when the driver saw the car back of him, and then the collision occurred ; that no warning was given of the approach of defendant's car, which was moving at the unlawful rate of 45 miles an hour. Held, that the unlawful rate of speed at Which the defendant's automobile was traveling was evidence of negligence, sufficient to put him on his defense, and that the case was for the jury. ' In affirming judgment for the plaintiff, the court declared that, "Inde- pendently of any statute, the driving of any vehicle on a public highway at a rate of speed that is inconsistent wilii such control of the vehicle as is necessary to avoid running down other vehicles going in the same direction is some proof of negligence." ^^ S 797. Requirement to look to rear before turning— Occu- pant looking. An ordinance requiring qvery person, using any vehicle on the street, before turning around, to look to the rear, was held to be sufficiently complied with where one seated in an autoniobile with the operator looked to the rear just before the operator started to turn, and told him to go ahead, as the way was clear.** §798. Attempting to pass in front of turning car. The plaintiff's car was standing on the right side of a street f dcing east, and at the time of starting or soon thereafter he com- menced to turn in order to go west. The street was 48 feet wide and he required 4S feet in which to .make the turn. De- fendai;it, driving his automobile at about 13 miles an hour, was coming from the rear, and saw plaintiff start to turn when he was 40 feet away. Defendant could have avoided a collision by stop- ping his car, but instead of doing so he speeded his car to 25 22 Meyer v. Creighton, 83 N. J. L. 749, 34, 151 N. W. 542, 9 N. C. C. A. 828, L.' , 85 Atl. 344 (1912). R. A, 191SD 628 (1915). 28Armstead v. Lounsberry, 129 Minn. COLLISIONS BETWEEN AUTOMOBILES 777 miles an hour and made an attempt to pass in front of plaintiff's car before it should reach the left curb in the course of its turn. He did not quite succeed; the rear wheel of his car colliding with 'the right front fork, of plaintiff's car. Plaintiff had recently pur- chased his car, and had tElken but three lessons in operating it. He was then operating it under the direction of the salesman from^ whom he bought it, but there was evidence that he was operating it with reasonable care and skill. There was an ordinance re- quiring every person using any vehicle on the street, before turn- ing around, to look to the rear. It was shown that the salesman looked to the rear just before plaintiff started to turn and told plaintiff to go ahead. - At that time defendant's automobile was not in sight. Judgment for plaintiff was affirmed, it being held that the ordinance in question was sufficiently complied with. It was further held in this case that the plaintiff was not precluded from recovering for his injury by the fact that he was operating his automobile in violation of a statute ^* prohibiting its operation on the public highways unless it was registered. "There was no rela- tion of cause and effect between the unlawful act and the collision. The registration of plaintiff's automobile was of no consequence to defendant. The law providing for such registration was not for the prevention of collisions and had no tendency to" prevent col- lisions." ^^ § 799. Driver's failure to comply with own signals as con- tributory negligence. The plaintiff's son was proceeding south- erly along a street in plaintiff's automobile, and when about 100 feet north of an intersecting street, into which he testified that he intended to turn, and while driving about 25 feet from the curb, where it would have been in violation of an ordinance to stop, he put up his hand in signal that he intended to stop. At this time defendant's machine was about ISO feet in the rear of plain- tiff's car, {Proceeding in the same direction. Plaintiff's son did not stop, but proceeded to the street intersection, when he put up his hand again indicating that he intended to stop. He then stopped, after seeing defendant's automobile about 1 S feet behind him. De- fendant's car collided with and damaged the other. It was held that plaintiff's son was contributorily negligent in acting so ir- rationally, which barred recovery from the defendant.^® 24 Minn. Laws 1909, p. 307, c. 259, § 8. 26 Russell v. Kemp, 9S Misc. 582, 159 86Armstead v. Lounsberry, 129 Minn. N, Y. Supp. 865 (1916), 34, 151 N. W. 542, 9 N. C. C. A. 828, L, R, A. 1915D 628 (1915). 778 LAW OF AUTOMOBILES §800. Automobile struck by street car causing it to col- lide with another machine. A petition alleging that, as plaintiff was alighting from her automobile, defendant's automobile collided with it injuring plaintiff, and that defendant neglected to keep a proper lookout for a street car which struck his automobile and caused the collision, and negligently drove his automobile in the way of such street car, was held to state a cause of action.®'' §801. Backing automobile . causing motorcycle to collide with another machine. The plaintiff was riding a motorcycle aloiig South street, in the city of Morristown, going toward Madison, on June 25, 191S. In front of him, traveling in the same direc- tion, was an automobile. The plaintiff passed this automobile, going to the left, as the law required. Just as he was passing it, or just after he had passed it, the defendant's car, which was standing alongside the righthand curb, backed out into the middle of the street. It was about 10 or 12 feet away when he first saw it. The plaintiff attempted to go around behind it, which brought him within 3 or 4 feet of his left curb line. As he. was doing this, the way was obstriicted by a wagon on his left hand, coming toward him, and also by another automobile on his right, operated by G. The plaintiff undertook to pass between these two vehicles which were parallel with one another, but was unsuccessful and collided with the G. machine. He was thrown from his motorcycle, re- ceiving the injuries for which he sues. .. A statute provided that, "No vehicle shall back or make a turn in any street if by so doing it interferes with other vehicles, but shall go around a block or to a street sufficiently wide to turn in without backing." ■ Held, that the questions of negligence and contributory negli- gence were for the jury, and judgment for plaintiff was affirmed.®' § 802. Racing in highway. Plaintiff's son a young rnan of 19, was using his father's automobile on a pleasure trip and passed a machine belonging to defendant, in charge of his son. The latter machine was standing headed in the opposite direction from that in which plaintiff's machine was moving. Whether by invitation or not is in doubt, but soon afterwards defendant's son turned his machine and started after plaintiff's machine. At that time the latter machine was moving about 25 miles an hour, but as soon as defendant's machine started to follow, a race began in which both ST Belle Isle v. Kindig, — Ga. App. — , 28 Pyers v. Tiets, 89 N. J. L. 520, 99 103 S. E. 269 (1920). Atl. 130 (1916). COLLISIONS BETWEEN AUTOMOBILES 779 machines made 40 or more miles an, hour. After racing some three miles, the driver of the front machine^ perceiving that he was about to be overtaken', turned his machine far enough to the right to allow defendant's machine to pass. The road was good, but as defendant's machine forged ahead its right hind wheel struck the left fore wheel of plaintiff's machine, smashing it and throwing it upside down. Plaintiff's machine weighed, 1,500 pounds, while the other machine weighed 3,500 pounds, and was capable of greater speed than the former. Held, that the question of negli- gence on the part of defendant's son was for the jury.^' In an action to recover for the death of the driver of an auto- mobile, which occurred in a collision between his and another automobile, when both were being driven in the same direction in a public highway at 60 miles an hour, in violation of a penal stat- ute, the court stated the rules of law applicable as follows: "When two persons are engaged in the performance of the same criminal act, and one of them is injured as a -proximate result thereof, l^e cannot recover for the injury,, yet, when two persons are engaged in the violation of the same criminal statute in the same manner and at the same time, but the act of each is separate and distinct from the act of the other, and one of them is injured as a proxi- mate result of such criminal act on the part of the other, he may nevertheless recover therefor, if his own criminal conduct has not proximately contributed to his injury." '" § 803. Motor-cyclist looking down at engine. A motor-cy- clist, proceeding on the right side of the road, where there was ample room for vehicles moving in the opposite direction to pass on his left, was not negligent in looking down and giving attention to his engine, when collided with by defendant's automobile.'^ I § 804. Plaintiff seated on floor between seat and hood when injured in collision. The owner of a taxicab, with which defend- ant's taxicab collided, causing injury to the former, was not barred of recovery because at the time of the collision he was seated on the floor of the taxicab between the front seat and the hood, all avail- able space being occupied by passengers and the driver, and no portion of his person was extending beyond the line of the car. "Plaintiff was the owner and in charge of his car, and it is not 29Linville v. Nissen, 162 N. C. 95, 77 81 Allen v. Pearson, 89 Conn. 401, 94 S. E. 1096, 4 N. C. C. A. 12n (1913). Atl. 277, 9 N. C. C. A. 915 (1915). SOSchofleld V. Hatfield, — Ga. App. — , 103 S. E. 732 (1920). 780 LAW OF AUTOMOBILES clear that his position thereon was one of danger, or that he was more liable to injury there, than elsewhere. It bears no analogy to the case of a passenger voluntarily standing on the bumpers or footboard of a car, or riding with his feet between a car and the engine. The cause of the accident was the violent collision, result- ing as the jury found from defendant's negligence, and not be- cause of the place plaintiff occupied on his car. His being there was merely a condition, not the cause of flie accident. A person injured by the negligence of another is not deprived of all remedy merely because at the time he was occupying an unusual position in a conveyance, unless he thereby co-operated in causing his in- jury." '^ , §805. Jitney passenger riding with leg over rear door. The plaintiff, who was injured in a right-angle collision between a jitney in which he was riding and defendant's automobile, the latter striking the jitney on the side, could not be found guilty of con- tributory negligence as matter of law because he was riding in a crowded machine with one of his legs hanging over the rear door, but inside the lines of the footboard.'* § 806. Leaving opera house on signal from vehicle officer. The defendant's automobile, a large car, which seated four passen- gers inside and two outside, fully lighted, was being driven from the court of an opera house, when it collided with plaintiff's small automobile, which was unlighted. The defendant's machine did not advance until the signal to do so was given by the police officer in charge of vehicles on that occasion. It inoved slowly, and when the chauffeur saw the smaller machine he did all he could to stop and avert the collision. Held, that the plaintiff had failed to show negligence on the part of the defendant.** OVERTAKING AND PASSING § 807. Generally. In New York the rights and duties of oper- ators when one car overtakes another has been stated as follows: "In the case of two cars traveling in the same direction the front one has the superior right and may maintain its position in the center of the highway if there is sufficient space on its left as pre- S^McClung V. Pennsylvania Taximeter 84 Gittings y- Schenuit, 122 Md. 282, Cab Co., 252 Pa. St. 478, 97 Ad. 694 90 AU. SI (1914). (1916). , ' 33 McCaffrey, v. Lukens, 67 Pa. Super. Ct. 231 (1917). COLLISIONS BETWEEN AUTOMOBILES 781 scribed by statute to enable the approaching car safely and con- veniently to pass. If the position of the forward car in the center of the highway does not leave such room for passage, then it must upon request or equivalent notice, if practicable and safe, so turn aside as to leave such room for passage. If at the moment there is not sufficient room in which it can do this, it is its right, and it is the duty of the rear car, to wait until a place is reached ' where this may be done." ** However, these are matters generally regulated by statute, the provisions of which are different in different states. A motorist who has turned to the left side of the road in order to pass an overtaken vehicle is not justified in colliding with a car meeting him on that side of the road.*® § 808. Failure of front car to give room. If the position of the forward car in the center of the highway does not leave sufficient room for the rear car to pass in safety, it must upon request or equivalent notice, if practicable and safe, so turn aside as to leave such room for passage.®' Where the defendant testified that for a considerable time he had been traveling behind plaintiff's automobile in the dust; that plaintiff's car was to the left of the center of the highway; that defendant desired to pass the slow-going vehicle and sounded a horn from a position 200 yards in the rear until plaintiff's car was overtaken; that there was barely room to pass on the left even leaving the roadway and scraping along a stone wall on the ex- treme left; and that plaintiff's car, instead of yielding any room, which was entirely practicable, edged over farther to the left and thus caused a collision, it was held that defendant was entitled to an instruction "that plaintiff was obliged as soon as practicable after knowing of the presence of the car of defendant, to turn and yield him the road," arid that if the "accident would not have happened if the plaintiff had turned out of this road wpon reason- able notice by the defendant, the plaintiff cannot recover." A refusal to so instruct was material error.'* It is the duty of the rear motorist to give a signal indicating his intention to pass.*' 36 Mark v. Fritsch, 195 N. Y. 282, 88 87 Gautier v. Lange, 89 Misc. 372, 151 N. E. 380, 22 L. R. A. (N. S.) 632 (1909), N. Y. Shpp. 902 (1915). aff'g 126 App. Div. 920; Madine v. Schra- 38 Gautier v. Lange, 89 Misc. 372, 151 ger, 180 N. Y. Supp. 442 (1920). N. Y. Supp. 902 (1915). 86Griessel v. Adeler, 183 App. Div. S^Dunkelbeck v. Meyer, 140 Minn. 283, 816, 171 N. Y. Supp. 183 (1918). 167 N. W. 1034 (1918). 782 LAW OF AUTOMOBILES V The fact that the driver of a vehicle fails to give way to one passing from behind is not negligence unless the road is of sufficient width to permit passing and the forward driver knows or ought to knowi of the purpose to pass.*" § 809. Turning too short after passing. It has been held that, where the defendant drove his automobile at an unlawful or unreasonable rate of speed up to and past the automobile in which plaintiff was riding without signal or warning, and forced his car across and in front of the plaintiff's car, in such, a manner as to disconcert the driver of plaintiff's machine, and cause the latter car to go over an embankment, to the injury of the plaintiff, the defendant might be liable even though the impact of the defend- ant's machine was not sufficient in itself to forcibly throw the plain- tiff's car out of its course." Judgment for the plaintiff was affirmed in a case in which there was evidence that as plaintiff's automobile was proceeding along the right side of a road, defendant's car overtook it, and passed on the left, and that as it did so its right rear wheel struck the left front wheel of plaintiff's car, which suddenly turned to the right and upset.*^ In an action to recover for damage to an automobile, resulting from a collision with defendant's automobile, there was evidence for the plaintiff that both plaintiff and defendant were proceeding along a highway, 25 feet wide, in their respective automobiles where the road for over 800 feet in either direction from the place of the accident was straight and level, and was not occupied by any vehicles other than said automobiles; that the defendant drove by the plaintiff's machine on its left, going in the same direction, where there was plenty of room for him to pass, and turned so sharply to the right in fropt of plaintiff that the right rear wheel of the defendant's machine struck the left front wheel of the plain- tiff's machine, causing plaintiff to lose control of his machine, which ran off the highway into a rough and stony field at the right, causing the injuries of which he complained. The defendant's testimony was to the effect that the plaintiff waS traveling on the left of the center of the road and would not turn 40 Dunkelbeck v. Meyer, 140 Minn. 42 House v. Cox, 70 Pa. Super. Ct. 531 283, 167 N. W. 1034 (1918). (1918). 41 Granger v. FarranJ, 179 Mich. 19, 146 N. W. 218, SI L. R. A. (N. S.) 4S3 (1914). COLLISIONS BETWEEN AUTOMOBILES 783 to the right even when spoken to about it; that finally when de- fendant saw an opportunity to pass on the left he did so ; that the plaintiff kept in a straight line, and the machines traveled beside each other for 125 feet, and defendant turned back gradually to get on the right side of the road. There was testimony that there was plenty of room for the defendant to pass plaintiff on either side. The case was tried under the common law. The jury were instructed that if plaintiff was driving in the middle or to the left of the middle of the road, the defendant was entitled to assume that he would turn to the right immediately upon knowing that the defendant was overtaking him with the desire to pass; and the defendant, in beginning to pass on the left, could act upon the assumption that the plaintiff would so turn to the right to make safe and ample passage for the defendant on the left; and this ia so whether the plaintiff so knew before the defendant had actually begun to pass, or so knew when the two automobiles began to run side by, side; and that it would be' the duty of the plain- tiff to turn to the right sufficiently to give the defendant an oppor- tunity to go by without interference by the plaintiff's automobile. These instructions 1vere held to be erroneous, as the rule of the common law is that a traveler on the highway is riot obliged to turn his vehicle aside for another traveling in the same direction, if there be convenient room on either side for the other to pass; that assuming that the plaintiff was traveling on the left of the center of the road, that the defendant attempted to pass the plain- tiff upon the left, and the machines traveled beside each other for 125 feet, the defendant drawing ahead, unless the defendant . was in some way misled by the conduct of the plaintiff, the defendant would not be justified in turning to the right in front of the plain- tiff until he was so far ahead of plaintiff that he could do so in safety; that the failure of the plaintiff to turn to the right and give the defendant more room may be the subject of criticism as show- ing a lack of courtesy and of a proper spirit of accommodation, but it was not necessarily negligent conduct contributing to his injury. Accordingly, judgment for defendant was reversed and a new trial granted.*' § 810. Passing on right as forward car turns in same di- rection. Where the plaintiff was riding a motor-cycle in a pub- lic street and overtook and attempted to pass defendant's, motor delivery wagon on the right, instead of the left as an ordinance 43 0'I)onnell v. Johnson, 36 R. I. 308, 90 Atl. 16S (1914). 784 LAW OF AUTOMOBILES required, and as he had sufficient room to do, and as he was in the act of passing, the motor wagon driver started to turn to the right into an intersecting street, and before he saw plaintiff and had time to avoid him, the wagon collided with the motor-cycle, injur- ing the plaintiff, and plaintiff had given no warning of intention to pass the wagon on the right, it was held that a verdict was properly directed in defendant's favor. The court in part said that, "the facts in the case at bar are not such as to disclose any excuse for appellant departing dfrom the traffic rules of the street, upon which appellant and appellee's servant were traveling, at the time of the collision, and to hold appellee guilty under the circumstances would be to hold that appellee's servant was bound, by reason of being upon a public street, to be on the alert for the violation of such traffic rules and regulations by gippellant." ** § 811. Automobile standing on left side of road struck by another headed in same direction. It was held not to be con- tributory negligence for an automobile to be standing on the left of a road when it was struck by another car approaching from the rear.*^ AT STREET INTERSECTIONS §812. Generally.** At street intersections drivers of auto- mobiles must exercise reasonable care, to avoid collision.*'' "It is axiomatic that the rights of vehicles at street intersections are correlative. In other words, none has the right of way to the exclusion of others; all must proceed with due circumspection so as not to come into collision with other vehicles." ** ** Borg V. Larson, — Ind. App. — , It is the duty of one approaching the 111 N. E. 201 (1916). crossing of a street intersection to have *B Smoak v. Martin, 108 S. C. 472, 94 his vehicle under control, and to observe S. E. 869.(1918). what is or may be approaching on the *6 Generally as to rights and duties at other street. And where another vehicle street intersections, see ante, § 190. is first at the crossing to give it an op- il California: Johnson v. Hendrick, — portunity to clear the same and to use Cal. App. — , 187 Pac. 782 (1919). due care to avoid- a collision. McClurg Iowa: Larsh v. Strasser, 183 la. 1360, v. Pennsylvania Taximeter Cab Co., 252 168 N. W. 142 (1918). Pa. St. 478, 97 Atl. 694 (1916). New Jersey: Spawn v. Goldberg, — Right to cross depends on circum- N. T.L.—, 110 Atl. S6S (1920). stances. Blum v. Gerardi, 182 N. Y. South Dakota: Boll v. Gruesner, — Supp. 297 (1920). S. D. — , 176 N. W. S17 (1920). "Hilton v. Iseman, 212 III. App. 2SS Wisconsin: Paul v. Pfefferkorn, — :(1918). Wis. — , 178 N. W. 247 (1920). COLLISIONS BETWEEN AUTOMOBILES 785 If a motorist, as a reasonable, cautious, and prudent person, believes that he will be able to drive over the intersection before the other machine, approaching on the other highway, reaches it, he is not negligent in attempting to do so.*® It is not the duty of a motorist to stop his car when he sees another machine rapidly approaching on an ■ intersecting stfeiet, when there is ample room for the other car to pass without collid- ing with him.'" If he is observing the law he may assume that such other will do so. He need not anticipate the other's negli- gence.*^ It is the duty of a motorist approaching a street intersection to have his vehicle under control, and to observe What is or may be approaching on the other street; and where another vehicle is first at the crossing to give it an opportunity to clear the same, and to use due care to avoid a collision.*'' He may rely upon the exercise of reasonable care by the drivers of other vehicles to avoid injury, and the failure to anticipate the omission of such care does not render hini negligent.** Where motorists are moving at reasonable speed, approaching an intersection on different streets, neither is bound to stop until to his apprehension as a reasonable man he ought to see that to continue his course is to incur peril of collision.** Where an automobile at an intersecting street collided with a motorcycle coming in an opposite direction, the fact that the automobile failed to observe the provisions of the traffic act does not per se present the basis for the direction of a verdict against the defendant; such fact being but one factor in the situatibn, which, considered as a whole, presents a jury question as to the defendant's negligence under all the circumstances.** The mere fact that one vehicle collides with another at a street intersection is not conclusive as to the negligence of its drivet.** 49 Wagner v. Kloster, — la. — , 175 ^ Gillespie V. Shafer, 69 Pa. Super. N. W. 840 (1920). Ct. 389 (1918) ;Fow v. Adams Ex. Co., BO Brown v. Mitts, 187 Mich. 469, 153 68 Pa. Super. Ct. 34S (1917). N. W. 714 (191S) ; Young v. Dunlap, 195 64 Nelson v. Hedin, — la. — , 169, N. Mo. App. 119, 190 S, W. 1041 (1916). W. 37 (1918). BlBew V. John Daley, 260 Pa. St. 418, 66 winch v. Johnson, 92 N. J. L. 219, 103 Atl. 832 (1918). 104 Atl. 81 (1918); • 68 McClung V. Pennsylvania Taximeter 66 Glatz v. Krdeger Bros. Co., 168 Wis. Cab Co., 2S2 Pa. St. 478, 97 Atl. 694 635, 170 N. W. 934 (1919). (1916) ; Fow V. Adams Ex. Co., 68 Pa. Super. Ct. 345 (1917) ; Gillespie v. Sha- fer, 69 Pa. Super. Ct. 389 (1918). B. Autos.— 50 ' I, /78;6 LAW OF AUTOMOBILES ', It has been held to he negligence fo^- a motorist to fail to look both ways at a street intersection.^'' It can seldorn be said as matter pf law, in case of collision between automobiles at a street intersection, that one driver or the other was negligent, judging only from the respective positions of the ma,Ghines after collision, owing to the complexity of forces involved.*' ^ §813. Same— Illustrative cases. Where one was operating his automobile in a lawful manner, approaching a street inter- section, and , observed another autpmobilist approaching the same crossing from the intersecting street, but at such distance that if both drivers were observing the lawful limit of speed the former could reasonably expect to make the crossing in safety witJiout waiting for the passage of the other car, then he was not negligent in going ahead unless he saw or knew, or should have known, that the other driver was bearing down on the crossing at such excessive speed or in such manner that common prudence for his own safety required him to stop."' A motorist who approached the intersection . of two roads at the rate of, 1 Si miles an hour, where his view of the intersectii^g road was obscured by a corn field, and as he approached the crossing he did not keep his car under such control as would allow him to stop it,, in order to avoid a collision with the other car, was guilty of negligence as matter of law.®" The plaintiff was denied recovery where the evidence showed that in approaching the crossing in question he did not have his car under control, and was not prepared to stop immediately if danger threatened; and this was held to be the case even if it appeared that the defendant was negligent in not having his car under control, in not sounding his horn, and in not making proper observations ahead. ®^ It was open to a jury to find that both drivers were negligent when each drove towards the junction point of two city streets, at a speed of IS miles an hour and neither of them slackened speed nor changed direction until the instant of collision, although each S'Ulmer v. Pistole, US Miss. 48S, 76 99 Wash. 614, 170 Pac. 132 (1918). 36. S22 (1917).' • ■ 60 Gosling v. Gross, 66 Pa. Super. Ct. "Kroell V. Lutz, — Mo. App. —,-210 304 (1917). S. W. 926 (1919). 81 Gray v. Fox, 69 Pa. Super. Ct. 218 69 Pilgrim v, Brown, 168 la. 177, ISO (1918). N. W. 1 (1914) ; Jahn & Co. v. Paynter, COLLISIONS BETWEEN AUTOMOBILES 787 had full view of the other for 75 feet from the point of collision.*^ Where a motorist reached an intersecting street when another automobile approaching on the other street was 100 to ISO feet away, he had the right to assume that the driver of the latter car was not violating rules of prudence by an excessive rate of speed, and that he had time to cross safely.®' The material facts involved appear to be that plaintiff was rid- ing with his brother on a motorcycle in a northerly' direction on St. Aubin avenue in the city of Detroit. When they reached the south line of Gratiot avenue, which crosses St. Aubin avenue at nearly right angles, they stopped for a moment to view, the situa- tion. Seeing nothing which they thought would interfere, they pro- ceeded to cross Gratiot avenue. When they reached the street car tracks, and while on the north track, the driver observed an automobile coming in a westerly direction on the north side of Gratiot avenue about 150 feet away. They were then moving at the rate of 6 to 10 miles an hour. Thinking they could cro^ before the automobile reached there, the driver blew the liorn and proceeded on his way, and it was plaintiff's claim that they did cross in safety, but that just as the motorcycle cleared Gratiot avenue defendants turned in on St. Aubin avenue and collided with his rear wheel, thereby throwing him off and injuring him. An ordinance gave vehicles moving on Gratiot avenue right of way over those on St. Aubin avenue. Held, that the question of contributory negligence was for the jury, and verdict for plaintiff was sustained.** The accident occurred about 'midnight at the corner of Grand River avenue and Woodward avenue, in the city of Detroit. Plain- tiff was in the act of crossing Woodward avenue from east to west. Upon reaching the avenue he stopped his car on the easterly side thereof and waited the passage of two cars going north, when he started his car in low speed to cross the street. At the time he started up he saw two cars coming south on Woodward avenue a block and a half or two blocks north, but was unable at that dis- tance to determine their speed. He testified that he believed he had time to cross ahead of the south-bound machines, and went slowly forward, changing his gears into second speed as he crossed 82 Spawn V. Goldberg, — N. J. L. — , 6* Weber v. Beesoil, 197 Mich. 607, 164 110 Atl. S6S (1920). N. W. 25S (1917). 63 Robinson v. demons, — Cal. App. — , 190 Pac. 203 (1920). 788 LAW OF AU:rOMOBILES over the street car tracks. The oncoming south-bound car § 837. Running straight into rear of milk wagon, driver'ijf which was absent. The plaintiff's' driver had left his wagon to. deliver milk to his customers, and the horse was proceeding slowly along in the car track^ when the defendant's taxicab, without turn- ing either to the right or left, ran straight into the rear of the wagon, which had a light at the back. It was night, but the street was well ifighted. Held, to support a recovery by the plaintiff.*' § 838. Struck while sitting on steam roller by truck ap- proaching from rear. Plaintiff was sitting on a steam roller with 81 Boeddcher v. Frank, 48 Utah 363 28 Weikel v. Pullman Taxicab Co., 59 159 P^c. 634 (1916). Pa. Super. Ct. 595 (1915). MPietsch V. McCarthy, 159 Wis, 251, 150 N, W. 1 (19JS). COLLISIONS WITH VEHICLES AND ANIMALS 811 his legs hanging down the side and was injured when a truck over- taking the roller collided with same. In affirming judgment for plaintiff the court held that he was not guilty of contributory negli- gence in failing to keep a lookout to the rear, as he had the right to assume that an overtaking truck would turn sufficiently far to the left to clear the roller, as required by statute.^* § 839. Failure of overtaken vehicle to turn out. It is negli- gence on the part of the driver of a horse-draw;n vehicle to, fail to turn out and permit an automobile going in the same direction to pass, when he knows, or in the exercise of reasonable caution would know, that the motorist desires to pass.''* Where the road was sufficiently wide to enable the defendant to avoid a collision with plaintiff's team, and he proceeded on the theory that the team would turn out in response to a, signal he had given and drove directly into the teanl, which was moving slowly and in plain sight, he was guilty of, negligence which was the proximate cause of the injury resulting to plaintiff from such col- lision. It was also held that, there being sufficient room for the automobile to pass without the team turning out, the driver was not contributorily negligent in failing to turn out.^° Plaintiff was driving his wagon along a city street in a beaten track made in a deep snow. An automobile approached from the rear, but plaintiff did, not attempt to turn out, though warning of the approach of the automobile was given by sounding the horn. Plaintiff testified that he did not hear the horn on account of the noise his wagon was making, and did not know of the automobile's approach. The operator of the automobile then attempted to pass, but in doing so drove in too short, to avoid, so he testified, a pile of stones in the street, and his right rear wheel struck the left front wheel of the wagon, throwing plaintiff to the street and causing his team to run away. An ordiriaiice was introduced in evidence which required the driver of an animal-drawn vehicle, when over- taken by an automobile, to, as soon as practicable, turn aside to the right so as to allow free passage on the left. Held, that there was evidence that the operator was negligent, and that whether or not plaintiff was contributorily negligent was a question for the jury."' , 24 Moreno v. Los Angeles Tr. Co., — Atl. 721, 48 L. R. A. (N .S.) 971, 4 N. CaL App. — , 186 Pac. 800 (1919). C. C. A. ISn (1913). 25 Campbell v. Walker, 2 Boyce (Del.) 27 MarshaU v. Taylor, 168 Mo. App. 41, 78 Atl. 601 (1910). 240, 1S3 S. W. S27, 4 N. C. C. A. 16n 26 Savoy v. McLeod„lll Me. 234, 88 (1913). 812 LAW OF AUTOMOBILES §840. Plaintiff overtaking and colliding with unlighted wagon at night. Plaintiff was Tiding a motorcycle, properly lighted, at night, and overtook and collided with a farm wagon moving in the same direction without lights required by statute. There was evidence that plaintiff, at the rate of speed- he was mov- ing, could have stopped within IS feet, and that he was 25 feet from the wagon when, by the light of his own lamp, he saw the rear wheel of the wagon. There was also evidence that he did not know the wagOn was ahead of him until he saw the glitter of his own light upon the right rear wheel, when, although driving at proper speed, and immediately turning to the left as far as he could, he came into collision with the wagon and was injured. Held, that the case was for the jury, and verdict for the plaintiff was sustained.** § 841. Buggy suddenly stopping without warning. In an action by the driver of a buggy to recover for injuries incurred when the defendant's automobile, approaching from the rear, col- lided with the buggy, the following instruction was upheld : "But, if you find that the plaintiff knew that the defendant was immedi- ately behind his buggy with his automobile, and so close that, if he stopped or materially slackened his speed, it would likely result in injury and damage to plaintiff, and, knowing said facts, the plaintiff did suddenly slack his speed or stop his horse, such act WQuld constitute negligence on his part, and he cannot recover in this action." *' § 842. Deaf driver. Ah instruction that "if you believe froM the evidence that defendant sounded an alarm while approaching plaintiff (overtaking him), and that such an alarm would have been heard by. a person of ordinary hearing, and the defendant believed that plaintiff had ordinary hearing, and tha,t the defendant could not turn to the left and pass plaintiff by reason of the condition of the road, then the defendant had the right to presume that plain- tiff would turn to the right upon hearing such alarm and permit defendant to pass; and such right so to presume would exist until it became apparent to the defendant that plaintiff did not.hear him," was held not to be objectionable on the ground that it cast upon defendant the burden of proving affirmatively that he believed plaintiff had -ordinary hearing.'" 28Hallett V. Crowell, 232 Mass. 344, SOpurtado v. Bird, 26 Cal. App. 152, 122 N. E. 264 (1919). ' 146 Pac. 58 (1914). 29 Strever v. Woodard, 178 la. 30, 1S8 N. W. 504 (1916). COLLISIONS WITH VEHICLES AND ANIMALS 813 § 843. Motorist, blinded by light from another automobile, colliding with buggy. Whether defendant motorist was negli- gent in colliding with a buggy when the light from the lamps of an automobile approaching from the opposite direction blinded him, was held to be for the jury. Judgment for the plaintiff was affirmed .^^ § 844. Automobile turning suddenly across street— Not seen by driver of buggy. The fact that the occupants of a buggy would have seen an automobile, which in order to avoid a collision with another vehicle turned obliquely across the street, had they been looking, and would have then avoided the accident, does not make them contributorily negligent as matter of law.*^ § 845, Wagon in act of turning to left into driveway struck from rear. The plaintiff was driving a horse and wagon along a public road and just as he was turning into a private driveway his wagon was struck by the defendant's automobile coming from behind, and the plaintiff was injured. The testimony of the plain- tiff showed that after he had extended his whip out of the side of the wagon, on the side he expected to turn, to a distance of about three feet, he heard no signal or sound to indicate that any one was approaching from the rear; that he did not look behind him, because his attention was required ahead of him. I'he plain- tiff was on the right side of the road, and was about to turn to the left to enter the driveway. To one witness it seemed as if the automobile was "wabbling" or "zig-zagging" as thougb the driver had lost control of it. It was held that the case should have been submitted to the jury, and judgment of nonsuit was reversed. The court said: "The statutory automobile regulations while not enacted at the time of the accident, nevertheless recognize the act of the plain- tiff in extending his whip, as a proper signal to others on the high- way to indicate the driver's intention to turn, and the direction in which he intended to turn. "The recognized rule of the road is that persons driving and riding upon the highways are in the exercise of their lawful and equal rights, and the law imposes upon them the duty of taking ordinary care not to injure one another. "Under such circumstances, it became a jury question whether the defendant exercised due care in the control and operation of 31 Jolman v. Alberts; 192 Mich. 2S, 1S8 32 Oberholzer v. Hubbell, — Cal. App. N. W. 170 (1916). — , 171 Pac. 436 (1918). 814 LAW OF AUTOMOBILES his machine, and whether the plaintiff's conduct was of such a palpably negligent character, so as to deprive him of the oppor- tunity of having a jury pass upon it. "Whether, in the absence of a signal from the defendant to indicate his approach, the plaintiff should have anticipated his coming, and looked behind before turning into the lane, in view of the fact that he was obliged to devote his attention to some extent, at least, upon his horse and vehicle, presents, not a question of law, but essentially one of fact for the jury to determine." " § 846. Driving wagon into highway from lane. One who drove a team of horses and wagon into a highway from a lane, and was struck by an automobile, was not guilty of -negligence per se, when at the time his horses were at the side of the road the automobile was 250 feet away.'* § 847. Team on wrong side of road. A motorist, seeing a team and wagon on the left side of the road, has the right to assume that the driver will rein his team to the right side, so as to permit the motorist to pass, until it becomes obvious that the driver is making no effort to do so or the danger of a collision is imminent.*^ The plaintiff was driving his team and spring wagon along the traveled part of a macadamized road, on the left side. It was nighttime, and dark. The defendant was driving his automobile at rather a high rate of speed in the same direction. The front lights of the defendant's, automobile were out. The side lights were burning and he could see 50 or 60 feet in front of him. The engine was not working properly and was making a noise. The plaintiff did not have time to turn to the right after he heard the defendant's automobile coming, before it struck iihe pla.intiff's wagon. The defendant, when, he saw that the plaintiff was not going to turn to the right, attempted to turn to the right and pass the plaintiff, but struck the right hind wheel of the wagon with the left front fender of the automobile, overturned the wagon, threw the plaintiff out, and frightened his horses, and caused them to run away. Judgment for the plaintiff was affirmed. The fact that the plain- tiff was, at the tinie of the accident, violating the law of the road in not turning to the right after he heard the automobile does not, as matter of law, preclude his recovery.'® 38 Daly V. Case, 88 N. J. L.' 29S, 95 86 Cook v. Standard OU Co., IS Ala. AU. 973 (191S). App. 448, 73 So. 763 (1916). S4Everitt v. Auchu, 66 Pa. Super. Ct. 8epens v. Kreitzer, 98 Kan. 7S9, 160 443 (1917). Pac. 200 (1916). COLLISIONS WITH VEHICLES AND ANIMALS 815 § 848. Team failing to turn to right— Motorcyclist attempt- ing to pass. A motorcyclist who, upon meeting a wagon and team whose driver did not turn to the right, as required by stat- ute, was not negligent as matter of law in attempting to pass between the wagon and the side of the road; the question being for the jury.''' i § 849. Assuming that motorist would turn out. The plain- tiff was driving a horse and buggy south along a city street, about 9 o'clock at night, and approached the point where an automobile, with lights burning, was standing on the west side of the street facing southeast, the rays of the lights extending about 150 feet. The defendant, driving north in his automobile, and the plaintiff met near the standing automobile. Plaintiff drove as far to the right as he could on account of the standing automobile, and de- fendant's machine collided with his horse, injuring it. The latter did not turn to the right to give any of the way, but contended that he was blinded by the lights of the other machine and could not see the plaintiff. His chief reliance, however, was on the con- tributory negligence of the plaintiff. Plaintiff saw the lights on defendant's car, but stated that he did not know they were auto- mobile lights. Defendant was driving 8 or 10 miles an hour, and gave no warning of his approach. It was held that the plaintiff doubtless assumed that defendant would turn to the right after he saw the other machine, and that a finding in his favor was proper." § 850. Stopping wagon across road. The plaintiff, a coqipe- tent and experienced chauffeur, was driving his automobile, contain- ing five other persons, westerly along a highway, coasting down a grade of nearly 7 per cent, at about 20 miles an hour, when the driver of defendant's wagon drove the same and stopped it across the highway about 60 feet west of a depression about three and a half feet deep on the side of the road, when the plaintiff was abotit 330 feet west of the depression. Plaintiff sounded his horn, and the driver looked up and saw the automobile, but made no effort to make room for the machine to paSs. There being in- sufficient room to pass in the rear of the wagon, as he had in- tended to do, plaintiff attempted to throw the transmission of his car into reverse, but he could not do so, and on account of it catch- ing in the second speed gear he was unable to stop before reaching the team. He then tried to pass in front of the horses, as a result S' Roy V. North Kansas City Dev. Co., 88 Menefee v. Whisler, 169 la. 19, ISO — Mo. App. — , 209 S. W. 990 (1919). N. W. 1034 (191S). 816 LAW OF AUTOMOBILES of whic^i the car fell into the depression mentioned and then struck a telephone pole, which -stood about 30 feet west of the depression, and tie car was damaged. It appeared that if the> gears had not caught plaintiff would have been able to stop before reaching the team. There was no evidence Jhat the gears had ever before caught in this manner. It was held that the jury were justified in finding that the defendant was liable for the damages to the automobile and that the plaintiff was free from contributory negli- gence,'^ §851. Wagon stopped in road just past turn at night. Where, in an action to recover for injuries to a team of horses due to an automobile colliding with them, the driver of the automo- bile and a passenger who was riding with him testified that they were driving slowly, owing to its being dark and the road being narrow; that the lights 6f the automobile threw their rays directly ahead on a line with the body of the machine, and, for that reason, in rounding the curve — the accident having occurred just after the machine turned a curve in the road, — the presence of the standing team was not disclosed until they were so close that the machine could not be stopped in time to avoid running into the team, and it appeared that the team had been left unattended in the road, and that it was nighttime, it was held that a verdict for defendant would be sustained.*" § 852. Wagon stopped at side of country road at night. One who drives his automobile at night against a wagon which has been stopped on the proper side of the road to allow him to pass, is guilty of negligence whether he struck the wagon by turning into it or by running on the wrong side of the road. And the driver of the wagon was not negligent as matter of law, where he turned to the right far enough for the automobile to pass in safety, the traveled track being 18 feet wide with a ditch on either side, even if his wagon was slightly over the center line of the highwaly." In an action to recover damages arising out of a collision be- tween defendant's automobile and plaintiff's team and 'wagon, there was evidence that the accident happened on a country road between 10 and 11 o'clock at night, where there was not room for two 89 Manion v. Loomis Sanatorium, 162 41 Anderson v. Sparks, 142 Wis. 398, •App. Div. .421, 147 N. Y. Supp. 761 12S N. W. 925 (1910). (1914). 40 Wade V. Brents, 161 Ky. 607, 171 S. W. 188 (1914). COLLISIONS WITH VEHICLES AND ANIMALS 817 vehicles to pass in the commonly traveled part of the road; that plaintiff's vehicle carried no light; that plaintiff saw the lights of the automobile a long distance away and turned to one side of the road and more than half way out of the traveled part, and that he was standing still and waiting for the automobile to pass, when the collision occurred. Held, that the questions of negli- gence and contributory negligence were for the jury, and a verdict for the plaintiff was sustained.*^ §853. Wagons stopped near center of road at night. Where the drivers of two heavily loaded trucks had stopped their teams near the center of the road to rest them, and the operator of an automobile attempted to pass them when it was too dark to see the trucks without the aid of the automobile lights which, owing to a curve in the road and being on grade, did not disclose the front truck until too late to avoid a collision, the accident was de- clared to be due to the. automobile operator's negligence.*' § 854. Wagon stopped at left side of city street at night. The plaintiff had stopped his horse and milk wagon on the left side of the street, and was busily engaged in his wagon, when the defendant's automobile collided with the wagon and injured the plaintiff. The accident occurred about 8 o'clock in the evening; There was a lighted lamp with a reflector attached to the seat on the right side of the wagon. There was an arc street lamp about half a block away, and one witness testified that "there was light all around there." The street was 48 feet wide between curbs, and the street was clear of vehicles at the time, except the two involved. The defendant attempted to pass the wagon on the right where there was not sufficient room. Just before the collision the auto- mobile was moving 10 or 1,5 rhiles an hour. Held, that the rule res ipsa loquitur was applicable, and a judgment of nonsuit was reversed.** § 855. Wagon without light in violation of statute. The fact that a wagon was being driven at night without a light, in viola- tion of statute, when it was struck by an automobile, is not con- clusive on the question of contributory negligence, but is only a circumstance to be considered.*® *2 Chandler v. Matheson Co., 208 Mass. .4*Bauhofer v. Crawford, 16 Cal. App. S69, 9S N. E. 103 (1911). 676, 117 Pac.,931 (1911). 48Lorenz v. Tisdale, 127 App. Div. 46Kopper v. Bernhardt, 91 N. J. L. 433, 111 N. Y. Supp. 173. 697, 103 Atl. 186 (1918). B. Autos. — 52 818 LAW OF AUTOMOBILES § 856. At intersection of highways. The rights of horse-drawn vehicles and automobiles approaching at right; angles ah inter- section of two highways, are reciprocal, and the first at the cross- ting has the primary right to proceed. Although the driver of a wagon sees an automobile approaching on the intersecting high- way, he is under no duty to anticipate that it will be negligently operated.*® So, judgment in favor of the driver of a horse and wagon was sustained, where it appeared that the accident occurred at the intersection of two streets, that the wagon was first at the inter- section, and that it was more than half way across when the auto- mobile struck it.*'' The plaintiff, driving a carriage and team along a city street, was run' into at an intersecting street by defendant's automobile, which was moving at a negligent rate of speed. , As he approached the corner, plaintiff looked along the intersecting street twice be- ' fore he was struck. The second time he looked, his seat-line was approaching the house-line and he could see the middle of the intersecting street for 100 feet. Nevertheless, he did not see the auto- mobile until just before it struck him. Held, that the case was for the jury. "Even if the plaintiff had seen the defendant's auto- mobile approaching, providing it was not so near that a collision would naturally be expected to follow, the plaintiff was under no duty to anticipate the negligent act of the defendant. * * * The parties had equal i-ights in this case, and the first at the crossing had the primary right to proceed." *' § 857. Automobile exceeding speed limit on wrong side at street intersection. The plaintiff was driving his horse and wagon, at the rate o^ an ordinary trot, north on a public street; and at the same time defendant was driving his automobile on the wrong side of an intersectiiig street, going west, at a rate of speed estimated by the plaintiff at 25 niiles an hour. When plaintiff first saw the automobile it was approaching the street intersec- tion as he was making the same crossing, and before he had a chance to jump, the machine struck his wagon and threw him out, inflicting the injuries complained of. He testified that the de- fendant did not sound his horn or give any other warning on *8 Brown v. Chambers, 65 Pa. Super. See ante, § 190, 812. Ct. 373 (1917), dting McClung v. Pei>n- ^^ grown v. Chambers, 6S Pa. Super, sylvania Taximeter Cab Co., 2S2 Pa. St. Ct. 373 (1917). 478, 1J Atl. 694 (1916); Lewis v. Wood, « Thomas v. Stern, 26 Pa. Dist. 468- 247Pa. St. S4S, 93 Atl. 60S (191S). (1917). COLLISIONS WITH VEHICLES AND ANIMALS 819 approaching the crossing. He further declared that, in the course of a conversation with the defendant a day or so after the accident, the latter admitted that, when his machine struck the plaintiff's wagon, he was driving it "pretty fast" — that he was "going over the speed limit." The defendant further stated to the plaintiff in that conversation, so the latter declared, that the reason he did not "blow his horn" was because "he never thought about it." A witness testified that the defendant, some days after thie mis- hap, admitted to him that, when the collision occurred, he was driv- ing his machine beyond the speed limit as fixed by the ordinance. Other witnesses, who were near the scene of the collision when it took place, testified that the machine was moving at a very rapid rate of speed; some of them saying that, whilei they could hardly approximate the rate they could say that the maichine was going "unusually fast," while others fixed the speed at which the machine was going at between 12 and IS miles an hour. And some of the same witnesses corroborated the plaintiff's testimony that no warning was given by the defendant as he was nearing and in the act of crossing the intersection of the two streets. It was held that this evidence justified a finding that the col- lision was precipitated wholly through the negligence of the de- fendant. Judgment for plaintiff was accordingly affirmed.*? § 858. Automobile turning corner close to left curb. Where defendant's motor truck was driven a short distance north on the left side of an avenue and turned close to the left curb in|to an intersecting street and collided with plaintiff's horse and wagon, being driven at a walk, downgrade, in an easterly direction, along the proper side of the street, it was held that defendant's chauffeur was negligent, the court saying that, under the circumstances, it being perfectly evident that the chauffeur's course was without ex- cuse by him and at least one of the approximate causes of the accident, it is difficult to see how a finding of defendant's negligence could have been avoided. It was further held that the question was for the jury whether the fact that tiie plaintiff's driver, who was looking ahead in the direction in which he was driving and watching the east side of the avenue for vehicles driving the right way on that avenue from the south, can be charged with contributory negligence as matter of law because he did not consciously notice defendant's truck which *9Scragg V. Sallee, 24 Cal. App. 133, 144 Pac. 706 (1914). ' 820 LAW OF AUTOMOBILES was driving on the wrong side of the avenue and was visible in that position over a distance of about 20 to 28 feet and appreciate that it would continue in that irregular course and cross in front of him." § 859. Horse and wagon backed against parked automobile. Where the evidence showed that plaintiff's automobile was stand- ing at the west end of a platform, headed south, and backed against a wall; that between it and a wagon standing near, there was a clear space of about IS to 18 feet; that the driver of defendant's wagon attempted to back into this space and collided, with plain- tiff's automobile, which was in plain view,' it was held that there was no evidence tending to show contributory negligence on the part of plaintiff."^ The fact that the act of a horse in backing against and damag- ing an automobile was due to the inherent nature of the animal, was no defense to an action by the owner of the automobile to re- cover for the damages so done. "It may be the inherent nature of a bulldog to run out and attack any person passing along the road in front of his owner's house. Can it be said that because such result is due to the inherent nature of the dog that his master, who knows his nature and has allowed him to run loose, is not, because thereof, responsible therefor?'' *^ § 860, Automobile backing without warning. To back an automobile in a public street when there is any likelihood of another vehicle or a pedestrian being in proximity to the rear thereof, with- out ascertaining, or making reasonable efforts to ascertain, whether the way is clear, and without giving a proper warning of the oper- ator's intention, is clearly an act of negligence. In starting an automobile from its position near the curb of a street, the chauffeur suddenly backed the same against a horse, which was attached to a wagon and standing about 10 feet to the rear of the machine, causing the horse to become frightened and to turn and cramp the wheels of the wagon in such a way that the plaintiff either jumped out or was thrown out of the wagon, and his right leg caught in the spokes of the wheel and injured. 60 Jacobs V. Richard Carvel Co., 1S6 ing inside the rear wheel of the former, N. Y. Supp. 766 (1916). it was held that an inference of negli- 61 Wells Fargo & Co. v. Keeler, — gene was raised under the rule of res Tex. Civ. App. — , 173 S. W. 926 (1914). ipsa loquitur. Wasserman v. Kaufman, Where a wagon standing in a street 162 N. Y. Supp. 7S2. near the curb was run into by another 62 Wells Fargo & Co. v. Keeler, — wagon, the front wheel of the latter be- Tex. Civ. App. — , 173 S. W. 926"(1914). COLLISIONS WITH VEHICLES AND ANIMALS 821 The top of the car was up, obscuring somewhat the view to the rear. It was held that this was clearly an act of negligence.*' § 861. Automobile backing into collision with horse. The defendant entered his automobile in front of his home and, owing to the fact that a ditch had been dug and the dirt thrown up on the other side of the street, he backed it towards the intersect- ing street in that direction. The top was up and the back curtain down. While proceeding in this manner he collided with plain- tiff's horse and wagon being driven in the opposite direction by a boy 14 or IS years of age. The boy testified that he was on the right side of the street, and did not discover the machine until within 10 feet of it, when he called the defendant to stop, but the latter failed to do so. Defendant testified that the automobile was moving two miles an hour, and that he did not see the horse until "instantly" before he struck it. There was testimony tending to show that the boy had not entered the street as required by ordi- nance. The court instructed the jury that if the driver of the horse did not enter the street as required by said ordinance, and that his failure in that regard was the direct or contributing cause of the injury, they should find for the defendant. There was ver- dict for plaintiff, which was upheld on appeal, the court holding tjiat the instruction mentioned properly stated the law.** § 862. Colliding with iron beams protruding from wagon stopped on street crossing. In an action by a taxicab drjver to recover for injuries sustained when his machine collided with iron beams which protruded 8 or 10 feet from the rear of defendant's wagon and partly over the intersecting street on which plaintiff was driving, it appeared that plaintiff was driving 8 miles an hour, and could have stopped within 7 feet; that the beams were large obstructions and were directly in the line of his vision; that he saw the wagon, and did not reduce his speed, but relied on his ability to drive around the obstruction without knowing its extent; that the beams were visible at many times the distance required for plaintiff to stop. It was held that plaintiff was contributorily neg- ligent, and could not recover.** §863. Bars protruding from truck striking passing; auto- mobile when turning. Defendants' servant drove a four horse 83 Pease v. Gardner, 113 Me. 264, 93 66 Roper v. Greenspon, — Mo. App. Atl. SSO (191S). — , 192 S. W. 149 (1917). 64BrickelI v. Williams, 180 Mo. App. S72, 167 S. W. 607 (1914). 822 LAW OF AUTOMOBILES team, drawing a heavy truck, loaded with iron beams forty, feet long, east on Oneida Street, in the City of Milwaukee. He was going about three miles per hour, driving on the right hand track of double street railway tracks, and near the center of the street, instead of as close as practicable to the right hand curb, as he should have done. The iron beams textended back of the truck some twelve feet. Plaintiff's daughter, driving his auto- niobile about eight or ten miles per hour, approached the truck load from the rear. She seasonably signalled her desire to pass but the driver paid no attention thereto. Under the circum- stances, it did not seem to her best to pass on the left on account of the street railway track and the regular street traffic, which was considerable. Automobiles were freely passirig the truck load on the right and she took^ that course. ThoUgh there was an automobile standing at the curb on that side, there was ample room left to pass. As she reached a point about opposite the standing auto- mobile, and alongside the truck load, the driver turned his horses to the left to pass into a cross street. That caused the rear end of his load to swiiig to the ri^ht, striking plaintiff's machine and caus- ing the damages complained of. Held, that the question of contributory negligence was for the jury, and judgment for plaintiff was affirmed.*® §864. Motorist attempting to pass between vehicles. A judgment against a motorist was sustained, where there was evi- dence that he drove along a street at a high rate of speed, and at- tempted to pass through a narrow space between the plaintiff's horse and wagon and another team, and struck the liorse and injured it so that subsequently it had to be killed." §865. Motor truck suddenly increasing speed. The plain- tiff's testimony was that when he was 12 or 15 feet from a street cai- track he saw defendant's electrically propelled beer truck ap- proachilig slowly on the track, about ISO feet away; that the driver of the truck thereupon put on great speed, and covered the intervening ISO feet while plaintiff's horse was moving 12 or IS feet, striking the horse in the head and leg, and injuring it so that it h^d; to be shot. It was held that this story was well nigh incredible in itself, and. it appeared that a witness of plaintiff who was stand- ing some 40 or 50 feet from the place of the accident, overtook the 66Mahar v. Lochen, 166 Wis. 152, 8' Kupn v. Wertley, 6S Pa. Super. Ct. 164 N W. 847 (1917). 363 (1916). COLLISIONS WITH VEHICLES AND ANIMALS 823 truck within ISO feet and notified the driver of the accident. The evidence was declared to be insufficient to support a verdict for the plaintiff." §866. Driving heavily loaded dray onto slippery down- grade. The defendant, whose dray collided with plaintiift's automo- bile, was held to have been negligent in going on a slippery down- grade with" a heavily loaded dray, and a team not under control.*' § 867. Evidence of plaintiff's state of mind at time of col- lision. In an action in which the plaintiff sought to recover for injuries incurred in a collision between the vehicle he was driving and defendant's automobile, the defendant was permitted to testify that just before the accident the; plaintiff called upon him in re- gard to a note and mortgage which the defendant held against the plaintiff, and that the plaintiff had said that he could not take up the note and did not know what he could do. In holding that the testimony was properly admitted, the court on appe^il said: "The evidence as to the character of the business the parties were conversing about just prior to the accident was competent, as hav- ing some tendency to show that the plaintiff was disturbed and dis- appointed because the defendant insisted upon his paying the note, which under the circumstances he was unable to do. It might nat- urally be inferred that this disappointment caused him to be less careful in the management of his team at the time of the accident than he otherwise would have been. The evidence had some logical bearing on the question of his care, and was properly admitted." *" § 868. Application of res ipsa loquitur. The question of the plaintiff's contributory negligence was for the jury, where she testi- fied that she drove to a street car track, paused before crossing it, to avoid an approaching car, at which time defeudant's automobile collided with her vehicle.*^ The plaintiff was riding in a carriage, lighted with a lamp on either side, and moving slowly within a foot of the right hand side of the road. The defendant's automobile, moving in the opposite direction at a high rate of speed, struck the carriage without warn- ing, inflicting the injuries complained of. The driver of the car- riage did not see the automobile until just before the collisi6n, and plaintiff did not see it until it was within SO feet of the carriage, fiSBarnett v. Anheuser-Busch Agency, SOBecJdey v. Alexander, 77 N. H. 2SS, 134 N. Y. Supp. 734 (1912). 90 Atl. 878 (1914). 89 Stoddard v. Reed, — N. D. — , 17S siKetchum v. Fillingham, 162 Mich. N. W. 219 (1919). 704, 127 N. W, 702 (1910). &24 LAW OF AUTOMOBILES which had some tendency to show that it came from a nearby inter- secting road. Held, that it was error to nonsuit the plaintiff.®* The plaintiff testified that his automobile was standing in front of his office, and defendant's wagon was backed in near the auto- mobile And some merchandise was unloaded from it, and that in pulling it out the wagon was caused to collide with the automobile, damaging it. It was held that the case was for the jury on both the question of negligence and Of contributory negligence.®' In this case one of the concurring judges stated that he thought the rule of the admiralty courts concerning collisions between ves- sels at anchor and vessels under way fairly expresses the rule which should prevail in actions at law in circumstances similar to those appearing in this case. BICYCLES § 869. Generally. Automobiles and bicycles have equal rights in the use of streets, the drivers of each, at the common law, owing a duty to the drivers of the pther to exercise reasonable care.®* It is not incumbent upon the driver of an automobile who sees a boy approaching on a bicycle, to do anything until it is apparent that a collision is probable; and even then his failure to slow up or stop is not negligence per se, but only evidence from which neg- ligence may, or may not, be inferred, according to the circum- stances.®* "While the duty of using ordinary care falls alike on the driver of an automobile and the rider or driver of a bicycle, for reasons growing out of inherent differences in the two vehicles, it is obvious that more is required from the former to fully discharge the duty than from the latter. The great weight of the automobile, the high speed at which it may be driven, and the ease with which the great power of its motor engine may be applied, distinguish it in 62 Millman V. Appleton, 139 App. Div. Pac. 639 (1916); Reed v. Martin, 160 738, 124 N. Y. Supp. 482 (1910). Mich. 253, 125 N. W. 61 (1910); Wolf 68 Harris v., Burns, 133 N. Y. Supp. v. Schmidt & Sons Brew. Co., 236 Pa. 418 (1912). St. 240, 84 Atl. 778 (1912); Parker v. 64 Luther v. State, 177 Ind. 619, 98 Cartier, — R. I. — , 105 Atl. 393 (1919). N. E. 640 (1912). It is not the duty of a bicyclist to Bicyclist must exercise reasonable care. anticipate that a motorist will violate Baillargeon v. Myers, 27 Cal. App. 187, the rules of the road. Black v. Parke, 149 Pac. 378 (1915); Irwin v. Judge,' 81 Davis & Co., 211 Mich. 274, 178 N. W. Conn. 492, 71 Atl. 572 (1909); McGee 700 (1920). V. Young, 132 Ga. 606,. 64 S. E. 689 66 Kent v. Treworgy, 22 Colo. App. (1909); Keil v. Evans, 99 Kan. 273, 161 441, 125 Pac. 128 (1912). COLLISIONS WITH VEHICLES AND ANIMALS 825 the matter of danger to others from the light foot power bicycle, and much is therefore required of the driver of it to discharge the duty of due care." *® Where a bicyclist must have seen an approaching automobile if he looked, before starting to cross in front of it, he was held con- tributorily negligent, because if he did not look he was negligent, and if he looked he saw the automobile dangerously near.^'' If a bicyclist, in the exercise of due care, is injured as a proxi- mate result of the failure of a motorist to seasonably turn to the right upon meeting him, as required by statute,, he may recover.®' It is not negligence per se for a bicyclist to ride at a distance of eleven feet from the right curb in a street 38 feet wide; there being ample room for other travelers to use the street without col- liding with him.*' Where a bicyclist, in crossing a street, had to travel over a space of only 5 feet 3 inches to reach the place where it was his duty to go in following the rule of the road, when defendant's automobile was 160 feet away, and he was struck by saicj auto- mobile moving at an excessive rate of speed on the wrong side of the street, the question of contributory negligence was fpr the jury.'"* A bicyclist on a street crossing is within the protection of a city ordinance limiting the speed of automobiles to four miles an hour over street crossings "when any person is upon the same." This is true although he was slightly off the usual line of travel. The fact that a person was riding a bicycle, or was standing, or was in some other vehicle either standing or moving on the crossing, would make no difference. He would still be within the ordinance.''^ Where, before attempting to cross an intersecting street, a bi- cyclist saw an automobile approaching 100 feet away on the inter- secting street, at the rate of 20 miles an hour, and continued on his way without looking again until the automobile was within 10 feet of him, and it was too late to avoid a collision, he was contributorily negligent as matter of law.'^ In an action in which a boy, ten years of age, sought to recover for injuries sustained when the bicycle he was riding collided with 66 Luther v. State, 177. Ind. 619, 98 TOWalleigh v. Bean, 248 Pa. St. 339, N. E. 640 (1912). 93 Atl. 1069 (191S). 67 Gibbs V. Dayton, 166 Mich. 263, 131 71 Ludwigs v. Dumas, 72 Wash. 68, N. W. S44 (1911). 129 Pac. 903 (1913)). 68 Irwin V. Judge, 81 Conn. 492, 71 'Zude y. Fuller, 187 Mich. 483, 1S3 Atl. S72 (1909). , N. W. 769 (191S). 69Friedrich,v. BouIton,164 Wis. *S26, 159 N. W. 803 (1916). 826 LAW OF AUTOMOBILES ■ defendant's automobile, the accident occurring while plaintiff was looking behind him, the folloi^ing instruction was held to properly state the law: "Of course, all of these things must be done to a reasonable extent and as a reasonably prudent person of the age and capacity of the plaintiff here would naturally be expected to act under similar circumstances. And, should you find that the plaintiff here was not using his faculties or powers of observation in a reasonable way, having in consideration his age and experience, and, if he had been using the same in such manner, the accident would not have happened, or that his failure to use the same con- tributed in any material degree to the happening of the accident, and these things you believe by a fair preponderance of the evi- dence, then he cannot recover." A verdict for the defendant was sustained." §870. Automobile overtaking and colliding with cyclist. If there is no statute or ordinance to the contrary, a vehicle over- taking another in the highway may pa^s the latter on either side, using proper caution and keeping a safe distance behind when not passing.'* Even if it is the duty generally of the overtaking vehicle to pass the other on the left, circumstances may exist which will justify the former in passing on the right.''^ When an automobile overtook and collided with a bicyclist, who was proceeding at a proper place in a public street, 30 or 40 feet from the intersection of another street, it was held that the bicyclist could recover on such a showing of facts.'* Where the plaintiff was riding his bicycle on the extreme right- hand side of a street when the defendant drove his automobile up 73 Barton V. Van Gesen, 91 Wash. 94, to the left of the team in front, the 1S7 Pac, ,21S (1916). rear team may, if there is sufficient ''* Wright V. Mitchell, 252 Pa. St. 32S, space and it can be done by the exer- 12 N. C. C. A. 625, 97 Atl. 478 (1916). cise of proper care, pass to the right ''B "The leading team may travel any- of the team in front. The^ general rule, where it pleases, using! however, due therefore, that teams traveling in the care. It necessarily follows that, if the same direction on a highway should pass leading team should use the left side of each other to the left has its exceptions, the highway, leaving insufficient space and must be applied with reference to for the rear team to pass, the latter the circumstances of the particular case." may pass to the right. If for any other Wright v. Mitchell, 252 Pa. St. 32S, 12 reason, such as the obstruction of the N. C. C. A. 625, 97 Atl. 478 (1916). highway on the left of the leading team ''Bpison v. Holway, 1S2 Wis. 1, 139 by other teams proceeding in the oppo- N. W. 422 (1913). site direction, so as to prevent a passage COLLISIONS WITH VEHICLES AND ANIMALS 827 behind him and ran him dbwn, and it was contended that when plaintiff became aware of the approach of defendant's machine it was his duty to turn out to his left so that defendant could pass to the right of him, as required by statute,''"' it was held that whether defendant exercised that degree of care for the safety 6f plaintiff which should mark the conduct of a man of ordinary prudence, in the circumstances, was for the jury, notwithstanding the statute, as the presence and position of plaintiff was known to the driver of the machine.'* Where a taxi driver overtook a boy on a bicycle, and while trying to pass him on the wrong side without sounding a warning ran him down, a verdict for the plaintiff was upheld.'^ Where a man, driving an automobile, overtakes and collides with a 12 year old boy on a bicycle, while both were violating a traffic ordinance, an instruction holding the man and boy to the same degree of care, was held to constitute reversible error.*" Plaintiff, a boy of 10 years, was, riding a bicycle on the right side of a city street about 3 or 4 feet from the curb, when a motor truck overtook and collided with him from the rear. There was evidence that the truck swerved towards the curb and struck him. Held, to support a judgment for the plaintiff.*^ In an action where it appeared that the defendant had collided with plaintiff's bicycle, moving in the same direction, in an attempt to pass the latter on the right, instead of the left, the fbllowilig instruction was upheld: "The defendant was required, under the law, to exercise the care that a reasonably prudent man would to avoid Injury to the plaintiff; and, if the defendant failed to do so, having turned to the right of the road instead of turning to the left, the defendant would be guilty of negligence, and if that was the proximate cause of the injury, it would be your duty to find the first issue, 'Yes,' but if, by the conduct of the plaintiff, the defendants, as the party operating the machine, the owner of it, had reasonable grounds to believe, and believed that the safe way to do was to pass to the right and it was unsafe to attempt to pass by going to the left, then it would not be negligence upon the part of the defendants to pass, or attempt to pass, turning to the right." *^ 1'' Rem. & Bal. Code, § SS69. 81 Giideritz v. Broadway Bros., — TSCIoherty v. Griffiths, 82 Wash. 634, Cal. App. — , 177 Pac. 859 (1918). 144 .Pac. 912 (1914). 82 Cooke v. Jerome, 172 ISf. ,C. 626, 90 TOPeluso V. City Taxi Co., — Cal. S, E. 767 (1916). App. — , 182 Pac. 808 (1919). SOKriens v. McMillan, — S. D. — , 173 N. W. 731 (1919). 828 LAW OF AUTOMOBILES ■■> The plaintiff was riding a bicycle along a city street, between the west curb and the west rail of a street car track therein, when he saw defendant's motor truck approaching from the rear, about half a block away and near the west curb. Later he heard the truck close behind him and turned his bicycle into the middle of the west car track in- order to let the motor truck pass. He so continued for a short distance when, hearing the motor truck immediately behind him and being of the- opinion that unless he turned out he would be run down, he turned his bicycle to the right, and as his wheel struck the west rail of the car track it skidded, and he started to fall, when he was struck by the motor truck. A statute*' provided that the driver of every motor vehicle shall turn to the right in passing vehicles and persons inoving in the same direction; , A finding of negligence on the part of defendant was not seriously questioned, but it was contended that the plaintiff was con- tributorily negligent as a matter of law in turning his bicycle to the right in an effort to avoid the truck. In affirming judgment in favor of plaintiff, the court said: "Without recurring to the evidence from which it so appears, it is shown that the respondent at the time he turned to the right was in a position of great danger. The motor truck was not more than three or four feet behind him and constantly gaining, and it was evident that, unless he or the driver of the truck changed his course, a collision was inevitable. Being in imminent danger, an emergency was presented, and whether, under this emergency, the respondent acted with due pru- dence is, under all the authorities, a question of fact for the jury. The law does not scrutinize too carefully an act done by one who has been put in a position of danger by the one who inflicts injury upon him, leaving it for the jury to say under such circumstances whether the act in seeking to avoid the danger was the act of an ordinarily prudent man. It is true, we have said in a number of cases, and it is undoubtedly the law, that the failure to observe the law of the road is negligence. But this rule must be applied in connection with the circumstances under which its observance is called for, and as applied to the facts in this case, we do not think that we can say, as a matter of law, that respondent's act was such as to preclude his recoveiry. We cannot say, in the face of the ver'dict, that ample time had not been given the driver of, the truck to turn to the right for the purpose of safely passing respond- 88 Rem. & Bal. Code, § SS69. COLLISIONS WITH VEHICLES AND ANIMALS 829 ent, had he been disposed to do so, and the respondent was not justified in assuming the truck would not so turn." '* In an action for damages for personal injuries, where the evi- dence showed that the defendant, while driving in his automobile on a city street, came up behind the plaintiff, who was going in the same direction on a bicycle, and ran into plaintiff's bicycle, upset- ting him and crushing his 16g, it was held that the jury properly found defendant guilty of negligence.'" In a personal injury action in which a bicyclist sought recovery for injuries sustained when an automobile, approaching from the rear, collided with him, the court properly instructed the jury that unless a bicyclist seasonably turns to the right upon being given warning of the approach from the rear of an automobile, the motorist may legally pass such bicycle on the right; that if they found from the evidence that plaintiff, by taking and maintaining such a position on the left as prevented defendant from turning to the left to pass without himself violating the law or colliding with another vehicle which was meeting him, then as -between plaintiff and defendant, defendant had the right, if they found that he first gave reasonable and proper warning of his intention, to pass plaintiff on the latter's right. Further, on evidence tending to show that the plaintiff was suffering from serious impairment of his sense of hearing, the court properly instructed the jury that if they found that plaintiff was so deaf that he could not hear the signal given by an ordinarily loud horn , of an automobile, it was his duty to be still more prudent and careful in the use of his eyes to keep himself informed as to what was approaching from be- hind so as to protect himself from injury.*® Where a bicyclist started diagonally across a street, after seeing a delivery truck standing in the street, and his attention was then directed to the crossing of a railway, and the truck was started, overtook him, and collided with the side of his bicycle, and there was evidence that the truck sounded no warning signal, that it was moving 4 or 5 miles an hour, and could have been stopped within 3 to 5 feet, and that the plaintiff did not see the truck after it started until it was upon him, it was held that the case should have been submitted to the jury.*^ In an action by a bicyclist the complaint alleged that "defend- 84 Sheffield v. Union Oil Co., 82 Wash. 86 Weaver v. Carter, 28 Cal. App. 241, 386, 144 Pas. S29 (1914). 152 Pac. 323 (191S). 86 Heath v. Cook, — R. I. — (1907), 87McComas v. Strasburger D. G. Co., 68 Atl. 427. 96 Kan. 467, 1S2 Pac. 61S (1915). 830 LAW OF AUTOMOBILES ant, operating, using and driving an automobile, drove along said road behind the plaintiff and carelessly, negligently, and disre- garding the right of plaintiff, ran his automobile and drove the same on, upon, and against the plaintiff with great force and speed," etc., but did not allege any particular act of negligence, such as excessive speedy reckless driving, exceeding speed limit, incompetence, failure) to^ sound warning, failure to concede right of way, or intoxication. Held, to sufficiently state a cause of action.** § 871, Same— As bicyclist in act of turning. Deceased, an experienced cyclist, was riding along the right-hand side of a smooth^ straight boulevard, about . 40 feet wide, and when he at-, tempted to cross the boulevard — "make a long, sweeping turn" — he was struck and fatally injured by defendant's automobile, which was proceeding in the same direction, to the rear of deceased. There was testimony that when deceased started to turn or cross the boulevard he was 150 feet ahead of the machine; that the auto- mobile was traveling between 7 and 10 miles an hour, and came to a stop about 130 feet beyond the body of deceased; that just be- fore the accident the defendant and her companions were looking towards the sea, which was on their left; that there were no other vehicles on this part of the highway, yet defendant saw deceased for the first time when he was at the right-hand front corner of her car and two or three feet ahead. The automobile had been travel- ing about the center of the highway. Held, that the case was for the jury, and judgment for plaintiff was affirmed.*' In an action to recover for the death of a bicyclist, who was run down by the defendant's automobile on a straight, broad, smooth road, during daylight, when there were no other travelers near, and nothing to' obscure the vision or distract the attention, there was evidence from which it co]uld have been found that while the deceased was riding his bicycle o'n the right side of the road near the curb, and while the automobile was behind him going in the same direction, he determined to go in the opposite direction and for that purpose began to cross the road; that the automobile was so far behind him that it reasonably might have been expected that the defendant would' see him, and that if she should see him she could, and would, by the exercise of proper care on her part, so manage the automobile as to avoid a collision. Held that crossing the road under such circumstances would not neces- »8 Cloherty V. Griffiths, 82 Wash. 634, 89 Rogers v. Phillips, 217 Mass. 52, 144 Pac. 912 (1914). 104 N, E. 466 (1914). COLLISIONS WITH VEHICLES AND ANIMALS 831 sarily be negligent, but that the question of deceased's negligence was for tlie jury.®° § 872. Failure of automobile to turn to right. The undis- puted facts were as .follows: The road on which the accident occurred is in a lane, 66 feet wide, and bounded on either side by a barbed wire fence. No part of the road had been worked in the sense of having been rounded up or ditched and graded. The roadway that was used by the public for travel at that particular place consisted of but ^ single track that had been worn by wagons and other vehicles that had been passing over it. At the place where the accident occurred, this track ran along within 10 feet of the wire fence along the north side of the lane. Appellant was traveling from the east, in a westerly direction, while respondent was coming from the opposite direction. Respondent was on the south side of the said wagon track, which was the right-hand side; of said track. Appellant saw respondent coming from a distance of a quarter of a mile and reduced the speed of his car to about 10 miles an hour, but he did not turn out of ^aid roadway or track, or any part of it, nor did he sound his horn or otherwise signal his approach, and respondent did not see or hear the car or know of its approach until it was too late for him to get out of the way. Judgment for the plaintiff was affirmed, the court saying: "Our statute is specific. By use of the word "traveled," it was intended to distinguish the portion of the right of way that is actually used by the traveling public- from the entire 66-foot strip that belongs to the public for highway purposes. Appellant's contention on this phase of the case is clearly untenable. But appellai^t contends that, although the interpretation given the statute by the trial court may be correct, respondent was negligent, in that he did not maintain a sufficient lookout to have discovered defendant's auto- mobile in time to have gotten out of the road and thus have avoided the collision. To this contention there are two answers: First, respondent was entitled to half the road, and the undisputed evi- dence shows that he was on the right side of the road at the time of the collision; so that if appellant had turned to the right of the middle of the road, as the law and common usage of the road re- quired him to have done, his car would not have interfered with respondent's bicycle, even though respondent had not seen the car at all. The second answer to appellant's contention is that, 90 Rogers v. Phillips, 206 Mass. 308, Q2 N. E. 327, 28 L. R. A.' (N. S.) 944 (1910).' 832 LAW OF AUTOMOBILES after seeing respondent, it was appellant's duty to exercise ordi- nary care to avoid the collision even if respondent had been on the wrong side of the road. The evidence shows that, at the place where the accident occurred, the ground between the road and the fence on the north side of the lane was level and free from obsta- cles. Appellant saw respondent coming a quarter of a mile away. This gave him ample time, after seeing respondent, to have given warning of his approach or to have turned out and given respond- ent half the road. His failure to take these precuations to avoid the collision, after he knew that a collision 'was imminent, consti- tuted negligence on his part. _ This negligence was the proximate cause of the injury, and he is liable for the resulting damage." ®^ § 87S. Cyclist crossing in front of automobile at street in- tersection. A boy 11 years old riding on a bicycle was injured by collision with an automobile at a street intersection. The evi- dence was that the boy crossed in front of the automobile. The driver of the automobile did not see him and there was evidence that the automobile suddenly increased speed while the boy was passing in front of it. Held, there was evidetice that the driver of the automobile was negligent.®^ § 874. Cyclist^ struck from rear after turning into street. There was evidence tending to show that at the time of the acci- dent plaintiff while riding a bicycle approached a cross street; that when within five feet from the house line he saw defendant's automobile approaching on the cross street at a distance variously estimated from 100 to 170 feet; that he turned to go in the same direction as the automobile; that when he got onto the cross street his bicycle was struck in the rear wheel by the automobile; that the automobile was going fast; that the driver, as he approached the crossing instead of slackening his speed, increased it;> and that the driver was intoxicated. Held, that the case was for the jury, and judgment for plaintiff was affirmed.'^ § 875. Automobile on wrong side at intersection where view obscured. The plaintiff sought to recover for the death of her minor son, who was killed in a collision between the bicycle which he was riding and defendant's automobile. The scene of the acci- dent was at the intersection of a street, which extended east and 91 Schnabel v. Kafer, 39 S. D. 70, 162 *» Tustin v. Hawes, 62 Pa. Super. Ct. N. W. 935 (1917). 20S (1916). 92 Kennedy v. Webster, 137 Minn. 347, -163 N. W. 518 (1917). COLLISIONS WITH VEHICLES AND ANIMALS 833 west and an avenue extending, north and south, both vehicles going down grade. The boy was riding easterly on the street, and the automobile was proceeding northerly on tiie avenue, and the boy attempted to turn southerly into the avenue. On the southwest corner of the two highways there was an embankment covered with shrubbery which obscured the westerly view of the street for a person approaching on the avenue from the south. Defend- ant's testimony was in effect that he was proceeding about the center of. the street, at a speed of 7 or 8 miles an hour; that he first saw the boy when he was 6 or 7 feet distant, coming from behind the embankment, about 3 feet up the street and 6 or 7 feet off the southwest curb; that he stopped his car within 6 or 7 feet; that the boy was riding at the rate of IS or 18 miles an hour; and that the boy struck against the west rear door and rear fender of the car. A witness for plaintiff testified that he arrived at the scene of the accident about 40 minutes after it occurred; that he observed skid marks which commenced at the intersection of the streets and extended northerly about 90 feet; that the west skid mark was from 4 to ,6 feet from the west curb; that the east skid mark was lighter and extended for a shorter distance than the west skid mark; that he examined defendant's machine shortly after the accident and found that the left rear wheel had a smooth tire and the right wheel had a corrugated tire; that if the car had new tires and skidded 90 feet, it should have left a mark on the tires. Other testimony was that the west skid mark was from 3 to S feet from the west curb, and that the skid marks were about 75 feet long, and commenced about 10 or IS feet south of the corner. There was testimony for the defendant that there were new, nonskid tires on both rear wheels; that it would be impossible for the car to skid 90 feet with such tires; that if the car had skidded 90 feet the tires would have been worn to the fabric; and that there was no evidence that the tires Of the car had skidded. An ordinance required all vehicles, except when passing a vehicle ahead, to keep as near the right-hand curb as possible, and a vehicle turning into another street at the right hand to turn the corner as near the right-hand curb as practicable. The trial court instructed the jury that the driver of the automobile was not required to drive on the right-hand side of the street, but that he was required to turn to the right when meeting other vehi- cles; that he might drive on the left side of the street when it was not dangerous to do so; and that the rights of deceased and the defendant in the street were equal. There was judgment for de- B. Autos. — S3 834 LAW OF AUTOMOBILES fendant. In reversing judgment and remanding the cause, the court held that under the ordinance the defendant was required to keep as near the right-hand curb as possible, which he did not do; that deceased had a superior right to the use of the right-hand side of the street; and that the manner in which the accident occurred was for the jury.'* § 876. Cyclist turning into path of automobile. The defend- ant offered evidence to prove that as he was traveling northerly at the rate of 10 to 15 miles an hour he met a trolley car, then in motion, going south ; that after he had passed the car he slightly increased his speed, which he had son^ewhat slackened as he ap- proached it, and proceeded straight ahead when he first saw the intestate on a bicycle about 2 feet from the westerly curb travel- ing slowly towards the north; that he thereupon sounded his horn to give warning of his approach; that his car was proceeding about 14 feet from the westerly curb, and straight ahead, when the intes- tate suddenly, without warning, and without apparent reason, turned to the right in front of the defendant's automobile, strik- ing the left front comer of the left front fender with the front of his bicycle, throwing both it and its rider to the ground, and causing the latter's injuries; that as soon as the intestate thus changed his course the defendant again soimded his horn, shouted, set his brakes, and did all that he possibly could to avoid the col- lision, which he claims to have shown was caused by the deceased's sudden change of course without warning, and without giving the defendant an opportunity to prevent its occurrence. Held, to support a verdict for the defendant.®^ § 877. Truck turning before reaching center of intersecting street. A bicyclist who testified that he saw defendant's truck ap- proaching and before it started to turn into an intersecting street, and did not see it after it started to turn, wMch wasi before it reached the center of the street intersection, until it was too close for him to avoid a collision, was entitled to go to the jury on the question of his contributory negligence, although his testimony that the driver of the truck did not signal that he was going to turn was contradicted by the testimony of other witnesses.'* MHiscock V. Phinney, 81 Wash. 117„ M Alamo Iron Wks. v. Prado, — Tex. 142 Pac. 461, 8 N. C. C. A. 383-384n Civ. App. — , 220 S. W. 282 (1920). (1914). 96 Radwick v. Goldstein, 90 Conn. 701, 98 Atl. S83 (1916). COLLISIONS WITH VEHICLES AND ANIMALS 835 §878. Cyclist caused to strike curb by act of motorist. Where a motorist suddenly and negligently managed his machine in such a way as to imperil the safety of a bicyclist who was in the act of passing the machine, moving in the same direction, which caused the cyclist to turn toward the right, to avoid being struck by the machine, and in so doing his wheel struck the curb, causing him to be thrown and injured, the proximate cause of the cyclist's injury was the negligence of the motorist. "If the plain- tiff would have been struck and injured by the defendant's machine had he not deflected from the straight course along the highway as £i means of escaping from impending danger, he would not neces- sarily be guilty of negligence if, in attempting to escape the dan- ger, he did not exercise the care or judgment required of him if it had been his voluntary action. All that was required of him to protect himself from the anticipated danger was to use the care of an ordinarily prudent man, Under all the circumstances, and, if he did so, he could not be charged with negligence." ®'' § 879. Automobile swerving to left. Where there was evi- dence that, as plaintiff, who was riding a bicycle easterly on the south side of a public street, and the defendant, who was driving his automobile westerly on the same street, were in the act of meet- ing, the automobile was suddenly turned towards the south and collided with plaintiff's bicycle, it was held that a finding of neg- ligence on the part of defendant was justified.®* § 880. Head-on collision in center of street. Where the plain- tiff rode his bicycle head-on into an automobile, when there was nothing to obstruct the vision of either him or the chauffeur, his negligence barred him from recovery, although the automobile was being driven in the center of the street.^ §881. Failure of bicyclist to see truck at intersection of roads. Where a girl, 12 years of age, rode a bicycle from a cross street into collision with a motor truck proceeding over the crossing along the intersecting road, and she did not see the truck until almost the instant of collision, although there was testimony that the truck was making a loud noise, and the accident occurred W Wright V. Mitchell, 2S2 Pa. St. 325, 1 Tyrell v. Leege, 105 Wash. 438, 178 12 N. C. C. A. 625, 97 Atl. 478 (1916). Pac. 467 (1919). 98 Harris v. Pew, 185 Mo. App. 275, 170 S. W. 344 (1914). 836 LAW OF AUTOMOBILES near the center of the highway, in a village, it was held that the proof was insufficient to establish the absence of contributory neg- ligence.^ § 882. Bicyclist suddenly emerging from private road. Where the plaintiff, riding a bicycle with two milk pails suspended on the handle, approached a public highway on a steep farm drive- way, where his view near the entrance was obscured, but at a point 100 feet from the entrance he had a view of 308 feet of the highway, and he stated that when at that point he looked and did not see any approaching automobile, and when he emerged into the highway he was struck by defendant's automobile^ mov- ing at a negligent rate of speed, and several of plaintiff's witnesses testified that the automobile sounded two warning signals, which plaintiff stated he did not hear, it was held that plaintiff was guilty of contributory negligence, and that a finding to the contrary was against the weight of the evidence.^ § 883. Bicyclist speeding across in front of turning auto- mobile. Defendant was moving southerly in his automobile on the right side of a street, three rods wide, and as he made the turn to the left into an intersecting street of equal width he collided with plaintiff, who had been proceeding on a bicycle northerly on the, proper side of the same street. It was sufficiently dark to require lights, and the automobile was fully lighted and the bicycle was not. Defendant testified that he sounded his horn and made the turn at a reasonable speed. Plaintiff insisted that no horn was blown, and that if there had been it would have been no warning that defendant was going to turn into. the intersecting street. It appeared, however, that plaintiff saw defendant's automobile at least 200 feet distant, and after defendant sounded his horn he tried to avoid a collision by veering away from the automobile, which was moving at slow speed, not over 4 or S miles an hour, and tried to "shoot right across to keep clear of the automobile," and was struck near the center of the intersecting street; that the defendant did not see plaintiff until the collision occurred; that he stopped his car within less than half its length. Held, that the plaintiff's negligence caused the injury, and that he could not recover. "Two courses were open to the plaintiff, one to do as he says he did, to shoot right across in front of the automobile, 2 Neumann v. Hudson County C. B. Sgimpson v. Whittnah, 147 App. Div. Co., ISS App. Div. 271, 139 N. Y. Supp. 642, 132 N. Y. Supp. 801 (1911). 1028 (1913). COLLISIONS WITH VEHICLES AND ANIMALS 837 the other to direct his bicycle the other way, and pass the auto- mobile behind, where from his own statement his course was free and unobstructed." * § 884. Bicyclist on wrong side of road. In an action to re- cover for the death of a bicyclist, 12 years of age, the plaintiff's version of the accident causing his death was that deceased was riding on his right hand side of the road, and that the defendant, driving his automobile, crossed from his right side of the road to the left, and collided with deceased when the automobile was) on the wrong side of the road. Defendant's version was that he was driving on his right side of the road, while the boy approached on the wrong side, and that defendant turned his car to the left only to avoid a collision and to afford a wider space between his right hand and the curb, for the boy to pass on the side that he seemed bent upon, and at that instant the boy suddenly turned to his right so that the vehicles collided. Of the five witnesses called by the plaintiff upon this feature of the case, four did not see the acci- dent, and of these one saw nothing of the boy before the accident, and one testified that the boy was on the wrong side of the road and the car on the right side. Besides the defendant, his wife and other members of his family who were in the automobile, nine wit- nesses testified for defendant that the boy was on the wrong side of the road. The point of view of defendant's witnesses was bet- ter than that of plaintiff's witnesses. There was no obstacle to the boy's course on the right side of the road. It was held that the preponderance of the evidence was in favor of defendant's version, and judgment for plaintiff was reversed and a new trial granted." § 885. Bicyclist falling- in front of truck. The plaintiff, a boy 13 years of age, an experienced bicyclist, accompanied by a friend, both riding bicycles, on a broad paved street, wet from rain, overtook and passed defendant's motor truck, which weighed about 3 tons and was capable of carrying a load of equal weight, and which was moving 8 or 10 miles an hour. Plaintiff passed to the left and his companion to the right of the truck, and after passing it plaintiff fell, and the front wheel of the truck passed over his legs. The truck did not swerve from its course, and was stopped before the rear wheel struck plaintiff. The plaintiff alone testified that he fell about 100 feet in front of the truck, while three wit- *-Robichaud v. Spence, 112 Me. 13, 90 144 N. Y. Supp. SOS (1913). In New Atl. 430 (1914). York the plaintiff is required to prove 5 Clarke v. Woop, 1S9 App. Div. 437, the absence of contributory negligence. 838 LAW OF AUTOMOBILES nesses testified that he fell close in front of the wheel. It was held that a verdict for the plaintiff was supported by the evidence, and judgment in plaintiff's favor was affirmed.® § 886. Bicyclist injured, by towing rope— Liability of owner of towing car and guest of owner of towed car. Where one was riding a;s a gu^st with,the owner of an automobile when it broke down, and upon another motorist volunteering to assist them, the guest procured a rope, about SO feet long, and connected the two machines, and in this manner the disabled car was being towed "along a street, when the front car crossed the street, while the rear car did not at once follow, and thus proceeding the rope caught and injured a bicyclist, and it appeared that the lamps on the automobiles were not lighted, it was held that, even as- suming that the guest was negligent iri procuring the rope and chatgeable with connecting the cars in this manner, the proximate cause of the injury to the cyclist was the negligence of the driver of the rear car, and that iieither the guest nor the driver of the for- ward car was required to anticipate that the rear car would not cross the street when the forward car did.' §887. Attempting to pass between automobile and curb. In an action to recover for the death of a bicyclist resulting from a collision with ah automobile, the following instruction was ap- proved, there being evidence to justify it: "If he saw, for in- stance, that this automobile was down Very close to the curb on the right7harid side, and he tried to pass it by going to the left of it, between the automobile and the curb, there can be no re- ' covery, because that would be of itself negligence, provided the distance between the curb and the automobile was so small that it would be apparent to an ordinary man tJiat it would be hazardous for him to undertake to pass it in that way." * ANIMALS § 888. Generally. A motorist is not an insurer of stock run- ning upon the highways, and he is not liable for injuring an animal at large in the highways unless he was negligent.^ His liability depends upon negligence, for which he is held ac- 6 Goosen v. Packard Motor Car Co., * Merklinger v. Lambert, 76 N. J. L. 174 Mich. 6S4, 140 N. W. 947 (1913). 806, 72 Atl. 119 (1909). 'Jerome v. Hawley, 147 App. Div. ^Xucker v. Carter, — Mo. App. — , 47S, 131 N. Y. Supp. 897 (1911). 211 S. W. 1,38 (1919). COLLISIONS WITH VEHICLES AND ANIMALS 839 countable as in any other case of injury due, to his negligent con- duct." ' :: . § 889. Colliding with and killing dog. The .mere fact that an automobile runs over a dog is not sufficient to charge the operator with negligence. So, in an action to recover for the loss of a dog, killed by defendant's automobile, where the only testimony was that the automobile, driven by defendant, at a moderate rate of speed, along a public street, ran over the dog without slowing up, it was held that there was no evidence of negligence, and judg- ment for plaintiff was reversed and a new trial ordered.^^ But the negligent killing of a dog, is an act for which a motor- ist will be held liable in damages.^* It has been held that a dog, licensed or unlicensed, is not a tres- passer or outlaw in the public highway, and that a motorist who negligently kills, such animal is liable in damages therefor.^' In an action to recover for the killing of a dog by the alleged negligent operation of an automobile, the following instructions were held to properly state the law: "The court instructs the jury that the defendant had a, right to assume that the hound in question would exercise the ordinary instincts of such animals and would keep itself out of danger of collision with his automobile and if the jury believe from the evi- dence that at the moment immediately prior to the collision the hound was off the traveled part of the highway and out of the line of travel of said automobile and awa,y from danger of collision, then defendant had the right to assume that the hound would re- main at such distance unless there was something in the circum- stances calculated to rebut such presumption. "The court instructs the jury that if you believe from the evi- dence that the hound dog in question was traveling along the road in front of the defendant's automobile as said automobile approached said dog, the defendant had a right to believe and as- sume that the dog, by reason of its peculiar instincts and ability to take care of itself and get out of danger would get out of the way, and that the defendant was not bound to anticipate danger for the dog nor to be on the lookout for his safety, unless the jury 1" Lacker v. Strauss, 226 Mass. S79, 18 Denny v. Randall, — Mo. App. — , 116 N. E. 236 (1917); Denny v. Ran- 202 S. W. 602 (1918). daU, — Mo. App. — , 202 S. W. 602 18 Lacker v. Straus?, 226 Mass. S79, (1918); Park v. Farnsworth, 98 Misc. 116 N. E.' 236 (1917). 482, 164 N. Y. Supp. 73S (1917). See post, §899. 11 O'Hara v. Gould, 84 N. J. L. 583, 87 Atl. 117 (1913). 840 LAW OF AUTOMOBILES believe that the defendant discovered the peril of the hound in time^ to have averted the collision by the exercise of such care as an ordinarily prudent person would exercise under the same or simi- lar circumstances." ^* § 890. Running over turkey. It has been held that a turkey permitted' to run in a public highway is a trespasser. A motorist was said not to be liable for running over and killing a turkey in a public highway in the absence of evidence of negligence or that the killing was intentional.''^ 1* Flowerree v. Thornberry, — ' Mo. App. — 183 S. W. 3S9 (1916). 16 Park v. Farnsworth, 98 Misc. 482, 164 N. Y. Supp. 73S (1917). In this case, the court said: "This case presentis the question as to the amount of care requisite from the oper- ator of an automobile, when he sees fowls near that part of the highway which he is approaching. Fowls, like small children, are likely to dart across the highway without paying any atten- tion to the consequences. I believe that the law of the state will soon require, if it does not now, that a person approach-- ing small children near the edge of the highway will be required to operate his car in such a careful and prudent manner that if, in the course of their play, the children start suddenly and unexpect- edly to run across the road, the oper- ator can control his car and stop it al- most instantly. I doubt if the law of the state now or ever will require such a degree of care with reference to fowls or straying animals. The rule stated, as applied to children, would entail a con- siderable hardship upon automobile oper- ators; but the lives of children are valu- able and must be protected. On the other hand, the lives of fowls or ani- mals are ordinarily not practicularly valuable, and their rights in the high- way, if they have any, must, it seems to me, give way to the superior right of the traveling public to pass with reason- able freedom and rational speed along the highway. Highways are not built or maintained for animals or fowls to stray in. They are constructed for pub- lic travel. Judge Beardslcy said in the case of Tonawanda R. R. Co. v. Mun- ger, S Denio, 264, 49 Am. Dec. 239: 'The public interest in a highway com- prehends the right of every" individual to pass and repass upon it, in person and with his property, at his own pleas- ure, but confers no right to use it as a sheep walk or pasture ground for cattle.' "It was said in Brownell v. Flagler, S Hill, 282: 'There may have been some slight degree of-negligence on the part of tlie plaintiff in allowing his cow and larab to escape into the highway; and if the lamb had been killed by a passing car- riage, without any intentional fault in the driver, the plaintiff would have had to bear the loss.' "This statement, so far as the illustra- tion is concerned, is obiter, but as to the statement of law involved as to the amount of care required by a driver under such circumstances it is not obiter, and the illustration of a lamb killed by a passing carriage under such cir- cumstances represents what I believe to be a correct statement of the law. "Treating the turkey involved in this case as a trespasser on the highway, and I think that was its correct status, it is probably true that the defendant can be held, as stated in the case last before cited, responsible only for intentional fault in the driver. In other words, 1 do not believe that the owner of fowls has a right to permit them to run at large in the public highways.'' COLLISIONS WITH VEHICLES AND ANIMALS 841 § 891. Hogs running under automobile. Defendant was driv- ing his automobile along a public highway, at 10 or IS miles an hour, and when opposite some hogs, which were running at large at the side of the highway, they suddenly ran into the road and under the niachine, and were killed. Held, to be a^ unavoidable accident, and that defendant was not liable.^^ § 892. Damage to automobile from striking dog— Liability of owner of dog. The plaintiff was driving his automobile on the right side of a public way at some IS miles an hour, as an ice wagon with a single horse was being driven slowly in the oppo- site direction on the other side of the road. The defendant's (log, weighing 135 pounds, ran toward the automobile, barking, and when he reached the automobile he snapped at the right front tire, but missed it, and his body struck the left front wheel, caus- ing the automobile to skid to the other side of the road, so that the automobile, still in contact with the dog, came directly in front of the horse drawing the ice wagon. This caused the horse to rear and descend on the top of the automobile, causing the damage complained of. The dog did not touch the horse. Held, that the dog was the sole, direct, and proximate cause of the injury, and a verdict for plaintiff was sustained.-''' The owner of a dog was held liable for injuries caused by the dog running in front of an automobile so quickly that the driver could not avoid striking it, the impact with the wheel causing the machine to run into a ditch; the action being brought under a statute providing that, "When a dog does damage to a person or his property, his owner or keeper, and also the parent, guardian, master, or mistress of any minor who owns such dog, forfeits to the person injured the amount of the damage done, provided the said damage was not occasioned through the fault of the person injured; to be recovered by an action of trespass." ^* § 893. Horse being led behind buggy— On left side of street in emergency. Where the plaintiff was driving a buggy and lead- ing a horse in a city street, and upon overtaking two wagons, which were keeping to the right side of the street, turned to the left to pass them, and when he had passed the rear one and was opposite the second, he saw an automobile approaching at a rapid rate of speed, and seeing that he had not room to pass between the auto- 16 Hester V. HaU, — Ala. App. — , 81 iSTasker v. Arey, 114 Me. SSI, 96 So. 361 (1919). Atl. 737 (1916). "Williams v. Brennan, 213 Mass. 28, 99 N. E. S16 (1912). 842 LAW OF AUTOMOBILES mobile and the wagon, he turned farther to the left until within two feet of the curb, and the automobile passed the buggy, and then inclined to its right, striking and fatally injuring the horse plaintiff was leading, it was held that the case was for the jury, and judgment' for the plaintiff was sustained.^® § 894. Horse being led in street by long rope. The plaintiff was traveling on horseback easterly, leading and driving an un- broken horse by a lariat, 60 feet long, fastened around the horse's neck. He kept the led horse ahead of him, using the lariat to stop him when he shied or attempted to run. Defendant's automobile was being driven westerly along the same street. As plaintiff and the automobile approached each other, the unbroken horse became frightened at a man at the side of the street, and started to run to the opposite side of the street. Plaintiff attempted to control the horse, but the latter kept on, thus keeping the lariat tight and obstructing the street. While he was so engaged, the automobile kept on- its course and struck plaintiff. There was evidence of negligence on th6 part of the automobile driver. In holding against the contention that plaintiff was contributorily negligent as a mat- ter of law in driving or leading the horse in this manner, the court said : "It is obvious ^at a horse controlled by a rope or lariat in the manner stated might become extremely difficult to manage when frightened, and that the jury would not be bouhd to find the driver or leader, negligent, in such emergency, merely because he failed to act in a manner which a deliberate review of the case after the event might show to have been wiser or safer than the course he followed. It was not an inherently negligent act to take an un- broken horse along a street. Highways are made and maintained for the free passage of persons, and of horses and cattle when prop- erly controlled. There was no evidence that the method of con- trolling the unbroken horse by means of a rope or lariat fastened to his neck, while taking him along the highway, was an improper or careless method. The use of a rope for that purpose would seem to be a proper precaution and preferable to driving him along with ho fneans of control or check." *" § 895. Leading young bull by rope halter. The plaintiff was leading a two-year old bull along a public highway, with an ordi- nary halter, consisting of a rope around the neck with a half 1» Everett v. Sturges, 46 Pa. Super. MTownsend v. Butterfield, 168 Cal. Ct. 612 (1911). S64, 143 Pac. 760 (1914). COLLISIONS WITH* VEHICLES AND ANIMALS 843 hitch over the nose. The plaintiff had hold of the end of the rope, about 18 feet from the bull's head. They were upon the right- hand side of the road, the plaintiff following the bull. He had not led the bull before, and did not know how he would act. Defend- ant's automobile, approaching from the rear, frightened the bull; he suddenly dashed across the road. The plaintiff held onto the rope and was dragged after the bull, with the result that the plain- tiff was injured by a collision with the automobile. Held, that the question of plaintiff's contributory negligence was for the jury.**^ § 896. Striking horse tied to hitching post— Res ipsa loqui- tur. Plaintiff tied his horse to a hitching post at the east curb of a north and south street, leaviiig the animal .facing north. A few feet farther north, on the opposite side of the stre&t, stood a covered automobile. Some IS minutes later plaintiff discovered that the animal had been so badly injured by defendant's automo- bile that it had to be killed. After proving these facts, and the value of the animal plaintiff rested. Defendant testified that while he was driving south on the west side of the street, butTnear the center, at a speed of 10 or 12 miles an hour, and when he was from 7 to 8 feet from the horse, and passing the covered autottiobite', a man, whom he did not see until he was 5 or 6 feet away, came towards him from behind the latter on a bicycle, and to avoid col- liding with him he turned his machine almost at right angles to the left and applied the brakes; but the pavement was wet and in bad condition, and the machine, slipping, struck the horse, caus- ing the injury. The street was of average width, and after the acci- dent the automobile was fou^d to be facing towards and directly square with the horse. The court held that under the doctrine of res ipsa loquitur the burden of explaining that the accident did not occur from want of care devolved upon the defendant, after plaintiff had put in evidence; and that it could not be said, as matter of law, that the presumption arising from the facts shown by plaintiff was rebutted by the defendant's evidence. Accordingly, judgment for the plaintiff was affirmed .^^ ,; § 897. Strildng one of a herd of cattle, f In an action to re- cover for injuries to a heifer caused by a collision with defendant's automobile when it was in the act of passing a herd of cattle, 81 Boos V. Field, 183 N. Y. Supp. 482 22 WhitweU v. Wolf, 127 Minn. 529, (1920). ' -' "■ '■' -■ " 149 N. W. 299 (1914). 844 LAW OF AUTOMOBILES the following instruction was approved: "If you should find from a fair preponderance of the evidence that the defendant was trav- eling along the public highway and came to these cattle and saw tills last cow, as they testified to, on the side of the road, and in order to get past, and in believing he could get past, he speeded up his automobile and the cow or heifer ran in front of him and, was thereby injured, and that the defendant was using ordinary care in traveling on that road to get past them and to avoid the injury, then the defendant ip this action is not liable, and you should so say by your Verdict, and find your verdict in favor of the defendant." ^^ § 898. Oolt at large in highway. Where a colt, running at larjge in the highway, was plainly visible to defendant motorist, and ■paid no attention to signals from the horn, and defendant con- tinued^at 18 to 30 miles an hour to within 20 or 30 steps of the colt, at which time defendant attempted to turn out to the left and go around him, when the colt lunged in front of the auto- mobile and ran ahead 25 or 30 feet before it was struck, judgment for the plaintiff was sustained.^* - § 899. Animals unlawfully at large in the highway. It has been held that the owner of an automobile, which he drove against a mule, unlawfully running at large on the highway, was not liable therefor unless he was guilty of gross negligence. Also held, that the fact that the automobile owner saw the mule 30 yards away, did not necessarily show that he was guilty of gross negligence.^® In an action in which recovery was sought for injury to a mule permitted unlawfully to run at large in the public highway, the following requested instructions .were held tp properly state the law: "You are instructed that the mule of plaintiff, which plain- - tiff alleges was injured by the defendant, was running at large, in violation of law, in the lane at the time the same was struck by the defendant, if he was so struck, and that, in order to entitle plaintiff to recover, you must believe from the evidence that the defendant, after discovering the presence of the mule and the peril that the mule was in, did not exercise ordinary care in attempting to stop his machine and to avoid injury to said mule, and you are instructed that ordinary care in this regard means such care as ZSArmann v. Caswell, 30 N. D. 406, 84PulIam v. Moore, — Mo. App. — , 1S2 N. W. 813 (1915). 218 S. W. 938 (1920). See also, Saylor v. Motor Inn, 136 26 DiUon v. Stewart, — Tex. CSv. Minn. 466, 162 N. W. 71 (1917). App. — , 180 S. W. 648 (191S). COLLISIONS WITH VEHICLES AND ANIMALS 845 an ordinary, prudent person would have exercised under the same and similar ' circumstanqes, and, unless you so believe, you will retturn your verdict for the defendant. "You are charged that the stock law was in force at the time and place the mule was injured, and that said mule was in the road in violation of said law, and defendant was not required to be on the lookout for loose animals in the road, and, before you can find for plaintiff, you must believe from the evidence that the defendant saw the danger to said mule in time to have prevented the. same by the ordinary use of the means at hand, or that the defendant was guilty of gross negligence in not discovering said niule in time to prevent the injury thereto, and you are charged that the term 'gross negligence' means a reckless disregard of the rights of others." ^e § 900. Mule, being ridden in highway, backing into collision with passing automobile. In an action to recover for injuries to a mule, which was struck by defendant's automobile, the evidence of the defendant tended to show that on the occasion in question defendant was running an automobile along the road at six or seven miles an hour; that plaintiff was onhis mule at or near the middle of the road, giving no indication of fright, and as defendant was in the act of passing plaintiffs and his mule plaintiff gave him a jerk, and for this or some other reason the animal suddenly com- menced backing towards the machine, and backed directly against it, causing the collision and consequent injury; that the machine was well equipped with brakes, etc., and was under perfect control at the time, and defendant made every effort to avoid hurting the mule, but was unable to do so by reason of the unexpected move- ment back towards defendant's machine. Held, that a verdict for defendant was properly rendered.'^''^ § 901. Horseback rider. When an autoist seeks to pass a per- son riding a horse and moving in the same direction, on a rough road, it is his duty to so manage and control his/ automobile, in view of the condition of the road, that he will not inflict injury; and failing to exercise reasonable care to this end he is negligent. If the rider of the horse affords him sufficient room to pass, it is not negligence for the horseman to refuse to leave the beaten path.^' 26 Daion V. Stewart, — Tex. Civ. App. 28 Traeger v. Wasson, 163 111. App. — , 180 S. W. 648 (1915). 572 (1911). 27 Baldwin v. Smithennan, 171 N. C. 772, 88 S. E. 8S4 (1916). 846 LAW OF AUTOMOBILES If the operator of an automobile, overtaking a man on horseback, observes that such person does not hear his horn, it is his duty to slow down, and even stop his car, if necessary to avoid a collision.*^ § 902. Driver struck while walking in highway driving team. There was evidence tending to show that appellee was driving a team of horses attached to a wagon along one of the pub- lic highways, and while so doing appellant approached him from the rear, driving an automobile at a speed of 25 miles an hour, and, fearing that his horses might become frightened at the ap- pfroadhing car, and when appellant was 100 yards to the rear, he signaled appellant to stop his car or slacken his speed and alighted from the wagon, and, while walking alongside of his wagon and horses to better control them, appellant failed to stop or slacken his speed,' and ran his automobile against him, and severely injured him. The rate of speed of the automobile -was in violation ofi a statute. It was held that the appellee was not negligent in walk- ing in the highway driving his team, and judgment in his favor was affirmed.'" 29Furtado v. Bird, 26 Cal. App. 152 30 Gardner v. Vance, 63 Ind. App. 27, 146 Pac. 58 (1914). 113 N. E. 1006 (1916). CHAPTER XXI INJURIES FROM DEFECTIVE HIGHWAYS §903. Duty of municipality as to its streets or highways. § 904. Same — For use by automobiles. § 90S. Duty to light streets. § 906. "Defective street" or street "out of repair." § 907. Highways beyond corporate lim- its. § 908. Defect outside prepared or trav- eled portion of highway. § 909. Notice on part of municipality of defect. § 910. Rights and duties of motorists in use of highways. § 911. Driving on road with knowledge that it is being reconstructed. § 912. Racing and testing automobiles in street. § 913. Joy riders. § 914. Intoxicated person. § 91S. Street made slippery by applica- tion of tar and oil. § 916. Barricade in street. § 917. Ditch left by street railway em- ployees. §918. Roadway a narrow fill for 30 feet. § 919. Excavation without warning lights. § 920. Driving between two rows of red lights at night. §921. Defective railroad crossing. § 922. Rope stretched across highway. § 923. Negligent operation of draw- bridge. 847 § 924. Trap door in drawbridge partly open. § 92S. Crossing drawbridge upon being signaled by tender. § 926. Defective bridges. §927. Defective bridge approach. § 928. Unlighted bridge entrance. § 929. Defective bridge railing. § 930. Defective culvert — Contractor re- moving planks. §931. Crossing bridges with great weight. §932. Crossing bridge at high speed. §933. Paving blocks left in street by city employee. §934. Snowdrift left by highway offi- cers in breaking snowbound road. §935. Gravel pit outside macadamized portion of roads. §936. Depression causing automobile to strike a pedestrian. § 937. Jolted from truck by depression in street. § 938. Excavation improperly refilled. §939. Slight depression. § 940. Losing control of truck and col- liding with pile of paving stones. §941. Colliding with and exploding can of gasoline used by workmen. § 942. Driving over stump. § 943. Manhole extending above surface of street. §944. Stone in highway. § 945. Stones in highway as nuisance. 848 LAW OF AUTOMOBILES § 946. Absence of barriers or guard raUs. §947. Absence of barriers and signs at curve where at night street ap- pears to continue straight on. § 948. Declivity outside of highway. , § 949. Culvert without railings-^Motpr- ist approaching in cloud of dust. § 9S0. Striking stone, going over un- guarded embankment. § 9S1. Breaking through guard rail. § 9S2. Defective gear causing machine to break through guard fence. § 9S3. Narrow grade approaching cul- vert — No guard rails. § 9S4. Automobile skidding over em- bankment on wet road. § 9SS. Missing bridge at night and driv- ing over embankment. § 956. Driving into river after bridge carried away by flood. § 957. Obstruction left in street by con- tractor. § 958. Building material in street. §959. Electric poles in street. § 960.' Telegraph pole lying in street. §961. Tree blown across park driveway. § 962. Bundle of papers lying in street. § 963. Unable to avoid collision owing to fence in street. § 964. Truck breaking through roadway into drain. § 965. Duty and liability of turnpike company. § 966. Same — Hole in road causing in- * jury to occupant of automo- bile. § 967. Proof of cause of accident when object not seen before collision. § 903. Duty of municipality as to its streets or highways, A municipality charged with the care of its streets is required merely to exercise reasonable care to keep its streets in a reason- ably safe condition for travel by persons exercising ordinary care for their safety and using .ordinary methods of travel ; ^ and to that 1 Connecticut: Aaronson v. New Haven, — Conn. — , 110 Atl. 872 (1920). Georgia: HoUiday v. Athens, 10 Ga; App. 709, 74 S. E. 67 (1912). Iowa: Kendall v. Des Mo|ines, 183 la. 866, 167 N. W. 684 (1918). Kentucky: Bickel Asphalt Pav. Co. V, Yeager, 176 Ky. 712, 197 S. W. 417. Massachusetts: Baker v. Fall River, 187 Mass. 53, 72 N. E. 336. New York: Corcoran v. New York, 188 N. Y. 131, 80 N. E. 663, 8 N. C. C. A. 937n. North Carolina: Hardy v. West Coast Const. Co., 174 N. C. 320, 93 S. E. 841 (1917). Pennsylvania: Dannals v. Sylvania Twp., 255 Pa. St'. 156, 99 Atl. 475 ; Ack- ' ley v. Bradford Township, 32 Pa. Super. . Ct. 487. '' Virginia: Richmond v. McCormack, 120 Va. 552, 91 S. E. 767. Washington: Wessels v. Stevens County, — Wash. — , 188 Pac. 490 (1920) ; Swain v. Spokane, 94 Wash. 616, 162 Pac. 991 (1917). West Virginia: Wilson v. Elkins, — W. Va. — , 103 S. E. 118. Federal: Baltimore v. State, 166 Fed. 641, 92 C. C. A. 335. Bridges: Morrison v. Scotts Bluff County, — Neb. — , 177 N, W. 158 (1920); Baraboo v. Excelsior Creamery Co., — Wis. — , 177 N. W. 36 (1920). "The extent of the duty of a munici- pality with reference to the safety of its streets is to keep its streets reasonably safe for general use. It is Hot required to have them in such condition as to insure the safety of reckless drivers. The user of vehicles is not entitled to the INjtFRIES FROM DEFECTIVE HIGHWAYS 849 end to use reasonable care to keep them free from such obstruc- tions and holes- or excavations as will be likely to render their use hazardous to one exercising due care.^ This duty extends to the whole street, no matter how wide it is, or what portion is gen- erally used by the public' But it is not liable for injuries caused by usual and ordinary slight defects.* The fact that there is an ordiiiance requiring a railway compatiy to keep a street in repair doies not relieve the city of that duty.* entire street from property line to prop- erty line J but, so long as the traveled way is adequate for the use of vehicles, the duty of the municipality to the driver of vehicles is satisfied." Gulfport " & M. C. Tr. Co. V. Manuel, — Miss. — , 8S So. 308 (1920). "It is settled law of this state that cities must keep their streets free from obstructions and nuisances which inter- fere with ordinary public travel, and this duty applies to automobiles as well as other vehicles." Kendall v. Des Moines, 183 la. 866, 167 N. W. 684 (1918). "The street upon which the accident (Occurred was open to public travel, and it was the defendant's duty to keep the same free from obstructions and from nuisances, which would interfere with ordmary public travel, and this includes travel by automobiles as well as other vehicles." Wolford v. Grinnell, 179 la. 689, 161 N. W. 686 (1917). A municipality must now allow de- tached vehicles or other obstructions to constantly be and remain in a street at a point which will render the street not reasonably safe for travel by the public. To do so is negligence on the part of the city. Louisville v. Vaughn, 180 Ky. 681, 203 S. W. S46. A municipal corporation is not an in- surer of travelers using its streets; its duty is to use reasonable care to keep its streets in good condition for travel. Hunt V. Mayor, 109 N. Y. 134, 141. "The question of the construction and condition of a country highway is a sub- ject which does not require expert testi- mony to enable a jury to decide as to whether it was re^gops-bly safe for the B. Autos. — 54 passage of vehicles." Loose v. Deerfield Twp., 187 Mich. 206, 153 N. W. 913 (191S). 2 Burke v. District of Columbia, 42 App. D. C. 438 (1914) ; Kelleher v. New- buryport, 227 Mass. 462, IS N. C. C. A. S30, 116 N. E. 806 (1917). A city may be negligent in permitting a line of trolley poles to be maintained along the center of the street. Stern V. International R. Co., 167 App. Div. S03, 9 N. C. C. A. 949, 153 N. Y. Supp. 520 (1915). 8 Lancaster v. Broaddus, 186 Ky. 226, 216 S. W. 373 (1919). 4Horan v. Hastorf, 223 N. Y. 490, 120 N. E. 58. 6 Louisville v. Bott, 151 Ky. 578, 152 S! W. 529. Every municipal corporation must ex- ercise reasonable diligence to keep its streets free from obstruction, and this duty it cannot evade or cast upon an- other. Cushman Motor Wks. v. Lincoln, 97 Neb. 519, 150 N. W. 821. "A municipal corporation is charged wi^h the duty of maintaining its streets in a reasonably safe condition for travel, and rests primarily, as respects the pub- lic, upon the corporation; and the ob- ligation to discharge this duty cannot be evaded, suspended, or cast upon others by any act of its own. Where a city charter provided that the City should not be liable for damages for ' injuries to person- or property arising from or occasioned by any defect in any public street, highway, or groundsi or any pub- lic work of the city unless the specific defect causing the damage of injury shall have been actually known to the mayor 850 LAW OF AUTOMOBILES It is held in many states that a traveler in a city street has a right to assume, in the absence of notice or knowledge to the con- trary, that all parts thereof intended for travel are reasonably safe.* He has the right to use the streets as well in the darkest night as in daylight, and he is not open to the imputation of negli- gence if he fails to discern an unknown and concealed danger at the very instant necessary to prevent an impending disaster.' How- ever, it is the duty of a driver to exercise ordinary care for his own safety and for the safety of the property intrusted to his care.' In case of a defective or dangerous place in any street it is the city's duty to exercise ordinary care and diligence to apprise the traveler of such condition or defect by placing barriers or signals about it, or by some other means point out the danger.® While it is not required to use any specific means, yet it is re- quired to use means that are reasonably necessary and efficient or city engineer by personal inspection ford v. Grinnell, 179 la. 689, 161 N. for a period of at least 24 hours prior to the, occurrence of the injury or damage, unless the attention of the mayor or city engineer shall have been called thereto by notice thereof, in writing at lea^t 24 hours prior to the occurrence of the in- jury or damage, and proper diligence has not been used to rectify the defect after actually known or called to the attention of the mayor or city engineer as afore- said, held: (a) Such provision so far departs from reasonableness as to amount to a denial of justice, and is therefore void, and may not be enforced by the courts of this state; and (b) that a city is chargeable with notice of a dangerous defect in its streets, although actual notice may not have been brought home to it; (c) if the evidence shows that such a state has continued for a sufficient length of time so that the city by exer- cising ordinary care might have learned of its condition, and not to know such fact would be negligence on the part of the city, and a charge to the jury to that effect was properly given." Tulsa v. Wells, — Okl. — , 191 Pac. 186. ^District of Columbia: Burke v. Dis- trict of Columbia, 42 App. D. C. 438 (1914). Iowa: Kendall v. Des Moines, 183 la. 866, 167 N. W. 684 (1918); Wol- W. 686 (1917). Louisiana: Jacobs v. Jacobs, 141 La. 272, 74 So. 992 (1917). New York: Brusso v. Buffalo, 90 N. Y. 679. Wisconsin: Raymond v. Sauk Coun- ty, 167 Wis. 12S, 166 N. W. 29 (1918). A traveler is justified in presuming the highway to be safe, and the fact that he had previous knowledge of a defect therein does not per se establish negli- gence on his part for not avoiding it. Weed V. Ballston Spa, 76 N. Y. 329, 333. One driving a team along a public road on a dark night, allowing the horses to follow the road, which he could not see, had a right to presume that there was no pitfall therein into which they would take him; in other words, that the public officers had done their duty. Smith V. Zimmer, 45 Mont. 282. "f Corcoran v. New York, 188 N. Y. 131, 140, 8 N. E. 663, 8 N. C. C. A. 937n; Chisholm v. State, 141 N. Y. 246. 8 Kendall v. Des Momes, 183 la. 866, 167 N. W. 684 (1918). 9 Sweet V. Salt Lake City, 43 Utah 306, 134 Pac. 1167, 8 N. C. C. A. 922 (1913). INJURIES FROM DEFECTIVE HIGHWAYS 851 to accomplish the result, and whether in a particular instance a city has discharged this duty is ordinarily a question for the jury]^" When the street is obstructed or torn up, it is the city's duty to place signal lights at the danger points at night to warn travelers thereof.^^ Where county officials knew that a pipe under a culvert was too small to carry the water of the stream, they were under duty to correct such defect or to warn users of the highway to be on their guard of a possibly dangerous condition.. They could not remain passive until the expected thing happened, and then claim immunity because they were without knowledge of the actual happening.^^ In North Carolinia it has been held that road supervisors are not liable for negligence in failing to keep roads and bridges in reason- ably safe repair, unless such negligence was corrupt or malicious.^* There is no common law liability of municipal corporations on account of highway accidents.^* § 904. Same— For use by automobiles. Automobiles are in common use and constitute an ordinary mode of travel, and the driver thereof has a right to assume, unless he has knowle'dge to the contrary, that a city street is in a reasonably safe condition.^^ But a municipality is not required to take different or greater precautions for the users of automobiles than it does for those who use other kinds of vehicles.^® 1* Sweet V. Salt Lake City, 43 Utah remain in a .defective condition, unless 306, 134 Pac. 1167, 8 N. C. C. A. 922 the right of action is expressly given by (1913). Statute. Pundman v. St. Charles Co., 11 Kendall v. Des Moines, 183 la. 866, 110 Mo. S94, S96; Swineford v. Frank- 167 N. W. 684 (1918). lin Co.,- 73 Mo. 279; Jennings v. Peoria 12 Dillabiough v. Okanogan County, County, 196 111. App. 195 (19 IS). lOS Wash. 609, 178 Pac. 802 (1919). "In the absence of a statute imposing l*RufBn V.' Garrett, 174 N. C. 134, liability, an action will not lie in be- 93 S. E. 449 (1917). half of an individual who has sustained 14 Raymond v. Sauk County, 167 Wis. a private injury by reason of the neglect 12S, 166 N. W. 29 (1918). of a public corporation to perform a In the absence of a statutory provi- public duty." Buckalew v. Middlesex sion declaring otherwise, municipal cor- County, 91 N. J. L. S17, 104 Atl. 308 porations (which includes counties) in (1918). California are not liable for the neglect 18 Burke v. District of Columbia, 42 of their of&cers or agents, in the, main- App. D. C. 438 (1914); Wolfrod v. tenance or care of bridges or streets. Grinnell, 179 la. 689, 161 N. W. 686 South V. San Benito' County, — Cal. ,(1917). App. — , 180 Pac. 3S4 (1919). 16 Sweet v. Salt Lake City, 43 Utah States, counties or townships are not 306, 134 Pac. 1167, 8 N. C. C. A. 922 responsible for the neglect of their high- (1913). way of&cers in allowing a highway to Must keep streets reasonably safe for 852 LAW OF AUTOMOBILES "Cities and towns are required to keep their, ways reasonably safe and convenient for travel generally, including that undertaken in automobiles as well as in hprse-drawn vehicles, and if the ways are safe for travel generally,, they are not obliged to, make special provisions to keep them safe for the passage of automobiles and other machines which were unthought of when the laws imposing the general duty of the care of highways and liabilities for the defects therein were enacted." ^^ "The duty of a township as to a road must be measured by the ordinary and usual demands of the traveling public in the locality, and supervisors are bound to foresee and provide for the ordinary method of travel and make reasonable provision for the safety of the public; and this applies to automobiles as well as to ordinary vehicles." " , If a municipality negligently permits a street to become defec- tive and the driver or occupant of an automobile, without negli- gence on his part, is injured thereby, the municipality is liable therefor in damages.^® It is not negligence per se for a motorist to pass over a defective street if there is no convenient way of going around it.^" Automobiles are generally held to be within the protection of statutes requiring municipalities to keep their highways in rea- sonably safe condition for travel, although such statutes were en- acted prior to the time when automobiles came into use.^^ If a municipality assumes control over a bridge constructed by the state, although it has not formally accepted it, it may be lia- ble to a motorist for injuries resulting from a defective condition of the bridge.''2 Some courts have held that a cyclist must take the road as he finds it, provided it is safe for an ordinaty horS^-drawn vehicle.^^ These decisions are probably based upon the fact the animal- drawn vehicles fornied the original mode of transportation by vehi- general travel, including that by auto- 248 Pa. St. 14S, 93 Atl. 959 (191S); mobiles. Kelleher v. Newburyport, 227 Sweet v. Salt Lake City, 43 Utah, 306, Mass. 462, IS N. C. C. A. S30, 116 134 Pac. 1167, 8 N. C. C. A. 922 (1913), N. E. 806 (1917). 20 Walters v. Seattle, 97 Wash. 6S7, "Bond V. Baierica, — Mass. — , 126 167 Pac. 124 (1917). N. t. 281. (1920). 21 Cone v. Detroit, 191 Mich. 198, 157 ISMillikin v. Richhill Twp., 67 Pa. N. W. 417 (1916). Super. Ct. 326 (1917). 22 Lawrence v. Channahon, 157 111. lOSisson V. Philadelphia, 248 Pa. St. App. 560 (1910). 140, 93 Atl. 936,(1915); McNulty v. 23 Rust v. Essex, 182 Mass. 313, 65 Philadelphia, 248 Pa. St. 143, 93 Atl. N. E. 397 ; Sutphen v. North Hemp- 953 (1915) ; McDonald v. Philadelphia, stead, 89 Hun 409. INJURIES FROM DEFECTIVE HIGHWAYS 853 cles on the highways, and the mode then in most gommon use. The court is no more justified in adopting a standard of safety as applied to use by horse-drawn, vehicles any more than it is to adopt a standard as applied to use by automobiles or bicycles. A standard cannot legally be adopted that does not recognize a use by all common vehicles. In a Missouri case it is held that a municipality is not required to keep its streets in any better or smoother condition for bicycle Travel than for use by other vehicles; that, while it^ is bound to exercise, ordinary care to keep its streets reasonably safe for travel in any general and usual mode, including that of bicycles, it need not make special provisions required only for the safety and con- venience of persons using bicycles. The court declared the bicycle to be a "well recognized and usual mode of travel;" and that "the object to be secured in requiring the city to care for its streets is the reasonable safety of travelers, considering the amount and kind of travel which may fairly be expected on the particular street." Continuing, the. court in part said: "While defects which would be harmless to other modes of travel are often exceedingly dan- gerous to a bicycle, yet, on the other hand, the bicycle occupies a much less space than other vehicles and can be turned in any direc- tion much more easily. So that the apparent necessity for an in- crease of care caused by the increased danger to bicycles from de- fects otherwise harmless is fully balanced by the known ability of the bicycle to avoid them. The city ought not to be required to provide a roadway which would be safe for a vehicle the construc- tion of which renders it peculiarly susceptible to injury when a comparison of it with other vehicles shows that, owing to its com- pactness and mobility, it can much more easily avoid a dangerous place than other vehicles." ^* "The law does not require that a road shall be absolutely safe for bicycling purposes, any more than it shall be absolutely safe for other methods of travel. The defect which renders municipalities liable must be such as would make the street or highway unsafe for the use of vehicles in general. In constructing and keeping in repair a street, the public officials are bound to take in consideration the probability that it will be used by all vehicles that are in com- mon use and they must make it reasonably safe and convenient for all such uses, and in so doing are not required to take into consid- eration injuries to machines, vehicles or persons which may occur from causes which cannot be reasonably foreseen or prevented." "^ 24 Bethel v. St. Joseph, 184 Mo. App. ZBMoIway v. Chicago, 239 III. 486, 388, 171 S. W. 42. 88 N. E. 484. 854 LAW OF AUTOMOBILES § 905. Duty to light streets. In the absence of a statute com- pelling it, cities are not required to light their streets.^® However, in a case in which it appeared that the defendant city owned an electric light plant, it was held to be negligent for it to fail to turn on a light at the crossing of two much-used streets; the absence of light constituting a defective street. In this respect the court said: "It would be a fruitless task to recite the many divergent conclusions which the courts of the many states have reached about a city's liability for torts of the character which the instant case illustrates. When many of the decisions were made there were no electric lamps capable of instant ignition over the total area of a city by the sudden movement of a lever ; there were no bicycles; and there were no ponderous, perilous, and swift-mov- ing cars driven by licensed and unlicensed persons, and propelled by their own engines along the country's highways, by day and by night. These circumstances might call for the lighting of niuch- traveled highways in thickly settled communities. Duties spring out of obligation and circumstance. The first is unchanging^ law, and the second is ever-changing facts. The failure to so light might under thje circumstances render the way 'defective.' "A subterraneous roadway might be constructed and maintained in faultless fashion ; but unless it was lighted, it would be defective, it would be 'lacking in some particular which is essential to the conipleteness of a way. A roadway above ground,' if subject to the same perils as one under ground, would be in like need of light; and, if the need was not supplied, the roadway would be defective. And beyond all peradventure, when the lighting plant belonged to the city, and the city saw the need of a lamp at the locus in ques- tion, and put the lamp there, and lighted it on occasioii, then a neg- ligent failure to light it on the instant occasion would be a 'mis-_ management' of the lamp." ^'' § 906. ' ' Defective street ' ' or street ' ' out of repair. ' ' In ref- erence to the condition of a public highway, the phrase "out of repair" means not reasonably safe for travel by the ordinary modes, by day or night.*' A statute creating liability in cities for injuries incurred "through a defect in street," includes the keeping of streets in such physical 26 Sweet V. Salt Lake City, 43 Utah 28 Holsberry v. Elkins,' — W. Va. — , 306, 134 Pac. 1167, 8 N. C. C. A. 922 103 S. E. 271. (1913). 27 Sexton V. Rock Hill, 107 S. C. SOS, 93 S. E. 18d (1917). INJURIES FROM DEFECTIVE HIGHWAYS 855 condition that they will be reasonably safe for street purposes.^' In determining whether a given condition renders a highway defective many circumstances are to be taken into consideration, such as the topography of the locality, the development of the community, the standard of road construction attained therein, the amount and character traffic, etc.*" A "defect" may consist of the limb of a tree growing too low over a street.*^ Whether or not a street is reasonably safe is generally a ques- tion for the jury.'* S 907. Highways beyond corporate limits. Ordinarily a city is not liable for injuries caused by defects in highways outside its corporate boundaries, and such liability is not imposed by a stat- ute authorizing cities to appropriate or contribute money for the improvement and maintenance of highways beyond its boundaries and leading into it.'' , § 908. Defect outside prepared or traveled portion of high- way. The act of traveling for one's own convenience outside of the way prepared for the public, has been held to constitute negligence as matter of law; and although there be a defect or obstruction within the limits of the highway, if it is not in the traveled part of the road or so connected with it as to affect the safety' and, con- venience of those using the traveled bed, the municipality is not responsible for an injury sustained by one in consequence of it. Whether or not a defect or obstruction is so connected with the highway as to affect the safety or convenience of those using that part prepared for public travel, when doubt exists, is a question for the jury.'* § 909. Notice on part of municipality of defect. In order to render a municipal corporation liable for injuries due to a defec- tive highway it is essential that it have notice or knowledge of the defective condition. This knowledge may be actual or construc- tive. Actual notice means information given to or acquired by one in the employ of the corporation with authority over the highway', or whose duty it is to discover such defects and remedy them or 29 Burnett V. Greenville, 106 S. C. 2SS, 32 Walters v. Seattle, 97 Wash. 657, 91 S. E. 203 (1917). 167 Pac. 124 (1917). '"Branegan v. Verona, — Wis. , — , 'Speterson v. Jordan, 13S Minn. 384, 174 N. W. 468 (1919). 160 N. W. 1026 (1917). 81 Valvoline Oil Co. v. Winthrop, — 34 McChesney v. Dane County, — Wis. Mass. — , 126 N. E. 89S (1920). — , 177 N. W. 12 (1920). 856 LAW OF AUTOMOBILES cause them to be remedied. Constructive notice means the exist- ence of such facts or circumstances connected with the continued existence of the defective condition that the corporation or those having authority over the highway must have known in the exer- cise of reasonable inspection that it was in that condition.** The questions of what constitutes notice to a municipality of a dangerous condition of one of its highways, and when it is presumed to have such notice, are rather foreign to the scope of this work and will not be treated herein'.'® § 910. Rights and duties of motorists in use Of highways. A motorist miust exercise ordinary care in the use of the public highways for his own safety. "Ordinary care," as here used, is such as prudent men in such occupation ordinarily use, taking into consideration the time, place, condition of the highway, weather, the character of the instrumentality employed, the presence of other travelers or vehicles upon the streets, the extent to which the same is lighted, and many other facts and circumstances often present and necessary to be considered .*'' The common law requires that one motoring in a public high- way exercise reasonable care for the safety of himself, his car, and other occupants of the car.'* It has been held that, "When a person is injured in broad day- light by a defect in the highway which is easily observable, a presumption of contributory negligence arises, and the burden is upon the plaintiff to show conditions outside himself that pre- vented him from seeing the defect, or which would excuse his failure to observe it." '* But a motorist' is not negligent as matter of law because he drives on a highway known to him to be defective.*" A traveler is not held to as strict an accountability if he is in- jured by an obstruction in the traveled part of a highway as he would be were he injured by an obstruction outside of the trav- eled part, where he may anticipate meeting with obstructions.*^ Ordinsiirily the fact that the negligence of the driver of an auto- mobile concurs with that of a city in causing injury to an occupant SSHuyler v. New York, 160 App. 89 Bean v. Philadelphia, 260 Pa. St. t)iv. 415, 145 N. Y. Supp. 650 (1914). 278, 103 Atl. 727. 86 This subject is fully treated in Me- 40 Raymond v. Sauk County, 167 Wis. Quillin, Mun. Corp., §2807 et seq. 125, 166 N. W. 29 (1918). 37 Kendall v. Des Moines, 183 la. 866, 41 Blankenship v. King County, 68 167 N. W. 684 (1918). Wash. 84, 122 Pac. 616. 38 Quarles v. Gem Plumbing Co., 18 Ga. App. 592, 90 S. E. 92 (1916). INJURIES FROM DEFECTIVE HIGHWAYS 857 of the automobile, who was free from negligence, does not affect the liability of the city.*^ On the other hand, it has been held that where the negligence of the driver of a private automobile is a con- curring cause with a defect in the highway in producing an injury to the occupant, the latter cannot recover.*' §911. Driving on road with knowledge that it is being reconstructed. A motorist who drove on a highway when he knew that it was in process of reconstruction and unfit for travel, and when necessity did not require that he use it, was held to Be negligent, It was also held that, knowing of the condition of the road, he could not complain that there were no barriers or lights to warn travelers of its condition.** § 912. Racing and. testing automobiles in street. A city was held liable for injuries resulting from the racing and testing of automobiles in its streets at an excessively high rate of speed, which the city permitted to be done. This on the theory that the streets were then not reasonably safe for ordinary traffic and use. In part the court said: "It is suggested by the city that the dedi- cation of the fmblic ways to automobile racing lay wholly out- side of the powers of the corporation, for which act the corporation is not liable. That is anotfier way of saying the corporation is liable if the authorities act within the law, and is not liable if the authorities act without the law. The prime duty of any city is to keep its streets' clear for the public travel. The incumbrance of the streets with automobiles running at a dangerous rate of speed, just for practice, is a violation of that prime duty. To answer that the mayor and council had no authority to authorize sudh a use of the streets, is to admit the wrong. "It is true there are decisions from other jurisdictions which sustain this view of the respondent, but they do not commend themselves to our judgment, and they do not express the general rule of law. We are of the opinion that the street thus dedi- cated by the authorities to a hazardous use was not then reasonably safe for prime street purposes." *® § 913. Joy riders. "When two or more persons voluntarily drive or ride an automobile upon a public highway at a dangerously high *2 Gary v. Geisel, 58 Ind. App. 618, 4* Buckingham v. Commary-P. Co., — 108 N. E. 876 (191S). Cal. App. — , 178 Pac. 318 (1918). 4SLauson v. Fond du Lac, 141 Wis. 46 Burnett v. Greenville, 106 S. C. 2SS, ST, 123 N. W. 629, 25 L. R. A. (N. S.) 91 S. E. 203 (1917). 40, 13S Am. St. Rep. 30 (1909). 858 LAW OF AUTOMOBILES rate of speed merely for the purpose of enjoying the exhilarating and pleasurable sensations incident to the swirl and dash of rapid transit, they may properly be said to be engaged in joy riding'. Such joy riders not only assume the risks of danger attendant upon the sudden and violent movements of the car, but also such as arise from the inability of the 4river,"when traveling at a high rate of speed, to make short quick stops to avoid collisions, or defects in the street, or direct the car at bends or curves in the road so as to keep in the traveled highway." *® § 914. Intoxicated person. The mere fact that one goes on the highway in an intoxicated condition, and is injured by falling over an embankment, is not conclusive that the negligence of the municipality was not the proximate cause of his death, or that his own contributory negligence was the proximate cause of the accident.*'' In an action where a traveler seeks to recover for injuries in- curred on a defective highway, the fact that he was intoxicated, and the degree of such intoxication, at the time of the injury, is a relevant fact, bearing on the question of contributory negligence. "While the status of the parties is not affected by the drunken- ness of one of them in a case of this character, unless by reason of such intoxication the one injured failed to exercise such care for his own safety as might be ordinarily expected of a sober per- son of ordinary prudence under similar circumstances, and but for such failure on his part the injury would not have happened, yet the jury may consider the fact of intoxication as a circumstance along with other evidence." ** § 915. Street made slippery by application of tar and oil. A motorist was held to be contributorily negligent in driving in daylight onto a portion of a highway made slippery and dangerous ' by an application of tar and oil by the county authorities. Hence, he could not recover for resulting injuries.*® There was evidence as follows: The plaintiff, a milkman, was watering his horse at, a fountain in the street between 8 and 9 o'clock of a misty morning, when an automobile carefully driven came upon the street and, by reason of the extremely slippery con- dition of its surface due to oiling on the preceding afternoon by 46 Winston's Admr. v. Henderson, 179 *8 Winston's Admr. v. Henderson, 179 Ky. 220, 200 S. W. 330 (1918). Ky. 220, 200 S. W. 330 (1918). ^Dannals v. Sylvania Twp., 255 Pa. *9 Raymond v. Sauk County, 167 Wis. St. 156, 99 Atl. 475. 125, 166 N. W. 29 (1918). INJURIES FROM DEFECTIVE HIGHWAYS 859 those in charge of the defendant's streets, began to skid, could not be controlled, and collided with the plaintiff's milk wagon, whereby the plaintiff was injured and subsequently died. In sustaining judgment for plaintiff the court said: "The lia- bility of the defendant is founded on its failure to keep its streets reasonably safe for travel and to remedy a condition likely to be dangerous. That might be found to exist quite independent of its liability for negligence of its superintendent of streets. If the rain of the night intervening between the oiling and the accident was the factor which created the danger, then it might have been found that the rain should have been anticipated or its effects guarded, against by warning, sanding, or otherwise." *" The plaintiffs were riding in an automobile on a public highway, and on reaching the top of a hill they came upon a stretch of road which was completely covered with oil or tarvia. The driver of the car testified that he could not see the tarvia "until he was right upon it;" that it was very thick and slippery; and that although he did what he could to stop the automobile, it skidded, struck a stump at the side of the road, and overturned, causing the injuries for which these actions were brought. The defendant company had placed the tarvia on the road under a contract with the State Highway Commission, to whom it had sold 50,000 gallons of tarvia, agreeing to apply it at intervals on a certain highway whenever so directed by the engineer of the com- mission. The road was left open for, travel, with only a sign, 14 inches square and about 2 feet from the ground, placed in the grass 2 feet outside the road. In upholding judgment for plaintiffs, the. court in part said: "The thick and slippery layer of tarvia covered the entire width of the road, and came to an end at the top of a hill where it could not be seen from approaching vehicles. The road was left open for travel, with a stretch of half a mile unsanded and unguarded. It could be found that the duty of warning the traveling public of this dangerous condition rested upon and was assumed by the de- fendant. The warning signs belonged to the defendant corpora- tion; and its employees on the truck attended to the placing of them, according to testimony of the chairman of the commission, and of the man in charge of the sanding. The only sign at the York end of the work ^ was one fourteen inches square, and about 80 Kelleher v. Newburyport, 227 Mass. 462, IS N. C, C. A. SiO, 116 N. E. 806 (1917). 860 LAW OF AUTOMOBILES two feet from the ground; and it was placed in the grass two feet outside the road at a point three thousand feet from the place of the accident. It was not seen by the plaintiffs, and the jury- could find that it was unsuitable, or improperly located, for the purpose of warning travelers." ^^ § 916. Barricade in street. A municipal corporation main- taining a barricade in a public highway at night, is under obliga- tion to display such lights that one approaching can see^ that a dangerous condition exists.®^ § 917. Ditch left by street railway employees. The plain- tiff, on the morning in question, proceeded in his automobile from his residence to the business section of the city in which he lived, traversing a street in which defendant operated a single track car line. While crossing some railroad tracks which intersected the street, he noticed defendant's employees nearby digging along the rails of defendant's track, and on the roadbed of the railroad. He returned this way several hours later, which was about noon, driv- ing his machine, at a moderate rate of speed, and near the middle of the street, and drove it into a ditch that extended along the rails of the street car track and across the railroad right of way. There was testimony tending to show that at this point there was usually considerable traffic, and that many pedestrians, factory employees, etc., were likely at the noon hour to be crossing the street; that, although the gates of the railroad were up, plaintiff, nevertheless, kept watch for the approach of a train from either direction; that he was on the lookout for vehicles and pedestrians that might suddenly emerge from the side streets intersecting at that place, and he was mindful that people on either sidewalk might at any moment move into the street to cross ahead of him; that at this time there were no men doing anything at this place, and there was no pile of dirt or other debris to indicate the repair job was yet unfinished; iJiat there was no warning of any, kind of the presence of the ditch; that because of the surrounding conditions enumerated plaintiff thought it advisable to drive near the center of the street. In holding that the plaintiff was not guilty of contributory neg- ligence as matter of law, and in affirming judgment in his favor, the court in part said: "It is equally clear to us the mere fact the plaintiff had seen men digging at that spot a few hours before SI Zeeger v. Barrett Mfg. Co., 226 68 Brengman v.' King County, 107 Mass. 146, 113 N. E. 291 (1917). Wash, 306, 181 Pac. 861 (1919). INJURIES FROM DEFECTIVE HIGHWAYS 861 would not justify a conclusion by the trial judge that a reasonable man would assume there still remained a dangerous and unguarded pitfall in the public street. There is actual testimony that the ditch, located as it was and more or less obscured by the rails of the two tracks, was not easily visible from any distance that would have enabled the plaintiff to avoid it. As stated, there were at that point a number of different matters which properly invited his attention, and therefore it was the function of a jury to deter- mine whether or not the accident to his car was the result of any failure on his part to act with reasonable caution under all of the circumstances." *' § 918. Roadway a narrow fill for 30 feet. A highway in which the defendant town had made a fill of about 4 feet at the deepest place across a depression of 30 feet in width, and provided a hard smooth surface 1 1 feet 4 inches wide at its narrowest point, waS properly found not to be defective. "Such highway the jury might well find sufficient in view of the character of the country through which the highway ran. True, it was one of the main traveled highways of^ the town, and had con- siderable travel upon it. The fact that two cars could not pass at all upon part of the fill and could not pass safely upon any part of it did not make it defective as a matter of law. It is common knowledge that there are, and under present conditions must be, many places especially upon fills where cars cannot pass each other. This fill was only 30 feet long upon a straight part of the highway where cars coming in either direction could be seen for a considerable distance, so it was easy for one car to wait until the other passed the fill if they met at that place." ^* §919. Excavation without warning lights. When others are doing work in its streets, a city is bound to exercise reasonable care to see that proper lights at night are placed at excavations and obstructions. The evidence of the plaintiff tended to prove that the defendant company was improving the streets of the city of Kinston, under a contract with the city. It had been working on the day in ques- tion at the intersection of Washington and McLew6an streets in order that a gas pipe might be laid. During the night it rained very hard. About 7 o'clock p. m., a pipe burst at the point named, and the water flooded the street. Both defendants or their repre- ss Dodson V. Wilkes-Barre R. Co., 57 54 Miner v. RoUing, 167 Wis. 213, 167 Pa. Super. Ct. 327 (1914). N. W. 242 (1918). 862 • LAW OF AUTOMOBILES sentatives received this notice, and the city sent one W. there who drove a stick in the pipe. One R., the representative of the con- struction company, went there about 7 o'clock. Seeing W. there he did nothing more. It further appeared that during this work and as a usual custom, a red light was placed as a warning of dan- ger where any point in the street was left in an unsafe condition, and that a white light . was merely an indication that there was some object at that point, and that the vehicles should go around it, all of which was well known and understood by the citizens and the defendants. Witnesses for the plaintiff testified that there was no red light at the excavation, but there was a white light on a pile of sand some distance from the point where the injury took place. Although the two men were sent to the place where the injury occurred at 7 o'clock that night, it appeared that even in the condition of the street at tha!t time no red light or other danger signal or warning to persons not to pass was placed at the point. The rain accumulated to such an extent later in the night that water completely covered the street at this point, so that there was no difference in appearance of the ditch and the other part of the street, and no one traveling the street could tell that there was a ditch or excavation.' Plaintiff, a physician, was returning home in his automobile. He testified that he knew the work was goin^ on, and that he looked cautipusly down East street, and, seeing no red light, drove ahead at anywhere from 10 to 15 miles per hour. He observed the white light on the sand pile and drove around it according to regulations. His automobile plunged into the deep excavation completely hid- den by water and seriously injuried plaintiff and damaged the machine. Judgment against both the construction company and the city was sustained.''* §920. Driving between two rows of red lights at night. Whether or not a row of red lights on either side of a street car track, with a space of eight feet between the two rows, was a sufficient warning to travelers that the street was torn up between the rows of red lights, was held to be for the jury, the court saying that it was conceivable that the lights might be so placed to guard outside excavations alone, with a safe passageway between- them.*^ § 921. Defective railroad crossing. If one, with knowledge of the dangerous character of a public crossing, voluntarily drives B5 Hardy v. West Coast Const. Co., B6 Kearns v. Mobile L. & R. Co., 196 174 N. C. 320, 93 N. E. 841 (1917). Ala. 99, 71 So. 993 <1916). INJURIES FROM DEFECTIVE HIGHWAYS 863 upon it without the exercise of ordinary care, he cannot recover for injuries resulting therefrom. However, an attempt to use a rail- road crossing known to be in a dangerous or defective condition is not negligence as matter of law, unless the condition of the cross- ing is such that a person of ordinary prudence would not attempt to cross. Especially is this true where there is only one available crossing. Ordinarily it is for the jury to say whether or not a traveler was negligent in a given instance in attempting to use a defective or dangerous crossing.^'' In an action in which an automobilist was seeking to recover for damage to his machine, caused by the wheels dropping down be- tween the cross-ties when he was driving over a railroad crossing, due to the defective condition thereof, and in which it appeared that the plaintiff knew of the dangerous condition of the crossing, it was held that the defendant should have been permitted to show that there was a safe crossing one mile distant from this one that plaintiff could have conveniently used on this journey.** The plaintiff sustained an injury while driving her Ford auto- mobile across the defendant's tracks, where the public highway crossed them at an angle of 23 degrees. She was an experienced driver, and went onto the crossing at about 12 miles an hour, fol- lowing the traveled roadway. She testified that the end of one of the planks was splintered, rotten, and worn, and lacked some 6 or 8 inches of extending the full width of the traveled part of the road. Her left front wheel struck the rail just beyond the end of this plank, and was deflected in such a manner that the car was turned from the road, and, losing control of it, it ran into a ditch, and the plaintiff was injured. In affirming judgment for plaintiff the court said: "The acute- ness of the angle, about 23 degrees, at which the highway crossed the railroad, is an important factor in the consideration of the ques- tions presented by the appeal, as it bears upon the sufficiency of the crossing, the reasonableness of plaintiff's claim as to how the injury occurred, and the question of contributory negligence. As to the former it is claimed, that, since the planks were 32 feet in length, and the traveled track was not to exceed 10 feet in width, there must have been a considerable length of plank at each end extending beyond the traveled track, or, if the plank was defec- tive at one end, there was ample space to cross nearer the other 87 L. R. A. 191SC 814n. 1354, 159 N. W. 679 (1916). The company is bound to maintain 68 Ft. Smith & W. R. Co. v. Seran, reasonably safe crossings. Monson v. 44 Okl. 169, 143 Pac. 1141, L. R. A. Chicago, R. I. & P. R. Co., 181 la. 1915C 813 (1914). 864 LAW OF AUTOMOBILES end. If a plank is laid across a traveled track 10 feet wide at an angle of 23 .degrees, it yrill take nearly 26 feet to extend across it. Assuming the traveled track to be exactly in the center, the 32-foot plank would at each end extend 3 feet beyond it. But, owing to the acute angle, only a relatively slight variation in the direction of the traveled track would throw it beyond the ends of the planks. Defendant also argues that it is highly improbable that plaintiff's car was -deflected by the rail as she claims. This would be so if the crossing were at right, angles or nearly so, ^s most crossings are. But she was attempting to cross at an angle of 23 degrees. A rail only 4 or 5 inches high might well deflect a light Ford machine going. at the slow speed of only about 12 miles per hour under such conditions." ^' The defendant's railroad crossed a public highway, and it con- structed a crossing there which was at an elevation of 10 feet above the grade of the highway. A statute required that the company construct the crossing 20 feet in width on both sides of the track. There was evidence that the Width of this one was only 17 feet up near the track, and a short distance from the track converged to a width of about 12 feet, and that the greater portion of the embankment was of the latter width. The statute also provided that the grade of such crossing should be of such slope as should be necessary for the safety and convenience of the traveling pub- lic; and that the company should restore every highway which it crossed to its former state or to such condition as that its usefulness should not be materially impaired, and to so maintain the same. The crossing in question was steep ancj difficult. Plaintiff, accompanied by his wife, was driving in an automo- bile, and approached this crossing from the west. He had never been over it before, arid did not know anything about the approach on the east side of the track. It was apparent to plaintiff that the grade was steep and somewhat narrow, and that some work of con- struction or repair had recently been done upon it. Plaintiff's automobile was a five-passenger car of standard width. On reach- ing the foot of the approach on the west side of the railroad, he was about 75 or 80 feet distant from the track; but, owing to the height of the embankment and the steepness of the descent, he could not see over the railroad track and downbr along the ap- proach on the east side. Just as plaintiff's automobile passed upon the railroad track, he for the first time had, a view of the east 69 Smith V. Illinoi? Cent. R. Co., 162 Wis. 120, ISS N. W. Q33 (1916). INJURIES FROM DEFECTIVE HIGHWAYS 865 approach, and observed that this was narrow and very steep, and that another automobile containing four persons had stopped at the foot of the approach, and that the driver of that car was en- gaged in cranking the automobile. The man thus engaged sh»uted, and plaintiff applied the brakes and stopped his car, the rear wheels of which were then on the track. Plaintiff testified that about this time he observed a speeder or track velocipede about 40 rods away approaching the crossing upon the railroad track from the north or left side, and that he therefore concluded to get the automobile off the track. Plaintiff further testified that the east approach was so steep that he did not dare to go oyer on the east side, for fear his automobile would slide down and collide with the automobile at the foot of the approach; that he therefore stated to the driver in the other automobile that he would back over to the west side of the railroad track, and see if he could not arrange to let him pass. Plaintiff thereupon backed his automobile as slowly as possible, carefully observing the hind wheels, so as to be certain not to get too close to the edge of the embankment. When the automobile had reached a point where the front wheels were about 8 or 10 feet west of the railroad track, and the outer hind wheel 18 inches or 2 feet from the edge of the embankment, the earth of which the grade was constructed suddenly gave way, and slid down the side, carrying the automo- bile with it. This occurred so suddenly that plaintiff did not have time to escape from thfe car, and when it reached the bottpm of the embankment it toppled over, and plaintiff was caught beneath the side of the car and the earth beneath. In affirming judgment for plaintiff, the court held that the ques- tion of his contributory negligence was for the jury, and that the negligence of the defendant was the proximate cause of the injury, rather than the failure of the township officials to construct ^nd maintain a roadway at the foot of the easterly approach of such width as to furnish room for, two vehicles to. pass.®" § 922. Rope stretched, across highway. . Where an automo- bile operator drives his machine at a negligent rate of speed in a city street, and, without exercising ordinary diligence for his own safety, collides with a rope stretched across the street by the city for the purpose of closing the street to travel, a verdict in favor of the city will be sustained." BOFelton V. Midland C. R. R., 32 The question of contributory; negli- N. D. 223, ISS N. W. 23 (191S). gence may or may not be for the jury. filHolliday v. Athens, 10 Ga. App. Nashville, C. & St. L. Ry. v. Blackwell, 709, 74 S. E. 67 (1912). — Ala. — , 79 So. 129 (1918). B. Autos. — 55 866 LAW OF AUTOMOBILES In an action to recover for injuries incurred by the plaintiff when an automobile in which she was riding' ran against a rope, stretched across a public highway by county road officers, there was evidence that the automobile was moving 12 miles an hour, which was less than was permitted by statute; that the operator was looking straight ahead and did not see the rope until he struck it; that the place where the rope was stretched was somewhat dark; and that there was no sign, other than the ropq itself, to indicate the presence of the rope. It was held that, whether it was negligence to stretch a rope across a highway in this manner was a question for the jury; and judgment in plaintiff's favor was affirmed.®^ The village of Edgarton had a celebration on August 27, 191S. At the intersection of Main street, running north and south, and Maple street, running east and west, a temporary band stand was erected. It was some 4 or S feet high, and about 24 feet wide, east and west, and extended to within 10 or IS feet of the north cross-walk of Maple street. The streets are about 100 feet wide, including sidewalks. This left a passage in the vehicle traveled part of Main street of, at least, 25 feet on each side of the band stand. But to prevent travel there, while any feature of the cele- bration was taking place upon or about the stand, ropes were stretched across the streets. One of these ropes passed from^ a telephone pole at the east sidwalk of Main street to a telephone pole at the west sidewalk at about the place of the north cross-walk of Maple street. The rope was stretched at about the height of S feet. To it was tied a flag on either side of the band stand, and also some streamers. About 2:30 in the? afternoon the plaintiff, Mr. Ihlen, a man 72 years old, with his wife, 10 years younger, came to Edgerton in their automobile, Mr. Ihlen driving. They drove south on Main street towards Maple street. They failed to see the rope in time, and drove against it. The windshield and top of the automobile were damaged, and some injuries inflicted on 62 Latimer v. Anderson County, 9S S. the roadway of the street for something C. 187, 78 S. E. 879, 8 N. C. C. A. 924n like three days, and thus interfere with (1913). X the public user thereof. But, assuming Held, a question for the jury whether that such right existed, so far as the decedent was negligent in driving against decedent was concerned, the company a rope stretched across- a street by de- was bound to exercise it in such a way fendant, the rope having been lowered as not to jeopardize people traveling on by defendant's employees on previous the street; and this duty they owed to occasidns for him to pass, when he drew the decedent." Rohan v. American Sugar near. "Prima facie the defendant had Refining Co., — N. J. L. — , 109 Atl. no legal right to occupy the whole of 346 (1920). INJURIES FROM DEFECTIVE HIGHWAYS 867 both occupants. Each sued the village, alleging an unlawful and negligent obstruction of the street as the cause of the damage sus- tained. Held, that the case was for the jury, and verdicts for plaintiffs, were sustained.®* The, defendant contractor, in connection with the construction of a church building, stretched a rope from the top of a gin pole, used in raising heavy material, to a telegraph pole on the opposite, or north side of the street. The plaintiff drove his automobile along the north side of the street, against the rope without seeing it, and his car was demolished; the rope being so~low on the north side that it caught the top of the passing automobile. Suit was brought against the contractor and against the city. The plain- tiff's evidence showed that the street was down grade where the accident occurred, and that he was traveling at the rate of 10 or 12 miles an hour; that he had previous knowledge that the church was being erected at this place and that the street was being more or less obstructed by lumber and other material; that the rope was an inch and a quarter to an inch and a half in diameter; that he did not see the rope before it caught his machine, although it was a clear, bright day, and there was nothing to prevent his doing so. He said he did not know where he was looking at the time of the accident, and gave it as his opinion that if he had been looking down the srteet in front of him that he would probably have seen the rope in time to have stopped the machine, which he said he could have done in the distance of the car length. He said that he knew of a city ordinance limiting the rate of speed of automobiles to 8 miles an hour. There was other evidence that plaintiff was traveling 20 to 25 miles an hour; that at and just before the time of the accident he was looking at the church and work being car- ried on there; and that if he had turned a little nearer the middle of the street he would have passed under the rope without accident. There was a verdict in favor of the defendants, which the court held was justified by the evidence. The court said that, "It is true that plaintiff is not required to anticipate and keep watch for this or any other particular obstruc- tion in the street, but the jury has a right to infer, as proving con- tributory negligence, that if plaintiff had used that degree of watch- fulness and caution demanded of every one driving an automobile along a much used and more or less obstructed street, that he SSlhlen V. Edgerton, 140 Minn. 322, 168 N, W. 12 (1918). 868 LAW OF AUTOMOBILES would have discovered this particular obstruction and avoided this particular injury." The court declared that the act of the con- tractor in stretching this rope across the street so as to obstruct a small part of it to persons in automobiles and' without warning people of the danger, was not necessarily an act of negligence. The court also said, in passing on a motion for rehearing, that it is the - duty of a traveler, not only to use care to avoid known and expected obstructions and defects in the street, but also to discover those which are unknown, unexpected, and unlawfully there. The case cited by the court does not fully support this statement, however, and it is thought that it is unfortunately put. The rule is univer- sal and well known that one is not bound to anticipate that another will be negligent. There is a distinction between owing a duty to discover the negligent or unlawful act of another, an^d the duty to exercise a degree, of care that necessarily would have resulted in its discovery.** § 923. Negligent operation of drawbridge. It has been held that the operation of a drawbridge by a city is a governmental func- tion, and that consequently, it is not liable to a motorist for in- juries caused by the negligent operation of the bridge by a city employee.** On the other hand, it has been held, that municipal corporations are liable for injuries resulting from their negligent failure to oper- ate the gates of a drawbridge as required by statute.** § 924. Trap door in drawbridge partly open. In an action to recover for injuries incurred by the plaintiff when driving across a drawbridge in his automobile, due to a trap door being partly open, it appeared that shortly before he drove on the bridge the draw had been opened to permit the passage of a boat, and through the inadvertence of the draw tender the sections when closed did not properly lock and overlap; that to bring them into adjustment it became necessary again to raise and lower each section ; that the trap doors at each end were accordingly opened, and apparently there was not sufficient time to close the door on the side in ques- tion before the automobile came by and struck the open trap. In holding that this did not constitute a defective condition of the bridge in the sense of imposing liability upon the defendant town, the court said: "If the aperture caused the highway to be 64 Mayflower v. Webb City, 171 Mo. 66 Beach v. St. Joseph, 192 Mich. App. 214, 1S6 S. W. 48 (1913). 296, 1S8 N. W. 1045 (1916). 6B Bremer v. Milwaukee, 166 Wis. 164, 164 N. W. 840 (1917). INJURIES FROM DEFECTIVE HIGHWAYS 869 unsafe for the use of vehicles, this condition was of transitory dura- tion, and the opening of the draw for the passage of vessels or for its readjustment immediately after the vessel had passed having been necessary and lawful, a defect within the meaning of the stat- ute for which the town should be held responsible has not been shown." ^"^ § 925. Crossing drawbridge upon being signaled by tender. A motorist, in approaching a drawbridge which was about to be raised, was held not to be negligent in proceeding to cross after being signaled to do so by the tender, although he was familiar with the bridge, its manner of operation, and its dangers, and although the gong had been rung by the bridge tender before starting to raise the bridge, and an electric bell was kept ringing from the time the signal to raise the bridge was given until the automobile had passed over the first end of the bridge.®* ' § 926. Defective bridges. In Iowa it is held that, "It is the duty of the proper officers, when a county bridge is removed or in a dangerous condition, immediately after notice thereof, to give suitable warning to travelers upon the highway, and it is the duty of travelers thereon to use reasonable care and to observe and heed such warnings, a failure to do which, in case of injury on account of a defective bridge, might amount to contributory negligence." ®® § 927. Defective bridge approach. In an action to recover for damage to an automobile the facts were stated by the court as follows: The accident occurred on the night of July 3, 1913, upon a county bridge on the main traveled road from Winterset to Des Moines. The plaintiff was traveling north. As he approached the bridge from the south he came down a hill for a distance of about 1,000 feet. One hundred and fifty feet from the bridge the road veered to the west to avoid a clump of trees, and then veered back again to the east as it approached the bridge. It is claimed for the defendant that in making this turn the plaintiff went too far to the left, so that his left wheel was entirely outside of the traveled track, and that he followed such a course until he entered upon the bridge, striking its railing on the left side and destroying the same. For the plaintiff it is urged that the approach to the bridge was a high embankment less than seven feet wide upon the traveled por- STHawes v. Milton, 213 Mass. 446, 69 Owens v. Iowa County, — la. — , 100 N. E. 66S (1913). 169 N. W. 388 (1918). 68Drennan v. State, 109 Misc. 107, 178 N. Y. Supp. 278 (1919). «70 LAW OF AUTOMOBILES tion; that at the southwest corner of the bridge the dirt was washed away and created an opening which extended several feet to the east; that the plaintiff 'sv left wheel, being only a few inches outside of the traveled track, struck such opening, and the car was thrown to the left, against the railing, without any fault on the part of the plaintiff. It was held that the questions of negligence and contributory negligence were properly submitted to the jury, and judgment for the plaintiff was affirmed. It was also held that the fact that there was an unopened case of beer in the machine was for the con- sideration of the jury.''" While proceeding over a bridge in defendant city, the chauffeur of plaintiff's truck claimed that he encountered a hole or depres- sion in the roadway or approach which caused him to lose control of the truck, and that the truck crashed through some barriers to an excavatiori and went into the excavation, causing the damage to the truck of which the plaintiff complained. The accident oc- curred about 6 a. m., late in November; the roadway was from 25 to 35 feet wide, and there was evidence that the chauffeur had known for months of the excavation and work going on at this place. The hole in question was about 6 inches in depth. There was evidence that it had existed for some weeks, but the chauffeur stated that he had passed over the road the day before and had not seen any hole. It was held that the construction coijipany which was doing the excavating was not liable merely because the bar- riers gave way, it not appearing that they were not sufficient for all reasonable purposes; and that the facts were not sufficient to charge the city with notice of the hole or depression in question. Accordingly, judgment for plaintiff against both the city and con- structiori company was reversed.'^ § 928. Unlighted bridge entrance. Where it was sought to recover against the defendant city for damage to an automobile caused in a collision with the jniddle truss of a bridge, the negli- gence relied upon being failure to sufficiently light the entrance to the bridge, and it appeared that as the automobile approached the bridge the vision of the chauffeur was obscured by exhaust steam escaping from an engine passing under the bridge, so that he could not see more than 6 feet ahead of him, although his car was lighted, 70 Akin V. Madison County, 178 la. Tl Ruppert v. New York, 90 Misc. 36S 161, 159 N. W. 70S (1916). (191S). INJURIES FROM DEFECTIVE HIGHWAYS 871 and the lamps would ordinarily light the way for 1,000 feet ahead, it was held that failure of the city to light the bridge was not the proximate cause of the accident.'* § 929. Defective bridge railing. The rule has been stated that, "One who is injured by reason of a defective bridge while riding in a private vehicle may recover from a county other- wise liable, notwithstanding the negligence of the driver, which may have contributed to produce the injury; the injured party being free from negligence and having no authority or control over the driver." One W., with a party of friends, of whom plaintiff was one, in attempting to drive his automobile across one of defendant's bridges, fofming a part of the public roadway, collided with a guard, or railing, of the bridge. Plaintiff was thrown out of the automobile and suffered a fractured knee. He brought suit against the county alleging that the -iron guard rail at the west end of the bridge, and on the south side thereof, had become loosened from its clamp by which it had been fastened to the frame of the bridge, and had been so bent that it protruded into the roadway two or three feet. The driver testified that as he approached the bridge there was another automobile approaching from the other direction, and this compelled him to, keep to the right-hand side of the road; that he saw the rail protruding into the roadway at the bridge, but was so close to it that he could not avoid the collision; that he swung the front of the car toward the center of the driveway, and thus avoided a collision with that part of the machine, but that he was so close to the protruding rail that it caught the fender about the middle of the car and wedged itself between the rear wheel and ,the body of the car, causing the car to. stop instantly. In this he was fully corroborated by one of the passengers. Held, that a verdict for the plaintiff was justified.''' §930. Defective culvert — Contractor removing planks. In an action against a township to recover for injuries resulting from a defective highway caused by a contractor removing the planks from a culvert to use them in constructing a new culvert, there was no evidence to show that the township authorized the planks to be removed and no evidence to show that the township trustee had actual notice of the defective condition of the highway 72 Gaines v. New York, 1S6 App. Div. T3 Reudelhuber v. Douglas County, 100 789, 142 N. Y. Supp. 401, 8 N. C. C. A. Neb. 687, 161 N. W. 174 (1916). 929n (1913), a£f'g 78 Misc. 126. 872 LAW OF AUTOMOBILES five days prior to the injury; held, that a demurrer to the evidence was rightly sustained.'* § 931. Crossing bridges with great weight. Persons and mu- nicipal corporations whose duty it is to construct and maintain bridges as a part of the public highways are bound to guard against injuries resulting from a reasonable, proper and probable use of the same.''* But they are not bound to anticipate that they will be used in an unusual and extraordinary manner either by crossing with a very great and unusual weight or at a high rate, of speed.''^ Ordinarily it would probably not amount to negligence per se to attempt to cross a bridge on a public highway with even the heaviest of the automobiles in common use. It was held not to be negligence per se to attempt to cross a bridge with a traction engine, with a water tank and threshing machine attached.''' Subject to the ordinary rules as to negligence of the parties, and the provisions as to the obligations of towns, a town is liable for damage to an automobile, carrying 10 tons weight, resulting from a defect in, or from ±he insufficiency of a bridge, if the use of a vehicle and load of 10 tons is reasonable upon the kind of bridge said town should maintain at that place.''* The owner and driver of a motorbus was held entitled to recover for injuries due to the collapse of a highway bridge, although the weight of the bus exceeded that mentioned in a notice, posted at either end of the bridge by order of the superintendent of public works; forbidding crossing the bridge with loads exceeding the specified weight, although the notices had been so posted for a period of two years, during which time the plaintiff had crossed the bridge eight times a day; the plaintiff testifying that he had never observed the notices.'" § 932. Crossing bridge at high speed. The great prepon- derance of the evidence was to the effect that the county bridge on which the plaintiff's automobile was being driven at the time of the injury sued for was in a reasonably safe condition, and that her injuries were caused solely by the negligence of her employee and chauffeur in driving the automobile at a reckless and high rate of speed upon and over the bridge, which, like all other such bridges, ''i Lyons v. White Rock Twp., 99 77 Wabash v. Carver, 129 Ind. SS2, Kan. 448, 162 Pac. 292 (1917). 13 L. R. A. 851. 75 Gregory v. Adams, 14 Gray (Mass.) '8 Smith v. Howard, — R. I. — , 105 242. Atl. 649 (1919). faMcCormick v. Washington, 112 Pa. ''9 Welcome v. State, 105 Misc. 115, St. 185, 196. 175 N. Y. Supp. 314 (1919). INJURIES FROM DEFECTIVE HIGHWAYS 873 slightly sagged in the middle, and that the same chauffeur had often driven over this bridge and was well acquainted with its condition at the time of the injury. Tjhe evidence as a whole, it was held, strpngly authorized the verdict for the defendant.*" § 933. Paving blocks left in street by city employee. The plaintiff was riding his motorcycle at night along a public street when he collided with some paving blocks, which employees of de- fendant city had placed in the street five days before, and which had been removed for the purpose of excavating and repairing a water pipe and had been left out of their proper position to allow the dirt to settle where the work had been done before replacing them. A street lamp lighted the place fairly well, except when passing automobiles cast their shadows on the obstruction. There was no barrier or light on or about the obstruction. The plaintiff had his headlight adjusted so as to throw the light at short range, but it was said that there were some advantages in this, and he testified that such adjustment did not contribute in any way to the accident. The immediate circumstances of the accident were that the plaintiff was meeting an east-bound automobile which threw its light upon him in such a way that he could see nothing until he got beyond the range of the automobile lights. When that point was reached the automobile was between the street light on the south side of the street and the pile of paving blocks, and it threw its shadow upon the obstruction in such a way as to pre- vent the plaintiff from seeing it. It was held that the case as to both negligence and contributory negligence was for the jury, and judgment for plaintiff was affirmed.'^ § 934. Snowdrift left by highway officers in breaking snow- bound roadway. The plaintiff brought action to recover dam- ages for injuries caused when the automobile in which she was riding collided with a- drift of snow in a public highway. The acci- dent occurred about 6 p. m., on a foggy wiriter evening. The ma- chine was being driven by the plaintiff's husband, at 12 to IS miles an hour, and the lights on the machine failed to disclose the drift, which was 20 to 22 inches deep, and had been left by the highway officers when they were breaking a way through the snow. There was testifnony that the usual manner in breaking a way after heavy snowfalls, was to keep to the middle line of the traveled, way ; but, 80 Lytle V. Hancock County, 19 Ga. 81 Phipps v. Perry, 178 la. 173, 159 N, App. 193, 91 S. E. 219 (1917). W. 653 (1916). 874 LAW OF AUTOMOBILES where snow accumulations encroached over the margins and into the normal roadway, the cleared way sometimes diverged towards the side, leaving a path safe and convenient, but not precisely in line with the laid macadam surface. At the place of the accident the macadam roadway was about 14 feet wide, a,nd the snow bank or drift projected about eight feet into this roadway from the right side. There was room for two wagons to pass this drift in the cleared space, one on the macadam and the other on the dirt. It was held, by a divided court, that no negligence on the part of defendant had been shown, the court saying that, "We are not referred to any authority holding it to be negligent for the line of winter travel to'be temporarily deflected from that of summer travel, or that such windings or divergencies may be an actionable de- fect." »«. § 935. Gravel pit outside macadamized portion of road. Where a motorist ran his car into an unguarded gravel pit, within the boundaries of the highway, but 7 feet from the macadamized portion, which was 16 feet wide, while he was temporarily blinded by lights of an automobile moving in the opposite direction, it was held that he had failed to show negligence on the part of defend- ant, and was himself guilty of negligence. The court quoted from another case as follows: "It is a matter of common intelli- gence, as well as of law, that a reasonably safe condition of a high- way for the travel to which it is subject is all that is practicable and that adjoining roadways fitted and intended for use are spaces in the highways unsuitable and dangerous for travel. Highway authorities are not under the duty of obstructing travel from stray- ing into those spaces." *^ § 936. Depression causing automobile to strike a pedestrian. The plaintiff, a girl, 15 years of age, and another girl, were walk- ing south on the east side of a public street, arid just as they stepped past the corner of a building on the northeast corner of a street intersection, a motor truck, moving at 8 miles an hoUr or less, came upon them without warning, and plaintiff was run overhand in- jured, although she attempted to escape; It appeared that in the intersecting street, near the corner, was a dangerous hole, 8 to 10 inches deep, nearly 2 feet wide and 3 feet long, which had existed 82 Robinson v. Somelrs, 189 App. Div. Flansburg v. Elbridge, 205 N. Y. 423, 792, 179 N. Y. Supp. 107 (1919). 429, 98 N. E. 7S0, 7S2, 41 L. R. A. 88 Short V. State, 109 Misc. 617, 179 (N. S.) S46. N. Y. Supp. 539 (1919), quoting from INJURIES FROM DEFECTIVE HIGHWAYS 875 for 15 years, and of which the city's superintendent of streets had actual notice for 4 years prior to the accident; that the wheel of the truck, which turned south from a vyesterly course, dropped into this hole, causing the driver to lose control of the truck, which ran onto the sidewalk; that plaintiff was familiar with the surround- ings of the place where she was hurt; that hpr companion escaped wholly iminjured ; that when she was struck she was sOme distance from where she first observed the approach of the truck; that she ran around and in front of the machine. The trial court instructed the jury that the plaintiff was not contributorily negligent. On ap- peal it was held that there was some evidence of negligence on her part, and for error alone in so instructing, judgment for plaintiff was reversed and a new trial granted.'* § 937. Jolted from truck by depression in street. The dece- dent was riding in the rear of an automobile truck, seated on a box which was firmly attached to the truck and not quite as high as its sides. By his side was a standard which supported the top on that side, and to which he could hold. He sat with his feet hanging over the side of the truck. As the truck was proceeding along a street at the rate of 12 to IS miles an hour, with the driver looking straight ahead, it passed over a depression, or, as the wit- nesses called it, a trench, extending nearly across the street, and decedent was jolted off, receiving injuries which resulted in his death. The driver testified that he failed to see this depression until he was about 15 or 20 feet from it, and that from its appear- ance at that distance there was no suggestion of danger. Some six weeks or more* previously, a trench extending across the entire width of the street was. dug for the purpose of laying a gas pipe. This trench was something over two feet wide, and the filling soon settled so that its top was two and a half or more inches lower than the surface of the street. One witness, the driver of a bread wagon, testified that if he passed over this trench in a trot his shelves would, upset and his bread fall. Another witness, who drove along this street every morning, going to and coming from market, said, "that after the street had been dug up he always drove around it, because he had eggs in his wagon, and would not drive over the trench because it would break the eggs." There was other evidence as to the jolting and bounding of wagons and automobiles when they were driven over this depression, and that 84 Indianapolis v. Pell, 62 Ind. App. 191, 111 N. E. 22 (1916). 876 LAW OF AUTOMOBILES sometimes things were thrown out over the rear end of wagons. One witness stated that about two weeks before the accident he called the attention of a policeman to the dangerous condition of the street at this point. The street was macadamized, and except for this depression was in good order. The legal rate of speed was IS miles an hour. It was held that the question whether this street, at the point of the accident, was in reasonably safe condi- tion, was for the jury, as was the question of decedent's contrib- utory negligence. Accordingly, judgment on a directed verdict for defendant was reversed and the cause remanded for a new trial.'* § 938. Excavation improperly refilled. Where a plumbing contractor refilled an excavation in a street with soft clay, instead ^of sand and crushed stone, as expressly required by the permit from the city under which the work was done, he was liable for damage to an automobile which broke a wheel in the depression caused by the settling of the clay, although he may have filled the trench in the customary manner. If the trench had been filled as required by the permit, the material would not have settled.'* §939. Slight depression. In a New York case it was said: '!The rule is now firmly established in this state that municipalities are not to be held liable', as for negligence, by reason of slight de- pressions or differences of grade in the highway. The obvious rea- son for the rule is that to hold otherwise would subject municipal- ities to a burden beyond that which they are reasonably required to bear."" The deceased, a truck driver, came to his death in consequence of a fall from a truck which- he was driving and tipon which was loaded a high pile of lumber. The fall was occasioned by the front wheel of the truck going into a hole or depression in the street. The hole was about two feet square, and was caused by the wearing away of the asphalt paving, which had been laid on stone blocks. The thickness of the asphalt w,as shown to be not more than two or three inches. ^ Some of the witnesses estimated the depth of the hole as much as nine inches, caused by the stone blocks sinking; but there was no evidence as to the length of time this condition 86 Burke v. District of Columbia, 42 "It requires something more than a App. D. C. 438 (1914). slight depression or unevenness in the See also, Tubbs v. Berwick, 262 Pa. surface of a roadway to render the St. 203, lOS Atl. 57.' rauncipality liable." Backer v. Aspin- SBZimmer v. Schmitt, 167 Wis. 430, wall, 2SS Pa. St. 541, 100 Atl. 479. 167 N. W. 739 (1918). ST Fabpr v. New York, 161 App. Div. 203, 146 N. Y. Supp. 295 (1914). ' INJURIES FROM DEFECTIVE HIGHWAYS 877 existed. It was shown that the hole caused by the worn asphalt had existed about two months, not always of the same size, for it was growing larger. The testimony of an officer of the city, who, measured the depth of the hole, and of a street sweeper who assisted him, was that the hole at the deepest point was only three inches. Held, that the evidence was insufficient to show culpable negli- gence on the part of defendant city, and that its motion to dismiss the complaint should have been sustained. In regard to the evidence the court said that, "It is significant as to the character of the depression that, although there is much traffic at the place where the accident happened, no evidence was produced to show that any accident had ever happened there before." ** § 940. Losing control of truck and colliding with pile of paving stones. Where the plaintiff's truck, which he was driving past a number of piles of granite blocks which were lawfully in the street to be used for paving purposes, struck a round stone in the street, which caused him to lose control of the truck, which ran into one of the piles of granite and was damaged, and it ap- peared that there was sufficient clear space in the street for the truck to pass in safety, and that the plaintiff could see plainly SO or 60 feet ahead, and there was no evidence that defendant was in any way responsible for the presence of the round stone in the highway, it was held that the presence of the piles of granite blocks in the street and the condition of the light, were not the cause of the accident, and that plaintiff could not recover — he having sued the defendant city and the contractor who placed the granite blocks in the street.*' § 941. Colliding with and exploding can of gasoline used by workmen. A subway company had excavated a trench, Jn which to place electric conduits, along one side of a street, and' defendant was making house connections from electric wires in the street to adjoining property. The defendant stored its tools in a cart, placed against the curb on the opposite side of the street from the trench, and under the cart placed a can of gasoline; the can being proof against leakage and explosion. There remained sufficient room for vehicles to pass along the street single file. De- fendant was lawfully doing the work in question. Plaintiff's chauf- feur drove his automobile along the space in the street between ( SSFabei'v. New York, 161 App. Div. N. Y. Supp. 70, 8 N, C. C. A. 927n 203, }46 N. Y. Supp. 29S (1914). p914). 89 Zorn v. New York, 85 Misc. 45, 147 878 . LAW OF AUTOMOBILES the tool cart and the trench, and, meeting another automobile, attempted to back, and collided with the tool cart. The collision broke the rear lamp on plaintiff's car, flattened the gasoline can under the cart, and the flame from the lamp caused the gasoline to explode. Plaintiff brought suit to recover for damage to his car. Held, that the direction of a verdict for the plaintiff on the theory that the cart and can constituted an unlawful obstruction, and a nuisance as matter of law, was error, and a new trial was granted. Said the court: "The primary purpose of streets is use by the public. for travel and transportation, and the general rule is that any obstruction of a street or encroachment thereon which inter- feres with such use is a public nuisance. But there are excep- tions to the general rule born of necessity and justified by public convenience. But all such interruptions and obstructions of streets must be justified by necessity. It is not sufficient, however, that the obstructions are necessary with reference to the business of him who erects and maintains them. They must also be reasonable with reference to the rightsof the public who have interests in the streets which may not be sacrificed or disregarded. Whether an obstruction in the street is necessary and reasonable must gen- erally be a question of fact to be determined upon the evidence relating thereto." '" § 942. Driving over stump. Where the plaintiff was inatten- tive to his surroundings and drove against a stump outside the traveled part of the highway, and he knew of the existence of the stump, and could have avoided it had he been thinking of it, it was held that the accident was due -to his own negligence, and that he could not recover for the resulting injuries against the defendant city." The plaintiff drove his automobile along a public street in , de- fendant city, which in reality is a small town, and in order 'to get nearer a house where he intended to stop he drove outside of the traveled part of the street, and his car struck a stump, which re- sulted in damage to the car and personal injuries to himself. The street was used comparatively little, and had never been graded as a city street, but it was on smooth, level ground. By ordinance a portion of the street had been set aside for sidewalks, but no sidewalks had been made. Sometimes, during muddy flfCuilo V. New York Edison Co., 8S 91 Ovens v. Charlotte, 1S9 N. C. 332. Misc. 6, 14V N. Y. Supp. 14 (1914), quoting from Callenan v. Oilman, 107 N. Y. 360. INJURIES FROM DEFECTIVE HIGHWAYS 879 weather, people were in the habit of driving on the sidewalk and between tiie stump in question and the fence, and nothing was done to prohibit it. The traveled part of the street was in good repair, entirely free of obstacles, and amply sufficient for all purposes of travel. The accident happened about dusk, but objects were plainly distinguishable at a distance of 100 feet. Plaintiff did not see the stump, which was 9 inches high, and was not looking for obstructions. The defendant's revenue was about $2,000 a year. It was held that, the defendant having provided a reasonably safe street in that part intended for use by vehicles, it was not liable for the injury caused in the circumstances of this case. It was also held that a small city with small revenues should not be held to the same accountability in respect of the safety of a street little used for vehicular travel, as is exacted of a city proper, with large revenues, with respect to streets over which, and every part of which, vehicles are constantly passing.^'^ Where there is evidence tending to show that in the center of a traveled side track of a country road there is an oak stump 10 inches high, partially concealed by green oak sprouts about 2 feet high and by weeds, but visible to one approaching from the west for a distance of SO to 75 feet, and the plaintiff, going, east in an automobile at the rate of 12 miles per hour, left the main traveled track and took this side track, and the under part of his automobile struck this stump and was damaged, a verdict find- ing plaintiff guilty of contributory negligence will be sustained.'* A stump ''within a few inches of the traveled part of a highway within a town may be found to constitute a defect.'* § 943. Manhole extending above surface of street. The plaintiff was driving in his automobile at night, when he came to what appeared to him and his driver to be the end of the street at an intersecting street. His driver stopped and, desir- ing to get on another road, backed the machine, and in doing so back onto a manhole, which was near the center of the intersec- tion, and the car was greatly damaged. The manhole extended 17 inches above the surface of the street, and weeds and grass had grown up about it. There was a small electric light at one corner of the streets. Held, in an action against the city to recover for 92 Wheeler v. Flatonia, — Tex. Civ. 9* Johnson v. Iron River, 149 Wis., App. — , ISS S. W. 951 (1913). 139. 9S Olmsted v. Greenfield, ISS Wis. 452, 144 N. W. 987, 8 N. C. C. -A.- 924n (1914'). 880 LAW OF AUTOMOBILES damage to the car, that the questions of negligence and contribu- tory negligence were for the jury. The court in part said: "Both plaintiff and the driver of the, car ^ had the right to assume that the street was free, from any dangerous obstruction, and while they were required to exercise ordinary care in looking out for de- fects, it was for the jury to say whether, under all the circum- stances, they exercised this care, and if they did, whether or not they saw or should have seen the obstruction, and known of the danger likely to arise therefrom." ^* § 944. Stone in highv/ay. The automobile in which plaintiff with five others was driving westerly on the public highway in defendant town in the forenoon of September 28, 1913, turned to the south away from the traveled track in order to pass a horse and buggy going in the same direction. After passing, the auto- mobile turned in again, and just before regaining the traveled track its left hind wheel struck a stone about 21 inches long which projected 9 to 12 inches above the surface of the ground, and the consequent jar, as it is claimed by plaintiff, threw her out of the automobile upon the road, causing the injuries for' which she sued. She was the only one of the occupants of the auto- mobile injured. The automobile went some 8 to 10 feet beyond the stone before coming to a stop, and had the tire pfunctured and several of the spokes of the wheel cracked. ' The stone was with- in five' feet of the traveled part of the highway, and had been in that position several years. In upholding a verdict for the plain- tiff, the court declared that it 'could not hold as matter of law that the defendant town was not negligent in permitting the stone to remain at that place in the highway, and that the question of the driver's want of due care was, likewise, for the jury.'® § 945. Stones in highway as nuisance. The act of placing stones in the highway for the purpose of blocking the wheels of a wagon by one engaged in roadmaking, is not an unlawful use of the highway; nor does his failure to remove them neces- sarily constitute him the creator of a nuisance. So, where plaintiff was thrown from his motor-cycle when, going at the rate of 25 miles an hour, by his wheel 'striking one of several stones, "as big as his head," left in the highway by a road- builder, who had used them for the purpose of blocking the wheels of a wagon, he could not recover for injuries resulting therefrom 96 Wolford V. Grinnell, 179 la. 689, 96 Kadolph v. Herman, 166 Wis. S77, 161 N. W. 686 (1917). 166 N. W. 433 (1918). INJURIES FROM DEFECTIVE HIGHWAYS 881 on the theory that the stone constituted a nuisance. Said the court: "Furthermore, I am not willing to assent to the proposi- tion that a^tone is to be deemed an illegal obstruction on a country road constituting a nuisance as a matter of law, merely because it interferes with the free progress of a motor-cycle moving at the rate of 25 miles an hour. This stone is said to have been 'as big as your head.' It would probably have produced the same effect if it had been only as big as one's hand. It could not have been in the highway more than two hours and a half. A readily re- movable object of this character carelessly left in the road may render the person who left it there liable for negligence to the drivers of ordinary vehicles moving at a reasonable rate of speed; but the law should not deem its presence a nuisance simply be- cause it may become dangerous to reckless riders of motor-cycles driving their machines at a speed which is perilous in itself." *'' § 946. Absence of barriers or guard rails. If guard rails or barriers are reasonably necessary for the protection of travelers, failure to erect them renders the highway defective, and the municipality which neglects to place the same may be held to re- spond in damages for injuries to travelers proximately resulting therefrom.^ It has been held that where a highway is built at such a height and so narrow as to reqliire barriers or railings to make it rea- sonable safe and convenient for public travel, it becomes the (^uty 9'' Francis v. Gaffey, 211 N. Y. 47, lOS "The duty required of 'o city is that N. E, 96 (1914), rev'g 153 App. Div. of ordinary care. Generally, perhaps, it 937 (1912). ^is'a question of fact whether ordinary 1 Massachusetts: Bond v. Billerica, — care was used. Where, however, the Mass. — , 126 N. E. 281 (1920). risk seems so negligible that it would Minnesota: Briglia v. St. Paul, 134 be unreasonable to charge the city with Minn. 97, 1S8 N. W. 794 (1916). the duty to maintain barriers, the cOurt New York: Johnson v. State, 186 will declare nonliability as a matter oi App. Div. 389, 173 N. Y. Supp. 701 law. Greater precaution may be re- (1919) ; Lendrum v. Cobleskill, 183 N. quired in some localities than in others. Y. Supp. 2 IS (1920) ; Johnson v. State, Tlie number of dwellings in th& vicinity 104 Misc. 39S, 17S N. Y. Supp. 299 is not of much importance. The amount (1918). of travel on the street is the important Pennsylvania: Camp v. Allegheny consideration." Briglia v. St. Paul, 134 County, 263 Pa. St. 276, 106 Atl. 314 Minn. 97, 158 N. W. 794 (1916). (1919). Only ordinary care is, required of a West Virginia: Pollock v. Wheeling municipality to erect guard rails. Camp Tr. Co., — W. Va. — , 99 S. E. 267 v. Allegheny County, 263 Pa. St. 276, (1919). 106 Atl. 314 (1919). Wisconsin: Branegan v. Verona, — ^ Wis. — , 174 N. W. 468 (1919). B. Autos. — 56 882 LAW OF AUTOMOBILES of the township to erect them, and, failing to do so, the township is liable for injuries resulting from its neglect of duty.^ "The duty to put barriers upon a highhway, although travel thereon be in a degree dangerous, is not absolute. The law does not require it unless the danger complained of is unusual. The unusual danger noticed by the books is a danger in the highway itself. We take it,- then, that the rule contended for applies only where a traveler iexercising ordinary care would not expect to find a danger, or where the natural or surrounding conditions would suggest protection. The duty of the county is discharged if it maintains its highways reasonably safe for ordinary travel." * If a highway is discontinued or changed, the municipality should erect barriers, or in other ma,nner warn travelers of such fact. But failure to do so, even when required by statute, does not render the municipality liable if the motorist had other notice or knowl- edge of such condition.* A barrier is not required that will stop an automobile going at high speed.® The insufficiency of a culvert or its want of repair may be shown to consist of the absence of guard rails suitable to place and conditions.® A county was held not to be under duty to erect guard rails or signs at a place where the roadway, 14 feet wide, made a 100 degree curve, below which was a canon several miles wide, the de- scent to which was precipitous. "Whethier the county was negli- gent in not maintaining a warning sign or barrier depends upon whether the road at the curve presented an extraordinary condi- tion or unusual hazard. There are probably hundreds of just such curves upon the highways of this state, and if it were held that the dounty failed in the performance of its duty by not having a warn- ing sign or barrier here, the same would be true of every other similar situation." ' Where the course of a highway where it crossed a deep ravine was changed, and the old highway was left open up to the banks of the ravine, it was the duty of the township, by barricade or 8 Lamb v. Clam Lake Twp., 17S Mich. 6 Camp v. Allegheny County, 263 Pa. 77, 140 N. W. 1009 (1913). St. 276, 106 Atl. 314 (1919). 8 Swain v. Spoltane, 94 Wash. 616, 162 6 Bigelow v. St. Johnsbury, — Vt. — , Pac 991 (1917), quoting from Leber v. lOS Atl. 34 (1918). King County, 69 Wash. 134, 124 Pac. ^Wessels v. Stevens County, — Wash. 397, 42 L. R. A. (N. S.) 267. — 188 Pac. 490 (1920). 4Raymond y. Sauk County, 167 Wis. 125, 166 N. W. 29 (1918). INJURIES FROM DEFECTIVE HIGHWAYS 883 other safeguard, to prevent travelers from using the portion of the old road leading to the ravine, and an absence of such safeguard constituted a defect in the highway.* Vl/^here a highway was so narrow that there was very little free space for two vehicles to pass, and the sides descended sharply for several feet, and deceased, driving his automobile at night, stopped his machine close to the edge of the highway in order to allow a horse and wagon to pass, and when he stopped the automobile slipped over the edge of the embankment, and he was killed; and it appeared that there were no barriers at either side 9f the road, and that weeds had grown up so as to conceal the edge of the high- way, it was held that the question of the defendant's negligence should have been submitted to the jury. In part the court said: "The defects in the highway were not those which had come as the result of ordinary wear and tear and climatic changes but were inherent in its original and fundamental construction. It was of course to be expected by the resppndent and its officials that vehicles of various kinds would pass each other on this highway by night as well as day, and we think that the ap- pellant was entitled to have a jury say as a matter of fact whether they also ought not to have anticipated, in the exercise of ordinary foresight and prudence, that in the course of such p>assage one of thenl was liable to run over the bank unless some guard or barrier was erected." There was also evidence of other accidents having happened at this place.' § 947. Absence of barriers and signs at curve where at night street appears to continue straight on. The defendant is a municipal corporation. One of its streets is Quarry street, and on the left-hand side of this street is a steep embankment, descend- ing to a depth of 30 feet. The street at or near this embank- ment curves to the right and away froni the embankment; the curve or turn is sharp, quite abrupt, to the right. At the point de- scribed, the highway, if extended in a straight line, would go 19 feet on practically level and smooth, but descending, surface, and then over this embankment. The space between the highw;ay and the edge of the embankment is grassed over— greensward. On the 24th day of June, 1919, there was no danger sign or signal at this embankment, and no barriers erected along its edge 8 Higman v. Quindaro Twp., 89 Kan. 2b3, 101 N. E. 858, 8 N. C. C. A. 93 In 476. (1913), rev'g ISO App. Div. 896. 9 Nicholson v. Stillwater, 208 N. Y. 884 LAW OF AUTOMOBILES to guard or prevent travelers in the night, going northerly on the street at this sharp curve, from proceeding straight ahead and over the declivity. There was an electric light about 16 feet from this curve and embankment; it, with lights of an automobile, made a yejlow ray, shadow and haze, upon the grass. Its appearance was that of- the continuation of the highway when the accident com- plained of occurred. In addition to the foregoing, features of the locality, straight ahead, as if the. roadbed was extended in a straight line instead of curving, and on the embankment on the other side of this depression or dugout, formed by those two embankments, was another electric light suspended on a pole. This light created the delusion that the street continued in line straight ahead, when as a matter of fact the street curved sharply to the right, and away from this imaginary extended roadbed. On the night in question, at 10 o'clock p. m., the plaintiff, with three other persons, in an automobile that weighed 3,000 pounds, started from a house on the left side of this street a short distance southeast of the curve in question. He proceeded northwesterly on the macadam highway at the rate of speed of 10 miles an hour. As he approached this curve above described, the light thrown upon the grass, in conjunction with his auto lights, caused it to look like the highway extended, and plaintiff proceeded straight ahead onto the grass, when he discovered he was out of the road and applied the brakes,; the surface under the grass descended from 2 to 3 feet in this 19 feet of grass-covered surface, and the car slid and went over the embankment, causing the damage to the plaintiff and his car, for which this action was brought. Vetdict in favor of the plaintiff was sustained. "It is a matter of universal knowledge that the uses to which streets and highways have been put have materially increased and broadened since the decision in the Lane Case. Powerful ma- chines, capable of going 25 to 60 miles an hour and more, now commonly travel over our streets and highways; and while the old rule of 'ordinary care and prudence' still is resorted to, in words, in determining the responsibility of persons and corporations as to negligence or contributory negligence, it means care and prudence commensurate with the increased danger to which the conimon use of such powerful machines subject the public." * * * "j ^m not unmindful of the force of the argument that a municipality should not be required to guard against reckless drivers of heavy autotrucks and high-powered automobiles; that question does not arise here, and in any case the plaintiff, under such circumstances. INJURIES FROM DEFECTIVE HIGHWAYS 885 would find himself confronted with the decision, as a matter of law, that he was chargeable with contributory negligence ; and unless recklessness of the driver was present, the sign, barriers, and ngni would warn him in time to slow down and avoid going over the embankment." " § 948. Declivity outside of highway. Highway authorities may become liable on account of dangers in such close proximity to a highway as to make traveling on it perilous, or on account of un- usual or exceptional conditions. Where the conditions tended to mislead and deceive persons traveling in one direction on a high- way into the mistaken belief that, instead of the highway curving sharply to the left, it continued straight on, to where there was an embankment, the authorities were held liable for failure to properly guard such place.^^ "It is the duty of the city to use ordinary care to keep its streets in safe condition for travel. The city is not, as a rule, bound to ^make safe for travel the area outside of a public street, nor to fence or erect barriers to prevent travelers from straying off the street to adjoining land upon which there may be dangerous places; but it is bound to provide such guards where the street itself is unsafe for travel by reason of the close proximity of excavations, embank- ments, deep water, or other pitfalls or'dangers. It is not negligence for a city to construct and maintain a street or roadway along the top of a bluff. Where the roadway is narrow, and thfe declivity so near that it may reasonably be anticipated that the passing of vehicles, the shying of horses, or some other incident of traffic, may cause some traveler to deviate from the traveled way, and tO' go over the edge, the city may well be required to guard such a pitfall by the roadside." ^^ Where the declivity was not within the bounds of the high- way, and there was a roadway 38 feet wide, a barrier was not rea- sonably necessary.^' In an action against a city to recover for the death of a woman motorist who was killed when her automobile backed over a declivity several feet from the street or boulevard, which was several mUes from the center of the city but much used by automobiles, the place of the accident was described as follows: "The roadway of the River Boulevard is 26 feet wide, lOLendrum v. Cobleskill, 183 N. Y. l2Briglia v. St. Paul, 134 Minn. 97, Supp. 215 (1920). 158 N. W. 794 (1916). 11 Johnson v. State, 186 App. Div. 1* Oamp v. Allegheny County, 263 389, 173 N. Y. Supp. 701 (1919). ' Pa. St. 276, 106 Atl. 314 (1919). 886 LAW OF AUTOMOBILES well surfaced, and slightly rounded in the center so as to shed water. East of the Boulevard the ground is level. To the west of the roadway is the usual gutter, and to the west of this is a gravel path about 6 feet wide 9,nd at a height from 6 to 8 inches above the bottom of the gutter. West of the path the bluff is precipitous. There is no fence or barijier between the roadway, and the bluff." The cause of the automobile backing was not explained. Held, that nonliability of the city was properly declared as mattef of law." " §949. Culvert without railings— Motorist approaching in cloud of dust. In an action to recover damages to plaintiff's auto- mobile, which ran off the end of a culvert, there was evidence tend- ing to prove the .following facts : That the culvert is situated in a part of the highway where the road descends to it on both sides, for a considerable distance on each side of the culvert, and in or near a curve in the highway, the traveled portion of which, at thie culvert, was 1 1 feet wide and extended to each end of the culvert, and the road was practically level from one end to the other of the culvert; that several feet of soil covered the culvert; that the cover- ing, at the end of the culvert, where the car went off, was soft and gave way as the car went over the end of the culvert; that the cul- vert, measured on the inside of the curve, where the accident happen- ed, was S feet 8 inches high, S feet 5 inches wide, and from the sur- face of the r»ad to the bottom of the culvert was 9 feet and 6 inches ; that the angle of the bank formed by the earth covering the culvert was lYz feet slope to 1 foot drop, and the bank was covered by bush- es and vines extending above the plane of the road 2 or 3 feet, ob- scuring the nature and character of the culvert and its dangerous surroundings; that there was no guard rail or other warning of the danger of accidentally going over the end of the culvert, nor any- thing to notify: the: traveler that a slight variation from the center of the road was liable to result in an accident similar to the one under consideration; that this highway was extensively used by the traveling public in transporting goods and other commodities from Plainfield to North Montpelier and from North Montpelier to Plainfield. Held, that whether or not the defendant was negligent in so maintaining the culvert was a question for the jury. It was further held that the fact that plaintiff did not stop his machine as soon as l*Briglia V. St. Paul, 134 Minn. 97, 1S8 N. W. 794 (19161. INJURIES FROM DEFECTIVE HIGHWAYS 887 he encountered a cloud of dust as he approached the culvert, which prevented him from seeing clearly, was not negligence as matter of law, he having slowed down to four miles an hour, and when the dust became so thick that he could not see through it, he reached for his emergency brake when the car accidently deflected to the inside of the curve, the earth gave way, and the car went off the culvert.^* §950. Striking stone, going over unguarded embankment. Where, when a motorist turned out to pass other cars on the high- way, a front wheel of his car struck a stone causing the car to go over an unguarded embankment, it was held that the fact that the stone in the road may have been a contributing cause of the accident did not relieve the defendant city from liability, if the unrailed embankment was also a cause.^® § 951. Breaking through guard rail. The plaintiff and an- other man, the latter driving, together with the former's wife and ^another woman, were motoring when, just after turning a curve in the road their car went over an embankment, after breaking through a guard rail, and the plaintiff was injured. He brought suit a,gainst the defendant town to recover therefor. As the automobile ap- proached a culvert where there was some change in the course of the road, a horse and wagon were standing diagonally across the road between the rails on the embankment over the culvert. The testimony, viewed in the light most favorable to the plaintiff, tended to show that the rear wheels of the wagon were three or four feet from the railing on the easterly side; that the horse's head was nearer than that to the railing on the westerly side; that the driver of the automobile first saw the horse and wagon when he was about fifteen feet therefrom; that he then applied the brakes and turned to the left, where there was more, though insufficient, room, and brought the car practically to a standstill opposite the team, when the car slipped against the guard rail, which gave way in consequence of insufficiency, so that the car and its occupants; including the plaintiff, were precipitated down the embankment. It was the statutory duty of the driver to have his car under perfect control when approaching a curve in the road, but instead he did not slacken his speed. The plaintiff saw the wagon stand- ing across the road when they were 8 to 12 rods away, and he made no attempt to warn the driver or do anything to avert the IB Bancroft v. East Montpelier, — Vt. 16 Miner v. Franklin, 78 N. H. 240, — , 109 Atl, 39 (1920). 99 Atl. 647 (1916). 888 LAW OF AUTOMOBILES accident. Plaintiff and the driver were engaged in a common undertaking having for its purpose the entertainment of the ladies. It was held that the driver was negligent; that on account of the common undertaking of plaintiff and the driver, the latter's negligence was imputed to the plaintiff; and that the plaintiff was personally negligent. Accordingly, judgment for plaintiff was re- versed, and judgment rendered for the defendant.^'' There is no hard and fast rule as to the kind and cha,racter of a guard rail a municipality should erect so that a highway may be deemed reasonably safe for travel. Public roads are intended for or- dinary travel; if they meet the requirements which their ordinary uses demand, the municipality has performed its duty, and cannot be made answerable in damages for extraordinary accidents occurring on them. Where the highway extends along a precipice or danger- ous embankment, a degree of care is required not necessary under ordinary circumstances, but it is only that care which common pru- dence dictates, in view of an unusual danger, as necessary to rea- sonable safety in the ordinary use of the highway at that point. It is not necessary, at such a place, to erect guard rails or barriers sufficiently strong to stop an automobile running at a high rate of speed. Where it appeared that the plaintiff's automobile, while running at the rate of 2S miles aii hour, struck a guard rail which separated the highway and a steep embankment, with such force as to lift the posts from the ground and carry the whole structure over the em- bankment, and it appeared that the rail was properly placed, and that the accident was not due to any defect therein, it was held that the municipality was not liable for the resulting injuries, and that a nonsuit was properly granted.^' In part, the court in this case said: "The guard rail gave notice to the driver of the automobile that the place was dangerous, and with this notice before him, it was his duty to avoid that danger by driving his car upon the roadway proper, and not to take the chances of a test of strength between a rapidly speeding automobile and a lightly constructed guard rail, sufficient to guard accidents resulting from the ordinary uses of the highway, but insufficient to stand such a test of strength." l''Wentworth v. Waterbury, 90 Vt. said that it might think the question 60, 96 Atl. 334 (1916). In this state was for the jury. the burden is on the plaintiff to prove 18 Wasser v. Northampton County, 249 freedom from contributory negligence. Pa. St. 25, 94 Atl, 444, 9 N. C. C. A, Had the burden been on defendant to 1022 (1915), prove contributory negligence, the court INJURIES FROM DEFECTIVE HIGHWAYS 889 A street in a city was closed by a fence and guard rail at the top of a high embankment, iorming a cul de sac. It was paved, guttered and curbed, and was laid with two lines of rail- road tracks close up to the fence, and sidewalks extended on either side of the same point. The fence and guard rail were weather- beaten and dark in color and less visible at night than if painted. An automobile operator, taking the street to be a thoroughfare, drove his automobile through the guard fence and over the embank- ment at night and was injured. It was held to be the duty of the city to keep the place so well lighted as to give fair warning that it was a mere cul de sac, or so well guarded as to prevent entrance at the point of danger, even on the darkest night. And that the operator was not negligent in assuming such place to be a thorough- fare.^® §952. Defective gear causing machine to break through guard fence. Where, by reason of the steering gear of plaintiff's automobile becoming defective, it ran over the curb and walk and broke through a board fence which defendant city maintained at the side of a bridge, it was held that the defective gear was the proximate cause of the injury resulting therefrom, and, further, that negligence on the part of defendant was not shown. , "It could riot reasonably be anticipated that a car, by reason of its own de- fects, would be driven over the curb, across the walk for pedes- trians, and through the wooden railing at the side of the street.*" § 953. Narrow grade approaching culvert— No guard rails. The road, where the accident occurred, was near the town of Ger- vais, at a point where the road leading from Oregon City to Salem crossed a gulch or canyon. There was a culvert at the bottom of the gulch over which the road passed, and the approach to this culvert was upon a fill. The evidence for the plaintiff tended to show that this fill, at the point where the car ran off, was about 7 or 8 feet above the level, and that the top of the fill, or roadbed, at this point was about 16 or 17 feet wide, having narrowed down from a greater width at a point further back from the culvert. There was no rail or guard along the sides. There was some evi- dence that there was a slight turn in the road to the left going south, at or about the point in question. It was dark, and when the plain- tiff reached the fill in question, he met a number of automobiles. 19 Corcoran V. New York, 188 N. Y. 20 Swain v. Spokane, 94 Wash. 616, 131, 138, 80 N. E. 663, 8 N. C. C. A. 162 Pac. 991 (1917). 93 7n. 890 LAW OF AUTOMOBILES Several of these had their lights lit, and one in particular did not dim its lights, and t^e reflection in plaintiff's eyes blinded him so he could not see the road. Under these conditions he got too far to tlie right, and his car ran off the grade and down the bank, caus- ing the injuries complained of. In affirming judgment for plain- tiff, the court said: "The undisputed evidence showed that the plaintiff's car actually did run off the grade at this point, and if there was a dtefective and dangerous condition, in the narrowing of the grade and the failure to provide a guard rail, as alleged in the complaint, there is no room to question that such defective and dangerous condition did contribute to the injury. In other words, there is an undisputed physical demonstration that the nar- rowness of the grade at that point, and the absence of a guard rail, was, in a measure, one of the contributing causes of the accident." *^ § 954. Automobile skidding over embankment on wet road. A physiciali. drove in his automobile to a patient's house some miles distant from his own, over a road dry and in good condition. He was at the patient's house about an hour, during which time con- siderable rain fell, rendering the road wet and slippery. On ac- count of the condition of the road, he put skid chains on the two rear wheels and one front wheel of his car, before starting on the return trip. When he reached a point in the road on a side-hill incline his car skidded and went down a declivity, causing the in- juries complained of. The road at this place was crowned in form, and lower at the outer edge of the crown, the place where the machine went over. At this side there was a sharp declivity caused by the slipping of the roadbed and its supporting base, the slope becoming more precipitous until it ended in a creek; The distance from the lower side of the road to the creek was 67 feet, the perpendicular fall being 26 feet. At the edge of the road there was a perpehdicular drop of 6 to 12 inches. Held, that the plain- tiff was not guilty of contributory negligence, and judgment in his favor was affirmed.** §955. Missing bridge at night and driving over embank- ment. The deceased was killed ,when he drove his automobile over the bank of a stream at the side of a bridge, and suit was brought to recover for his, death against the county commission- ers. The accident occurred at night, when there was no moon, the wind was blowing, a little snow was falling, and the ground was 21 West V. Marion County, — Oreg. — , 22 Millikin v. RichhiU Twp., 67 Pa. 188 Pac. 184 (1920). Super. Ct. 326 (1917). INJURIES FROM DEFECTIVE HIGHWAYS 891 covered with snow. Deceased had in his automobile two women and two men, and was driving about 25 miles an hour. The bridge, which was 40 feet long, was in line with the roadway to ■ the west, but not to the east. The roadway leading to the bridge from the east was generally 40 feet wide, 16 feet of which was mac- adamized. Within 20 feet of the bridge the roadway narrowed Xo the width of the bridge, which was 14 feet. The traveled por- tion of the road included not only the macadamized part, but level ground on either side thereof, and when snow was on the ground the surfaced and the unsurfaced portions were indistinguish- able. An automobile driven westerly toward the bridge along the north side of the road would, if continued in a straight line, miss the bridge. Deceased approached the bridge from the east, and drove in a straight line along the north side of the road, missed the bridge, except that the left rear wheel of the automobile struck the north girder of the bridge, and went over the embankment to his death. There was no guard ra,ils at this place, to prevent such an accident. It was held that the jury were warranted in finding negligence on the part of defendant, and that the deceased was not contributorily negligent. Judgment for plaintiff was accordingly affirmed. In reference to the safety of the bridge the court declared: "The purpose of the bridge was to carry traffic brought up to it by the highway over the stream. It was so located and constructed, how- ever, with respect to the stream and to the highway, that travelers using the highway with due care might miss the entrance and plunge over a dangerous 526 (1910). 11 Dugan V. Arthurs, 230 Pa. St. 299, 79 Atl. 626, 34 L. R. A. (N. S.) 778 (1911). EVIDENCE OF SPEED AND AS TO STOPPING 925 case depends upon all the attendant circumstances, and is a ques- tion for the jury .^2 The fact that a witness might not be able to testify how fast or how slow an automobile was moving should not preclude him from testifying whether it was moving fast or slow. The weight to be attached to such evidence is for the jury.^* Nor does the fact that a witness cannot state, in miles per hour, the rate at which an auto- mobile was being driven, render his testimony incompetent on the subject.^* And a witness may testify to the speed of a moving object, although he cannot tell how many feet or rods there are in a mile.^* • Testimony of the speed of an automobile has been held admis- sible, although the witness was unable to positively identify the automobile as the one belonging, to the defendant.^® § 990. Same. In testifying regarding the speed of a car a wit- ness' statement that, "After the application of the brakes I suppose the car was moving about four miles an hour," should not be stricken out on account of the use of the words "I suppose," inasmuch as he was giving his opinion regarding the speed of the car.^'' A nonexpert who has seen automobiles in action may give his opinion as to the rate of speed of an automobile coming under his observation, although he never owned nor operated an automobile, and never made tests of speed or distance traveled by an auto- mobile in a given space of time.^' , An adult resident of a city, who had ridden in automobiles, and who observed the moving of the machine in controversy as it ap- ^^ Alabama: Kansas City, M. & B. R. 18 Kansas City M. & B. R. Co. v. Co. V. Crocker, 9S Ala. 412, 11 So. Crocker, 9S Ala. 412, 422, 11 So. 262; 262. " Illinois Central R. Co. v. Ashline, 171 Illinois: Illinois Cent. R. Co. v. Ash- 111. 313, 317, 49 N. E. 52, 9 Am. & line, 171 111. 313, 49 N. E. S2. Eng. R. Cas./(N. S.) 702; Wmann Michigan: Luttenton v. Detroit, J. & v. Nassau Electric R. Co., 23 App. C. Ry., 209 Mich. 20, 176 N. W. SS8 Div. 21. (1920). ' l4 0vertoom v. Chicago & E. I. R. Co., Missouri: State v. Watson, 216 Mo. 80 111. App. SIS, 520; Payne v. Water- 420, lis S. W. 1011. loo, C. F. & N. R. Co., 153 la. 445. New York: Ehrmann v. Nassau El. 16 Ward v. Chicago, St. P., M. & O. R. Co., 23 App. Div. 21. R. Co., 85 Wis. 601, 608. Federal: Denver O. & C. Co. v. Krebs, 18 Berg ' v. Fisher, 182 111. App. 449 166 C. C. A. 611, 255 Fed. 543 (1919). (1913). The comparative value of opinion evi- 1' Wilson v. Chicago City R. Co., 154 dence of expert and nonexpert witnesses lU. App. 632. is for the jury. Fisher Motor Car Co. 18 Hiscock v. Phinney, 81 Wash. 117, v. Seymour, 9 Ga. App. 465, 71 S. E. 142 Pac. 461, 8 N. C. C. A. 382 (1914). 764 (1911). 926 LAW OF AUTOMOBILES proached the place of the accident, was properly permitted to state his estimate of its speed.^' It was held proper to show by a witness, who testified as to the speed of a vehicle, that he had had considerable experience in watching and timing race horses. This testimony not being ad- mitted to qualify the witness as an expert, but merely to show that, having been in the habit of making such observations, he was the better able to form a reliable judgment upon seeing the passing vehicle.^" A teamster who had watched the rate of speed of street cars as they passed him while hauling, was held to be abundantly qualified to testify as to the rate of speed of a street car. "Indeed," said the court, "as his testimony indicates, he was obliged to know how to estimate such speed to save Jiimself in hauling on the streets where such cars run." *^ A business man of mature years, who saw an automobile as its rear end passed the gates of a street car g;nd until it stopped some 60 feet farther on, was held to be competent to give his opinion as to how fast the automobile was moving, although he had previously testified that he had never theretofore attempted to determine the speed lOf an automobile by watching it pass, and was unable to state positively how fast this one was going?^ In an action in which it appeared that one who had alighted from a street car was struck by an automobile while on his way to the sidewalk, the conductor of the car, who was testifying as a witness in the case, was ,asked the following questions: From the time that you saw the automobile to the moment that this gentleman got off the car, what opportunity did he have to get out of the way of the automobile? If he ^ad looked in that direction, what could he have done to have avoided the injury? It was held that these questions, called for the opinion of the witness, in respect to matters about which the jurors were just as able to draw their own conclusions from the conditions and facts presented to them as the witness, and were incompetent. There was a similar ruling as to the following question put to another witness 19 American Mot6r Car Co. v. Rob- the rate of speed of an automobile he bins, 181 Ind. 417, 103 N. E. 641, 8 N. saw strike a pedestrian. Hough v. St. C. C. A. 372 (1913). Louis Car Co., 146 Mo. App. 58, 123 20Krsi,mm V. Stockton El. R. Co., 23 S. W. 83 (1909). Cal. App. 737. 21 Lorenzen v. United Rys. Co., 249 An experienced motorman, accustomed Mo. 182, ISS S. W. 30. to observe the speed of vehicles, was 22 Daly v. Curry, 128 Minn. 449, 151 competent to express his opinion as to N. W. 274 (1915). EVIDENCE OF SPEED AND AS TO STOPPING 927 in the same case: Could you tell from the rate of speed that tha,t automobile was going whether it started up from a full stop?^* In respect to the last question, the court said that, "It is a mat- ter of common knowledge that it would depend largely upon the type and power of an automobile as to how quickly it could attain a fast rate of spee^i after having been at a complete stop, and it does not appear that the witness possessed any special or particu- lar knowledge of this type of car, or was otherwise qualified to answer the question." It was held in an Iowa case that, it not appearing that a witness was able to estimate speed, his testimony was properly excluded.^* And testimony as to the speed of an automobile was held not improperly excluded where it was not cl^ar from the^ testimony of the witness whether she was competent to judge of, or had any opinion as to the speed of the car at the time of the accident.^® § 991. Opposing party not entitled to preliminary examina- tion as to qualifications of witnesses. Where witnesses are offered by the plaintiff to prove the speed of an automobile, and they are not offered to testify as experts on account of their peculiar quali- fications, by reason of education, observation, or experience, to speak on such question, the defendant is not entitled to examine them as to their qualifications before they are permitted to testify. The rule relating to the qualification of experts does not apply in such instances.*^ The defendant may, of course, on cross-ex- amination, question the witness as to their experience, observation, etc., in order to affect the weight of their testimony. The objec- tion that a proposed witness is without experience or is not accustomed to the use of his faculties of observation, goes to the weight of his testimony and not to its admissibility.^'' § 992. Witness intoxicated at time of accident. The intoxi- cation of a witness at the time to which his testimony relates re- flects upon his capacity for accurate observatipn, correct memory, and unbiased judgment; hence evidence of such intoxication is admissible.^* § 993. Opinion as to speed jiot formed until after the acci- dent. An opinion as to the rate of speed of a moving object is 2»Levyn v. Koppin, 183 Mich. 232, 149 26 Johnston v. Bay State St. R. Co., N. W., 993 (1914). . 222 Mass. 583, 111 N. E. 391. 24 Livingstone v; Dole, 184 la. 1340, a^ Johnston v. Bay State St. R. Co., 167 N. W. 639 (1918). ' 222 Mass. S83, 111 N. E. 391. 26Barnett v. Levy, 213 111. App. 129 28 Herzig v. Sandberg, S4 Mont. S38, (1919). 172 Pac. 132 (1918). , , 928 LAW OF AUTOMOBILES not to be excluded because not fonhed at the time the object was seen, and, in fact, not until several days later.^^ § 994. Opportunity of witness to observe. While a witness who does not possess some means of judging the speed of the automobile at the time in question is not competent to express an opinion as to such speed,^° if he has had some opportunity, although limited, of observing its speed, he may express an opinion on that subject. The fact that his opportunity of observing the speed of the machine was slight may be considered as affecting the weight of his testimony, but it does not affect its competency. Its weight is a question for the jury.'^ The fact that plaintiff saw the automobile that struck her but an instant before the contact, does not entirely eliminate her testi- mony on the question of its speed.*^ The witness should have seen the automobile move a sufficient distance for him to have time to form an opinion of its rate of speed. Where an experienced railroad engineer saw an auto- mobile move through a space of only 20 feet, after it emerged from behind a tank and before it collided with the plaintiff, and he had no intimation it was approaching until it came into view from be- hind the tank, and the night was dark, it was held that his testimony was admissible because of his unusual competency to judge, of speed. Said the court: "In the instant case the witness was a railroaid engineer of long experience. The court must take notice of the fact that it was part of his business to estimate speed by observation of objects which he was passing while in his engine, both by day and night. He must furthermore be given credit for some knowledge of his own ability in this respect, and he professed to be able to give an opinion in this case. We think the court was not in error in receiving his opinion as to the speed of the car. Such 89Lorenzen v. United Rys. Co., 249i > An estimate of speed should have as Mo. 182, ISS S. W. 30. a basis at' least a reasonable opportunity 80 San Antonio I?. S. Co. v. Tracy, — to judge. Grand Rapids & I. R. Co. Tex. Civ. App., — , , 221 S. W. 637 v. Huntley, 38 Mich. S37, S40. (1920). A person approaching a train who sees *1 Dilger v. Whittier, 33, Cal. App. it when it is 60 feet away, if otherwise IS, 164 Pac. 49 (1917) ; Shimoda v. qualified, is competent to give evidence Bundy, 24 Cal. App. 675, 142 Pac. 109, as to its speed. Zenner v. Great North- 9 N. C. C. A. 834 (1914); Rump v. em R. Co., 13S Minn. 37, 159 N. W. Woods, 50 Ind. App. 347, 98 N. E. 369 1087 (1916). (1912); Ottofy v. Mississippi Valley Tr. S^Ottofy v. Mississippi Valley Tr. Co., Co., 197 Mo. App. 473, 196 S. W. 428 197 Mo. App. 473, 196 S. W. 428 (1917). (1917). EVIDENCE OF SPEED AND AS TO STOPPING 929 testimony should not be rejected Unless it is clearly apparent that it can be of no value to the jury. Its weight is, of course, to be determined entirely by them." ^^ One who had observed automobiles in motion,- and who saw one that struck him approaching- for a distance of 10 or IS feet, was held properly allowed to give his opinion as to its rate of speed .^* Where it appeared that the plaintiff, who was riding a motor- cycle when he was struck by defendant's automobile, not only saw the machine before it struck him and had time to turn the handle- bars of his machine so as to change his course, but saw and esti- mated its speed while it was running a distance of half a block after colliding with him, it was held that he was competent to express his opinion as to the rate of speed of the automobile at the time it struck him.^^ A witness, who was 45 years of age, testified that in her opinion the defendant's automobile was being driven from 25 to 30 miles an hour at the time of the accident. She stated that she had driven horses all her life, had ridden in automobiles, had ridden on trains, and knew something about the speed which trains of cars made. She stated that she had an opportunity to observe the machine as it was approaching her in such a way as to enable her to form a reasonable judgment as, to how fast it was gonig. Held, that her testimony was competent.*® A witness, who was about 62 years of age at the time of the acci- dent, testified that she had been in the habit of meeting automo- biles on the road for years, that she had been driving horses all her life, had ridden on railroad trains, and had observed the rate~ at which the. ordinary vehicles traveled, and stated that she first saw the defendant when he was about 10 or 12 rods away, was held to be competent to give an opinion as to the rate of speed of the automobile in question.*'' Although a plaintiff first said that he did not know the speed at which a street car came upon him, and that it came upon him so quickly he could not well judge of its speed, it was held that he was properly allowed to give his estimate of it at IS miles an hour, where it appeared that he had lived for a long time near the car 33 Harnau v. Haight, 189 Mich. 600, 36 Faulkner v. Payne, 191 Mich. 263, ISS N. W. S63 (191S). 157 N. W. S6S (1916). 34 Himmelwright v. Baker, 82 Kan. 37 Faulkner v. Payne, 191 Mich. 263, S69, 109 Pac. 178 (1910). 157 N. W. 565 (1916). 35Shimoda v. Bundy, 24 Cal. App. 675, 142 Pac. 109, 9 N. C. C. A. 834 (1914). B. Autos. — 59 930 LAW OF AUTOMOBILES line, and was accustomed to the movement of cars. The court declared that the testimony might be of little weight, but that it was admissible.** Testimony by a boy, who was struck by an automobile, that it was moving 25 or 30 miles an hour, was held not to support an allegation of excessive speed where the machine was stopped 3 or 4 feet after it struck him and he saw it when it was only 2 to 7 feet from him.*' § 995. Estimated from noise of automobile. In a case in which the plaintiff sought recovery for injuries incurred while sit- ting on the railing of a bridge approach, by an automobile running into the approach, a witness who did not see the automobile, but who was in a house a short distance away, testified that the auto- mobile was running at a rate of speed greater than that of ma- chines as they approached the bridge; and another witness, who was in the same house at the time of the accident, testified that he heard the automobile coming at an unusual speed, followed by a crash. It did not appear that this testimony was questioned, and on appeal the Supreme Cpurt (of Pennsylvania) considered it with other evidence as making a case for thfe jury:*" It will be noticed that, in the case last mentioned, neither wit- ness attempted to give the speed of the automobile in miles per hour. They merely compared the> speed of the machine in question with others they had heard, and some of which they had no doubt seen, on the same road. ' Where a witness testified that an automobile which approached very near to him in the dark made no noise heard by him, and that when running at a high rate of speed an automobile makes but little noise, and when running at a low rate of speed it makes much more noise, it was held that his testimony was not competent to estimate the speed of the automobile." In a case in which the speed of a train which collided with some cars was a pertinent question, a witness who heard the noise of the collision gave his opinion as to the speed of the train. In this respect the court said : "This witness appears to have been at his stable at the time of the accident, and the only inference from his 38 Watson V. Boone Electric Co., 163 41 Wright v. Crane, 142 Mich. 508, la. 316, 144 N. W. 3S0. SIO, 106 N. W. 71, 21 Detroit Leg. N. 89Feyrer v. Durbrow, — Wis. — , 178 794. N. ,W. 306 (1920). 40Haring v. Connell, 244 Pa. St. 439, 90 Atl, 910 (1914). EVIDiENCE OF SPEED AND AS TO STOPPING 931 evidence is, that he did not see the cars when they came together. He heard the jam, and from that alone makes his estimate of the rate of speed, an estimate at war with all the other evidence in the case. Whilst the rate of speed of an engine or car may be shown by the opinion of witnesses who saw the engine or car in motion, still such evidence seems to be admitted on the ground that the estimate involves the consideration of many circumstances which cannot be accurately or fully detailed. Hence the conclusion drawn by the witness from the circumstances is admitted. It is but the opinion of the witness. Such an opinion formed by a non-expert solely from hearing the jam of the cars is of no value, and we conclude entitled to no consideration. The witness, if not an expert, ought to have before his mind and eye something more than the noise made by the jam of the cars to entitle his opinion of the rate of speed of the cars to any consideration." *^ One who had for 20 years or more the common experience of a city man traveling on street cars, was not thereby qualified to testify to the speed of a street car from the noise it made. In holding that such testimony was not admissible, the court in part said: "There is no sound more familiar to the ears of a city man than that made by a street car in motion, and one may by the sound form some idea as to whether the car is moving fast or slowly, but to the man of common experience the idea is very indefinite. When such evidence is offered, the court in the first instance must pass on the question of the qualification of the wit- ness to give an opinion, and unless the court is satisfied that the witness is really enabled to give something more than a vague guess, it ought to rule the evidence out as not worthy to influence a verdict." *' The fact that one has observed bodies move and in motion a good many times, and has seen horses trot and run, does not show that he has had sufficient experience to give his opinion as to the rate of speed a hand car was going when collision occurred between it and a buggy, where he heard the car approaching, but did not see it.** >• § 996. As determined by exhaust of engine. The testimony of a witness concerning the speed of an automobile as determined by the exhaust of the engine has been held to be incompetent, as it 42Waiiamsv. Kansas City, S. & M. "Mott v. Detroit, G. H. & M. R. R. Co., 96 Mo. 27S. Co., 120 Mich. 127, 79 N. W. 3. 48 Campbell v. St. Louis & Sub. R. Co., 17S Mo. 161, 75 S. W. 86. 932 LAW OF AUTOMOBILES is a well known fact that the speed of the motor has no relation necessarily ,to the speed of the car. The motor may run fastest when the clutch is out. In a case in which this question arose, the court said: "But the principal reason why the speed shown by the exhaust of the engine was immaterial was because the witness himself did not use it to determine the speed of the car; in fact, he made it clear that the speed of the engine did not indicate the speed of the car, inas- much as he testified that the car was going about 20 miles an hour, while the exhaust of the engine would indicate a speed of 30 miles an hour. But this testimony as to the speed indicated by the ex- haust was undoubtedly made harmless by the witness' own expla- nation." *^ § 997. Opinion based on marks made by wheels in stopping. Testimony regarding the appearance of tracks made by vehicles in a collision, is of fact, and does not call for the conclusion of the witness.*® However, one may give his opinion as an expert as to what such marks indicate.*'' Were there was evidence as to the kind of automobile, the con- dition of the roadbed, the place where the brakes were applied, the place where the automobile struck and injured a child, and the dis- tance the car had slid- along the ground before stopping, it was held that two witnesses, who showed that they were familiar with handling automobiles, and who had examined the roadbed in ques- tion, and who had seen the marks made by the sliding automobile, were competent to give their opinions as to the rate of speed at which the automobile was running.** Where there was evidence that there were skid marks of the wheels of the truck in question on the street for a distance equal to the street crossing and other evidence showing long skid marks, it was held that a proper ground was furnished for an expert to give his opinion as to the speed at which the truck was traveling when the brakes were, applied.*® In the trial of an action to recover for injuries to a boy, caused by an automobile colliding with him, a young lady witness was permitted to give her opinion as to the speed of the car. She did 45Harnau v. Haight, 189 Mich. 600, 48Heidner v. Germschied, — S. D. — , IBS N. W. S63 (191S). 171 N. W. 208 (1919). 46 Scott V. O'Leary, 157 la. 222, 138 49 Luethe v. Schmidt-Gaertner Co., — N. W. 512 (1912). Wis. — , 176 N. W. 63 (1920). 47 Carson v. Turrish, 140 Minn. 445, 168 N. W. 349 (1918). EVIDENCE OF SPEED AND AS TO STOPPING 933 not see it in motion nor appear upon the scene until some time after the happening of the accident. She testified, in substance that behind it and in the direction from which the automobile? came she observed two black streaks upon the pavement; and, having stated, in answer to a question, "Well, I know pretty well about the speed," she was asked if she would be able to approximate the speed of the automobile from the marks it left in stopping. She answered affirmatively, and said: "I should judge from that about 30 miles an hour, by the depth of the burns." In holding that such testimony was not admissible, the Supreme Court of Oregon said: "Conceding that it was a matter calling for opinion evidence, the conditions were not adequate grounds upon which any expert could form an estimate. The mere marks upon the pavement did not constitute a sufficient basis for that kind of testimony. The ultimate object of the inquiry on that point was the speed of the vehicle. It is reasonable that, if a very heavily loaded car with wheels rough locked were propelled along a pave- ment at a very slow rate of speed, marks would be left behind. Again, the condition of the tires and of the street as to being rough or even would influence the question. Naturally a very smooth tire upon a very smooth surface, which, in turn, might be affected by a condition of dampness or frost, would result in but a faint marking. A variance in smoothness of either the tire or the pave- ment would produce different results. There was no testimony about any such conditions, or at least none of them were sug- gested to or mentioned by the witness. Consequently the founda- tion for expert testimony did not exist." ^° In this case it would, of course, have been proper for the wit- ness to describe the appearance of the marks, the condition of the street, and to state all other facts pertinent thereto which had a tendency to prove the rate of speed of the automobile; leaving it to the jury to draw their own conclusions therefrom. A witness cannot testify as to the speed of an automobile when he bases his opinion on the marks made in the street by the skid- ding of the car; but he is properly allowed to describe the marks, leaving it to the jury to draw a conclusion therefrom.*^ § 998. Distance traveled by automobile after accident. In determining the speed of an automobile at the time it collided with a pedestrian, it is proper for the jury to take into consideration the distance traveled by the machine after the collision and before S'Everart v. Fischer, 75 Oreg. 316, 61 Nelson v. Hedin, — la. — , 169 145 Pac. 33 (1915). N. W. 37 (1918). 934 LAW OF AUTOMOBILES it was stopped. The test of control of an automobile is the ability to stop quickly. When this result is not accomplished, in such circumstances, the inference is obvious that it was running too fast, or that proper effort was not made to stop it.®^ In an action to recover for the death of a boy the trial court instructed the jury that there was no evidence that the auto- mobile which caused his death was running more than four miles an hour, which was the limit prescribed by statute in the par- ticular situation. It appeared, however, that the car weighed 3,000 pounds, and was equipped with a gasoline motor of 4S horsepower. It was also equipped with a foot and an emergency brake, which, as the chauffeur testified, "acted quickly and were very forcible and powerful." He also testified that as soon as he saw the intestate, who was then directly in front of the left head- light of the car and but about a foot distant, he "threw on the brakes and pulled the throttle which slackens the speed of . the machine and stops her." He further said: "I applied the foot brake just as soon as I saw the boy. I put on the other brake after that." The latter brake was found to be on after the car had stopped. There was also testimony that, after the boy was struck, the car ran more than 70 feet along a street having a slight up- grade in the direction the car was moving. It was held that the charge of the trial court was erroneous; that if the car ran more than 70 feet after striking the boy, under the conditions shown, it was not credible that its speed was not greater than four miles an hour.** In a right angle collision between an automobile and a motor- cycle, the fact that the latter was carried sidewise about 30 feet, was insufficient to show that the automobile was moving more than 25 miles an hour, so as to make a prima facie case of negligence under the provisions of a statute.** It has been held that proof that a street car ran more than ISO feet after colliding with a vehicle before it could be stopped, al- though the brake had been firmly set, was evidence tending to show excessive speed.** § 999. Skidding of automobile after application of brakes. Testimony that when defendant applied his brakes he "skidded B2Lorah v. Rinehart, 243 Pa. St. 231, MLarsh v. Strasser, 183 la. 1360, 168 89 Atl. 967 (1914). N. W. 142 (1918). 68Ackerman v. Stacey, 157 App. Div. 66 Pierce v. Lincoln Tr. Co., 92 Neb. 835,' 143 N. Y. Supp. 227 (1913). 797, 139 N. W. 656. EVIDENCE OF SPEED AND AS TO STOPPING 935 his machine for fully 50 feet, the fire flying from under the tires, ' trying to stop," was held to be sufficient to support a finding that the defendant was driving at a dangerous and unlawful speed.^^ § 1000. General description of speed. It is proper to admit testimony descriptive of the speed of a moving object, as dis- tinguished from an estimate of its rate of speed in miles per hour.*'' Testimony that the automobile causing injury "ran fast," "ran very fast," "ran mighty fast," is not wholly incompeteilt because of its vagueness, particularly where the defendant's evidence was to the effect that the automobile was "running slow." *' A witness was held to have been properly allowed to testify that the automobile in question, at the time and place alleged, was run "very fast," "just as fast as it could." ** He may state that the automobile was going "pretty fast." ^^ So, testimony that an automobile was going at a "lively" rate of speed was considered of value.®^ Testimony that an automobile was "going swift," was some evidence of its rate of speed.®^ In regard to the speed of a team of horses and wagon, it was held competent for non-expert witnesses to testify that "they werp going at a fair speed," "the horses were going at a pretty fast gait," "the horses were just running,"' and "the horses were run- ning fast." ** In an action against a street railroad company for the death of a child, it was held proper to admit testimony of witnesses char- acterizing the speed of tJie car as "progressing very rapidly," "go- ing a little fast," "going kind of swift," "going pretty fast," and "going fast." «* ^ , It has been held, however, that testimony as to whether an auto- mobile was moving "fast or slow" was properly excluded because 66 Ellis V. Sanberg, — Cal. App. — , 69 Cedar Creek Store Co. v. Stedham, 182 Pac. 792 (1919). 187 Ala. 622, 6S So. 984 (1914). 67 United Rys. & El. Co. v. State to 60 McLaughlin v. Griffin, 155 la. 302, Use, 127 Md. 197, 96 Atl. 261 (1915). 135 N. W. 1107 (1912). Persons who from experience or ob- 61 Hodges v. Chambers, 171 Mo. App. servation are qualified to describe un- 563, 154 S. W. 429 (1913). usual speed, as applied to cars being 62shipelis v. Cody, 214 Mass. 452 switched in a freight yard, may give 101 N. E. 1071, 4 N. C. C. A. 5 (1913). testimony to that effect. Louisville & 63 Heidenreich v. Bremner, 176 111. N. R. Co. v. Johnson's Adm'x, 161 Ky. App. 230, aff'd 260 111. 439. 824, 171 S. W. 847 (1914). 64 Harm v. Chicago City R. Co., 187 68 Trzetiatowski v. Evening American 111. App. 71. Pub. Co., 185 111. App. 451 (1914). 936 LAW OF AUTOMOBILES "one may call a thing fast which another man would call slow." ®* It was held that testimony of witnesses that the automobile in question was going "fast," "pretty fast," "awful fast," etc., was not admissible. The court said: "It was not shown that these wit- nesses had any idea of the rate of speed of an automobile, or were in any way qualified to speak thereof, and furthermore such testi- mony was nothing more than the conclusions of the witnesses, and ought not to have been admitted." The allegation of negligence in this case, however, was that de- fendant was driving in excess of 25 miles an hour. The testimony mentioned had no tendency to prove that fact, and was no doubt excluded oh that account.®^ In an action by a pedestrian to recover for injuries incurred by bdng struck by a truck while she was crossing a street, testi- mony that the truck was going "fast" at the time does not show any right in the plaintiff to recover.®'' Evidence that the automobile in question was moving "fast" at the time of the accident is not in itself proof of the driver's negli- gence as the proximate cause of the injury.®* Testimony that the automobile in question was moving "very fast," "pretty fast," "good speed," is not evidence that the machine was moving more than 20 miles an hour, which was the rate pro- hibited.«9 It has been held that the expression "like a chain of lightning," was entitled to but little weight as a definite statement Of the speed of a street car.'" Testimony that an automobile was running "a good deal faster than a horse trots," and that "it went pretty fast," did not show that it was exceeding the speed limit or was moving at an excessive rate." \ , , It is improper for a non-expert witness to give his opinion that the speed of an automobile was unreasonable,''^ or ' that it was dangerous.'" esvferruna v. Dick, 261 Pa. St. 602, 70 Swayne v. Connecticut Co., 86 104 Atl. 749 (1918). Conn. 439, 8S Atl. 634, 737 (1912). eepriebe v. Crandall, — Mo. App. 'l Zoltovski v. Gzella, 1S9 Mich. 620, — , 187 S. W. 60S (1916). 124 N. W. S27 (1910). BTRothfeld V. Clerkin, 98 Misc. 19^, ^e Colebank v. Standard Garage Co., 162 N. Y. Supp. 10S6 (1917). 7S W. Va. 389, 84 S. E. lOSl (1914). 68 Popick V. Neal Hdw. Co., 164 N, ''8 Alabama, G. S. R. Co. v. Hall, 105 Y.Supp. 413 (1917). Ala. 599, 606, 17 So. 176. 69 Diamond v. Weyerhaeuser, 178 Cal. S40, 174 Pac: 38 (1918). EVIDENCE OF SPEED AND AS TO STOPPING 937 § 1001. Comparative speed. Where a witness testifies to the relative or comparative speed, he should have some standard of rapidity with which to compare, otherwise his opinions are of little value.''* One who customarily rode on a certain line of street cars was held to have been properly . allowed to testify that a car of that line which he saw collide with a vehicle, "traveled faster than they ordinarily do." ''® A witness to a collision between an automobile and motor- cycle, who stated that he was unable to determine or estiniate the speed at which the automobile was running, was, for the purpose of showing its speed, and without objection being interposed thereto, permitted to testify that at the time of the collision the aupmobile was running at about the same speed as a car operated over the same street and at the same place, the speed of which he had witnessed a few days before the trial. Testimony was then introduced to show the rate of speed of this car at the time and place in question.''* Testimony that an automobile was being driven at a high rate of speed, faster than street cars between two points mentioned, which made ten miles in forty minutes, is admissible.''"' Witnesses were allowed to describe the speed of an automobile as, "It was going about as fast as a trolley car goes when it is going full speed;" "As fast as any trolley car can go." ^* Such testimony may be somewhat vague, still it is not without value, especially if there is also testimony estimating the rate of speed VI miles per hour. Even standing alone, it conveys the idea that the automobile was being run at an unusual and im- moderate rate of speed. A witness who was driving a horse about a quarter of a mile from the place of the accident in question when the automobile (which later collided with plaintiff's vehicle) overtook and passed him, testified that he immediately speeded his horse to 12 or more miles an hour following the automobile, which was running at such a rate of speed that by the time it reached the intersecting road where the co'llision occurred it had gained 200 yards on him. Held, that his testimony was admissible.'" ''4 Grand Rapids & I. R. Co. v. Hunt- 77 Shaffer v. Coleman, 35 Pa. Super, ley, 38 Mich. 537, S40. Ct. 386. ■ 78Niehaus v. United Rys.. Co., 16S 78 Bloom v, Whelan, 56 Pa. Super. Ct. Mo. App. 606, 148 S. W. 389. 277 (1914). 76Shimoda v. Bundy, 24 Cal. App. 79 National Casket Co. v. Powar, 137 675, 142 Pac. 109, 9 N. C. • C. A. 834 Ky. 156, 125 S. W. 279 (1910). (1914). 938 LAW OF AUTOMOBILES § 1002. Rate of speed such as to attract attention. The fact that the attention of a witness, accustomed to seeing passing auto- mobiles, was attracted by the speed at which an automobile was moving, in itself indicates an immoderate rate of speed. An auto- mobile moving at usual and moderate speed passes unnoticed, while one moving at an unusual or high rate of speed instantly attracts attention. So, it was reasonably explanatory when a wit- ness, who had testified as to the rate of speed of an automobile, answering an inquiry on cross-examination as to what attracted his attention to that particular passing car, said: "What attracted my attention to the car was the speed of the car. Not only on this occasion, but every other occasion that he went by the place he was traveling at a high rate of speed." *" The fact, however, that a person is concerned or frightened about the speed of an automobile furnishes no reliable guide as to its rate of speed; and the question, put to the witness, whether the coming of the machine in question aroused any concern in him, was properly objected to and the answer excluded.'^ § 1003. Rate of speed on other occasions or at other places. It is not competent for a witness to testify as to the rate of speed at which defendant operated his automobile on occasions or at places other than the one in question.*® Where, however, all of the testimony was that at the time in question the machine was be- ing driven at 12 to IS miles an hour, testimony of the rate of speed at which defendant had driven on other occasions was held not to be prejudicial.*' Where, in an action to recover for injuries due to the collision of an automobile with a standing wagon, it appeared that at a point 100 or 150 feet from the place of collision the defendant was driv- ing his automobile between 10 and IS, miles an hour, which was in excess of the rate allowed by ordinance, which was 8 miles an hour, it was held that the jury might reasonably infer that at or im- mediately prior to the collision the defendant was exceeding the legal rate of speed.'* i Where a boy was run down near a culvert, and defendant testi- fied that he slowed down for the culvert, testimony that the ma- 80 Bloom V. Whelan, 56 Pa. Super. Ct. 88 Louisville Lozier Co. v. Sallee, 167 277 (1914). Ky. 499, 180 S. W. 841 (191S). 81 Beaucage v. Mercer, 206 Mass. 492, 84Bauhofer v. Crawford, 16 Cal. App. 92 N. E. 774 (1910). 676, 117 Pac. 931 (1911). 82 Young V. Campbell, 20 Ariz. 71, 177 Pac. 19 (1918). EVIDENCE OF SPEED AND AS TO STOPPING 939 chine was moving 25 miles an hour when 90 feet from the culvert was admissible; it, being shown that the machine, after turning to avoid the boy, skidded across the road and hit a wire fence hard enough to upset a heavy fence post.*^ It was held profier to admit evidence of a high rate of spieed of an automobile, which struck a crossing watchman, one and a half blocks before reaching the place of the accident, as affording an inference with respect to its probable rate of speed at the place of the accident.*^ Evidence of high speed a mile and a half or two miles from the place of accident was held to be admissible, there being other evi- dence of high speed at the time of the accident.*'' Testimony as to the rate of speed of defendant's automobile a mile before reaching the place of accident, was admissible where there was testimony that the rate of speed was not diminished be- tween the point in question and the place of accident.*' It was held competent for a witness to testify as to the rate of speed of the automobile in question four blocks from the place, of the accident, where, there was testimony to show, the speed was § 1004. Effects of collision. The effects produced by a collision may be proved as tending to show the rate of speed.'" In an action growing out of the collision of an automobile with a horse, testi- mony of the defendant, driver of the machine, that the collision threw the man riding with him "ahead toward the wind shield," but did not throw him out, was competent as bearing on the ques- tion of speed .'^ Testimony that an automobile rolled over on its side and then righted itself, and that an occupant was thrown, out, was held to be admissible as indicating the speed of the machine.®^ § 1005. Bruises received by occupant in collision. Evidence of the bruises received by the occupant of a vehicle with which an automobile collided, was held to be admissible as tending to 86 La Duke v. Dexter, — Mo. App. 89 wigginton's Adm'r v. Rickert, — — , 202 S. W. 254 (1918). Ky. — 217 S. W. 933 (1920). 86 Davies V. Barnes, — Ala. — , 77 So. 90 Shepherd v. Marston, — Me. — , 612 (1917), citing as authority Louis- 109 Atl. 387 (1920). ville & N. R. Co. v. Woods, lOS Ala. 91 Duprat v. Chesmore, — Vt. — , 110 561, 17 So. 41. ' Atl. 305 (1920). STWellman v. Mead, — Vt. — , 107 92Kriens v. McMillan, — S. D. — , Atl. 396 (1919). 173 N. W. 731 (1919). 88 Tyrrell v. Goslant, — Vt. — , 106 Atl. 585 (1919). 940 LAW OF AUTOMOBILES show the violence of the collision, and the speed at which the auto- mobile was moving.'* There is equally good authority to the contrary.'* § 1006. Testimony as to intoxication of driver. Testimony that the defendant's driver and the other occupants of his machine visited a number of saloons where they drank intoxicating liquor, during the two hours just pTeceding the accident, has been held, to be competent as bearing on the rate of speed of the automobile and the manner in which it was being driven. "Because it is a matter of common knowledge that persons under the influence of liquor are wholly unfit to operate automobiles in cities or out of them either in the night or day; they have no thought of their own safety, and appear to be wholly possessed of a desire to run the machine as fast as it can go, without any regard to the rights of other people; and so, when an automobile accident happens that results in a suit for damages, it is permissible to show the intoxi- cated condition of the driver and the number of drinks of intoxi- eating liquor he has taken, beginning with such a length of time before the accident as would furnish some evidence of hi? condition when it occurred." '* § 1007. Testimony of motorcycle officer based on speedom- eter. An officer testified, in substance, that he took the speed of the appellant by means of a motorcycle, to which was attached a tested speedometer; that he took appellant's speed from Gar- field street to Sherman street, a distance of more than a thousand feet, maintaining ari^ equal speed at a constant distance of about SO feet behind the appellant, and his speedometer registered 30 miles an hour; that, between two other streets, upon the same oc- casion, he took his speed, and the speedometer on his motorcycle registered 27 miles per hour. This same witness testified that his speedometer had been tested as often as three times a week, and was found to be corredt. The defendant testified that he had, a speedometer on his automobile, which he testified was correct, and which showed that he was traveling at less than 20 miles per hour. Held, that the testimony was sufficient to go to the jury, the court in part saying: "There was some evidence that speedom- eters are not accurate, and get out of order, and it is argued by the MPosener v. Harvey, — Tex. Civ. 9B wigginton's Adm'r v. .Rickert, — App. — 125 S. W. 356 (1910). Ky. — 217 S. W. 933 (1920). 9*Kriens v. McMillan, — S. D. — , 173 N. W. 731 (1919). EVIDENCE OF SPEED AND AS TO STOPPING 941 appellant that the officer's speedometer may have been out of order, and did not register the speed correctly; but that was a question for the jury. Speedometers, like other machines, may get out of order; but, where they are tested regularly, they may be relied upon with reasonable certainty to determine accurately the rate of speed at which a machine is driven. It cannot be said therefore that, because speedometers may be out of order, rates of speed may not be measured by instruments manufactured for that purpose, and which usually give approximately correct rates of speed. The question was one for the jury." ®^ § 1008. Proof of reliability of speedometer. On the trial of a complaint charging a violation of a speed law, evidence as to what police departments used the Jones speedometer, offered for the purpose of proving the accuracy of the defendant's speedometer, was held to have been properly excluded. "The fact, if it is a fact, that very many of the police departments in the United States and elsewhere made use of this particular speedometer in their official testing, would only prove the faith of the several departments in its accuracy or the efficiency of the salesman employed in selling the speedometer." ^"^ ^ § 1009. As shown by Photo-Speed-Recorder. In a prosecu- tion of the violation by a motorist of a speed regulation the state offered in evidence an instrument called a "Photo-Speed-Recorder," which had been used by the witness producing it to ascertain the speed of the automobile at the time of the alleged violation. This instrument consisted of two similar photographic cameras, set side by side in the same box. It was arranged so that each camera took a picture with an exposure of approximately one hundredth of a second, and was provided with a mechanism which auto- matically exposed one camera approximately one second after the other. It was also provided with a chronometer of a stop watch variety so arranged that the shadow of a dial divided into thirtieths of a second was shown, together with the shadow of the hand in its position on the dial, upon the plate in each separate camera, and this was simultaneous with the exposure of the plate in each camera. In order to use the apparatus for determining speeds the following rule was employed: The distance of any external object from the lens of a camera is as many times greater than the distance of the image on the photograph plate from the lens as the size of the 96 Spokane v. Knight, 96 Wash. 403, 9'' State v. Buchanan, 32 R. I. 490 165 Pac. lOS (1917). (1911). 942 LAW OF AUTOMOBILES object is greater than the size of the image. Or, as otherwise ex- pressed: The distance of the object equals the distance from the image to the lens times length of object divided by length of image. , In order to prove that the instrument offered in evidence and which was used to test the speed of the automobile in question, when employed in conjunction with the aforesaid rule, was adapted correctly to ascertain distances, the state offered the following proof: That the witness who made the test in question, previous to making said test, had been furnished with and knew the distance of the image from the lens (i. e. focal length) in each camera; that he had 8 or 10 times photographed, with each camera, an object at distances varying from 30 to 300 feet; that he had measured the length of the object; that by employing the focal length, as given to him, the length of object and the length of image (when developed on photographic plate) in their proper places in the aforesaid formula, he had calculated in reference to each of the tests in the aforesaid series, and in reference to each of the cameras as respectively involved therein, the distance from camera to ob- ject; that the witness had measured with a tape and corresponding distances from camera to object, and that as measiired an4 as ex- perimentally obtained the results agreed in each case. The "Photo-Speed-Recorder" was used by the witness in the method above described to photograph the rear of the defendant's receding automobile. Then measurements were made by him of the wheel tread (i. e. the distance from the middle line of the tire of one of the rear wheels to the corresponding point on the other rear wheel) of the image on the photographic plates, and of the corresponding length on the automobile. The figures thus ob- tained, together with the focal length as previously verified, were employed in their proper places in the aforesaid formula, and the distance from the camera to the automobile at the instant of each exposure was thus calculated. Subtracting one distance from the other gave the distance traveled by the automobile between the times of the two exposures. Reading of the watch hand and shadow cast with the dial shadow upon the plate gave the time between the two exposures. Making the usual reductions of elapsed time from seconds to hours and of the distance covered from feet and inches to miles, the speed in miles per hour was calculated and found by the witness. The state offered to prove that the chronometer contained in the instrument had been compared by the witness with stop watches EVIDENCE OF SPEED AND AS TO STOPPING 943 carried by two other witnesses and also with the standard chro- nometer in the physical laboratory of the Massachusetts Institute of Technology and had been found in each case to be accurate. All of this evidence was admitted by the trial judge, the defendant objecting and excepting on the ground of the "insufficiency of the ex parte experiments intended to show the reliability of the ma- chine," and because of the failure of the state "to show the trust- worthiness of said stop watch mechanism, an integral part of the apparatus." It was contended that the experiments were insuf- ficient, because in the experiments the apparatus was used to photo- graph a stationary object, while in case of the automobile the object was moving; that in the former only distance was ascer- tained, while in the latter the instrument was used to ascertain speed as shown by both distance and time. In sustaining the trial judge, the court declared that, as a rule the question whether evidence of experiments shall be admitted depends largely upon the discretion of the trial judge, the exercise of which discretion will not be reversed unless plainly wrong; that it could not be said as matter of law that the evidence in this case would not justify the judge in coming to the conclusion that the experiments would be useful in determining the speed of the auto- mobile; that, indeed, it would seem desirable to have some ma- chine whose action being dependent upon the uniform working of the laws of nature would record the speed of a moving object; that the fact that the experimenter was not an expert was not fatal to the introduction of the machine; and that the evidence as to the accuracy of the chronometer was admissible and justified the trial judge in submitting that question to the jury.®* § 1010. Res gestae. A statement by an occupant of an auto- mobile at the time that an accident occurred owing to a defective street, that "we were going too fast," was held to be inadmissible as part of the res gestae, as it was mere opinion or conclusion, and no statement of fact as to how |ast the machine was going. The same person's statement that she told the driver before the acci- dent that they were going too fast, was not a part of the res gestae, because it related to a time prior to the accident.^ Testimony of an exclamation made by a street car passenger as an automobile (which later collided with the plaintiff) passed the car on account of the speed of the automobile, was properly 98 Com. V. Buxton, 20S Mass. 49, 91 1 Whitney v. Sioux City, 172 la. 336, N. E. 128 (1910). 154 N. W. 497 (191S). 944 LAW OF AUTOMOBILES excluded; it appearing that the exclamation was made prior to the accident, and could not have been provoked by observing the dangerous situation of the plaintiff, and that it was made without knowledge of his danger,^ Testimony that defendant's chauffeur, driving a truck which collided with a building when the driving chain broke, stated after the accident that the truck was out of order, that defendant's trucks were generally in bad condition, owing to the great rush of busi- ness, and that the machine was no good, etc., was held inadmissible, being a narrative of past events.* Statement by a taxicab driver to a passenger immediately after an accident . which injured a pedestrian, was held to be admis- sible.* Evidence of a statement by the defendant at the time of an auto- mobile accident that he was to blame, was held to be admissible as against the objection that it involved an opinion or conclusion of the defendant, and merely his conception of his legal duty.* It was held proper for witnesses who view the running of an automobile to testify to involuntary remarks made by them at the time and prompted by the excessive rate of speed. One witness, whose attention was attracted to the speed, remarked, at the time: "It's going like a bat out of hell!" Another said: "Go, you blue devil!" A third exclaimed: "Mercy, how fast it is go- ing!" These exclamations were properly repeated in evidence as bearing upon the rate of speed, of the machine.® The following statement, made by the motorman of a street car, which struck an automobile, to the operator of- the automobile, immediately upon his stopping the car and jumping therefrom and running to the operator, was held to be admissible in evidence as part of the res gestae: "Are you hurt?- It's a wonder I didn't kill you. I was coming full head down that hill." ' In an action arising out of personal injuries inflicted by an auto- mobile it was held that answer to the following question, put to a police officer who was in the vicihity at the time, of the accident and made an investigation thereof, was properly excluded : "Did you find from what inquiries you made at the time that any violation had occurred of the ordinances of the city, particularly 2 Gouin V. Ryder, — R. I. — , 94 Atl. B Robbing v. Weed, — la. — , 169 N. 670 (1915). W. 773 (1918). 8 Bolton V. Barrett, 172 N. Y. Supp. 6 Madding v. State, 118 Ark. 506, 177 457 (1918). S. W. 410 (1915). 4 Denver 0. & C. Co. v. Krebs, 166^ 7 Shore v. Dunham, — Mo. App. — , :;. C. A. 611, 2SS Fed. 543 (1919). 178 S. W. 900 (1915). EVIDENCE OF SPEED AND AS TO STOPPING 945 by this automobile and this driver, with reference to the speed limit?" It was contended that this question was so framed as to bring the answer within the res gestae. The court held, however, that in order to be a part of the res gestae the subsequent declara- tion must explain or in some way characterize the main fact, and must not be the narration of a past event, nor the expression of an opinion, as answer to this question would have been.' § 1011. Partiality of witness. The partiality of a witness for one party or side, or his prejudice against the other side, is always regarded as bearing on the trustworthiness of his testimony, and it is proper to show such partiality or prejudice. One way of showing such bias is by his prior expressions of such feelings.® In an action to recover for injuries alleged to have been caused by the defendant's automobile, it was held proper to ask a witness who testified for the defendant, if he had not sold his land to the defendant at a big price.^" STOPPING § 1012. Opinion of expert. In order that a witness may tes- tify as to the distance within which an automobile may be stopped he should have had practical experience in its operation or oppor- tunity for acquiring correct knowledge by observation.^^ It has been held that persons experienced in operating auto- mobiles may be permitted to testify, if the fact is material, that an automobile of a particular kind in question running at a certain speed could be stopped in less than a specified distance.^^ A witness who qualifies himself as an expert in handling and driving automo- biles, may properly testify as to the distance within which a cer- tain kind of automobile can be stopped under various rates of speed. ^^ An automobile driver, who saw an automobile strike a pedes- trian, was held qualified to testify as to the distance within which the automobile in question could have been stopped, after testify- STorgeson v. Hanford, 79 Wash. S6, 12 Crantoll v. Krause, 16S 111. App. 139Pac. 648 (1914). IS (1911); Foley v. LoM, 232 Mass. SMcFadden v. Metropolitan St. R. 368, 122 N. E. 393 (1919); Johnson v. .Co., 161 Mo. App. 652, 143 S. W. 884 Quinn, 130 Minn. 134, 153 N. W. 267 (1912). , (1915): 10 Curry v. Fleer, 157 N. C. 16, 72 " Blado v. Draper, 89 Neb. 787, 132 S. E. 626 (1911). N. W. 410 (1911). 11 Gourley v. St. Louis & S. F. R. Co., 35 Mo. App. 87, 94. B. Autos. — 60 i . 946 LAW OF AUTOMOBILES ingthat he was sufficiently familiar with running automobiles to tell such fact.^* An eyewitness to an automobile accident who testified that 'he had had considerable experience in observing the speed of automo- biles, had attended races, ridden in automobiles every day and read their speedometers, had been with a rubber company in its repair department for years, and said company left to his judgment all matters based on speed, was held to be qualified to give his opinion as to the distance within which the automobile in question could have! been stopped.^^ The testimony of experts that in driving an automobile of the type operated by defendant when he collided with the plaintiff, at 25 or 30 miles an hour, they could, assuming that the brakes were in proper condition, and depending to some extent on the resistance or traction of the road, stop the car within a distance of 15 to 20 feet, and that at such speed and observing a person 8 or 10 feet in front of the car, they could avoid a collision with such per- son, was held to have been improperly admitted, as the defendant's duty was not to be measured by a standard fixed by what an ex- pert driver could do in stopping his car and avoiding a collision. ^^ All expert could not properly give his opinion as to what dis- tance an electric automobile could have been stopped in, after its front wheel was struck by the hub of a passing touring car, there- by causing the former to turn abruptly towards the sidewalk, where it collided with a pedestrian, as it was impossible for him to form any more accurate opinion of the effect of the impact of the tour- ing car with the electric car than the jury could form for them- selves. It would have been proper for an expert to give his opin- ion as to the distance within which a vehicle of the tj^e in ques- tion and run at the rate given could have been stopped.^'' But an objection is properly sustained to a question which calls for an opinion by one not shown to be an expert with reference to the possibility of stopping an automobile after the person injured was observed by the chauffeur.^* The testimony of a witness who did not pretend to be informed on the subject of the operation of motor trucks, as to whether a motor truck in an accident which he witnessed was stopped as quickly as could be done, was properly 14 Young V. Bacon, — Mo. App. — , "Bishop v. Wight, 221 Fed. 392, 137 183 S. W. 1079 (1916). C. C. A. 200 (191S). ISSchoU V. Grayson, 147 Mo. App. 18 Goldblatt v. Brocklebahk, 166 111. 6S2, 127 S. W. 415 (1910). App. 31S (1911). 16 Meier v. Wagner, 27 Cal. App. 579, 150 Pac. 797 (1915). EVIDENCE OF SPEED AND AS TO STOPPING 947 stricken out, his answer being: "I should judge so. I think the young man did very well." ^' §1013. Opinion of competent operator as to stopping loaded truck. An experienced and competent operator of motor trucks was held properly allowed to state his opinion as to the ' dis- tance within which a described truck, loaded, could be stopped on a substantially level paved street; those being the conditions shown to have existed at the time and place in question.^" § 1014. Opinion of motorman as to possibility of stopping car. In an action growing out of a collision between a street car and an automobile, it was held that the testimony of the motorman of the car that, after he saw that the driver was about to turn his automobile across the track ahead of the street car, the street car could not have been stopped by the use of any means within his power in time to have avoided the accident, was properly ex- cluded, as it was the province of the jury to determine this ques- tion from all the facts in the case. Then, too, the value of the motorman's testimony depended upon his experience in observing moving objects in order to determine the speed of the automobile and the car; upon which would depend his estimate of the dis- tance to be traveled by the car before the impending collision, and his estimate, as depending upon the speed of the car, of the dis- tance within which the car could be stopped ; and all these estimates made, no doubt, under great excitement, due to the impending accident. The distance within which the car could be stopped also depended upon the grade and condition of the track at that place, which seems not to have been proved in the given case.''^ § 1015. Opinion as to competency of chauffeur. A witness cannot give his opinion as to the competency or incompetency of an automobile driver, as the jury are as competent as he to draw conclusions from the conduct of the driver, which the witness may testify to.*^ § 1016. Experiments made in stopping automobile at place of accident. In an action by one who was injured when a colli- 19 Hanulton, H. & Co. v. Larrimer, 183 22 Pantages v. Seattle. El. Co., SS Ind. 429, lOS N. E. 43 (1914). Wash. 4S3, 104 Pac. 629 (1909); John- 20 Withey V. Fowler Co., 164 la. 377, son v. Caughren, 55 Wash. 125, 104 145 N. W. 923 (1914). Pac. 170. 21 El Paso El. R. Co. v. Davidson, — Tex. Civ. App. — , 162 S. W. 937 (1913). 948 LAW OF AUTOMOBILES sion occurried between the vehicle in which he was riding and the defendant's automobile, the plaintiff produced a witness who in- tended to testify that he had experimented with his automobile at the place of the accident, and could stop his machine running at a given speed in a shorter distance than the defendant's, chauffeur stopped his at the time of the accident. The action of the trial court in excluding such testimony on the ground that the condi- tions at the time of the experiment were not the same as at the time of the accident, was upheld; the court on appeal holding that the question was not one of law, and was peculiarly within the discretion of the trial court.^* § 1017. Stopping similar automobiles. The testimony of wit- nesses familiar with the operation of automobiles as to the dis- tance in which an automobile similar to the one in question can be stopped, is inadmissible, unless the question eliciting such testi- , mony describes the machine so that the jury may know on what facts the answer is based.** § 1018. Wheel marks as showing attempt to stop. It is permissible for a witness who saw an automobile accident and who saw the tracks made by the automobile, to testify that the track showed where the operator applied the brake, and the distance the car had skidded before it reached the place where the collision occurred. But where he did not see the collision, nor the automo- bile make the track, it was not permissible for him to state as his opinion that the automobile in question made the track. In such circumstances he should state the facts, and if there was any peculi- arity about the track, or any features by which it could be dis- tinguished from any other automobile track, such facts should be shown, and then it is the province of the jury to determine whether the track was made by the automobile in question.^* § 1019. Distance in which automobile in question was ac- tually stopped. Where it was shown" that a chauffeur struck a boy who was within plain view, and that the machine was not stopped until the boy was struck, when it was stopped within a few feet, it was no objection that the plaintiff did not prove within what distance the machine could be stopped; he having proved within what distance it was stopped.*^ 2SBeckley v. Alexander 77 N. H. 2SS, 26 Blalack v. Blacksher, 11 Ala. App. 90 Atl. 878 (1914). 545, 66 So. 863 (1914). 24 Miller v. Eversole, 184 111. App. 362 86.Eisenman v. Griffith, 181 Mo. App. (1913). 183, 167 S. W. 1142 (1914). EVIDENCE OF SPEED AND AS TO STOPPING 949 § 1020. Operator with only one foot. Whether or not a chauf- feur having the use of only one foot can handle an automobile of a given type, and manipulate the brakes with his hands as efficiently in checking its speed and stopping it as he could if he had two feet; and, if not, whether or not his act in operating the car, or the act of his employer in committing the car to his charge, was negligence, are questions, generally, for the jury. It is not com- petent for one who does not qualify as an expert to testify that such chauffeur could operate the brake just as effectively with his hands as with his feet. The facts that such witness was the secre- tary of a company dealing in automobiles and that he sold the auto- mobile in question, were not sufficient to qualify him as an expert.^'' § 1021. Judicial notice. A court may take judicial notice that a street car moving 10 or IS miles an hour can be stopped in less than 250 feet. "Every urban citizen is to some extent familiar with this question. He stands upon the street and signals to the car in which he desires to become a passenger and knows that the sig- nal is, as a rule, promptly obeyed, and that when it is not the driver has been guilty of inattention or wilful neglect of his duty of watchfulness and prompt action." ^' § 1022. Judicial knowledge of means of stopping. A court knows, as matter of common knowledge, that shutting off the power, or the application of the brakes, are the usual means employed to stop an automobile.*® ZTBlalack v. Blacksher, 11 Ala, App. that a car driven, at the rate of six S4S, 66 So. 863 (1914). and a half or seven miles an hour CQuld 28 Downs V. United Rys. Co., — • Mo. have been stopped within a distance — , 184 S. "W- 99S citing Latson v. of forty feet. St. Louis Transit Co., 192 Mo. 449, 91 29 Waking v. Cincinnati, I. & W. R. S. W. 109, in which the court took judi- Co., — Ind. App- — . 12S N. E. 799 cial notice of a similar fact, saying that (1920). it needs no expert testimony to show CHAPTER XXiy THE CHAUFFEUR ( 1023. Definition and origin of the word "chauffeur." i 1024. Driver; in service of United States Army. i 102S. "Duly licensed chauffeur." i 1026. The position of chauffeur. § 1027. The chauffeur's license. §1028. Regulation of chauffeurs. I 1029. Classification of chauffeurs. § 1030. Authority of chauSeur to bind owner for repairs. § lOJl. Chauffeur accepting commission on supplies. § 1023. Definition and origin of the word "chauffeur." The term "chauffeur" has been defined to be "one who drives or oper- ates an automobile." ^ The word chauffeur comes to us from the French, and means burner. While not syndnymous with garrotteur, the words seem to have been used interchangeably to some extent. The term was used to signify a member of the bands of outl^iws during the "Rpign of Terror" in France who roamed over the northeast part of the country under the lead of John the Skinner, or Schinder- hannes. They were called chauffeurs because they roasted the feet of men and women to compel them to disclose hidden treasure. When the automobile came into common use as a means of recreation and transportation, the operator of the machine, and the mechanic who was in attendance to look after the machinery and fuel, were called "chauffeurs." The origin of thigr use of the term is found in France, where autortiobiling first won favor as a pastime, the word being there employed to designate a fireman or stoker.^ "The word 'chauffeur' involves the idea of a person having charge of or operating an automobile." * More properly, a chauffeur is one whose business it is to drive or operate an automobile. The business or calling of the chauffeur has become an important one, and the definition should distin- 1 standard Diet. Supp., tit. "Chauf- 2 New Internatiorill Ency., tit. "Chauf- feur." • feur." "The driver of an automobile." Cen- *Shamp y. Lambert, 142 Mo. App. tury Diet. & Cyc. S67, 121 S. W. 770 (1909). 950 THE CHAUFFEUR 951 guish a professional chauffeur from the owner of an automobile who sometimes drives his own machine and to whom the term, strictly speaking, is inapplicable. A chauffeur is defined by many statutes to mean a person oper- ating a motor vehicle as mechanic, paid employee, or for hire.* Under a statutory provision that "the term 'chauffeur' shall mean any person operating or driving a motor vehicle as an em- ploye or for hire," one employed by a gas company as a "trouble hunter," and who used a motor vehicle furnished by the company, was declared to be a chauffeur.* It appeared from undisputed testimony that the defendant was an employee of the New York Telephone Company, employed in the city of Schenectady by such company as a "troubleman." His duties required him to proceed expeditiously to telephones which were reported out of order and repair the same, so that the service may be efficiently resumed with the greatest possible haste. In the performance of this service, his employer furnished him an auto- mobile, which was used exclusively to convey himself and the tools and materials that were necessary for him to use in the perf omance of this work. He received no additional compensation because of his ability to operate the runabout, for the evidence is that he re- ceived the same compensation, both prior to and during the time he used the automobile. Held, that defendant was not a "chauffeur." * Under a statute defining a "chauffeur" to be "any person whose business or occupation is that of operating a motor vehicle for hire," a salesman for an oil company who used an automobile truck to deliver orders taken by him, was not a chauffeur.' § 1024, Driver in service of United States army. A soldier operating a motorcycle in the active service of the United States army, is not a "chauffeur," within the meaning of a state statute, and is not required to secure a chauffeur's license under that statute.' §1025. "Duly licensed chauffeur." "Duly licensed chauf- feur," as such phrase is used in a statute providing that no person under the age of 18 years shall operate a motor vehicle on the public highways unless "accompanied by a duly licensed chauffeur," 4 Stack V. General Baking Co., — Mo. t Matthews v. State, — Tex. Cr. App. — , 223 S. W. 89 (1920). — 214 S. W. 339 (1919). B People V. Fulton, 96 Misc. 663, 162 8 American Auto. Ins. Co. v. Struwe, N. Y. Supp. 12S (1916). — Tex. Civ. App. — , 218 S. W. 534 6 People V. Dennis, 166 N. Y. Supp. (1920)., 318 (1917). 952 LAW OF AUTOMOBILES means a person who has been licensed as a chauffeur in conformity with the law, and does not include one to whom a chauffeur's li- cense has been issued, but to whom, on account of his youth, the statute prohibits the granting of a chauffeur's license. The word "duly'' means according to law. It does not relate merely to. form, but includes both form and substance.^ § 1026; The position of chauffeur.. The position of chauf- feur is one attended with danger, and it requires a degree of scien- tific knowledge upon which others must depend.'"' The chauffeur should be a responsible person, worthy of trust, for he occupies a position in which much confidence is necessarily reposed in him. His employer is responsible for his conduct , while he is engaged in the business of his employment; and the safety of pedestrians and those using the ordinary vehicles of travel de- pends upon his careful and proper operation of the automobile entrusted to his care. Hie is in charge of a powerful machine capa- ble of doing great damage if not skillfully manipulated, and it is at least conducive to an easy mind on the part of the owner to know that his car is under the control of a responsible man. On account of the position he occupies, not only are his employer's interests at stake, but the public generally are vitally concerned with his employment, so much so, in fact, that the Legislatures of many of the states have passed laws defining what constitutes a chauffeur within the meaning of the law, and licensing and regulat- ing the employment. § 1027. The chauffeur's license. Generally a license ha.s some- thing to do with the personal responsibility and moral character of the person licensed,^^ but sometimes the chauffeur's license is granted without any examination as to his ability or character. Requiring such a license is for the purpose of identifying the chauf- feur and bringing him within the observation of the state or munici- pal authorities. Whatever regulations are made concerning him are in this manner more easily and certainly enforced.^* 9 Schultz V. Morrison, 91 Misc. 248, in New York Workmen's Compensation 154 N. Y. Supp. 2S7 (1915). Act. Wincheski v. Morris, 179 App. Div. 10 Christy v. Elliott, 216 111. 31, 42, 600, 166 N. Y. Supp. 873 (1917). 74 N. E. 1035, 3 Ann. Cas. 487, 1 L. H Freeholders v. Barber, 7 N. J. L. R. A. (N. S.) 215, 108 Am. St. Rep. (2 Halst.) 64, 67. ■ 196 12 Laundry License Case, 22 Fed. 701, Employment of chauieur of pleasure 703. automobile is not a hazardous one with- THE CHAUFFEUR 953 The license furnishes something of a guaranty that the vehicle controlled by the chauffeur will be used in a proper manner and operated in compliance with the law.^' The license is personal to the chauffeur to whom it is issued, and it cannot lawfully be loaned or assigned to another.^* It may be revoked for misconduct of the chauffeur, and it is usually revocable for any violation of the law under which it is issued.^* A provision of an ordinance giving the mayor power to suspend or revoke a public hack driver's license, has been held to be a rea- sonable method of securing such continued control over such drivers as is essential to the protection of those using the vehicles they drive.'^* A statute requiring chauffeurs to be licensed, and defining a chauffeur to be any person operating or driving a motor vehicle as an employee or for hire, does not require drivers not operating for hire nor as employees to be licensed.^' A person steering an automobile not running by its own power, but being toWed through the streets by another machine, is not within a statute providing that no peirson shall "operate or drive" an automobile as a chauffeur unless licensed.''* § 1028. Regulation of chauffeurs. As the calling or profes- sion of a chauffeur is attended with danger and requires a certain degree of scientific knowledge upon which others must depend, it is an occupation calling for regulation, and therefore permitting the imposition of a regulatory license fee.^® It is proper to require chauffeurs to be licensed and to pay a 13 Emerson Troy Granite Co. v. Pear- New York: People ex rel. v. Bogart, son, 74 N. K. 22, 64 Atl. S82. 122 App. Div. 872, 107 N- Y. Supp. 831; 14Ragan v. McCoy, 29 Mo. 3S6, 3S8; Metropolitan Milk & Cream Co. v. New East Jersey Iron Co. v. Wright, 32 N. York, 113 App. Div. 377, 894, aff'd 186 J. Eq. (5 Stew.) 248, 2S3; In re Buck's N. Y. 533. Estate, 18S Pa. St. 57, 60. Ohio: Him v. State, 1 Ohio St. IS. li Illinois: Wiggins v. Chicago, 68 18 Yellow Taxicab Co. v. Gaynor, 82 111. 372, 378. Misc. 94, 143 N. Y. Supp. 279 (1913), Indiana: Stomi v. Fritts, 169 Ind. aff'd 159 App. Div. 888, 893 (1913). 361. 1'' People ex rel. v. Laughrey, 159 N. Massachusetts: Calder v. Kurby, 5 Y. Supp. 990 (1916). Gray 597. l^Wolcott v. Renault Selling Branch, Michigan: Grand Rapids v. Braudy, 175 App. Div. 858, 162 N. Y. Supp. 496 105 Mich. 670, 677, 55 Am. St. Rep. (1916). 472. 19 Ex parte Stork, 167 Cal. 294, 139 Missouri: St. Charles v. Hackman, Pac. 684 (1914). 133 Mo. 634, 642 ; State ex rel. v Baker, 32 Mo. "App. 98, 101. 954 LAW OF AUTOMOBILES license fee; the primary purpose of such legislation being to insure the competency of such men.^" A requirement that professional chauffeurs shall obtain a license annually at a cost of $5, while other automobile operators paid only $2 for a license which was not required to be renewed annually, was upheld as a proper police measure.^^ A municipal requirement that an applicant for a public hack driver's license shall present a sworn testimonial as to his charac- ter by two reputable citizens and a further testimonial from his last employer, unless a sufficient reason is given for its omission, has been held to be a reasonable and wise requirement designed to afford protection to those who in using such vehicles are obliged to commit the safety of their persons and property to the care of such persons .^^ ' A provision in an ordinance regulating the operation of jitney busses, making it unlawful for any person to operate a jitney bus on the streets "unless said person shall have had at least 30 days' experience in the operation of an automobile in the city," was held to be a proper exercise of the police power.^* Under power to regulate the use of its streets and to pass and enforce all necessary police regulations, a, city may require drivers of automobiles used for transporting persons or property for hire to be examined and licensed by the city.^* In many states statiites prohibit the operation of automobiles by unlicensed persons, and by persons imder a certain age. In Connecticut, for instance, the secretary of state may license persons to operate automobiles on the public highways who are 18 years of age and over, but not under that age. Unlicensed persons are forbidden to operate automobiles, except that persons of 16 years of age and more may do so when accompanied by a licensed oper- ator. These provisions exclude persons under the age of 16 years from operating automobiles on the public highways.^* §1029. Classificatioii of chauffeurs. Classification of auto- mobile drivers for hire, the members of which are required to be licensed and to pay a license fee, while all other drivers, classed as aORuggles V. State, 120 Md. S53, 87 23 Ex parte Cardinal, 170 Cal. 519, ISO Atl. 1080 (1913). Pac. 348, L. R. A. 191SF 8S0 (191S). aiRuggles V. State, 120 Md. SS3, 87 2* Chicago v. Kluever, 2S7 111. 317, Atl. 1080 (1913). 100 N. E. 917 (1913). 22 Yellow Taxicab Co. v. Gaynor, 82 25 Brock v. Travelers Ins. Co., 88 Misc. 94, 143 N. Y. Supp. 279 (1913), Conn. 308, 91 Atl. 279 (1914'; Conn, aff'd 159 App. Div. 893, 888 (1913). Pub. Acts 1911, c. 85, §5. TfiE CHAUFFEUR 955 "operators," are not required to be licensed or to pay a fee, has been held to be valid. There are elements, of similarity, even of identity, between the driving of an automobile by a professional chauffeur and the driving of a like vehicle by a private owner. The ignorance of the one is as likely to result in accident as the same ignorance upon the part of the other. The recklessness of the one is as likely to result in in- jury as the recklessness of the other. It is equally dangerous to other occupants and users of the highway whether the unskilled or reckless driver be a chauffeur or "operator." AH these matters may be conceded and yet there are others of equa,! -significance where the differences between the two classes of drivers are xadi- cal. Of first importance in this respect is the fact that the chauf- feur offers his services to the public, and is frequently a carrier of the general public. These circumstances put professional chauf- feurs in a class by themselves, and entitle the public to receive the protection which the Legislature may accord in making provision for the competency and carefulness of such drivers. The chauf- feur, generally speaking, is not driving his own car. He is en- trusted with the property of others. In the nature of things, a different amount of care will ordinarily be exercised by such a driver than will be exercised by the man driving his own car and risking his own property.^® § 1030. Authority of chauffeur to bind owner for repairs. Relative to the power of a chauffeur to bind the owner of an auto- mobile for repairs, it has been held that he has no authority, either apparent or implied, to order permanent repairs thereto on tl^e credit of his employer. But a chauffeur driving his employer's automobile about his employer's business when the machine breaks down, has implied authority to bind the owner for repairs neces- sary in order to proceed upon his journey .''''' However, this rule would probably not extend to any serious breakage or to rebuild- ing the machine wholly or in part after it had been demolished to any great extent. Where an automobile broke down while in charge of a chauffeur, he had the right to place the same in the safe keeping of a garage keeper, and to bind the owner for payment for such storage.^* Generally, an owner is not liable for repairs ordered by his 26 Ex parte Stork, 167 Cal. 294, 139 28 Gage v. Callahan, S7 Misc. 479, Pac. 684 (1914). 109 N. Y. Supp. <«M. , 27 Gage V. Callahan, 57 Misc. 479, 109 N Y. Supp. 844. 956 LAW OF AUTOMOBILES chauffeur, unless he in some manner authorized their purchase.^' One employed by a dealer in automobiles as "salesman and manager" had impUed authority to bind his employer for the cost of repairs to a machine.*" § 1031. Chauffeur accepting commission on supplies. In New York the giving of a commission to a chauffeur on supplies or repairs furnished for an automobile constitute a misdemeanor, and the contract for such supplies or repairs is thereby rendered void, as against public policy.'^ To constitute a violation of this law it is necessary that the commission be received without the knowledge and consent of the chauffeur's employer .^^ 29 Colt-Stratton Co. v. Goldman, 172" 123 App. Div. 789, US N. Y.iSupp. 171 N. Y. Supp. 67S (1918). (1909). SOHughey v. Sbarbaro, 181 lU. App. 32 General Auto, Supply Co. v. Rock- 396 (1913). well, 162 N. Y. Supp. 210 (1916). 31 General Tire Repair Co. v. Price, CHAPTER XXV LIABILITY OF OWNER FOR ACTS OF CHAUFFEUR OR OTHER OPERATOR OF HIS AUTOMOBILE § 1032. The relation of master ■ and servant. § 1033. When relation of master and servant exists. § 1034. Same — Salesman on commission. § 103S. Liability of owner for acts of his servant generally. § 1036. Statutory liability when automo- bile "iterated with consent of coier. § 1037. Liability of joint owners. § 1038. When owner is not liable for in- jury caused by his automobile. § 1039. Same — Illustrations. § 1040. Intrusting automobile to incom- petent person. § 1041. Intrusting automobile to one of prohibited age. § 1042. Liability of owner on theory of dangerous instrumentality. § 1043. Same — Owner permitting car out of repair to be used. § 1044. Liability of municipal corpora- tion for negligent operation of automobile. § 104S. jL/iability of fire chief or commis- sioner for acts of subordinate driver. § 1046. Liability of partnership when car operated by one of partners. § 1047. What the plaintiff must prove. § 1048. Question for jury. § 1049. Proof of ownership. § lOSO. Same — Car registered in defend- ant's name. 957 §1031. Plea of general issue admits own- ership. § ioS2. Proof of control of automobile. CHATJFEEUR § 10S3. Evidence of relationship gener- , ally! § 10S4. Scope of employment. § loss. Same — Illustrative cases. § 10S6. Ratification of chauffeur's acts. § 10S7. Mistake of owner as to compe- tency of chauffeur. , § 10S8. Presumption from chauffeur op- erating employer's automobile. § 10S9. Same. § 1060. Same— Contra. § 1061. Office and effect of this pre- sumption. § 1062. Same — ^Prima facie case held for jury. § 1063. Inference from owner riding in car driven by another. § 1064. Proof of ownership as showing driver was acting for owner. § 106S. Same — Contra. § 1066. Name on automobile as proof of agency of -driver. §1067. Name of owner on automobile arid driver's cap. § 1068. Automobile bearing registration number issued for use only in defendant's business. § 1069. Liability insurance carried on car by defendant. 958 LAW OF AUTOMOBILES § 1070. Use by permission of owner as proof of agency of driver. § 1071. Inference from cliauffeur pur- chasing supplies and repairs in owner's name. § 1072. Chauffeur using car for own pleasure or business. §1073. Same — ^Illustrative cases. § 1074. Using automobile in violation of instructions. § 107S. Employee using automobile after working hours. § 1076. Chauffeur taking family on pleas- ure trip on Sunday. § 1077. Chauffeur going in automobile for own laundry. § 1078. Chauffeur using automobile to go to his meals. § 1079. Chauffeur taking friends for a ride. § 1080. Employee using automobile to take friend to theater. § 1081. Chauffeur using car for own con- venience in employer's busi- ness. § 1082. Using employer's automobile to reach work earlier. § 1083. Chauffeur on trip to secure par- ents' consent to drive car for , owner. § 1084. Employee practicing driving in evenings. § 108S. Driving own automobile for an- other. § 1086. Deviation from route or instruc- tions. § 1087. Same — Cases holding the owner not liable. .^ § 1088. Same — Cases holding the owner liable. § 1089. Same — ^Accident occurring before deviation commenced. § 1090. Same — Returning after deviation by regular route. § 1091. Following proper route in im- proper manner. § 1092. Act to gratify personal malice. § 1093. Chauffeur with general control of automobile. § 1094. Authority to "look the car over." § 1095. Driver inviting another to ride with him. § 1096. Returning for owner after using car for own purpose. § 1097. Chauffeur testing car. § 1098. Chauffeur testing car on pleasure trip of own. § 1099. Chauffeur going for supplies or to have car repaired. § 11001 Hired automobile and chauffeur going beyond trip employed for. §1101. Chauffeur, who took car to shop, injuring person while placing it as directed by shopman. § 1102. Chauffeur driving land owner's car carrying client of real es- tate agent to look at land. § 1103. Chauffeur permitting children to climb on automobile. § 1104. Same — ^Truck as attractive nuis- ance. §, llOS. Defendant and chauffeur riding in car registered in defendant's . name. § 1106. Chauffeur carrying passengers contrary to orders. § 1107. Chauffeur of automobile for hire ' taking young lady home with- out charge. § 1108. Chauffeur operating automobile for hire on commission. § 1109. Injury to person riding iVith chauffeur. § 1110. Failure of owner to deny au- thority of chauffeur. § 1111. Chauffeur permitting another to operate automobile. § 1112. Chauffeur temporarily in service of another. § 1113. Driver and machine hired to an- other. LIABILITY OF OWNER 959 § 1114. Same — Cases in which owner held liable. § 11 IS. Letting car under agreement that owner shall be liable for driver's acts. § 1116. Employee of repairman making trip for owner while testing truck. § 1117. Chauffeur doing work for an- other employee. DEALER TORNISHING CHAUFFEUR TO DEM- ONSTRATE CAR OR TO INSTRUCT PURCHASER § 1118. Furnishing chauffeur to instruct purchaser. § 1119. Taking car through congested part of city for purchaser. § 1J20. As mere accommodation to pur- chaser. § 1121. Salesman demonstrating automo- bile. § 1122L Returning from making demon- stration. § 1123. Demonstrator permitting pros- pective purchaser to crank car. § 1124. Operated by employee of pros- pective purchaser under con- trol of demonstrator. § 112S. Demonstrating car by delivering goods for prospective pur- chaser. § 1126. Seller's employee permitting em- ployee of prospective purchaser to drive car; ( § 1127. Owner driving car while me- chanic listens to engine. BORROWER AND HIRER § 1128. Owner not liable for acts of bor- rower or hirer. § 1129. Same— Statutory liability. § 1130. Chauffeur or other employee as borrower. § 1131. Same — Illustrative cases. § 1132. Car borrowed by committeeman to transport political speaker. § 1133. Family car, borrowed by cam- paign committee, driven by owner's daughter. § 1134. Liability of borrower. MISCELLANEOUS § 113S. Mechanic employed to repair automobile. § 1136. Garageman demonstrating car left by owner for purpose of sale. § 1137. Employee getting automobile from repair shop. § 1138. C-ar driven by conditional buyefr, title being in seller. § 1139. Cash register sales agent em- ployed on commission driving car in business. § 1140. Repairman driving owner's car to repair shop. § 1141. Friend of chauffeur driving car to police station for chauffeur after latter's arrest. § 1142. One volunteering to take car to garage when owner arrested. § 1143. Car owned by corporation and driven by its president. , § 1144. Car owned by corporation used by its officers. §1145. Car owned by president of cor- poration and operated by chauffeur employed by corpo- ration. § 1146. Car owned by corporation and driven by its manager. § 1147. Manager of automobile company testing car for customer. § 1148. Car owned by officer of corpora- tion driven by another officer. § 1149. Superintendent using employer's car to drive home. § USD. Motor sales agent inviting an- other to ride, ( contrary to rule of employer. § 1151. Salesman using car for private purpose. 960 LAW OF AUTOMOBILES i,llS2. Car kept for salesman operated by bookkeeper. i 11S3. Employee taking car to demon- strate. i 1154. Employee of third person testing car for defendant. i 1J.SS. Employee procuring another to drive car. § 1156. Orderly of hospital interfering with driving of ambulance by employee of garage. § lis 7. Owner, who was present, permit- ting another to operate car. § 11S8. Owner riding in car with tester. § 1159. Lliability of automobile school for negligence of student. § 1032. The relation of master and servant. Where one has sustained, an injury from the neghgence of another, he must, in general, proceed against him by whose negligence the injury was occasioned. If, however, the negligence which caused the injury was that of a servant, while engaged in his master's business, the person sustaining the injury may disregard the immediate author of the mischief and hpld the master responsible for the damages sustained. The master selects the servant, and the servant is sub- ject to his control, and, in respect of the civil remedy, the act of the servant is, at law, regarded as the act of the master.^ This is what is known as the doctrine of respondeat superior. This doctrine applies only when the relation of master and servant is shown to exist between the wrongdoer and the person sought to be charged for the result of some neglect or wrong, at the time and in respect to the very transaction out of which the injury arose.^ The fact that the person to whose wrongful or negligent act an injury may be traced was, at the time, in the general employment and pay of another person does not necessarily, make the latter the master and responsible for his acts. The master is the person in whose business he is engaged at the time, and who has the right to control and direct his conduct.' Between the owner of an automobile and his chauffeur, while the chauffeur is engaged in the owner's business, the relation of master and servant exists, and the rules of law applicable to that relation apply.* IKing V. New York Central & H. R. R. Co., 66 N. Y. 181, 184, 23 Am. Rep. 37. aWyllie V. Palmer, 137 N. Y. 248, 257, 33 N. E. 381, 19 L. R. A. 285; Higgins V. Western Union Tel. Co., 156 N. Y. 75, 50 N. E. 500, 4 Am. Neg. Rep. 320, 66 Am. St. Rep. 537; Cun- ningham V. Castle, 127 App. Div. 580, 111 N. Y. Supp. 1057, 2 N. C. C. A. 428n; Linville v. Nissen, 162 N. C. 95, 77 S. E. 1096, 4 N. C. C. A. 11 (1913). ' Sargent Paint Co. v. Petrovitzky, ■ — Ind. App. — , 124 N. E. 881 (1919) ; Higgins V. Western Union Tel. Co., 156 N. Y. 75, 78, 50 N. E. 500, 4 Am. Neg. Rep. 320, 66 Am. St. Rep. 537; jimmo V. Frick, 255 Pa. St. 353, 99 Atl. 1005 (1917), citing this work. 4Hughey v. Lennox, — Ark. — , 219 S. W. 323 (1920); Hannigan v. Wright, 5 Pennew. (Del.) 537, 540, 63 Atl. 234; LIABILITY OF OWNER 961 § 1033. When the relation of master and servant exists. The relation of master and servant exists between an employer and employee whenever the employer retains the right to direct the manner in which the business shall be done, as well as the re- sult to be accomplished, or, in other words, "not only what shall be done, but how it shall be done." * If the employer has this control, no agreement between him and the employee will relieve him of liability to third persons for in- juries resulting from the employee's negligence.® The position of the servant is different from that of an inde- pendent contractor in that the contractor has control of how the work shall be done, being responsible to the master only for the results of the work. It is necessary that the master have control of the conduct of the servant in regard to the act of employment at which the servant was engaged at the time the injury was in- flicted.^ Thus, where the foreman of a company employed a servant to work temporarily during the absence of a regular employee, the person so employed being subject to the direction and control of the company, which had the right to discharge him at any timCj the relation between him and the company was that of master and servant.* § 1034. Same— Salesman on commission. The relation was held to be properly found to exist between an automobile sales concern and a salesman employed on a commission basis, there Travers v. Hartman, 5 Boyce (Del.) Federal: Singer Mfg. Co. v. Rahn, 302, 92 Atl. 8SS (1914) ; Fielder v. 132 U. S. S18, S23, 10 Sup. Ct. 17S, 33 L. Davison, 139 Ga. 509, 77 S. E. 618 ed. 440; New Orleans M. & C. R. Co. (1912) ; Goodman v. Wilson, 129 Tenn. v. Hanning, 82 U. S. (IS Wall.) 649, 6S6, 464, 166 S. W. 7S2, 6 N. C. C. A. 370, 21 j:. ed. 220. SI L. R. A. (N. S.) 1116 (1914). The method or means by which the 6 Illinois: Wadsworth Rowland Co. v. employee receives pay for his work, is Foster, SO 111. App. S13, S16. material in determining the relation. Indiana: Indiana Iron Co. v. Cray, Minor v. Stevens, 6S Wash. 423, _ 118 19 Ind. App. S6S, S77, 48 N. E. 803. Pac. 313, 2 N. C. C. A. 309, 42 L. R. Missouri: Mound City Paint & Color A. (N. S.) 1178 (1911). Co. v. Conlon, 92 Mo. 221, 229, 4 S. 6 Houston v. Keats Auto Co., 8S Oreg. W. 922. 12S, 166 Pac. S31 (1917). N-ew York: Butler v. Townsend, 126 7 Higgins -v. Western Union Tel. Co., N. Y. 105, 108. , 156 N. Y. 75, 78, SO N. E. 500, 4 Am. Ohio: Gravatt v. StateJ 2S Ohio St. NTeg. Rep. 320, 66 Am. St. Rep. 537. 162, 167. 8 Wilson v. Sioux Con. Min. Co., 16 Oregon: Houston v. Keats Auto Co., Utah 392, 52 Pac. 626. See also, Lipe 85 Oreg. 12S, 166 Pac. 531 (1917). v. Eisenlerd, 32 N. Y. 229, 232. B. Autos.— 61 962 LAW OF AUTOMOBILES being evidence that the salesman was permitted to take out a car for demonstration only upon orders of the general manager, who in the instant case gave the salesman instructions about the time he should return, and that defendant retained full authority to control the sale.® Where a salesman was "expressly authorized" by a company to demonstrate and sell automobiles for it on commission, and while returning to its place of business after having finished a demon- stration, he' negligently ran into and damaged the pjlaintiff's ma- chine, it was held that the company was properly held liable. "The driver was acting with the authority of the defendant and for its interest and benefit, and the fact that his compensation lay by way of commissions on the sale rather than by the day or week, is immaterial." ^^ A salesman of automobiles, employed on a commission basis, subject only to the rules of the company in regard to representa- tions of its cars, was held not to be a servant, but an independent contractor.^^ Even though an automobile company entered into an arrange- ment with another whereby the latter was to receive a commission on sales of automobiles made by him, such arrangement leaving the time, manner, and method of making such sales to said person, with no right in the company to in any way manage, direct, or con- trol him in making sales, the relation of master and servant did not exist between them.^' Where one had possession of an automobile under on oral agree- ment of purchase; and was using the car in an attempt to effect sales of automobiles for the owner on commission, he not being subject to the owner's orders or directions, was not a servant of the 3wner, and the latter was not liable for his negligence.^' § 1035. Liability of OAvner for acts of his servant generally- It is a -^ell-settled rule of law that the master is liable for the acts of his servant done in the course of his employment and in furtherance of the master's business.^* 9 Hoffman, v. Liberty M. Co., — 1S4 la. 637, 13S N. W. S8 (1912). Mass. — , 12S N. E. 845 (1920). '^^ California: Nussbaum v. Traung L. 10 Long Ben v. Eastern Motor Co., & L. Co., — Cal. App. — , 189 Pac. 728 — N. J. L. — , 109 Atl. 286 (1920). (1920). 11 Barton V. Studebaker Corp., — Cal. Connecticut: Rooney v. Woolworth, App. — , 189 Pac. 102S (1920). 78 Conn. 167, 61 Atl. 366; Stone v. Hills, 12 Premier Motor Mfg. Co. v. Tilford, 45 Conn. 44, 47, 29 Am. Rep. 635. 61 Ind. App. 164, 111 N. E. 645 (1916). Georgia: Fielder v. Davison, 139 Ga. 18 Goodrich v. Musgrave F. & A. Co., 509, 77 S. E. 618 (1912). LIABILITY OF OWNER 963 As was aptly said in a late case: "There is, perhaps, no rule of law more firmly settled than that a master is ordinarily liable to answer in a civil suit for the tortious act of his servant, if the act be done in the course of his employment in his master's service!" ^* But as a geiieral proposition the doctrine of respondeat superior applies only when the relation of master and servant is shown to exist between the wrongdoer and the person sc/ught to be charged with the injury resulting from the wrong, at the time and in respect of the very transaction out of which the injury arose.^® The fact that the servant was not authorized to do the act, or that the master did not know of the servant's act, or even if he disapproved or expressly forbade the act, does not relieve the master from liability.^' The master is not relieved from liability by the mere fact that Illinois: Chicago, B. & Q. R. Co. v. Sykes, 96 lU. 162. Indiana: Premier Motor Mfg. Co. v. Tilford, 61 Ind. App. 164, 111 N. E. 645 (1916). Iowa: Yates v. Squires, 19 la. 26, 87 Am. Dec. 418. Kansas: Thompson v. Aultman & T. Mach. Co., 96 Kan. 2S9 (191S). Minnesota: Thomas v. Armitage, 111 Minn. 238, 126 N. W. 73S (1910) ; Morier v. St. Paul, M. & M. R. Co., 31 Minn. 351, 17 N. W. 9S2, 47 Am. Rep. 793. , New Jersey: Bennett v. Busch, 75 N. J. L. 240, 67 Atl. 188; HoUer v. Ross, 68 N. J. L. 324, 53 Atl. 472, 59 L. R. A. 943, 96 Am. St. Rep. 546; McCann v. Consolidated Traction Co., 59 N. J. L. 481, 36 Atl. 888, 38 L. R. A. 236. New York: Curley v. Electric Vehicle Co., 68 App. Div. 18, 21, 74 N. Y. Supp. 35; Cunningham v. Castle, 127 App. Div. 580, 111 N. Y. Supp. 1057^ 2 N. C. C. A. 428n; Girvin v. New York Central & H. R. R. Co., 166 N. Y. 289; Lynch v. Metropolitan Elc/ated R. Co., 90 N. Y. 77, 43 Am. Rep. 141. South, Carolina: Priester v. Angley, S Rich. L. Rep. 44.. Wisconsin: Enos v. Hamilton, 24 Wis. 658. IBDoran v. Thomsen, 74 N. J. L. 445, 66 Atl. 897, 71 Atl. 296. 16 Euckie y. Diamond Coal Co., — Cal. App. — 183 Pac. 178 (1919); Brinkman v. Zuckerman, 192 Mich. 624, 159 N. W. 316 (1916) ; Goodman v. Wilson, 129 Tenn. 464, 166 S. W. 752, 6 N. C. C. A. 370, 51 L. R. A. (N. S.) 1116 (1914). "^"^ Alabama: Morrison v. Clark, 196 Ala. 670, 72 So. 305 (1916). Arkansas: Healey v. Cockrill, H3 Ark. 327, 202 S. W. 229 (1918). ' Calfornia: Adams v. Wiesendanger, 27 Cal. App. 590, 150 Pac. 1016 (1915). Missouri: Mound City Paint & Color Co.'v. Conlon, 92 Mo. 221, 229, 4 S. W. 922. Pennsylvania: Luckett v. Reighard, 248 Pa. St. 24, 93 Atl. 773 (1915) ; Moon V. Matthews, 227 Pa. St. 488, 76 Atl. 219 (1910). Texas: Reid Auto Co. v. Gorsczya, — Tex. Civ. App. — , 144 S. W. 688 (1912). Federal: Singer Mfg. Co. v. Rahn, 132 U. S. 518, 522, 10 Supp.-Ct. l75, 33 L. ed. 440; Philadelphia & Reading R. Co. v. Derby, 55 U. S. (14 How.) 468, 486. 964 LAW OF AUTOMOBILES the act complained of was done by the servant at a place to which the performance of his duty did not necessarily call him.^* Whether or not the servant was acting within the scope of his employment must depend upon the facts of each particular case.^' This responsibitly of the master grows out of, is measured by, and begins and ends with his control of the servant.^" Where the driver is in an enterprise of any kind for the use and benefit of the party charged, in his employ, or under his con- trol, or where the automobile is under the control and direction and owned by the party charged, and where he has a right to con- trol and direct it, whether he exercises that right or not, he is held for the negligence of the driver.^^ In order that one injured by an automobile, driven by an em- ployee of the owner, may recover therefor against the owner, "hb must show that 'the relation of master and servant existed be- tween th6 owner and the person in charge of the car at the time of the accident, and that the servant was engaged in his master's busi- ness and was acting within the scope of his employment." ^* An owner who is present in the automobile is liable for the neg- ligence of a driver, operating the machine for him.** In an action against the owner of an automobile for injuries caused by its operation while it was being driven by his chauffeur, the owner not being present, it has been held that the owner can- not complain if the jury exonerates the chauffeur while holding him liable.** The faqt that a chauffeur was employed to drive the employer's automobile only for a single occasion, from one point to another, does not make the driver any less the employer's servant.*^ However, the master may become liable for the wrongful acts of his servant by ratifying such acts, where he would not other- wise have been liable.*^ One who is in full control of an automobile is liable for injuries iSLuckett V. Reighard, 248 Pa. St. ZSWatkins v. Brown, ,14 Ga. App. 24, 93 Atl. 773 (19lS). • 99, 80 S. E. 212 (1913). ISDoran v. Thomsen, 74 N. J. L. 24 Weil v. Hagan, 166 Ky. 7S0, 179 44S, 66. Atl. 897; Aycrlgg v. New York S. W. 835 (191S). & Erie R. Co., 30 N. J. L. 460. 25 Wame v. 'Moore, 86 N. J. L. 710, 20 Yates V. Squires, 19 la. 26, 87 Am. 94 Atl. 307 (1914). Dec. 418. 26 Simmon v. Bloomingdale, 39 Misc. 21 Crawford v. McElhinney, 171 la. 847, 81 N. Y. Supp. 499; Byram v. Mc- 606, 154 N. W. 310 (1915). Guire, 3 Head (Tenn.) 530, 532. 22 Luckett V. Reighard, 248 Pa. St. 24, 93 Atl. 773 (1915). LIABILITY OF OWNER 965 negligently inflicted therewith, although he is not driving the car and does not own it.^'' A corporation operating a motorbus is liable for the negligence of its chauffeur, acting in the line of his employment, since a cor- poration can act only through agents.^* A statute giving a lien on an automobile to one injured by its unlawful operation, does not broaden the common law rule as to the master's liability .''' § 1036. Statutory liability when automobile operated with consent of owner. By statute, in Michigan, the owner of a motor vehicle is made liable for all injuries caused by the negli- gent operation of his machine when it is being operated with his express or implied consent.*" 27 Windham v. Newton, — Ala. — , 76 So. 24 (1917). 28 Panama R. Co. v. Bosse, 152 C. C. A. 291, 239 Fed. 303 (1917). 29 Core V. Resha, 140 Tenn. 408, 204 S. W. 1149 (1918). 80 Hatter v. Dodge Bros., 202 Mich. 97, 167 N. W. 935 (1918). "As the law now stands it is not a prerequisite for recovery t6 prove that the motor vehicle causing an injury was being operated in the business of the owner, for his use and enjoyment, or by his servant or employee. Section 29 of Act 302, Pub. Acts 1915 (section 4825, Comp. Laws 1915) provides in part: 'The owner of a motor vehicle shall be liable for any injury occasioned by the negligent operation of such motor vehicle, whether such negligence consists in violation of the provisions of the statutes of this state or in the failure to observe such ordinary care in such oper- ation as the rules of the common law require: Provided, that the owner shall not be liable unless said motor vehicle is being driven by the express or im- plied consent or knowledge of such owner.' "The section further provides that if the vehicle causing the injury was driven by an immediate member of the owner's family, 'It shall be conclusively pre- sumed' that it was with his consent or knowledge. This section was recently under consideration and sustained as valid legislation well within the police power of the state in Stapleton v. In- dependent Brewing Co., 164 N. W. 520, L. R. A. 1918A 916, where it was held the owner of a motor vehicle was liable for an injury resulting from its negli- gent operation while being driven in the business of another company to whom it had been loaned, by an employee of the borrower between whom and the owner no relation of master and servant existed, and who was not under the owner's direction or control, nor in any particular engaged in the owner's busi- ness. This act takes special cognizance of recognized, rules of evidence upon im- plications and presumptions arising from proven facts as proper and legitimate in establishing the , responsibility of the owner of an automobile for injuries re- sulting from its negligent operation by another. It recognizes the difficulty to the injured party of securing direct proof in an automobile accident that the use by another is authorized by the owner, and makes plain that that fact may be presumptively or impliedly shown by proven facts from which it can be rea- sonably inferred. The permissible pre- sumptions arising from proven facts are either conclusive or disputable and open to rebuttal. If the automobile was being driven by specified relatives or immedi- 966 LAW OF AUTOMOBILES §1037. Liability of joint owners. It has been held that if two or more persons own an automobile in partnership and employ a chauffeur, whose duty it is to drive the vehicle for the joint and separate use of the owners, both or all the owners would be liable for injuries resulting from the negligence of the driver, whether they were both or all using the automobile at the time or not. A brother and sister, living in the same residence, jointly owned an automobile, and joihtly employed a chauffeur to operate the same, each paying one-half his wages. They equally bore the ex- pense of operation and repair of the automobile, and each, sep- arately or jointly with the other, used it accordingly as his or her needs or pleasure required. By agreement the brother had a right of preference to the use of the machine in being carried to and from his office mornings and afternoons, if he saw fit to re- quire its use at such times, to the exclusion of the right of the sister during those hours. While the chauffeur, alone in the car, was going to the brother's office for the purpose of taking him home, he entered into a race with another machine, and negligently col- lided with the plaintiff's buggy, throwing plaintiff out and injur- ing him. It was held that judgment was properly rendered against both brother and sister.'^ In this case there was no separateness of time at which the driver served, or of interest in the machine, so that it could be said that it belonged exclusively to one, or that the driver was in his ex- clusive service. "The case might be different," said the court, "if the understanding between the sister and brother had been that at certain hours of the day one should have the exclusive use of the machine and driver." ate members of the owner's family, the 220, Pub. Acts 1917), and the presump- presumption that its use was authorized tion of innocence, in the absence of by him' is made conclusive by the stat- proof to the contrary, attends the driver, ute. It is an intendment of the law Unexplained and undisputed, the rea- which he may not deny or contravene by sonable inference of consent by the owner other evidence, direct or indirect. Ifi and authority of the driver is such as the absence of such statutory qualifica- common sense and common experience tion the possession, use, and control of usually draws and applies to the pos- an automobile in a public place fairly session of those driving automobiles gives rise to the inference that the along our highways." Hatter v. Dodge person so in control is the owner of Bros., 202 Mich._ 97, 167 N. W. 93S such property or in lawful possession (1918). of it with the express or implied con- 81 Goodman v. Wilson, 129 Tenn. 464, sent of the owner. By statute it is 166 S. W. 7S2, 6 N. C. C. A. 370n, SI made a felony tb take possession of and L. R. A. (N. S.) 1116 (1914). use a motor vehicle without authority Ante, § 209. (section lS43o, Comp. Laws 1915; Act LIABILITY OF OWNER 967 Mere joint ownership of an automobile does not create liability for its negligent operation in one of the owners who had no inter- est in the use being made of the machine at the 'time. If at the time in question one of the joint owners was not present, and he had no interest in the object of the trip, and the car was not being operated for him in any sense, he is not liable for the consequences of its negligent opera tion.^^ Where father and son were riding in an automobile, of which they were joint owners, for pleasure, the son driving it, both were liable for injuries due to its negligent operation.'* A husband and wife, owners of an automobile, are liable for in- juries negligently inflicted by one whom they had secured to drive their car on an outing for their adult paralytic son.** § 1038. When owner is not liable for injury caused by his automobile. It is well settled that the master is not liable for the acts of his servant done outside the scope of his employment.'^ 32 Mittelstadt v. KeUy, 202 Mich. S24, 168 N. W. SOI (1918); HamUton v. Vioue, 90 Wash. 618, 1S6 Pac. 853, (1916). 38 Seiden v. Reimer, 190 App. Div. 713, 180 N. Y. Supp. 34S (1920). 3* Houseman v. Karicofe, 201 Mich. 420, 167 N. W. 964 (1918). 95 Alabama: Jones v. Strickland, — Ala. — , 77 So. S62 (1917) ; Barfield v. Evans, 187 Ala. S79, 6S So. 928 (1914) ; Mayer v. Thompson-Hutchinson B. Co., 104 Ala. 611, 620, 16 So. 620, 28 L. R. A. 433, S3 Am. St. Rep. 88. California: Brown v. Chevrolet Motor Co., — Cal. App. — , 179 Pac. 697 (1919), citing this work. Connecticut: Stone v. Hills, 4S Conn. 44, 29 Am. Rep. 63S.' Georgia: Central of Georgia R. Co. V. Morris, 121 Ga. 484, 49 S. E. 606, 104 Am. St. Rep. 164. Iowa: Yates v. Squires, 19 la. 26, 87 Am. Dec. 418. Kansas: Halverson v. Blosser, 101 Kan. 683, 168 Pac. 863 (1917), citing this work. Maryland: State to use v. Benson & Co., — Md. — , 100 Atl. SOS (1917) ; Symington v. Sipes, 121 Md. 313, 88 Atl. 134, 4 N. C. C. A. 28, 47 L. R.. A. (N. S.) 662 (1913). Michigan: Caniff v. Blanchard Nav. Co., 66 Mich. 638, 33 N. W. 744, 11 Am. St. Rep. S41. Missouri: Snyder v. Hannibal & St. J. R. Co., 60 Mo. 413. New Jersey: Holler v. Ross, 68 N. J. L. 324, S3 Atl. 472, S9 L. R. A. 943, 96 Am. St. Rep. S46. New York: Mott v. Consumer's Ice Co., 73 N. Y. S43; Cunningham v. Cas- tle, 127 App. Div. S80, 111 N. Y. Supp. 10S7. Ohio: Little Miami R. Co. v. Wet- more, 19 Ohio St. 110, 2 Am. Rep. 373. Pennsylvania: Towanda Coal Co. v. Heeman, 86 Pa. St^ 418. Texas: Gordon v. Texas & Pac. M. & M. Co., — Tex. Civ. App. — , 190 S. W. 748 (1916). Utah: Fowkes v. J. I. Case Th. Mach. Co., 46 Utah S02, ISl Pac. S3 (191S). Washington: Jones v. Hoge, 47 Wash. 663, 92 Pac. 433, 12S Am. St. Rep. 91S, 14 L. R. A. (N. S.) 216; Robinson v. McNeill, 18 Wash. 163, SI Pac. 3SS. Federal: Bowen v. Illinois Central R. Co., 136 Fed. 306, 69 C. C. A. 444. 968 LAW OF AUTOMOBILES So, the owner of an automobile is not liable for damages caused by its negligent operation when he was not in the possession or control of the machine, and the operator was not acting as his servant, at the time of the accident.*® Nor is he liable for the acts of , a driver of his car who is not his servant.*'' Beyond the scope of his employment the servant is as much a stranger to his master as any third person, and the act of the servant, not done in the execution of the service for which he was engaged, cannot be regarded as the act of the master." If the act was done while the servant was at liberty from his service and pursuing his own ends exclusively, the master is not responsible; even though the injuries complained of could! not have been committed without the facilities afforded by the servant's relation to his master.*® Thus^ where a servant was on a private pleasure trip of his own, and was using his master's automobile with the master's knowl- edge and consent, and while driving the same on the public streets negligently ran into and injured a person, the servant, and not the master, was liable.*" If a chauffeur takes his employer's car from the garage without the latter's knowledge or consent, the chauffeur alone is responsi- ble for his liegligent acts while using the car.*^ A complaint which alleged that the plaintiff was injiured by the negligent" operation of an automobile owned by defendant, aiiji 86 California: Hirst v'. Morris & Co., 38 Hall v. Puente Oil Co., — Cal. — Cal. App. — , 187 Pac. 770 (1919) ; App. — , 191 Pac. 39 (1920) ; Warring- Martinelli v. Bond, — Cal. App. — , 183 ton v. Bird, 168 Mo. App. 385, ISl S. Pac. 461 (1919), citing this work. W. 7S4 (1912); O'Loughlin v. Mackey, Illinois: Arkin v. Page, 287 111. 420, 182 App. Div. 637, 169 N. Y. Supp. 83S 123 N. E. 30, S A. L. R. 216 (1919); (1918); Higgins v. Western Union Tel. Reinick v. Smetana, 20S 111. App. 321 Co., 1S6 N. Y. 7S, 79, SO N. E. SOO, (1917). 4 Am. Neg. Rep. 320, 66 Am. St. Rep. Kansas: Toadvine v. Sinnttt, — Kan. S37; Little Miami R. Co. v. Wetmore, — , 178 Pac. 401 (191?). 19 Ohio St. 110, 2 Am. Rep. 373. Maine: Pease v. Montgomery, 111 89Martinelli v. Bond, — Ca,l. App. Me. S82, 88 Atl. 973 (1913). — , 183 Pac. 461 (1919), citing this Michigan: Brinkman v. Zuckerman, work; Evans v. Dyke Auto Co., 121 192 Mich. 624, 1S9 N. W. 316 (1916). Mo. App. 266, 276, 101 S. W. 1132; New York: O'Brien v. Stern Bros., Garretzen v. Duenckel, SO Mo. 104, 223 N. Y. 290, 119 N. E. SSO (1918). 107-108, 11 Am. Rep. 40S. Texas: Nicholson v. Houston El. Co., *" Cunningham v. Castle, 127 App. — Tex. Civ. App. — , 220 S. W. 632 Div. S80, 111 N. Y. Supp. 10S7, 2 N. (1920). C. C. A. 428n. 87 Melchionda v. American Locomotive *1 Hartnet v. Hudson, 16S N. Y. Supp. Co., 229 Mass. 202, 118 N. E. 26S 1034 (1917). (1918). LIABILITY OF OWNER 969 operated by a named chauffeur, but which did not allege that the chauffeur was a servant of the defendant, and acting in that capacity at the time, was held not to state a cause of action." An automobile is not such a dangerous instrumentality that the owner is liable for its mere use by a chauffeur for purposes purely his own ; *' nor is the owner liable merely because of his ownership of the car, nor because his car was operated by his chauffeur!** So, the owner of an automobile not in the possession, control, or management 0/ it, and the chauffeur of which was not acting as his servant, at the time it is negligently caused to injure another, is not liable therefor.*^ Where the servant engages in some independent purpose, not connected with the service for which he is employed, the master cannot be held responsible for his conduct.*® Even if it be conceded that there was enough evidence as to the identity of the chauffeur in charge of the car, at the time of the injury to the plaintiff, to carry that question to the jury, if it defi- nitely appeared that he was at the time operating the car contrary to the express direction of the master, and not in connection with any business of the latter, but wholly for his own private use and purposes, the employer is not liable.*' In the delivery of an opinion in a late case it was remarked that, "It may be that it would be wise and in the public interests that responsibility for an accident caused by an automombile should be affixed to the owner thereof, irrespective of the person driving it, but the law does not so provide." *' , § 1039. Same— Illustrations. Where a servant employed a,bout a garage took his employer's automobile for the purpose of carrying passengers, outside the scope of his employment and with- out the consent of his employer, the latter could not be held liable for the servant's negligence while so operating the car, although the 42 Rubin V. Bierman, 87 Misc. 174, 650; Morier v. St. Paul, M. & M. R. 149 N. Y. Supp. 483 (1914). Co., 31 Minn. 3S1, 17 N. W. 952, 47 *3 Tyler v. Stephan's Adm'x, 163 Ky.' Am. Rep. 793; Barmore v. Vicksburg, 770, 174 S. W. 790 (191S). S. & P. R. • Co., 85 Miss. 426, 443, Ante, § 15. 38 So. 210, 70 L. R. A. 627; Cosgrove 44 Phillips V. Gookin, 231 Mass. 250, v. Ogden, 49 N. Y. 255, 257, 10 Am. 120 N. E. 691 (1918); Freibaum v. Rep. 361. Brady, 143 App. Div. 220, 128 N. Y. 47 Garner v. Souders; 20 Ga. App. Supp. 121 (1911). 242, 92 S. E. 965 (1917). 45 Pease v. Montgomery, 111 Me. 582, 48 Cunningham v. Castle, 127 App. 88 Atl. 973 (1913). Div. 580, 111 N. Y.' Supp. 1057," 2 N. 46 Sullivan v. Morrice, 109 111. App. C. C. A. 428n, 580. 970 LAW OF AUTOMOBILES servant was sometimes sent out with a car to carry passengers.** Where the representative of a cash register company kept a shop for the purpose of repairing, not only the registers which the com- pany was required under its contracts of sale to keep in repair, but registers which he repaired on his own responsibility and was paid for, and while a register which had been repaired was being returned to the owner in an autmobile operated by an employee of such representative, whether or not the register company was liable fbr the negligence of the driver depended _ upon whether the register was one which was repaired under its contract -of sale, or was one repaired upon the individual responsibility of its represen- tative.*" Where, at the time of an accident, the chauffeur was using his employer's car on a personal errand of his own, or of his father, with the permission of his employer's wife, he was not acting within the scope of his employment.*^ Where, in violation of the employer's instructions, while the lat- ter was absent from home, a chauffeur took the employer's auto- mobile out with several guests who were staying at the employer's home, it was held that the employer was liable for injuries caused by the chauffeur's negligence while so engaged.** The general manager of an automobile company went to a neigh- boring city on his own business. On his return he telephoned an- other employee of the company to come to the station for him with an automobile belonging to the company. The employee met him and oh their way home they negligently injured the plaintiff. It was held that the company was not liable as the negligent parties were not engaged in its business at the time. And the fact that the genial manager had purchased goods while on the trip which ' he had charged to the company, would not alter the rule where it appeared that the goods were purchased for an employee and chasged to the company as a convenient means of paying for them.*' An employee of a company, dealers in automobiles, received for the company an automobile to sell on commission, and then with- out the knowledge or consent of the company, took the automo- bile to his own residence, and while driving it about the city on a pleasure trip he negligently collided with a street car and the auto- 49 Christensen v. Christiansen, — Tex. 476, 131 Pac. 116S (1913)., Civ. App. — , 155 S. W. 995 (1913). B2 RUey v. Roach, 168 Mich. 294, 60 National Cash Register Co. v. Wil- 134 N. W. 14, 37 L. R. A. (N. S.) 834 Hams, 161 Ky. 550, 171 S. W. 162 (1912). (1914). B8 Clark v. Buckmobile Co., 107 App. 61 Ludberg v. Barghoorn, 73 Wash. Div. 120, 94 N. Y. Supp. 771. LIABILITY OF OWNER 971 mobile was wrecked, The court held, that the company were not responsible, as the employee was not acting within the scope of his employment at the time.'* An employer is not liable for the acts of his employee while the latter is on his way of a morning to report for duty.^^ A chauffeur in the paymaster's department of a gas company who volunteers to take the superintendent of another department home in a closed car because of danger to the health of the super- intendent riding in an open car, and gets consent of the paymaster to exchange of cars and injures a person in returning is not engaged in the operation of the car for the employer.'* . An owner is not liable for the negligence of a garageman in oper- ating his car for the purpose of testing it and for pleasure; the machine being in the garageman's possession for repairs, and the owner having instructed him to take the car out.''' § 1040. Intrusting automobile to incompetent person. Aside from the relation of master and servant, the ovy^ner of an automo- bile may be rendered liable for injuries inflicted by its operation by one whom he has permitted to drive the same on the ground that such person, by reason of his want of age or experience, or his physical or mental condition, or his known habit of recklessness, is incompetent to safely operate the machine.'* An automobile is a machine that is capable of doing great dam- age if not carefully handled, and for this reason the owner must use care in allowing others to assume control over it. If he intrusts 6* Evans V. Dyke Auto Co., 121 Mo. dangerous potentialities to the hands of App. 266, 101 S. W. 1132. an inexperienced or incompetent per- 6* Nussbaum v. Traung L. & L. Co., son, whether child or servant." Parker — Cal. App. — , 189 Pac. 728 (1920). v. Wilson, 179 Ala. 361, 60 So. 150, 43 66 Szszatkowski v. Peoples G. L. &' L. R. A. (N. S.) 87, 8 N. C. C. A. 300 C. Co., 209 111. App. 460 (1918). (1912). 67 Thorn v. Clark, 188 App. Div. 411, "While automobiles are not inherently 177 N. Y. Supp. 201 (1919). regarded as dangerous instrumentalities, B8 Brown v. Green & Flinn, 6 Boyce' and the owner thereof is not responsible (29 Del.) 449, 100 Atl. 47S (1917). for the negligent use of same, except In view of their propensities the most upon the theory of the doctrine of re- stringent regulations should be applied, spondeat superior, yet there is an ex- and a very high degree of responsibility ception if he intrusts it to one, though rests upon owners, both as to their not an agent or servant, who is so operation and in the selection of parties incompetent as to the handling of same to whom they are intrusted. Lynde v. as to convert it into a dangerous 'in- Browning, 2 Tenn. C. C. A. 262, L. strumentality, and the incompetency is R. A. 191SD 696n. known to the owner when permitting "No doubt liability will arise where the use ofi the vehicle." Gardiner v. the owner intrusts a machine of such Solomon, — Ala. — , 75 So. 621 (1917). 972 LAW OF AUTOMOBILES it to a child of such tender years that the probable consequence is that he will injure others in the operation of the car, or if the per- son permitted to operate the car is known to be incompetent and incapable of properly running it, although not a child, the owner will be held accountable for the damage done, because his negli- gence in intrusting the car to an incompetent person is deemed to be the proximate cause of the damage.^' In such a case of mere permissive use, the liability of the owner would rest, not alone upon the fact of ownership, but upon the combined negligence of the owner and the driver; negligence of the owner in intrusting the machine to an incompetent driver, and of the driver in its operation.®" In a Pennsylvania case the following instruction was held to properly state the law: "It is the duty of a man to see that his automobile is not run by a careless, reckless person, but that it is. in the hands of a skilled and competent person."®^ Where it appeared that the woman to whom defendant loaned his car had taken lessons -in operating a car, and it did not appear that she was ignorant or generally unskilled, he could not be held liable for injuries caused by her.®^ An owner who employed a demonstrator for a period of five days to teach an employee to operate the automobile, was not negligent in that he entrusted an automobile to an unskilled employee.*' When the competency of a chauffeur is. a question an issue, opin- ion evidence may be admitted only if it is shown that the witness is qualified to testify on the subject.®* § 1041. Intrusting automobile to one of prohibited age. Where the owner of an automobile places in charge of it a chauf- feur who does not possess the age qualifications required by a city ordinance, and the chauffeur fails to keep a proper lookout for the safety of children whom he sees playing upon a sidewalk border- ing upon the street, and upon the side of the street upon which he" is about to drive the machine, and negligenlty and in violation of the ordinance attempts to pass the children without sounding his horn and at a prohibited rate of speed, with the resiilt that one of the children, getting suddenly in the street, in the course of their 69 Allen v. Bland, — Tex. Civ. App. Atl. 861 (1916). — 168 S. W. 3S (1914). 62LimbaGher v. Fannon, 102 Misc. fiOBeville v. Taylor, — Ala. — , 80 703, 169 N. Y. Supp. 490 (1918). So. 370 (1918); Parker v. Wilson, 179 esi^Uroy v. Crane Agency Co., ,— Ala. 361, 60 So. ISO, 43 L. R. A.i (N. S.) Mo. App. — , 218 S. W. 42S (1920). 87, 8 N. C. C. A. 300 (1912). 64 Moore v. Hart, 171 Ky. 72S, 188 'filRaub V. Bonn, 254 Pa. St. 203, 98 S. W. 861 (1916). LIABILITY OF OWNER 973 play, is knocked down by the machine and fatally injured, such owner will be held liable in damages to the parents for the injury to and death of the child. There is, in such case, a direct relation of cause and effect between the violations of the prohibitory ordi- nance and the injury inflicted.^^ § 1042. Liability of owner on theory of dangerous instru- mentality. The law requires of persons having the possession and control of dangerous instrumentalities a degree of care commen- surate with the dangerous character of the article; and as the haz- ard from their use increases the responsibility of the person em- ploying them becomes stricter and may amount to insurance of safety.^^ The owner is liable for the improper use of them by a servant, even while acting outside the scope of his employment.®'' Accordingly it was contended that the owner of an. automobile was liable in damages where his chauffeur took the automobile from the garage without his knowledge or permission and while using it on a personal errand ran over and injured a pedestrian. But the court rejected the contention, holding that, as the servant was not engaged in his master's business at the time of the acci- dent, the owner was not liable merely because he had made it possible for the servant to make use of the automobile.®' 65 Elmendorf v. Clark, 143 La. 971, Rep. 577, 31 Cent. L. J. 168, 8 Rail.' & 79 So. S57 (1918). Corp. L. J. 441. B^ Illinois: Reddick v. General Chem- Texas: Galveston etc. R. Co. v. Cur- ical Co., 124 111. App. 31, 34; Palm v. ' rie, 100 Tex. 136, 96 S. W. 1073, 10 Ivorson, 117 111. App. 535. L. R. A. (N. S.) 367. Massachusetts: Bellino v. Columbus Washington: Jones v. Hoge, 47 Wash. Construction Co., 188 Mass. 430, 74 N. 663, 92 Pac. 433, 12S Am. St. Rep. 915, E. 684; Wellington v. Downer Kerosene 14 L. R. A. (N. S.) 216. Oil Co., 104 Mass. 64. 67 Bellino v. Columbus Construction Michigan: Macomber v. Nichols, 34 Co., 188 Mass. 430, 74 N. E. 684; Rail- Mich. 212, 22 Am. Rep. 522. ' road Co. v. Shields, 47 Ohio St. 387, 24 Minnesota: Whittaker' v. Stangvick, N. E. 658, 8 L. R. A. 464, 23 Ohio L. J. 100 Minn. 386, 391, 111 N. W. 295, 10 17, 18 Wash. L. Rep. 577, 31 Cent. L. J. L. R. A. (N. S.) 921; Mattson v. Min- 168, 8 Rail. & Corp. L. J. 441; Jones nesota & N. W. R. Co., 95 Minn. 477, v. Hoge, 47 Wash. 663, 92 Pac. 433, 125 104 N. W. 433, 70 L. R. A. 503, 111 Am. St. .Rep. 915, 14 L. R. A. (N. S.) Am. St. Rep. 483. 216. Missouri: Morgan v. Cox, » 22 Mo. 68 jones v. Hoge, 47 Wash. 663, 92 373; Paden v. Van Blarcom, 100 Mo. Pac. 433, 125 Am. St. Rep. 915, 14 ,L. App. 185, 198, aff'd 181 Mo. 117, 79 S. R. A. (N. S.) 216; Bellino v. Colum- W. 1195. bus Construction Co., 188 Mass. 430, 74 Ohio:' Railroad Co. v. Shields, 47 N. E. 684; Provo v. Conrad, 130 Minn. Ohio St. 387, 24 N. E. 658, 8 L. R. A. 412, 153 N. W. 7^3 (1915) ; Colwell v. 464, 23 Ohio L. J. 171, 18 Wash. L. Aetna B. & S. Co., 33 R. I. 531, 82 Atl. 974 LAW OF AUTOMOBILES So the rules that apply at common law as to the servant in charge of vehicles belonging to the master are applicable to chauffeurs or persons in charge of automobiles of the master.®' The owner is not liable for the negligence of a borrower in driv- ing his machine on the theory that it is a dangerous instrumen- tality, although the owner is present in the machine.'"' In one case it w£is attempted to hold the master responsible for the acts of the servant in negligently running into a person on the street while operating his master's automobile with the master's knowledge and consent, on the ground that the automobile was a dangerous instrumentality, and that, having been intrusted to the chauffeur, the liability of the master, still attached because of its dangerous character. But the court held: "The automobile is not necessarily a dangerous device. It is an ordinary vehicle of pleasure and business. It is no more dangerous per se than a team of horses and a carriage, or a gun, or a sail boat, or a motor launch."" § 1043. Same— Owner permitting car out of repair to be used. Where the owner of an automobile, which had burst a tire while being driven on the highway secured the services of a repairman to take the car to the latter's shop for repairs, and per- mitted the repairman's servant to drive the same to the shop with knowledge that, in addition to the flat tire, the carbureter was out of order, and the rod regulating the flow of gasoline was broken, as a result of which broken rod there was a full feed of gasoline which made it impossible to regulate the speed of the machine, the same running at full speed all the time; and in a narrow road the driver collided with and injured another, and the car was running at high speed at the time, and the driver testified that everything happened so suddenly that he did not have time to direct the ma- chine to the right or left, so as to avoid the collision, it was held 388, 2 N. C. C. A. 430 (1912), citing 70 Hartley v. Miller, 16S Mich. 115, this work; Slater v. Advance Tliresher 130 N. W. 336, 33 L. R. A. (N. S.) 81, Co., 97 Minn. 30S, 107 N. W. 133, S L. IN. C. C. A. 126 (1911) ; Michael v. R. A. (N. S.) S98; Garretzen v. Duen- PuUiam, — Mo. App. — . 2 IS S. W. 763 ckel, SO Mo. 104, 108, U Am. Rep. 40S; (1919). Cunningham v. Castle, 127 App. Div. 71 Cunningham v. Castle, 127 App. S80, 111 N. Y. Supp. 10S7, 2 N. C. C. A. Div. 580, 111 N. Y. Supp, 1057; Walters 428n; Brinkman v. Zuckerman, 192 v Seattle, 97 Wash. 657, 167 Pac. 124 Mich. 624, 159 N. W. 316 (1916). (1917), citing this work. 6»McNeal v. McKain, 33 Okl. 449, 126 Pac. 742, 41 L. R. A. (N. S.) 775 (1912). LIABILITY OF OWNER 975 that the owner was liable for the injuries so inflicted; his liability being grounded oh the fact that the automobile in that condition was an inherently dangerous agency.''^ In this case the following instruction was approved: "But, on the other hand, if an automobile breaks down on the road under the conditions as above stated, and an agent of the firm or com- pany turns it over to the care and custody of some third party to be repaired and brought in, and, while it is being brought in for this purpose, an accident occurs, no liability would attach" to the owner of the automobile for such accident, unless the defects in the machine were of such a character as to make it ungovernable and dangerous to be run on the public road, and the party turning it over for repairs and to be brought in knew that these defects made the machine dangerous to be run, or should have known of them by the use of ordinary care. In determining whether this would be negligence, the test would be: Would a person of ordi- nary prudence, under similar circumstances, have turned such a machine over to be brought in on its own power? If so, it would not be negligence, but if a person of ordinary prudence under simi- lar circumstances, would not have done this, it would be negli- gence." The mere fact that an automobile was defective and dangerous for driving at night, and known to be so by the owner, did not create any liability in the owner when an employee, having power to do so, took the car at night for his own use, without the owner's consent or knowledge, and injured a person.''* The fact that the use of an automobile was rendered dangerous by defective brakes, did not render the owner liable for injury caused by the machine while being operated by an employee for purposes of his own.'* § 1044. Liability of municipal corporation for negligent operation of automobile. It has been held that a municipal cor- poration is not liable for injuries caused by the negligent operation of an ambulance, run in connection with its public hospital; this being the exercise of a public or governmental function.''* "When a motor vehicle, the property of the city, is being operated under the directions of the city authorities for the benefit of the 72 Texas Co. v. Veioz, — Tex. Civ. ^Beatty v. Firestone T. & R. Co., App. — , 162 S. W. 377 (1913). 263 Pa. St. 271, 106 Atl. 303 (1919). 78 Gordon V. Texas & Pac. M. & M. 76Watson v. Atlanta, 136 Ga. 370, Co., — Tex. Civ. App. — , 190 S. W. 71 S. E. 664 (1911). 748 (1916). 976 LAW OF AUTOMOBILES property itself, and not in the performance of any governmental duty, the city will be liable for damages caused by the unlawful operation thereof." ''^ A city has been held to be liable to a pedestrian for injuries caused by being run down by an automobile driven by its super- intendent of streets in the course of the performance of his duties; the work of keeping the streets in repair being a ministerial or pri- vate duty, as distinguished from a public or governmental duty.''"' It has been held that a city is not liable for the negligence of one of its, employes in operating an automobile in the service of its fire and police alarm system; that being in the performance of a governmental function.''* But the use of an automobile by a city for carrying policemen to outlying beats is ministerial, and not governmental as relating to the enforcement of the law.'" A city was held liable for injuries caused by an automobile owned and used by the city public library for the transportation of books to and from its branches, the accident being due to the negligence of the chauffeur hired by the secretary of the library. The library board was said to be simply a part of the city gov- ernment, and in this respect the city is acting in a ministerial capacity, as distinguished from a public or governmental capacity. In part the court said: "The organization of this public library is for the exclusive benefit of the territory of the city of Chicago and not for the state at large. It has been organized by the people of that city, through their proper representatives, voluntarily, and the duties to be performed have not been thrust upon the people of said city nolens volens." *" In a case in which the plaintiff was suing the defendant city for injuries alleged to have been caused by the negligent operation of its police patrol automobile, the jury were instructed: "If the defendant's servant, at the time of the accident, was operating its car at a high and dangerous rate of speed under the circumstances, or failed to give the plaintiff timely warning of its approach, by reason of which the injuries were inflicted, and the plaintiff at the time was on his part in the exercise of due care and caution, and free from negligence that contributed to the accident, the 76 Opocensky v. South Omaha, 101 ''9 Jones v. Sioux City, — la.^ — , 170 Neb. 336, 163 N. W. 325 (1917). N. W. 44S (1919). 77 Hewitt V. Seattle, §2 Wash. 377, 80 Johnston v. Chicago, 258 111. 494, 113 Pac. 1084 (1911). 101 N. E. 960, Ann. Cas. 1914B 339, 78EngeI V. Milwaukee, 158 Wis. 480, 45 L. R. A. (N. S.) 1167, 4 N. C. 149 N. W. 141 (1914). C. A. 40 (1913), aff'g 174 111. App. 414. LIABILITY, OF OWNER • 977 servant of the defendant was negligent, and your verdict should be for the plaintiff." " §1045. Liability of fire chief or commissioner for acts of subordinate driver. It has been held that the chief of a fire de- partment is not liable for injuries caused by the negligent driving of an automobile by another member of the same department, and in which both were riding to a fire; there being no evidence that the chief was exercising any personal control over the driving of the machine. It w&s also held that both men were public officers, and not servants of the municipality.*'' A fire commissioner of a city, present with a subordinate in an automobile which the latter was driving, not responding to a fire alarm or acting in any other public emergency, may be liable for the negligent driving of such subordinate at an unreasonable rate of speed, the speed having been maintained after reasonable oppor- tunity for him to protest.*' § 1046. Liability of partnership when car operated by one of partners. For a tort committed by one partner in the course and within the scope of the partnership business, all partners are liable. Of course, if one partner is about his own personal af- fairs, the other partners are not liable for his acts.'* The plaintiff, a bicyclist, was struck by a truck owned by de- fendants in their partnership business. The truck was driven by one of the partners, who testified that he was using the truck solely for his own pleasure. There was testimony that the truck was owned by the partners, used for partnership business, registered in the, firm name, and had "Martin & Clark" inscribed thereon. One of the partners was operating it at the time of the accident. All of the business of the firm on that day consisted of two roofing jobs in Watertown and Newton; and a gang of six men had been sent to do the work under the exclusive direction of a foremab. The defendant Martin was in New! Hampshire on his vacation. Clark, who never had used the truck except on firm business, on his own testimony had been out with it more than two hours, and was returning to his place of business from the direction of Newton when the collision occurred. There was testimony that there were kegs in the truck at the time. The jury well might discredit his statement that he was using this business truck solely for pleasure riding, and had 81 Brown v. Wilmington, 4 Boyce (27 SSDowler v. Johnson, 22S N. Y. 39, Del.) 492, 90 Atl. 44 (1914). 121 N. E. 487, 3 A. L. R. 146 (1918). 82 Skerry v. Rich, 228 Mass. 462, 117 84Teague v. Martin, 228 Mass. 4S8, N. E. 824 (1917). 117 N. E. 844 (1917). B. Autos.— 62 978 . LAW OF AUTOMOBILES driven only six or seven miles; and could infer from the facts in evidence that he was returning from an inspection of one or both of the partnership jobs in the absence of his- copartner. Held, that a finding that the truck was being operated_in con- nectioii with the partnership business would be sustained.*^ § 1047. What the plaintiff must prove. The burden is on the plaintiff to show that the automobile was owned by the defendant and, when not operated by the defendant personally, to show that the operator was a servant of the defendant and engaged in the scope of his employment at the time the injury was inflicted.^® When the plaintiff in an action seeks to charge the owner >of an automobile with liability for an injury inflicted by the car while it was being operated by another, the burden is on the plaintiff, not only to show that his injury was the proximate result of the negligence of the operator, but also that such person was the servant or agent of the defendant, and was, at the time of such negligence, acting within the scope of his employment.''' § 1048. Question, for jury. The tendency of the courts, in this class of cases, is to resolve doubts against the owner or master to the extent of submitting the question as one of fact to the jury.'* So, whether or not a chauffeur was acting within the scope of his employment at a given time is generally, though not always, a question for the jury under proper instructions.'® SBTeague V. Martin, 228 Mass. 458, Pennsylvania: Scheel v. Shaw,' 252 Pa. 117 N. E. 844 (1917). St. 448, 97 Atl. 684 (1916); Solomon 86 Alabama: Penticost v. Massey, — v. Com. Trust Co., 256 Pa. St. SS, 100 Ala. — , 77 So. 675(1918). , Atl. 534 (1917); Curran v. Lorch, 243 Delaware: Lamanna v. Stevens, 5 Pa. St. 247, 90 Atl. 62 (1914). Boyce (Del.) 402, 93 Atl. 962 (1915). Texas: Gordon v. Texas & Pac. M. Massachusetts: O'Rouke v. A-G & M. Co., — Tex. Civ. App. — , 190 Co., '232 Mass. 129, 122 N. E. 193 S. W. 748 (1916). (1919) ; Hartnett v. Gryztaish, 218 Mass. Washington: Babbitt v. Seattle School 258, 105 N. E. 988 (1914). Dist., 100 Wash. 392, 170 Pac. 1020 Missouri: Michael v. PuUiam, — Mo. (1918). App. — , 21S S. W. 763 (1919). 87 Patterson v.- Milligan, 12 Ala. App. Nebraska: Neff v. Brandeis, 91 Neb. 324, 66 So. 914 (1914). 11, 135 N. W. 232, 39 L. R. A. (N. S.) ,88pioetz v. Holt, 124 Minn. 169, 144 933 (1912). N. W. 745 (1913). New York: CuUen v. Thomas, 150 89 Ward v. Teller Reservoir & I. Co., App. Div. 475, 13S N. Y. Supp. 22 60 Colo. 47, 153 Pac. 219 (1915). (1912). Oregon: West v. Kern, 88 Oreg. 247, 171 Pac. 1050 (1918). LIABILITY OF OWNER 979 § 1049. Proof of ownership. It was held that a jury might properly infer that the automobile in question was owned by the defendant and the chauffeur employed by him, from the purchase of the car with defendant's money, from its frequent use by de- fendant and members of his family, and from the fact that he had given the chauffeur instructions relative thereto.®" Where the plaintiff testified that the automobile that frightened his horse was a large one with a "lot of bunting and flags fluttering all over it," and he saw no other machine so decorated, and it was proved by other witnesses that on the day in question the de- fendant used a large fliachine to carry prospective purchasers of lots to property he was developing, that his machine was decorated with bunting and streamers, and that pamphlets advertising the lots were distributed from it, the question of ownership of the automobile was for the jury.'^ Where an unrecorded bill of sale of an automobile to the de- fendant's wife contained unexplained erasures showing, that it had been made to defendant, and the state license for the machine had been taken out in his name, as had also a city taxicab license, under which the machine was operated by a chauffeur, it was held that the evidence supported a finding of ownership' in the defend- ant, although the defendant and his wife testified that the machine was the separate- property of his wif e.®^ Evidende of a statement, made at the time of an accident by an automobile driver, to the effect that as long as he had purchased the machine he would like to drive it, was admissible, as being part of the res gestae, to prove ownership of the car. A statement made by such person prior to the accident over a telephone to his brother, that he had purchased the car, was properly admitted to prove ownership by him.®* '• In an action to recover for personal injuries due to the plaintiff having been thrown from his wagon when his team took fright at an automobile which was negligently operated by defendant's minor son (also a defendant), the plaintiff testified that he had a con- versation with the father (one of the defendants) after the accident in which he admitted that he owned the automobile and that his 90 Kurtz V. Tourison, 241 Pa. St. 425, 92 Delano w,. La Bounty, 62 Wash 88 Atl. 656 (1913). 595, 114 Pac. 434 (1911). Ownership is a question of fact. Page 9* Olds Motor Wks. v. Churchill, — V. Brink's Chicago City Ex. Co., 192 111. Tex. Civ. App. — , 175 S. W. 785 (19151. App. 389 (1915). 91 Bowling V. Roberts, 235 Pa. St. 89, 83 Atl. 600 (1912). 980 LAW OF AUTOMOBILES son was showing the car. The father prior to this had been selling cars and receiving commissions therefor and the son had been as- sisting in the work of demonstrating them besides driving the car for pleasure and other purposes. There was testimony that both the father and son had driven this car. The father denied having an agency to sell cars at the time of the accident, but would - not say he was not trying to sell cars, when asked that question, and admitted that if he had sold any he would' have gotten a com- mission. He denied ownership of the car, but did not know how his son, who was not yet of age and still living at home, had ob- tained it. A letter written by the son and also one written by the father tended to show that the latter was the owner of the car. An application to the secretary of state for registration certificate No. 13453 for 1912, signed by the father was admitted in evidence (and it was held properly so) as tending to show the ownership of the car. . This application described a car formerly owned by the father, but it was shown that he never applied for but one license, and that was No. 13453 of 1912, and that this number was used on the car in question and was ori it at the time of the accident. It was held that the evidence was sufficient to justify a finding that the father owned the automobile.®* Evidence that the defendant's name was painted on the outside of the automobile truck in question was prima facie proof of owner- ship of the truck by it.*^ In an action to recover for injuries inflicted by the negligent operation of an automobile by one K., there was evidence that the defendant was at the time of the accident and had been for several years the proprietor of a fruit, confectionery and ice cream store; that during these years K., who was his son-in-law and lived with hinni over the store, had worked in the conduct of the business, and after the accident he continued to do so for several months; that before June, 1914, a large part of the business was carried on at the beaches^ a team being used to make deliveries; that in June, 1914, the team was given up and an automobile pur- chased which was used in selling ice cream, confectionery and fruit; that the car was insured in the* name of the defendant, and that his name was painted on the outside of the car. The plaintiff testified that at the time of the accident the driver was the only person in the automobile; that' the rear door of the automobile was open "and that there were inside the car an ice 94 Hufft V. Dougherty, 184 Mo. App, 95 Bosco v. Boston Store, 19S 111. App^ 374, 171 S. W. 17 (1914). 133 (191S). / LIABILITY OF OWNER 981 cream freezer and certain candy boxes." To the contrary, the defendant's witnesses testified that there were four persons and .the driver in the car and that they were returning after having taken a pleasure ride to Salisbury Beach at the invitation of K., who had transacted no business on the trip and was using the car without the knowledge or assent of the defendant. It was held that the evidence was sufficient to justify the jury in finding that the automobile belonged to defendant, and was being operated for him by his servant, who was acting within the scope of his employment at the time.'® Where witnesses had testified that the machine which collided with the plaintiff was a small one, with the name "Public Ledger" painted thereon, and contained bundles of newspapers, a police officer was properly permitted to testify that very shortly after the time fixed by the former witnesses, he saw an automobile of like description delivering bundles of newspapers about 41/2 squares from the place of the accident; that he knew the car, having seen it in the neighborhood morning after morning, on a like errand; and that, on this particular occasion, the driver attracted atten- tion by his seeming hurry, when he tossed out papers upon the corner where the witness was standing, without stopping his ma- chine. "Although his testimony, by itself, would have but little weight, yet, in connection with other evidence in the case, it was circumstantially relevant to identify the automobile which caused the damage as a vehicle belonging to and, at the time, in the service of the defendant." «' Evidence as to the policies of insurance on the automobile in question being, payable to one of the' defendants was held to be admissible as tending to prove ownership, in whose business it was being used, and who was exercising control over it. So is evidence that an attorhey acting for the same defendant settled a former claim growing out of the use of the same machine admissible for the same purpose.'* Testimony that at the time of a collision of automobiles the de- fendant, who was riding in one of the machines, said, "My car is hurt just as much as the other car," was admissible on the question of ownership of the automobile.®® Where the tires of the automobile in question were of a peculiar 96 Heywood v. Ogasapian, 224 Mass. '8 Vaughn v. Davis & Sons, — Mo. 203, 112 N. E. 619 (1916). App. — , 221 S. W. 782 (1920). »7 0'Malley v. Public Ledger Co., 257 99 Hammond v. Hazard, — Cal. App. yPa.. St. 17, 101 Atl. 94 (1917). — , 180 Pac. 46 (1919). 982 LAW OF AUTOMOBILES make and the tracks could not be reproduced^ a witness was prop- erly allowed to testify that the tracks found fitted the tires of defendant's automobile.^ A letter written on the defendant's letter head, signed with de- fendant's name, followed by the name F. W. Hill, and addressed to and received by plaintiff through the mail, complaining of a collision between the machines of the respective parties, was suf- ficient evidence of the ownership of defendant's machine.^ Where the plaintiff calls the defendant's chauffeur to prove the ownership of the automobile which caused the injury, and that it was being operated at the time of the accident in defendant's busi- ness, he is not concluded by the adverse testimony of such wit- ness.* § 1050. Same—Car registered in defendant's name. It has been held that, under a statute requiring the owner to file in the office of the secretary of state his name and address and a descrip- tion of his car and obtain a certificate, the certificate is prima facie evidence of ownership.* "Owing to the difficulty of showing ownership of an automo- bilCj and responsibility therefor when an accident is caused there- by, the courts, applying and extending a rule of evidence thereto- fore obtaining with respect to accidents caused by other vehicles, have declared -that it is to be presumed that the automobile is owned by the person to whom the license shown by the number was issued, and that it was being used in his business, but that this pre- s.ump'tion may be met and overcome by evidence." ® Evidence that the automobile which caused the plaintiff's in- juries displayecj a certain license munber, and that this number was registered in the office of the secretary of state in the defendant's .1 White V. East Side M. & L. Co., — , 176 Pac. 267 (1918), quoting this 84 Oreg. 224, IS N. C. C. A. 848, 164 work. Pac. 736' (1917).' Washington: Delano v. La Bounty, 62 8 Wood V. Indianapolis Abattoir Co., Wash. S9S, 114 Pac. 434 (1911). 178 Ky. 188, 198 S. W. 732 (1917). The fact that a person registered an * Nehring v. Monroe Stationery Co., automobile in his own name warranted — Mo. App. — , 191 S. W. 10S4 (1917). the finding that he was the general * California: Hammond v. Hazard, — owner or had such a special property Cal. App. — , 180 Pac. 46 (1919). therein as gave him control thereof. Michigan: Hatter v. Dodge Bros., 202 Com. v. Sherman, 191 Mass. 439, 440, Mich. 97, 167 N. W. 93S (1918). 78 N. E. 98. Rhode Island: Berger v. Watjen, — ^Bogorad v. Dix, 176 App. Div. 774, R. I. — , 106 Atl. 740 (1919). 162 N. Y. Supp. 992 (1917). Utah: Ferguson v. Reynolds, — Utah LIABILITY OF OWNER 983 name as owner, makes out a prima facie case of ownership in the defendant.® Where, however, in the case last cited, the person who took the license number at the time of the accident, testified that he was . familiar with automobiles, and that the one which caused the injuries was a runabout with one seat for two people, and the defendant's application for registration, which was put in evidence by the plaintiff, described his automobile as a touring car, and the defendant proved- that his machine was in fact a touring car for five people, and gave evidence by his chauffeur and four dis- interested witnesses that at the time of the accident his car was many miles from the place where it occurred, a verdict in favor of the plaintiff was held to be against the weight of the evidence.'' This fact is not sufficient to warrant a finding that the person operating the machine was doing so as servant or agent of the owner.* .However, in New York it is held that, "The license number of the car, coupled with evidence that the defendant held the license, was prima facie proof that the defendant was the owner,^ and that the custodian of the car was then engaged in the owner's service." And further, that this presumption wai not destroyed by testimony of the defendant and his son, the latter being the driver of the car, to the contrary, where their testimony was not without its suspicious or improbable features.® Evidence, in an action to recover for personal injuries, caused by being struck by an automobile, that, in compliance with the law, defendant had registered, as belonging to him, an Oldsmobile, and that the number 509 had been assigned to the car as its registrai- tion number ; that the accident in question c)ccurred nearly a month subsequent to the registration of such car; and that the automobile that struck plaintiff bore the tag number S09 and a printed sign "for hire," was held to raise the presumption that the car that injured the plaintiff was the same one that was registered as de- fendant's property; that it was still his property; and that the person operating the same was his servant or agent; but that such presumptions were rebuttable.'^'' SMcCann v. Davison, 14S App.^ Div. 9 Ferris v. Steriing, 214 N. Y. 249, S22, 130 N. Y. Supp. 473 (1911). 108 N. E. 406 (191S), rev'g 162 App. 'McCann v. Davsion, MS App. Div. Div. 930. 522, 130 N. Y. Supp. 473 (1911). l»Patterson v. Milligan, 12 Ala. App. STrombley v. Stevens-D. Co., 206 324, 66 So. 914 (1914). Mass. 516, 92 N. E. 764 (1910). 984 LAW OF AUTOMOBILES The fact that defendant applied for a license to operate the car in question, may be considered by the jury in determining owner- ship.^^ A letter from the department of licenses, addressed to the plain- tiff's attorney, stating that the defendant was the owner of the license corresponding to the number on»the automobile in question, was held to be incompetent to prove ownership. ^^ A certified copy of an application for an automobile license made out by the plaintiff's husband, is not admissible to prove "owner- ship in the husband in an action by the wife to recover possession of the car, which had been seized under execution against the husband, where there was no evidence to show that plaintiff had authorized her husband to take out the license, or that it was secured in her presence.^' Sometimes, by statute, registration is made evidence of owner- ship.^* § 1051. Plea of general issue admits ownership. In Illi- nois it is held that, in an action by a pedestrian to recover for injuries inflicted by an automobile, a plea of the general issue admits the ownership of the automobile and that the operator in charge was defendant's servant. , Accordingly, the owner of an automobile could not question the authority of his son to turn the management of the ma,chine over to his younger brother, in whose charge it was at the time injury was inflicted, where he inter- posed the general issue.''* I § 1052. Proof of control of automobile. The plaintiff was riding with her son in a buggy, when an automobile, being negli- gently driven at excessive speed, collided with their buggy from the rear, seriously injuring, the plaintiff. Both defendants and two ladies were in the automobile, defendant T. driving. Both of the defendants, T. and S., gave their attention to putting the automobile back on the road and to taking the plaintiff to her home. In get- ting the automobile into the road from a field into which it ran at 11 Windham v. Newton, — Ala. — , 76 16 Kuchler v. Stafford, 18S 111. App. So. 24 (1917). ' 199 (1914). l^Turteltaub v. Lauria, 172 N. Y. A pUa of not guilty only, admits the Supp. 148 (1918). operation of the automobile by defend- iBjaddatz v. Grace Harbor Lbr. Co., ant. Rasmussen v. Drake, 185 111. App. 194 Mich. 273', 160 N. W. 587 (1916). 526 (1914). l*Uphoff V. McCormick, 139 Minn. 392, 166 N. W. 788 (1918). LIABILITY OF OWNER 985 the time of the collision, S. took the wheel and ran it, while T. picked out the way; it then being dark and the lights out of order. S. continued at the wheel while plaintiff was being taken to her home, where she was removed from the automobile, S. lending assistance. Before leaving plaintiff's home, T. handed the husband of plaintiff a card, and said, "You will find us at the Halfiday Hotel." The automobile party then left'; there being no evidence as to who then took the wheel. It was held that this evidence was insufficient to charge S. with the negligent management of the machine.^® CHAUFFEUR § 1053. Evidence of the relationship generally. The relation of master and servant or owner and chauffeuri is to be proved as any other fact, and, generally, any evidence is admissible which has a tendency to prove the existence of the relation.^'' Where it was shown that the automobile was owned by defend- ant; that the chauffeur who drove it was in its employ; that the passengers in the car were defendant's agents or employee^; that the primary purpose of the trip was to deposit moneys belonging to defendant in bank; and that the chauffeur and the cashier of defendant were primarily engaged at the time of the accident in the business of their employer, it was held that this evidence was suf- ficient to establish a prima facie case in favor of the plaintiff, and judgment holding the defendant liable for the negligence of the chauffeur was affirmed.^' Where it was shown that the defendant wa^ the owner of a motorcycle which another was riding under its supervision on a racetrack at a fair, it was held that the rider was properly found to be a servant of the defendant.''* The admission that the automobile was owned by defendant, that his wife was being conveyed in the machine at the time of the injury, and that defendant had directed his son to take the plain^ 16 McCanna v. Silke, 7S Wash. 383, in a former action to the effect that the 134 Pac. 1063 (1913). chauffeur was acting for him at the 17 Meinert v. Snow, 2 Idaho 851, 27 time alleged in the present action are Pac. 677; Hinchcliff v. Koontz, 121 Ind. admissible. Cady v. Doxtater, 193 Mich. 422, 23 N. E. 271, 16 Am. St. Rep. 403; 170, 159 N. W. 151 (1916). Wright V. Elk Rapids Iron Co., 129 18 witte v. Mitchell-Lewis Motor Co., Mich. 543, 89 N. W. 335. 244 Pa. St. 172, 90 Atl. 528 (1914). Statements made by the defendant in 19Maskell v. Alexander, 91 Wash. 363, the declaration and in his testimony 157 Pac. 872 (1916). 986 LAW OF AUTOMOBILES tiff home, was sufficient to take the question of the son's agency to the jury.^" To the question, if defendants' chauffeur was out with one of defendants' automobile trucks, "you would say that he was about your business," the answer of one of the defendants, "Naturally, yes," was held to be some evidence that the chauffeur was in the employment of defeniJknts and engaged about their business at the time in question; the facts assumed in the question having been established.^^ Where defendant testified at a hearing of the driver in a police court that the automobile in question belonged to him, and that the driver was in his employ, but at the trial of the civil action growing out of the same accident he denies that he was the owner of the car, and employer of the driver, and states that his son was the owner and employer, but does not produce the license, nor any books or papers bearing upon the question of ownership, although the license and books or papers are referred to in the testimony, the question of ownership and as to whether the driver was in his einploy is for the jury.*^ Where, at the time of an accident caused by a ho^se becoming frightened at defendant's automobile, it was shown that the de- fendant owned the automobile and was riding in it at the time; that it was being driven by a chauffeur; that as a rule defend- ant's son operated the machine for her, and that when he did not she secured this chauffeur to drive it for her; that the chauffeur was working for a certain company and had directions to drive for de- fendant when she wanted him to do so, it was held that the evi- dence justified a finding that the chauffeur was acting as defend^ , ant'^ servant.^* Evidence that the vehicle causing the injury complained of w9,s an automobile delivery wagon used by defendant in connection with its business; that defendant's name was on the wagon; that the defendant's secretary was operating it; that, although the acci- dent occurred on Sunday, the defendant's store was open for busi- ness, and that the wagon was coming from the direction of the street on which the store was located, was held to be sufficient to justify the jury in inferring that the vehicle was being operated in 20 Clark V. Sweaney, 176 N. C.'S29, 22 Kennelly v. Millier, 69 Pa. Super. 97 S. E. 474 (1918). Ct. 115 (1918). 21 Buckley v. Sutton, 231 Mass. 504, 28 Antrim v. Noonan, 186 III. App. 121 N. E. S27 (1919). , 360 (1914). 1 1 LIABILITY OF OWNER 987 connection with the defendant's business at the time of the acci- dent.2* Statements made by a chauffeur after an accident cannot bind his employer as an admission of hability. So, his testimony that he was discharged shortly after an accident is not competent as implied admission by the employer that the chauffeur had been careless .^'' It is held that declarations of the driver of an automobile at the time of a particular transaction are competent evidence on the question of his agency, but not if made after the transaction is fully ended .^® The defendant directed his son to take defendant's automobile and visit a locality where defendant was engaged in erecting a building, for the purpose of seeing that the lamps indicating the existence of street obstructions were lighted. The son, instead of performing his errand and returning, delayed for some hours in the neighborhood with friends, and thereafter undertook to carry two of his friends in the automobile to one of the railroad depots in the city, which was located in a direction nearly opposite to the route which he might have taken upon a direct return to the father's home. While making this trip to the railroad depot, the auto- mobile collided with the plaintiff, who brought suit against defend- ant for the damages resulting therefrom. The trial developed the fact that as one of the invitees was about to enter the car, the son of defendant made some statement a^ to their destination. This testimony the court overruled, and excluded as hearsay. Held, that the conversation so excluded was material as part of the res gestae, which presents an exception to the general application of the hearsay rule.^' § 1054. Scope of emplo3mient. The phase "in the course, or scope, of his employment, or authority," when used relative to the acts of a servant means while engaged, in the service of his master, or while about his master's business. It is not synonymous with "during the period covered by his employment." ^* 24 Williams v. Ludwig Floral Co., 2S2 28 Brinkman v. Zuckerman, 192 Mich. Pa. St. 140, 97 Atl. 206 (1916). 624, 1S9 N. W. 316 (1916); Slater v. 26 Gillet V. Shaw, 217 Mass. S9, 104 Advance Thresher Co., 97 Minn. 305, N. E. 719 (191''4). 107 N. W. 133, 5 L. R. A. (N. S.) S98; 26 Benton v. Regeser, 20 Ariz. 273, Hill v. Staats, — Tex. Civ. App. — , 179 Pac. 966 (1919). 189 S W. 85 (1916), quoting from this/ 27 Jennings v. Okin, 88 N. J. L. 659, work. 97 Atl. 249 (1916). 988 LAW OF AUTOMOBILES It does not follow that because one who has been guilty of negli- gence was at the time acting under an employment by another, that he was acting within the scope of such employment. It must appear that the acts complained of were done by him while per- forming the duties pertaining to that employment.*' Whether or not a chauffeur was acting within the scope of his employment at a given time is generally decided on presump- tions and inferences from ascertained facts.*" The mere fact that the servant, acting for the master, deviates from his instructions, does not take the act out of the scope, of his employment. The test is whether the act was done in the prosecu- tion of the business in which the servant was employed to assist.*^ He may be acting within the scope of his emplo3mient although disobeying the express commands of the master at the time.'* The question of the ignorance or consent of the master has no bearing upon his liability .*' On the other hand, an act of the servant is not necessarily within 89 King V. New York Central & H. R. R. Co., 66 N. Y. 181, 184, 23 Am. Rep. 37; Hill V. Staats, — Tex. Civ. App. — , 189 S. W. 8S (1916), quoting from this work. SO Maloy V. Rosenbaum , Co., 260 Pa. St. 466, 103 Atl. 882 (1918). ^1- Kansas:, Atchison, Topeka & S. !F. R. Co. V. Randall, 40 Kan. 421, 427, 19 Pac. 783. Minnesota: Crandall v. Boutell, 9S Minn. 114, 116, 103 N. W. 890. Mississippi: Barmore v. Vicksburg, S. & P. R. Co., 8S Miss. 426, 443, 38 So. 210, 70 L. R. A. 627. Tennessee: Eichengreen v. Railroad Co., 96 Tenn. 229, 23S, 34 S. W. 219, 31 L. R. A. 702, S4 Am. St. Rep. 833. Texas: Hill v. Staats, — Tex. Civ. App. — , 189 S. W. 8S (1916), quoting from this work. West Virginia: Gregory v. Ohio River R. Co., 37 W. Va. 606, 16 S. E. 819. S* Illinois: Consolidated Ice Machine VCo. V. Keifer, 134 lU. 481, 495, 25 N. E. 799, 10 L. R. A. 696, 23 Am. St. Rep. 688. Iowa: Healy v. Johnson, 127 la. 221, 225, 103 N. W. 92. Massachtisetts: Harden v. Felch,v 109 Mass. 154, 157. Michigan:^ Fitzsimmons v. Milwau- kee, L. S. & W. R. Co., 98 Mich. 257, 57 N. W. 127. Minnesota: Smith v. Munch, 65 Minn. 256, 261, 68 N. W. 19. Missouri: Garretzen v. Duenckel, SO Mo. 104, 11 Am. Rep. 405. New Jersey: McCann v. Consoli- dated Traction Co., 59 N. J. L. 481, 36 Atl. 888, 38 L. R. A. 236. New York: Cosgrove v. Ogden, 49 N. Y. 255, 10 Am. Rep. 361. Pennsylvania: McCIUng v. Dearborn, 134 Pa. St. 396, 19 Atl. 698, 8 L. R. A. 204, 19 Am. $t. Rep. 708. Texas: Hill v. Staats, — Tex. Civ. App. — , 189 S. W. 85 (1916), quoting from this work. SSDavies v. Anglo-American Auto Tire Co., 145 N. Y. Supp. 341 (1913); Hill V. Staats, — Tex. Civ. App. — , 189 S. W. 85 (1916), quoting from this work. LIABILITY OF OWNER 989 the scope of ^ his employment merely because the intention of the servant was to serve or benefit the master.** The master is not liable for his servant's acts, if at the time of the acts complained of he has become ad hoc the servant of an- other, and engaged in the business of that other, and under his direction and control.*^ Nor does it follow that a chauffeur is acting within the scope of his employment merely because he is operating his master's automobile at the time of an accident.'* But if it is shown that the automobile belongs to the defendant and was being operated by his chauffeur, it will be presumed that the chauffeur was acting within the scope of his employment, and the burden is on the defendant to show the contrary.''' Whether or not a chauffeur, at any given time, was acting within the scope of his employment involves an inquiry into the contract of his employment and the relation of is acts at the time in question to the se?:vice he actually performed persuant to his employment.'* § 1055. Same— Illustrative cases. The defendant's son, while driving an automobile, ran down and killed a motor-cyclist. Both father and «on testified that the car belonged to the son, and that at the time of the collision the son was using the car for his own pleasure, and not in the father's service. They said that the car was given to the son on his twenty-first birtday, and in this they were corroborated to some extent by the manager of the company that sold it. The license, issued by the secretary of state, was made out, however, in the father's name, and so were the fire and accident insurance policies, that were issued on the car. Both father and son claimed that the form of the license and the policies was a mistake. The defendant was a livery stable keeper, but for some years he had been ill, and because of illness he had left the 34 Brown v. Jarvis Engineering Co., was a servant of defendant. Vaughn v. 166 Mass. 7S, 43 N. E. 1118, 32 L. R. Ipavis & Sons, — Mo. App. — , 221 S. A. 60S, SS Am. St. Rep. 382; Daniel W. 782 (1920). V. Atlantic C. L. R. Co., 136 N. C. S17, 36 Clark v. Buckmobile Co., 107 App. 48 S. E. 816, 67 L. R. A. 455. Div. 120, 94 N. Y. Supp. 771. 36 Cunningham v. Castle, 127 App. 37 Long v. Nute, 123 Mo. App. 204, Div. S80, 111 N. Y. Supp. 1057, 2 N.C. 207, 100 S. W. 511, citing Cousins v. C. A. 428n; Wyllie v. Palmer, 137 N. Hannibal & St. J. R. Co., 66 Mo. 572. Y. 248, 33 N. E. 381, 19 L. R. A. 285; For cases on this subject see, John Higgins V. Western Union Tel. Co., 156 M. Hughes Sons Co. v. Bergen & West- N. Y. 7*5, 50 N. E. 500, 4 Am. Neg. Rep. side Auto. Co., 75 N. J. L. 355, 67 Atl. 320, 66 Am. St. Rep. 537; Crouse v. 1018; Cosgrove v. Ogden, 49 N. Y. 255, Lubin, 260 Pa. St. 329, 103 Atl. 725 257, 10 Am. Rep. 361. (1918), quoting from this work. 38 steffen v. McNaughton, 142 Wis. Evidence held to show that chauffeur 49, 124 N. W. 1016 (1910). 990 - LAW OF AUTOMOBILES management of his business in a large measure to his son. He as- serted that the business did not include the running of this car. He also asserted that at the time of the accident the son was using the car for pleasure only. They had gone together to see a physician, and when this errand was done, the father went home, and the son went on alone. The father said that there was no conversation as they separated. The son said that the father reminded him that his time was his own and the car was his own, and suggested that he take a ride. During the ride that followed, the accident occurred. It was held that a finding of liability on the part of the defendant was supported by the evidence.'® Where there was evidence that the taxicab in which plaintiff was riding when injured was the property of defendant, that the chauffeur was employed by him, and that the chauffeur was negli- gent, the case was for the jury, although the defendant testified that the chauffeur was acting outside the scope of his employ- ment." The owner of an automobile was' permitted to keep it in the garage of a manufacturing company, of which her husband was president. There was an arrangement whereby the company fur- nished a chauffeur, who was in its general employment, to drive the car when it was used by the owner's mother. It was held that while so acting at the mother's request, the chauffeur was the servant of the owner, and not of the company." Testimony that the driver, who was in the employ of de- fendant, had been seen driving the car on other occasions for defendant, was held not to be objectionable.*^ Where there was evidence that defendant's manager had in- structed C, an employee of defendant, to teach B., also an employee of defendant, to drive an automobile, and an accident occurred when C. and B. were coming from dinner and while B. was oper- ating the car under C.'s instructions, it was held that a finding that the accident occurred while the employees were engaged in defendant's business was warranted.** Where the driver of a truck, used in street construction, was directed by his superintendent to dump the last load he was to 89 Ferris v. Sterling, 214 N. Y. 249, *? Monte v. Scott, — Ala. — , 78 So. 108 N. E. 406 (1915), rev'g 162 App. 849 (1918). Div. 930. 43WinsIow v. New England 'Co-Op. 40 Nell V. Godstrey, 90 N. J. L. 709, Socy., 22S Mass. 576, 114 N. E. 748 101 Atl. 50 (1917). (1917). ." Crouse v. Lubin, 260 Pa; St. 329, 103 Atl. 725 (1918). LIABILITY OF OWNER 991 haul that day in a vacant lot, which he did, and was on his way to the garage when an accident occur rM, it was held that these facts showed that he was acting in the scope of his employment.** The owner is liable for the negligence of his employee while the latter is demonstrating a car for him to a prospective purchaser.*^ Driving to a filling station to procure gasoline for a delivery ftiachine was in the course of the chauffeur's employment as driver of the machine.*® Although an employer had instructed the helper on one of his trucks not to drive it, the helper was in the course of his employ- ment when moving the truck at the request of a third person, dur- ing the temporary absence of the driver.*'' § 1056. Ratification of chauffeur's acts. The fact that the owner retains in his employ a chauffeur after the latter has injured some one while operating the owner's car outside the scope of his employment, does not amount to a ratification of the chauffeur's unauthorized acts, although the owner has knowledge of the tor- tious acts.** An employer furnished an employee with an automobile for use in the performance of his duties. The employee happened to an accident while using the car in a purely personal affair, and the employer told him to consult with the firm of attorneys who had done business for the employer. Held, that neither this fact nor the fact that the employer did not discharge the employee on account of the accident, nor both together, constituted any evi- dence that the employer ratified the act of the employee in so using the automobile.*® i § 1057. Mistake of owner as to competency of chauffeur. A mistake of judgment on the part of the owner as to the compe- tency of his chauffeur, however honestly made, will not relieve him from liability for injuries caused by the chauffeur's negligence while acting within the scope of his employment.'" 44 Regan, v. KeUy Contr. Co., 226 Co., 182 N. Y. Supp. 97 (1920), holding Mass. S8, IS N. C. C. A. 19S, 114 N. E. employer not liable fot injuries caused 726 (1917). by starting of truck by helper, who had 46 Houston V. Keats Auto Co., 85 been forbidden to drive. Oreg. 12S, 166 Pac. 531 (1917). 48 Knight v. Laurens Motor Car Co., 46Mandes v. Midgett, 261 Fed. 1019 108 S. C. 179, 93 S. E. 869 (1917). , (1919). 49Kilroy v. Crane Agency Co., — Mo. 47 Adams Express Co. v. Lansburgh App. — , 218 S. W. 42S (1920)., & Bro., 262 Fed. 232 (1920). 60 Prince v. Taylor, — Tex. Civ. App. But see Esposito v. American Ry. Ex. — , 171 S. W. 826 (1914). 992 LAW OF AUTOMOBILES § 1058. Presumption from chauffeur operating employer's automobile. Where a servant, who is employed for the special purpose of operating an automobile for the master, is found oper- ating it in the manner such machines are usually operated, the presumption arises that he is running it in the master's service; ^^ for if he was defendant's chauffeur his duties were to operate de- fendant's automobile.^^ If the chauffeur is not acting for the owner this fact is peculiarly within the knowledge of the master, and the burden is on him to overthrow this presumption by evidence which the law presumes is in his possession.^* ^'^ Alabama: Penticost v. Massey, — AJa. — , 77 So. 675 6918) ; Dowdell v. Beasley, — Ala. App. — , 82 So. 40 (1919). Georgia: Gallagher v. Gunn, 16 Ga. App. 600, '8S S. E. 930 (1915). Missouri: Guthrie v. Holmes, 272 Mo. 215, 198 S. W. 854 (1917) ; Kilroy v. Crane Agency Co., — Mo. App. — , 218 S. W. 425 (1920); Marshall v. Taylor, 168 Mo. App. 240, 153 S. W. 527 (1913) ; Glassman v. Harry, 182 Mo. App. 304, 170 S. W. 403 (1914) ; Wiedeman v. St. Louis Taxfcab Co., 182 Mo. App. 523, 530, 165 S. W. 1105 (1914) ; Shamp v. Lambert, 142 Mo. App. 567, 121 S. W. 770 (1909) ; Long v. Nute, 123 Mo. App. 204, 207, 100 S. W. 511. New York: Rose v. Balfe, 223 N. Y. 481, 17 N. C. C. A. 721, 119 N. E. 842 (1918), rev'g. 177 App. Div. 907, 163 N. Y. Supp. 1129; Thiry v. Taylor Brewing & M. Co., 37 App. Div. 391, 56 N. Y. Supp. 85; Stewart v. Baruch, 103 App. Div. 577, 93 N. Y. Supp.. 161. North Carolina: Clark v. Sweaney, 176 N. C. 529, 97 S. E. 474 (1918). Oregon: Kahn v. Home Tel. & Tel. Co., 78 Oreg. 308, 152 Pac. 240 (1915). Pennsylvania: Moon v. Matthews, 227 Pa. St. 488, 76 Atl. 219 (1910). Texas: Gordon v. Texas & Pac. M. & M. Co., — Tex. Civ. App. — , 190 S. W. 748 (1916). Washington: Singer v. Metz Co., 107 Wash. 5'62, 182 Pac. 614 (1919). Wisconsin: Hiroux v. Baum, 137 Wis. 197, 118 N. W. 533, 19 L. R. A. (N. S.) 332. Federal: Foundation Co. v. Hender- son, 264 Fed. 483 (1920), citing this work; Benn v. Forrest, 213 Fed. 763, 130 C. C. A. 277 (1914). Proof of ownership in defendant of the automobile that caused the injury complained of, and that it was negli- gently operated by his servant, makes a prima facie case against the defendant Studebaker Bros. Co. v. Kitts, — Tex. Civ. App. — , 152 S. W. 464 (1912). And in a case involving the same principle of law, where it was shown that a person who threw a burning brand from a passing locomotive, set- ting fire to plaintiff's property, was on the engine, with his coat off, and ap- parently engaged at work, it was held to raise a presumption that such per- son was in the employ of the defendant railroad company, and was rightfully at work on the engine, in the absence of explanation. McCoun v. New York Central & H. R. R. Co., 66 Barb. (N. Y.) ' 338. B2 Marshall v. Taylor, 168 Mo. App. 240, 153 S. W. 527 (1913). 68]Vpoon V. Matthews, 227 Pa. St. 488, 76 Atl. 219 (1910) ; Foundation Co. V. Henderson, 264 Fed. 483 (1920), citing this work. Where a servant, who is employed for the special purpose of operating an automobile for the master, is found op- erating it in the usual manner sucn LIABILITY OF OWNER 993 The defendant is then put upon his proof that the automobile was not being used in his business or for his employment.** The admission by a defendant that the automobile which caused the injuries complained of, belonged to him, and that his chauffeur was in charge of it at the time of the accident, tends to prove that the chauffeur was acting within the scope of his employmentj be- cause the word "chauffeur" involves the idea of a person having charge of or operating an automobile; and that was the purpose for which he was employed.** Where one's general employment as one of the regular drivers of the defendant taxicab company, and that the taxicab which he was driving when he injured the plaintiff belonged to defendant, was conceded, it was held that the jury could find that the driver was acting in the scope of his employment.*® Where it was shown that defendant owned the machine in ques- tion; that he had a license to operate it for hire; and that the driver, defendant's brother, had been frequently seen operating the machine, the evidence was sufficient to go to the jury on/ the question whether the machine was being operated at the time in question for the defendant.*' The fact that defendant's name was on the automobile in ques- tion, and that the driver admitted shortly after the accident that it belonged to defendant, in whose employ he then was, was sufficient to raise an inference that the relation of master and servant then existed between the defendant and such driver.** Evidence that the car causing the damage was owned by defend- ant, and driven by a man who drove it at times for the defendant machines are operated, the presumption tion or relieve the master's liability for naturally arises that he is running the injuries caused by careless driving. Long machine in the master's service. If he v. Nute, 123 Mo. App. 204, 100 S. W. is not so running it, this fact is pe- Sll, 2 N. C. C. A. 428n. culiarly within the knowledge of the 64DowdeU v. Beasley, —, Ala. App. master, and the burden is on him to — , 82 So. 40 (1919) ; Friedman v. overthrow this presumption by evidence Krimke, 172 N. Y. Supp. 39S (1918); which the law presumes he is in posses- Ludberg v. Barghoorn, 73 Wash. 476, sion of. It would be a hard rule, in 131 Pac. 116S (1913). such circumstances, to require the party ^* Shamp v. Laimbert, 142 Mo. App. complaming of the tortious acts of the 567, 121 S. W. 770 (1909). servant, to show by positive proof that ^^ Burger v. Taxicab Motor Co., 66 the servant was serving the master and Wash. 676, 123 Pac. S19 (1912). not himself, and the fact that the chauf- 67Levine v. Ferlisi, 192 Ala. 362, 68 feur made a detour from the direct So. 269 (191S). route from defendant's home to the fair 88 Hatter v. Dodge Bros., 202 Mich, grounds does not change the presump- 97, 167 N. W. 93S (1918). B. Autos. — 63 994 LAW OF AUTOMOBILES and at times on his own account, was held insufficient to sustain a finding that the driver was acting for defendant at the time.^® Where there was evidence going to show that the driver of an automobile was ordinarily engaged in operating it as a public vehicle for the common carriage of passengers for hire; that the defendant owned the machine, controlled its use, and enjoyed the benefit of its earnings; and that, as testified by the driver, at the time in question he had three passengers in the car, the jury were justified in finding that the driver was engaged in the business of the defendant.^" In Tennessee the presumption that a chauffeur was acting within the. line of his employment arises where it appears, not only that the master was the owner of the automobile, but also that the car was being used as it was normally used in connection with the master's business.®^ § 1059. Same. In order that proof of ownership of an automo- bile, and that it was being operated at the time in question by an employee of the owner, should justify an inference that the employee was acting within the scope of his employment at that time, it is thought that it should also be shown that the employee's duties were in connection with the use of the automobile, or in connection with the particular work in which the automobile was used. The equivalent of this was held in a case in which proof of the ownership of the machine, that it was purchased for a traveling salesman, who had control of the storage and repairs of it, and that at the time in question it was being operated by a clerk and book- B9 Robinson v. Pence Auto. Co., 140 above quotation is a just qualification. Minn. 332, 168 N. W. 10 (1918). No presumption of a servant's acting 6'*Barfield v. Evans, 187 Ala. S79, in the line of duty should be drawn un- 6S So. 928 (1914). less time, place, and the other circum- 61 Frank v. Wright, 140 Tenn. S3S, stances in shedding light upon the trans- 205 S. W. 434 (1918). action, indicate that it was one within "The true rule is, we think, as stated the scope of the driver's duty. For ex- by Labatt in 6 Master & Serv. § 2281a: ample, take an auto truck customarily 'A servant may be presumed prima used in a city for freight traffic. Though facie to have been acting in the course it be shown to belong to a defendant, of his employment, wherever it appears, and to be in charge of one regularly not only that his master was owner of employed as his driver, there ought not the given instrumentality, but also that, to be raised such a presumption or in- at the time when the alleged tort was ference, where at the time of the tor- committed, it was being used under con- tious act it was being driven to haul ditions resembling those which normally persons into the country." Frank v. attended its use in connection with its Wright, 140 Tenn. S3S, 20S S. W. 434 use in the master's business.' (1918). "In our opinion the last phrase in the LIABILITY OF OWNER 995 keeper in the employ of the owner, was declared to be insufficient to raise the presumption that the employee was acting in the scope of his employment while driving the car.®* §1060. Same — Contra. Some cases hold that a mere showing of ownership in the defendant, and that the automobile was being driven by a servant, or chauffeur of the owner, is not enough to place the responsibility of negligent driving on the owner.®* Although the automobile was owned by the defendant and the driver was in his employ, he will not he held liable if the driver was using the machine solely for his own pleasure or business.®* The Massachusetts rule has been laid down by the Supreme Judicial Court of that state in the following language: "What- ever may be the rule elsewhere, it never has been the rule here that simple proof of the ownership of the car by the defendant and that the chauffeur is his servant makes out a prima facie case for the plaintiff on the question whether on an occasion like that in the present case the chauffeur was acting within the scope of his employment." ®* § 1061. Office and effect of this presumption. This presump- tion is said to have no place in a case where there is evidence directly proving ownership of the car and every act of the chauf- feur during the period of time in question.®® Where such was true in a case, it was held to be reversible error to instruct the jury that if they believed the chauffeur was at the moment of injuring plaintiff in the employ of the defendant for the purpose of operating the machine (which Was shown to belong to defendant) that those facts were sufficient to raise a presumption that the chauffeur was at that time acting within the scope of his authority. As the evidence laid bare the whole affair, showing every detail of 62 White Oak Coal Co. v. Rivoux, 88 Winters, 47 Utah S98, ISS Pac. 437 Ohio 18, 102 N. E. 302, 46 L. R. A. (1916). (N. S.) 1091, Ann. Cas. 1914 C 1082 6* Premier Motor Mfg. Co. v. Tilford, (1913). 61 Ind. App. 164, 111 N. E. 64S (1916) ; 68Halverson v. Blosser, 101 Kan. 683, Dearholt Motor Sales Co. v. Merritt, 168 Pac. 863 (1917), citing this work; 133 Md.' 323, lOS Atl. 316 (1918); Dearholt Motor Sa,les Co. v. Merritt, O'Rourke v. A-G Co., 232 Mass. 129, 133 Md. 323, lOS Atl. 316 (1918); 122 N. E. 193 (1919). O'Rourke v. A-G Co., 232 Mass. 129, 65 Hartnett v. Gryzraish, 218 Mass. 122 N. E. 193 (1919) ; Gardner v. Far- 2S8, lOS N. E. 988 (1914) ; Gardner num, 230 Mass. 193, 17 N. C. C. A. v. Famum, 230 Mass. 193, 17 N". C. C. 79S, 119 N. E. 666 (1918), following A. 79S, 119 N. W. 666 (1918). Hartnett v. Gryzmish, 218 Mass. 258, 66Vallery v. Hesse BIdg. Material Co., 105 N. E. 988 (1914); McFarlane v. — Mo. App. — , 211 S. W. 9S (1919). 996 LAW OF AUTOMOBILES what the chauffeur was directed to do and when and how to do it, there was no place for a presumption, and the case should have been decided on the facts and inferences drawn from them.®'' This presumption cannot stand in the face of positive proof of facts to the contrary; and where the plaintiff has relied upon such presumption and it has been opposed by positive eviden,ce to the contrary, he must then produce evidence tending to disprove the defendant's positive testimony, or his prima facie case will fall.®* The presumption in question is rather a frail thing. It is unlike an inference that arises upon the proof of certain facts, and which is necessarily true if the facts are true. It rests upon the facts that the automobile was owned by the defendant, and that the qjiauffeur who was operating it was in the general employment of the defendant; neither one nor both of which actually tends to prove that the chauffeur was engaged in the owner's business.®' The rule is juSt and reasonable, however, because it concerns a matter that the owner is in a position to disprove if untrue, while jt is often extremely difficult for the plaintiff to prove his case by positive B^Whimster v. Holmes, 177 Mo. App. 130, 164 S. W. 236 (1914), — Mo. App. — , 190 S. W. 62 (1916). 68 Maupin v. Solomon, — Cal. — , 183 Pac. 198 (1919) ; Gaiett v. Michi- gan U. Tr. Co., 20S Mich. 410, 171 N. W. S36 (1919) ; Kilroy v. Crane Agency Co., — Mo. App. — , 218 S. W. 42S (1920); Rose v. Balfe, 223 N. Y. 481, 17 N. C. C. A. 721, 119 N. E. 842 (1918), rev'g. 177 App. Div. 907, 163 N. Y. Supp. 1129. "When the fact is proven to the con- trary without contradiction, no conflict of evidence arises, but the presumption is simply overcome.'' Martinelli v. Bond, — Cal. App. — , 183 Pac. 461 (1919). 69 Guthrie v. Holmes, 272 Mo. 2 IS, 198 S.V. 8S4 (1917), quoting and fol- lowing this paragraph; Limbacher v. Fannon, 102 Misc. 703, 169 N.Y. Supp. 490 (1918); Babbitt v. Seattle School Dist., 100 Wash. 392, 170 Pac. 1020 (1918). In Guthrie v. Holmes, 272 Mo. 215, 198 S. W. 854, 861 (1917), there is a very able dissenting opinion by Wood- son, J., who holds that when the plain- tiff has made a prima facie case, even by the aid of such presumption, the case should be submitted to the jury, who , are the judges of the credibility of the witnesses. Judge Woodson's opinion is commended to the reader, for he argues clearly and well. It may well be ^argued that, whe;e the pre- sumption is not opposed by some un- controverted fact in the case, the case should be submitted to the jury. The decision of the court in Guthrie v. Holmes, supra, appears to be in con- flict with former decisions of that court. In Peterson v. Chicago & A. R. Co., 265 Mo. 462, 178 S. W. 182, the Supreme CouEt of Missouri said "The plaintiff having made out a prima facie case, then according, to the rule just announced the burden rested upon the defendant to disprove and overcome that case, to the satisfaction of the jury. That, of course, means that the jury and not the court must pass upon the credibility of the witnesses and the weight to be given to their testimony. That is, after a prima facie case has once been made out, the case can never be taken from the jury." This case so held without any dissent- ing opinion. LIABILITY OF OWNER 997 evidence. It is sometimes held, however, that the presumption thus arising is evidence to be submitted to the jury even though there is positive direct testimony to the contrary.''' In Ohio it is held that, even if a presumption that a chauffeur was acting within the scope of his employment does arise from proof that the automobile being driven by him was the property of the defendant, and that the chauffeur was in the defendant's em- ploy, this only requires that the defendant introduced evidence sufficient to countervail the presumption; he not being required to over-balance or outweight it.'^ Where, in an action to recover for the death of plaintiff's in- testate, which was shown to have been caused by an automobile owned by the defendant and operated by a chauffeur in his employ, there was evidence for the defendant that the accident occurred at night; that the chauffeur had taken the automobile out of the garage without defendant's consent or knowledge; that the chauf- feur had positive instructions not to take the car out of the garage at night unless orders were given him to do so; that defendant refused to let his car go out at night; that on this occasion the automobile was not taken out or used in the performance of any service or business of defendant, but purely on a matter of the chauffeur's own concern; that the automobile was kept at a garage and the chauffeur spent his time there, and whenever the defendant or his' wife wanted the automobile they would telephone the garage for it; that on the night in question a man appeared at the garage and inquired for some one to go out to a certain hill and pull in a broken-down car; that the chauffeur, thinking that he would earn some money for himself, got into defendant's car in the garage and started to the place in question, and on his way there the accident happened. No evidence was offered to contradict, or raise an issue of fact as to, the foregoing. The plaintiff contended, however, that since she made out a prima facie case, and the jury, who were the judges of the facts, having found in her favor, the court could not say as matter of law that the defendant's evidence disproved plaintiff's prima facie case. The court reversed the judgment, which was in plaintiff's favor, and in its opinion said: "The trouble with plaintiff's contention is that there is no conflict between what plaintiff has proved and TO Halverson v. Blosser, 101 Kan. 683, Ohio St. 18, 102 N. E. 302, 46 L. R. A. 168 Pac. 863 (1917). (N. S.) 1091, Ann. Cas. 1914 C 1082 "White Oak Coal Co. v. Rivoux, 88 (1913). 998 LAW OF AUTOMOBILES what defendant has shown. If there was, then we would defer to the finding of the jury and would have to do so. But plaintiff's prima facie case rested upon a presumption of fact which supplied the absence of affirmative proof on one point — ^whether the servant was in the line of his employment — but when affirmative evidence on that point appeared, the presumption of fact, being no more than a presumption, took flight and disappeared. And with it went plaintiff's ptima facie case. If, after the testimony was all in, there was an issue of fact between the two parties, affirmed on one side and denied on the other, of course such issue of fact would be for the jury to , determine. But there is no issue of fact involved. Plaintiff had no evidence upon a vital matter in her case. In its stead she offered a presumption of fact which served in lieu of evi- dence only so long as no evidence upon that subject was offered. But defendant, admitting and conceding all facts that plaintiff ha,d proved, furnished ample and uncontradicted evidence upon that matter and the presumption, . which lives only in the absence of testimony to the contrary, fell to the ground and plaintiff's case fell with it." ^2 What evidence is sufficient to overcome a presumption of this kind, is a question requiring careful consideration, and if it is weak on account of inconsistencies or contradictions, the case should go to the jury.'* When such a presumption has been raised, it is not necessarily overcome by the testimony of the owner and his sister that the owner had forbidden the chauffeur to take out the car unless the owner was with it, where it appeared that after the accident to the plaintiff, the owner called on him relative to a settlement for his injuries, and asked plaintiff to send his doctor bill and bill for repairs to his carriage, and that he did not disclaim responsibility for the accident at that time nor at any time before suit was brought upon the ground that the chauffeur was not acting in the scope of his employment.''* Where there was evidence that the owner when leaving the city told his chauffeur at one o'clock to take home some friends and then take the automobile home, which, would require about one hour, it was held that the presumption arising from the chauffeur operating his employer's car when an accident occurred at 7:30 that evening, was overcome.''^ 72 Glassman v. Harry, 182 Mo. App. '* Moon v. Matthews, 227 Pa. St. 488, 304, 17b S. W. 403 (1914). 76 Atl. 219 (1910). 78HeaIy v. Bernstein, 168 N. Y. 76 Guthrie v. Holmes, 272 Mo. 21S, Supp. 44 (1918). 198 S. W. 8S4 (1917). LIABILITY OF OWNER 999 This presumption was held to be overcome, and a verdict founded thereon to have been properly set aside as being against the weight of the evidence, where the owner testified that "the driver was not in his employ, and that he did not know that his car was being used on the day of the accident. He was supported by other witnesses, who testified that the driver came to the owner's garage in the latter 's absence, and asked a salesman to lend him a car to move some household goods, and that he was permitted to take the car — a truck — for this purpose.''* There was evidence that the automobile which killed the in- testate was owned by defendant and was registered in his name, and that, the chauffeur operating the car was in his employ as such at the time of the accident. The chauffeur, testifying for the plaintiff, stated that he was not in the employ of the defendant, but of the latter's mother, who hired and paid him; that he took orders from any member of the family, from defendant no more than any other member; that at the time of the accident he was on his way with the car from his home, a distance of one mile from defendant's home, to get defendant's mother; that he had taken the car out of the garage to go home for his dinner; and that he did not know that defendant knew of such use. The chauffeur took the car out of the garage about three times a day, there seem- ing to be no limitation on his right to take it. A witness from the garage testified that he had seen defendant ride in the car not oftener than once a week. The address of defendant as shown on the certificate of registration was his mother's home. It was held that verdict was properly directed for def endaiit, the evidence being insufficient to show that the chauffeur was acting within the scope of his employment at the time of the accident.''"' § 1062. Same— Prima facie case held, for the jury. In Cali- fornia it has been held that the plaintiff is entitled to go to the jury on the presumption that the automobile in question was being operated for the owner, arising from the proof of ownership, al- though opposed by evidence that the owner had loaned the ma- chine to the person who was driving it.''* It has been held that proof that defendant owned the auto- mobile in question and paid for the license to operate it, is prima facie evidence that it was being operated for him, and that when TB Quirk V. Worden, 190 App. Div. '8 Randolph v. Hunt, — Cal. App. 773, 180 N. Y. Supp. 647 (1920). — , 183 Pac. 3S8 (1919). "Hartnett v. Gryzmish, 218 Mass. 2S8, lOS N. E. 988 (1914). 1000 LAW OF AUTOMOBILES evidence to the contrary was introduced, it was for the jury to de- termine whether the prima jade case had been overcome.''® "It is in law a presumption, and 'presumptions' are rules of con-- venience based upon experience or public policy, and established to facilitate the ascertainment of truth in the trial of causes. Ex- cept in the few instances of conclusive presumptions, one is not as a matter of law stronger or weaker than another. The whole case is theii thrown open to be decided as a fact upon all the evi- dence. It is for the sound judgment of the jury to weigh all the circumstances, including the characters of the persons involved and the probability of different lines of conduct, and determine where the truth lies as a matter of common sense unfettered by any arbitrary rule. We are not to be understood as saying that such prima facie case is conclusive, for it is always subject to be over- come by evidence to the contrary. But it sufficiently raises the issue of fact, to be determined, as any other issue of fact, upon all the surrounding facts and circumstances." *" Under a statute authorizing an inference of fact to be founded on "the course of business," proof of ownership of an automo- bile and that it was being operated by the owner's agent makes a prima facie case of the owner's liability for the negligent acts of the agent.*^ § 1063. Inference from owner riding in car driven by another. The fact that the owner of an automobile is riding in it apparehtly acquiescing in its operation, justifies the inference that the driver is his agent.*^ § 1064. Proof of ownership as showing driver was acting for owner. It has been held that from proof of the fact of owner- ship of an automobile, a presumption arises that when the same is operated on the highways, nothing more appearing, it is being used about the owner's affairs.'* 78 Terry Dairy Co. v. Parker, — Ark. Iowa: Hall v. Young, — la. — , 177 — , 223 S. W. 6 (1920). N. W. 694 (1920); Landry v. Oversen, 80 Ward v. Teller Reservoir & I. Co., — la. — , 174 N. W. 2SS (1919).. 60 Colo. 47, 1S3 Pac. 219 (191S). New York: Potts v. Pardee, 220 N. 81 Doherty v. Hazelwood Co., 90 Oreg. Y. 431, 116 N. E. 78, 17 N. C. C. A. 47S, 17S Pac. 849, 177 Pac. 432 (1918). 427 (1917), rev'g 162 App. Div. 936, 82 Hammond v. Hazard, — Cal. App. 147 N. Y. Supp. 1136; Quirk v. Worden, ,— , 180 Pac. 46 (1919). 190 App. Div. 773, 180 N. Y. Supp. ^^ Arizona: Baker v. Maseeh, 20 647 (1920); Hartnet v. Hudson, 16S Ariz. 201, 179 Pac. S3 (1919). N. Y. Supp. 1034 (1917); Milano v. California: Randolph v. Hunt, — Cal. Stuyvesapt Auto Trading Co., 164 N. Y. App. — , 183 Pac. 3S8 (1919). Supp. 26 (1917); Stein v. Lyon, 98 Misc. LIABILITY OF OWNER 1001 "Ownership implies possession and control, and proof of owner- ship of a vehicle or other property makes out a prima facie case against the defendant owner in an action to recover damages for injuries sustained through the negligent use of the vehicle, as it will be presumed that the owner was, either in person or through his agent, in control of the vehicle at the time of the accident." ** It has been held that upon a showing by the plaijitiff that the automobile causing the injury was at that time owned by the de- fendant, a presumption arises that it was then in the possession of the owner, and being driven for him; that the burden is thus cast upon the defendant to overcome this presumption by competent evidence,** and that it is for the jury to say upon such evidence whether the burden has been sustained.*® While the question of whether the driver of a vehicle was acting as servant of the owner at the time his vehicle caused injury to another more frequently arises since the advent of the automobile than before, the question is not a new one. Several rather old cases have held that proof that the vehicle belonged to the defendant raised an inference that the driver was his servant. This will be seen in the following quotation, taken from the case of Vonderhorst Brewing Co. v. Amrhine: *'' "There is evidence in the record 687, 163 N. Y. Supp. 380 (1917) ; automobile, which in Ferris v. Sterling, Screiber v. Matlack, 90 Misc. 667, 154 214 N. Y. 249, 2S3, 108 N. E. 406, was N. Y. Supp. 109 (191S). held to be sufficient to require submis- Oregon: Clark v. Jones, 91 Oreg. 455, sion of the issue of control to the jury, 179 Pac. 272 (1910) ; West v. Kern, 88 but there was the additional considera- Oreg. 247, 171 Pac. 413, lOSO (1918) ; tion of defendant's total absence." Free- Houston V. Keats Auto Co., 85 Oreg. man v. Hyman, 95 Misc. 591, 159 N^ 125, 166 Pac. 531 (1917). Y. Supp. 774 (1916). Washington: Moore v. Roddie, 103 Possession warrants an inference of Wash. 386, 174 Pac. 648 (1918). ownership, and ownership havmg been "The natural presumption is that one found once to exist, the general rule is who is employed in operating an auto- , it is presumed to continue until a change mobile is doing so in the service of the therein is affirmatively shown. O'Mal- owner, especially when the passenger in ley v. Heman Const'r Co., 255 Mo. 386, the machme is the owner's wife." Clark 164 S. W. 565. v. Sweaney, 175 N. C. 280, 95 S. E. 568 84McCann v. Davison, 145 App. Uiv. (1918). 522, 130 N. Y. Supp. 473 (1911). "The learned judge below had, at the 8B Hartnet v. Hudson, 165 N. Y. Supp. quest of the plaintiff, charged the jury, 1034 (1917). without exception from defendant's coun- 86 Baker v. Maseeh, 20 Ariz. 201, 179 sel, that they might draw an unfavor- Pac. 53 (1919) ; West v. Kern, 88 Oreg. able inference from defendant's failure 247, 171 Pac. 1050 (1918) ; Birch v. to testify at all. There was thus pres- Abercrombie, 74 Wash. 486, 133 Pac. ent in this case, not only the presump- 1020, 50 L. R. A. (N. S.) 59 (1913). tion arising from the ownership of the 87 gg Md. 406. 1002 LAW OF AUTOMOBILES showing that the wagon which collided with the plaintiff was owned by the Vonderhorst Brewing Company. And there is also evidence, adduced by the defendants, that the wagon which ran into the plaintiff's team had on it liie name of the Vonderhorst Brewing Company. These facts- were sufficient to justify the jury in con- cluding that the driver of the wagon was the agent of the owner of the wagon. That proposition was expressly sustained by Lord Chief Justice Denman in the case of Joyce v. Capel & Slaughter.*^ It was there held that in an action for damages done to the plaintiff's tugboat by the negligence of the defendants' servant in steering the defendants' barge, when it was proved that the barge wa,s the defendants' but the plaintiff's witnesses could not identify the bargeman who was steering the barge, that this was prima facie evidence that the barge was steered by the defendants' serv- ant, and that, if the. barge was on hire or was taken by any other person, it lay on the defendants to show that. And so in the case of Edgewbrth v. Wood,*' following the decision of Lord Denman, it appearing, in an action against an express company for negligence in running over the plaintiff by a wagon drawn by two horses, that the wagon was painted in a peculiar manner and marked with the name of the express company and a peculiar device used by it, the Supreme Court of New Jersey held that the evidence that the wagon which ran over the plaintiff was so painted and marked was sufficient to justify the inf erenqe that the defendant express company was its owner, and that such inference established prima facie that the company was in possession and control of the wagon by the driver as its servant." In the standard work of Shearman and Redfield on Negligence*" it is stated : "When the plaintiff has suffered injury from the negli- gent management of a vehicle, such as a boat, car or carriage, it is sufficient prima facie evidence that the negligence was imputable to the defendant, to show that he was the owner of the thing, with- out proving affirmatively that the person in charge was the de- fendant's servant. It lies with the defendant to show that the per- son in charge was not his servant, leaving him to show, if he can, that the property was not under his control at the time, and that the accident was occasioned by the fault of a stranger, an inde^- pendent contractor, or other person, for whose negligence (the owner would not be answerable." 88 8 Car. & P. 370. Quoted and followed in Houston v. 89 S8 N. J. L. 463. Keats Auto Co., 85 Oreg. 12S, 166 Pac. »6th ed., vol. 1, §158. 531 (1917). LIABILITY OF OWNER 1003 In a Washington case it was held that if an owner intrusts his automobile to another or leaves it so that another may use it, that other must be presumed to be the agent of the owner.®^ The fact that defendant owned the motor-truck in question and paid for the license for running it, was prima jade evidence that the truck was being "operated for him; and where there was evi- dence to the contrary, it was for the jury to say whether the prima facie case had been overcome.'^ Even under this rule a complaint is insufficient which merely alleges that the defendant owned the automobile and that another having charge and control thereof negligently caused the injury in question; it being necessary to allege agency of the operator or person in charge.®' It is said in a New York case that, "The presumption growing out of a prima facie case, however, remains only so long as there is no substantial evidence to the contrary. When that is offered the presumption disappears, and, unless met by further proof, there is nothing to justify a finding based solely upon it." '* This presumption was held to be overcome by the testimony of the owner's chauffeur and three other servants that they took the automobile without permission and were using it on an errand of their own; there being no other evidence relative to the question.'* In a Pennsylvania case it has been held: "Ownership of the car, in such cases, is at best but scant basis for the inference that it was being operated in the owner's service at the time of the accident. It is adequate only when' the attending circumstances 91 Moore v. Roddie, 103 Wash. 386, This presumption "remains oply so 174 Pac. 648 (1918). long as there is no evidence to the con- 92 Terry Dairy Co. v. Parker, — Ark. trary." Hartnet v. Hudson, 16S N. Y. — , 223 S. W. 6 (1920). Supp. 1034 (1917). 93 Stein V; Lyon, 98 Misc. 687, 163 "Notwithstanding uncontroverted tes- N. Y. Supp. 380 (1917). timony of automobile driver that he was 94 Potts V. Pardee, 220 N. Y. 431, not using the car in his employer's busi- 116 N. E. 78, 17 N. C. C. A. 427 ness, but in his own, at the time plain- (1917), rev'g 162 App. Div. 936, 147 tiff was injured, the presumption of lia- N. Y. Supp. 1136; Fallon v. Swack- baity from ownership of the car re- hamer, 226 N. Y. 444, 123 N. E. 737 quires that the bsue should be sub-, (1919) ; Limbacher v. Fannon, 102 Misc. mitted to the jury." Freeman v. Hy- 703, 169 N. Y. Supp. 490 (1918). man, 9S Misc. S91, 1S9 N. Y. Supp. 774 This presumption may be overcome (1916). by competent evidence to the contrary. 95Deutsch v. Luther, 172 N. Y. Supp. Milano v. Stuyvesant Auto Trading Co., 404 (1918). 164 N. Y. Supp. 26 (1917). 1004 LAW OF AUTOMOBILES point to no other conclusion. This inference does not arise in a case where plaintiff has an opportunity to examine on the witness stand the owner of the car and the occupant of the car at the time of the accident, but fails to question them as to whether the car was being operated on the owner's business." ®® § 1065. Same— Contra. On the other hand, it has been ex- pressly held that proof merely that the defendant was the owner of an automobile which injured the plaintiff is not sufficient to establish the relation of master and servant between him and the driver of the automobile at the time of the accident, much less that such person was acting within the scope of an eniployment by the owner.^ § 1066. Name on automobile as proof of agency of driver. Evidence that the automobile in question bore the defendant's name, is held in some states to be sufficient to show prima facie that it was owned by defendant, that it was then in charge of his servant or agent, and that it was being used in and about defend- ant's business at the time.^ And such evidence is held sufficient to take the case to the jury, although the defendant produces direct testimony to the contrary.' Where it was shown that the defendants' trade name was on tiie truck which caused the injury complained of, and that the truck was used to haul freight to and from their warehouse, it was held 96Voltz V. Thompson, 27 Pa. Dist. Utah: Ferguson v. Reynolds, — Utah S44 (1917). — , 176 Pac. 267 (1918). ^Delaware: Lamanna v. Stevens, S 2 Fleishman & Polar Wave I. & F. Boyce (Del.) 402, 93 Atl. 962 (191S). Co., 148 Mo. App. 117, 127 S. W. 660; Massachusetts: Canavan v. Giblm, Holzhemier v. Lit Bros., 262 Pa. St. 232 Mass. 297, 122 N. E. 171 (1919); ISO. lOS AU. 73 (1918). Gardner v. Farnum, 230 Mass. 193, 17 Defendant's name on the vehicle is N. C. C. A. 79S, 119 N. E. 666 (1918). evidence of ownership of same. Heiden- Michigan: Johnston v. Cornelius, 193 reich v. Bremner, 176 111. App. 230; Mich, lis, 159 N. W. 318 (1916). Schulte v. Holhday, S4 Mich. 73, 19 . Oregon: West v. Kern„88 Oreg. 247, N. W. 7S2. 171 Pac. 413 (1918), citing this work. Business cards taken from a pocket in Pennsylvania: Lotz v. Hanlon, 217 the carriage at the time of the accident, Pk. St. 339, 66 Atl. S2S, 2 N. C. C. A. are admissible on the question of owner- 422n, 10 L. R. A. (N. S.) 202, 10 Ann. ship. Langworthy v. Owens, 116 Minn. Cas. 731, 118 Am. St. Rep. 922. 342, 133 N. W. 866. Tennessee: Davis v. Newsome A. T. ^Holzheimer v. Lit Bros., 262 Pa. St. & V. Co., 141 Tenn. 527, 213 S. W. 914 ISO, 105 Atl. 73 (1918). (1919). LIABILITY OF OWNER ' lOOS that the jury were entitled to find that the truck was being used by defendants in their business at the time.* § 1067. Name of owner on automobile and driver's cap. The fact that the defendant's name was on the vehicle and one of the occupants thereof was in its employ, was sufficient, prima facie, to show defendant's responsibility for the conduct of the vehicle.® Thus, evidence that the driver of an automobile which collided with and injured plaintiff's horse wore on his hat a plate with the words "Electric Vehicle," and a number, and the same words were on a plate on the automobile, and that other drivers of the de- fendant wore a similar badge on their hats, and that the defendant was a corporation named the Electric Vehicle Company, established, prima facie, that the driver was in the employ of the defend- ant.® § 1068. Automobile bearing registration number issued for use only in defendant's business. While, in case of the usual license or registration number, proof that an automobile causing injury bore the number issued to the defendant, is insufficient to show that the automobile was being operated at the time in be- half of the defendant, such proof is sufficient for that purpose where the license bearing that number was issued to the defendant for use on a machine to be used only in his business. In Pennsylvania the law '' authorizes the issuance of a dealer's license on condition that it shall "not be used for any other pur- pose than testing or demonstrating the vehicle to a prospective purchaser, or in removing the same from place to place for the purpose of sale." An application for such a license contains this stipulation, and is sworn to by the applicant. It was held, in an action to recover for injuries caused by an automobile bearing a license of this kind, which had been issued to the defendant, that the license tag on the machine was prima facie evidence that, at the time in question, the def en43,nt, or some one acting under his author- ity, was operating the machine; the presumption beihg. that it was operated for the purpose of demonstrating it to a prospective pur- chaser, or in taking it to some place for the purpose of sale.* ' * Epstein v. Ruppert, 129 Md. 432, App. Div. 18, 21, 74 N. Y. Supp. 3S. 99 Atl. 68S (1916). 7 Pa. Laws 1911, p. 74. 6Lawson v. Wells Fargo & Co., 113 8 Haring v. Connell, 244 Pa. St. 439, N. Y. Supp. 647. 90 Atl. 910 (1914). SCurley v. Electric Vehicle Co., 68 1006 LAW OF AUTOMOBILES A judgment against the owner of an automobile was sustained, where there was evidence that at the time of the accident the car was negligently operated by the IS year old son of the owner who had given the boy permission to take out a party of friends; that the owner was a dealer and agent for the sale of cars of the same kind as the car in question; that he had a dealer's license which re- stricted the running of the car to licensed drivers only and for the purpose of demonstration or removal of the cars for sale; and that the son had no license, and was not qualified by reason of his youth to secure one. "We are not required to undertake to show, from the application of sound principles of reasoning, that under such circumstances and in the absence of proof to the contrary, a jury woifld be warranted in drawing the inference that a car oper- ated unddr^ such a license was presumptively 'being operated within the lawful limits Of the license." ® § 1069, Liability insurance carried on car by defendant. In an action in which control of an automobile by the defendant at the time of an accident was in issue, it being testified that the ma- chine belonged to another, it was held proper to admit testimony that the defendant refused to sign a statement concerning the accident, giving as his reason, "because I don't know what effect it might have on my relations with the insurance company that covers me in this case." It was held that the statement was a declaration against interest from, which the jury might draw an inference of ownership or of such control over the automobile as would place a liability upon him from which he had protected himself by in- surance.''" Evidence that a defendant insured the automobile in question tends strongly to prove ownership in him.^^ § 1070. Use by permission of owner as proof of agency of driver. Proof of the ownership of the autoraobile, and its use at the time in question, under the permission of the owner, is held in some jurisdiction to establish a prima facie case of responsibility for the resulting injuries as against the owner.^^ § 1071. Inference from chauffeur purchasing supplies and repairs in owner's name. The facts that a chauffeur, while in charge of defendant's automobile, had at different times purchased 9Herrington v. Hill, 60 Pa. Super. Ct. HMcGovem v. Oliver, 177 App. Div 202 (191S). 167, 163 N. Y. Supp. 27S (1917): lOMagee v. Vaughan (D. C), 212 12 Brown v. Chevrolet Motor Co., — Fed. 278 (1914). Cal, App. — , 179 Pac. 697 (1919). LIABILITY OF OWNER 1007 gasoline for the car in defendant's name, and that defendant had paid for same monthly'; that the chauffeur on various occasions was seen driving the car with the wife of defendant; that while she was present in the car he had purchased gasoline and had it charged to defendant; that on the morning of the accident he ha^ taken the car to the garage for repairs, and on backing the car out of the garage had injured the plaintiff; that on the morning of the accident he had purchased gasoline for the car and had it charged to defendant, and that defendant had subsequently paid for it; that defendant had notified the gasoline dealer to let his chauffeur have gasoline and to charge it to defendant, which was done both before and after the accident, were held sufficient to sustain a finding that the chauffeur was engaged in the line of his employment at the time of the accident.^' § 1072. Chauffeur using car for own pleasure or business. Where a chauffeur, either with or without his master's consent, uses the master's automobile for his own business or pleasure and negligently inflicts injury on another, the master cannot be held liable, for the reason that the negligent act, being entirely outside the scope of the servant's employment, cannot call into actibn the rule of respondeat superior}* 13 Ferguson v. Reynolds, — Utah — , 176 Pac. 267 (1918). 14 California: Brimberry v. Dudfield L. Co., — Cal. App. — , 186 Pac. 205 (1919) ; Martinelli v. Bond, — Cal. App. — , 183 Pac. 461 (1919), citing this work. Georgia: Fielder v. Davison, 139 Ga. 509, 77 S. E. 618 (1912); Mclntire v. Hartfelder-G. Co., 9 Ga. App. 327, 71 S. E. 492 (1911). Massachusetts: Higgins v. Bickford, 227 Mass. 52, 116 N. E. 245 (1917). Michigan: Brinkman v. Zuckerman, 192 Mich. 624, 159 N. W. 316 (1916). Missouri: Miller v. Rice-Stix D. G. Co., — Mo. App. — , 223 S. W. 437 (1920) ; Daily v. Maxwell, 152 Mo. App. 415, 133 S. W. 351 (1911). New Hampshire: Danforth v. Fisher, 75 N. H. Ill, 71 Atl. 535; Howe v. Leighton, 75 N. H. 601, 75 Atl. 102 (1910). New York: Baum v. Breslauer, 182 N. Y. Supp. 906 (1920) ; Schreiber v. Matlack, 90 Misc. 667, 154 N. Y. Supp. 109 (1915); Qark v. BuckmobUe Co., 107 App. Div. 120, 94 N. Y. Supp. 771. Pennsylvania: Kennedy v. Knott, 264 Pa. St. 26, 107 Atl. 390 (1919) ; Beatty V. Firestone T. & R. Co., 263 Pa. St. 271, 106 Atl. 303 (1919). Utah: Wright v. Intermountain Mo- torcar Co., — Utah — , 177 Pac. 237 (1918), citing this work. Washington: Jones v. Hoge, 47 Wash. 663, 92 Pac. 433, 125 Am. St. Rep. 915, 14 L. R. A. (N. S.) 216. Wisconsin: Steffen v. McNaughton, 142 Wis. 49, 124 N. W. 1016 (1910). Where a servant takes out his mas- ter's horses for his own purposes or pleasute, the master is not liable for his acts, and this whether or not he knew the servant was using the horses. Fiske V. Enders, 73 Conn. 338, 47 Atl. 681; Fish V, Coolidge, 47 App. Div. 159, 62 N. Y. Supp. 238; Bard v. Yohn, 26 Pa. St. 482; Way v. Powers, 57 Vt. 135. 1008 LAW OF AUTOMOBILES A chauffeur was using his master's automobile, in opposition to the master's instructions, on a pleasure trip in which the chauf- feur's personal friends were sharing the pleasure with him. The use of the machine was in no way connected with the master's business, and the master was held not liable for the negligent killing of a child by the chauffeur while so using the automo- bile," It is held in a Florida case, however, that, where with the acqui- escence of the employer an employee while engaged iwith the employer's automobile in the general line of his authority uses the automobile for his own purposes, and while doing so injures one on the street, the jury should be permitted to determine under appropriate instructions whether the defendant employer is liable.^® A chauffeur may depart from his employer's business and re- turn to it again, without the knowledge or consent, either express or implicit, of the employer.''' The mere fact that, incidental to a trip of his own, the chauffeur does some act that- is in the scope of his emplojnnent for the mas- ter, does not render the master liable for his negligent acts while on such trip. The owner of an automobile was not rendered liable for the negligent killing of a person by his chauffeur while the latter was driving the car on a trip to visit his wife; by the fact that incidentally he was testing the car.'* The fact that a superior servant saw the chauffeur drive away in _the employer's car, is not enough to show that the chaiiffeur was acting within the scope of his employment at the time.'® In Pennsylvania it is held that where the plaintiff calls the de- fendant's chauffeur to the stand to prove his employment by de- fendant, and to identify the car, it is competent for the defendant, on cross-examination to develop the fact that at the time, of the accident the chauffeur was using the car in the prosecution of his own business, and acting outside the scope of his employment.*" § 1073. Same— Illustrative cases. Where the chauffeur steals This rule applies to a business auto- 1, 116 N. E. 247 (1917). mobile. Provo v. Conrad, 130 Minn. 18 Schoenherr v. Hartfield, 1S8 N. Y. 412, 1S3 N. W. 753 (191S). Supp. 388 (1916); 1 Shearman & R., ISSarver v. Mitchell, 35 Pa. Super. Neg. (6th ed.), §148. Ct. 69. Instate to use v. Benson & Co., — 16 Anderson v. Southern Cotton Oil Md. — , 100 Atl. 505 (1917). Co., — Fla. — , 74 So. 975 (1917). ^'Quigley v. Thompson, 211 Pa. St. "Donahue v. Vorenberg, 227 Mass. 107, 60 Atl. 506. LIABILITY OF OWNER 1009 his employer's car for a joy ride, the latter is not liable for his con- duct during such time.^^ Where a chauffeur used his employer's automobile in going to another town to secure liquor for himself, the employer was not liable for his conduct while so engaged .^^ Where the defendant owner testified that he had no doubt but that, at the time in question, the chauffeur was using the automo- bile in defendant's business, and there was evidence that the chauf- feur negligently caused the plaintiff's injuries, it was error to nonsuit the plaintiff.^* Where the servant of the owner of an automobile was driving to his home, after taking lessons in driving from a servant of the seller, the owner was not liable for his negligence.^* An employee of a garage, who, without permission, took an auto- mobile, which had been left at the garage for repairs, and drove home for his dinner, was not acting in the scope of his employment while so engaged .^^ , Defendant lived on Edison avenue in the city of Detroit, and on April 17, 191S, had been driven by the chauffeur at about 8 o'clock that evening, to a place on Brush street, near Hancock. For this purpose the chauffeur had taken the car from the garage on Edison avenue, near defendant's residence. When defendant alighted on Brush street he directed the chauffeur to return for him at 12 o'clock. It did not appear that any further orders were given to ihe chauffeur at the time. After leaving defendant the latter drove the car to his own residence on Merrick avenue, about three- quarters of a mile from Brush street, and, learning that his wife had gone to her father's on Dix avenue, south of Michigan avenue, he drove on to the latter place. This was 2J/2 or 3 miles from Brush street. He testified that he went over to Dix avenue solely for his own pleasure. He remained at the home of his wife's father until IS or 20 minutes before 12 o'clock, and then started back to keep the appointment with defendant. He had gone but a .few blocks when he took in three colored men as passengers, intending, he says, to carry them to their destination at the inter- section^ of Woodward and Warren avenues. This point was not 21 Jones V. Strickland, — Ala. — , 24McGrath v. Wehrle, — Mass. -— , 77 So. S62 (1917). 124 N. E. 253 (1919). 22 Gardner v. Famum, 230 Mass. 193, 26 Hill v. Haynes, 204 Mich. S36, 170 17 N. C. C. A. 79S, 119 N. E. 666 N. W. 685 (1919). (1918). 28Higgins V. Bickford, 227 Mass. S2, 116 N. E. 24S (1917). B. Autos. — 64 1010 LAW OF AUTOMOBILES on the direct route back to Brush street, but was not much out of the way. The chauffeur had not gone far after taking the passen- gers in when his car ran across the sidewalk at the intersection of Scotten avenue and Michigan avenue, crashing into the front of plaintiff's store and doing considerable damage. Held, that the trial court properly directed a verdict in de- fendant's f avor.^^ A corporation owner of an automobile was not liable for in- juries caused by ,an officer of the corporation while driving the machine to ,the garage after having taken another officer home from a Sunday dinner, which they had eaten with a relative.^'' Where a chauffeur frequently used his employer's automobile for the purpose of procuring supplies and doing errands for himself without asking or receiving express permission from his employer, and without having received any orders in that respect, or having been forbidden to use the car, and who, at the time in questior. was going to the market to procure some meat for use at his own home, the owner having no knowledge that the car was being sc used, it was held that the chauffeur was not acting within the scope of his employment, and that the employer was ,not liable for his negligence at such time.''* Where it appeared that the chauffeur of defendant's automobile had it repaired at a garage, and left there on a pleasure trip with a friend accompanying him; that they stopped for drinks at two places, and that on the return trip the car collided with a wagon on which the deceased was riding, it was held that defendant was not liable for the chauffeur's acts at the time.^' The defendant ownfed and operated several automobile delivery trucks, which it stored at a garage owned by another. On the day in question, after defendant's business hours, one of its trucks was taken from in front of the garage by a man, claimed to be a driver of defendant, for his own pleasure, and while operating it on a public street he negligently coll^ided with and injured the plaintiff. The driver did not stop, but took the truck directly back to the garage and left it in, the place from which he had taken it. The truck was empty, and the driver had made no delivery: for de- fendant, and defendant did not know of or consent to such use of the truck. Held, that it conclusively appeared that the employee 1 26 Brinkman -v. Zuckerman, 192 Mich 108 N. E. 8S3 (191S), rev'g 1S6 App. 624, 159 N. W. 316 (1916). Div. 920. 27 Vallery v. Hesse Bldg. Material Co., 29 Solomon v. Com. Trust Co., 256 Pa — Mo. App. — , 211 S. W. 95 (1919). St. 55, 100 Atl. 534 (1917). 28Remy V. Connable, 214 N. Y. 586, LIABILITY OF OWNER 1011 was not acting in the scope of his employment, and judgment dis- missing the action was affirmed.*" § 1074. Using automobile in violation of instructions. Where a chauffeur was directed to put the owner's automobilie in dead storage, and was forbidden to take it out without per- mission, the owner was not hable for his acts when he took the car out without permission, although he was testing the car at the tim'e.*^ The owner was not liable where his chauffeur took his machine contrary to orders and permitted a third person to drive it, the latter negligently injuring the plaintiff, although the chauffeur stated that he took the car to adjust the carburetor; it also ap- pearing that it was' not his duty to adjust the carburetor.** Where a chauffeur drove his employer's wife and children to a circus, where he was expressly ordered by the owner to remain with the car while they visited the circus, but he disobeyed such instructions and drove away with the car, and while returning to the circus grounds an accident occurred, the owner was held not liable, because the chauffeur was not then engaged in the scope of his employment.** § 1075. Employee using automobile after working^ hours. Where a trouble man for a light company was riding a motor- cycle, furnished him by the company for use in his work, on his way home, after working hours, the company was not liable for his negligence, as he was not in the line of his employment at the time. This is true without regard to whether or not the company knew that he was so using the motorcycle, or whether or not it had consented to such use.** ' Where one employed as a mechanic by a motor company, and who sometimes operated cars in carrying passengers, took a car of his employer at night for a joy ride, the company was not liable for his negligence while so engaged.*® Where one employed as demonstrator of automobiles, took out a car after business hours, as an accommodation to an out of town SOBursch V. Greenough Bros. Co., 79 33 Hill v. Staats, — Tex. Civ. App. Wash. 109, 139, Pac. 870 (1914). — . 189 S. W. 85 (1916), citing this 81 Rose V. Balfe, 223 N. Y. 481, 119 work, 187 S. W. 1039 (1916). N. E. 842, 17 N. C. C. A. 721 (1918), 34 Keek's Adm'r v. Louisville G. & rev'g. 177 App. Div. 907, 163 N. Y. El. Co., 179 Ky. 314, 200 S. W. 452 Supp. 1129. (1918). 32 Durham v. Strauss, 38 Pa. Super. 35 Knight v. Laurens Motor Ca,r Co., Ct. 620 (1909). 108 S. C. 179, 93 S. E. 869 (1917). 1012 LAW OF AUTOMOBILES customer of the employer, the employer was not liable for his negligence.*® Where one who was employed to deliver parcels, and who was furnished a motorcycle for such purpose, took the motorcycle after working hours, without tjie permission of the employer and con- trary to his rules, and used the same for his personal convenience, the employer was not liable for his negligence.*'' An owner permitting his chauffeur to use his car to go to the chauffeur's home after the day's work was done and to return in the next mornhig^ was not chargeable with the chauffeur's negligence while so using the car.** § 1076. Chauffeur taking family on pleasure trip on Sunday. An owner who permitted it^ chauffeur to use its automobile on Sun- .day to take his family on a pleasure trip, was not liable for injuries negligently inflicted by the chauffeur while returning the machine to the garage after having left his family at the place where, they ' were visiting.*' § 1077. Chauifeur going iii automobile for own laundry. In an action for personal injuries caused by the negligent operation of the defendant's automobile, there was evidence that the automo- bile was being driven by the defendant's chauffeur; that the defend- ant had provided the automobile and chauffeur for the use of his family; that the chailffeur was subject at all times to the direc- tions of the family; that the chauffeur took his meals at a house about half a mile away from defendant's home; ,and had his laundry done at another place- about .as far distant, but slept at defend- ant's home; that defendant paid for the meals aijd laundry as par-t of the chauffeur's wages; that "oftener than any other way" he went to his meals in the automobile, but sometimes went on foot and sonjetimes in a carriage; that he went for his laundry at different times in the day as was convenient; that on the occasion in ques- tion he had been to his supper in' the automobile, and after supper was on his way to get his laundry at the time of the accident, and then to return to the house of defendant to await orders ; that after the ficcident he went on and got his laundry and then went back to the defendant's house; that he had been at other times after his 86 Wright V. Intermountain Motorcar 250, 17 N. C. C. A. 773, 164 N. W. 996 Co., — Utah — , 177 Pac. 237 (1918). (1917). 37 Babbitt v. Seattle School Dist., 100 89 0'Rourke v. A-G Co., 232 Mass. Wash. 392, 170 Pac. 1020 (1918). 129, 122 N. E. 193 (1919). 38 Gewanski v. Ellsworth, 166 Wis. LIABILITY OF OWNER 1013 latmdry in the automobile, though never at the same time of day as when the accident occurred. It was held that the jury would have been justified in finding that the use of the automobile by the chauffeur in going for his laundry was an incident of his employment, or was assented to either expressly or impliedly by those having authority from the de- fendant to direct the conduct of the chauffeur. Accordingly, it was ruled that the trial court improperly directed a verdict for the de- fendant.*" The owner was not liable for the negligence of his chauffeur, where the latter was using the automobile to take his clothing to a laundry, contrary to directions not to use the car without express orders, although the chauffeur was permitted to use the car in going to his meals.*^ § 1078. Chauffeur using automobile to go to his meals. Where a chauffeur, by the terms of his contract of employment, was to furnish his own meals, being permitted time off from his em- ployment at noon to procure his lunch, and in going for his luach he used his employer's automobile, without permission, and there was no evidence that he merely availed himself of a privilege im- pliedly granted to facilitate his labor or in furtherance of the em- ployer's interests, he was not acting within the scope of his em- ployment.*^ In a case in which it appeared that the chauffeur was using his employer's car to go home to his supper, it was held that the fact that the chauffeur had no regular hours of- employment, and might be called at any time day or evening under a steady employ- ment, was a point for consid^ation in determining whether the chauffeur was acting for his employer or for himself.*' Where.it was the practice of a chauffeur in driving his em- ployer's automobile from the latter's residence to a garage, to stop at his home for supper, when he had been driving late in the day, and after supper to take the automobile to the garage and wash it, and the practice was known to the employer and accepted by him as a matter of course, an instruction that "neither permission ex- press "or implied allowing the driver to stop at his home for supper on his way to the garage, or acquiescence in the practice, consti- 40 Reynolds v. Denholm, 213 Mass. *2steffen v. McNaughton, 142 Wis. S76, 100 N. E. 1006 (1913). 49, 124 N. W. 1016 (1910). 41 Douglass V. Hewson, 142 App. Div. ** Moore v. Roddie, 103 Wash. 386, 166, 127 N. Y. Supp. 220, 2 N. C. C. A. 174 Pac. 648 (1918). 426n (1911). 1014 LAW OF AUTOMOBILES tuted the driver the servaat of the defendant while driving home," was held to have been properly refused.** A chauffeur, ordered to take his .employer's automobile to a garage and given permission to stop at his home for dinner, was continuously in the employer's service during such time.*^ , It was held that a jury may properly find that an injury negli- gently inflicted upon a, person by a motor-truck driven by a servant of its owner, while returning from his luncheon agreeably to his usual custom and practice, assented to by the master, was a result or an incident of an act done by the servant within the scope of his employnient.*® § 1079. Chauffeur taking friends for a ride. Where the evi- dence merely showed that the chauffeur, Haas, was in the general employment of the defendant as a chauffeur, that he dined with the defendant on the evening of the accident, that he used the automobile to take to ride his friends, who were possible friends of the defendant, that the defendant knew Haas was to invite the fiends, and that the defendant paid, and Haas did not pay, for the injury to the automobile, it was held that, the defendant was not liable for the acts of the chauffeur who, the evidence showed, was .merely a borrower of the car.^'' §1080. Employee using automobile to take friend to theater. One K. was employed as superintendent of construction by a building company, which furnished him with an automobile, in- structiiig, him to use it as a business car to carry out the com- pany's instructions in superintending its work, which car, when not so used, was to be kept in a garage at K's residence. On the day in question, after the close of his work, K. drove the car to his home, and that evening with a friend, drove to a thea,ter, which they left about 11:30, and went to a club, where they remained uptil about 1:30 the next morning. While returning home from the club, K. collided with a taxicab of plaintiff standing in the street. Held, that the building company was not liable, as K. was pot acting in the course of his employment.** 44 Ferris V. McArdle, 92 N. J. L. S80, « Marshal v. Hickey, 22S Mass. 170. 106 Atl. 460 (1919). 114 N. E. 301 (1916). *BFisick V. Lorber, 95 Misc. 574, 159 48Mullia v. Ye Planry Bldg. Co., 32 N. Y. Supp. 722 (1916). Cal. App. 6, 161 Pac. 1008 (1916). 46 Goff V. Clarksburg Dairy Co., — W. Va. — , 103 S. E. 58 (1920). LIABILITY OF OWNER 10 IS § 1081. Chauffeur using car for own convenience in employ- er's business. Two of the defendants were partners, and pro- prietors of a public garage, where, as the principal part of tbeir business, they kept automobiles for the owners, looked after them while in the garage, and sent them to the owners and sent after them, at the owners' request. They employed a chauffeur, who, as a part of his duties, took automobiles to the owners and brought Ihem back to the garage, and had batteries charged belonging to automobiles kept in the garage. The chauffeur took an automo- bile belonging to a customer, without permission and contrary to the orders of his employers, and drove to place of business where he had left a battery to be charged, secured the battery, and on his way back to the garage he negligently injured the plaintiff. It appeared that the chauffeur took the automobile on this occasion for his own convenience, because the battery was heavy and he did not want to walk and carry it, although he was supposed to walk. It was held that his employers- were liable for his negli- gence.*' Where a chauffeur employed by a garage keeper took an automo- bile -of his employer without authority and went to take some chains off of another automobile, which was part of his employ- ment, it was held that he was acting within the scope of his em- ployment in driving the automobile.*" § 1082. Using employer's automobile to reach work earlier. Where by arrangement between an employee and his employer the former made use of the latter's automobile in going home at night and from his home to business at morning, the object being to enable the employee to reach his place of employment earlier than he otherwise could, the relation of master and servant continued while the employee was so going to and from his work, and the employer was liable for the negligent act of the employee which resulted in injury to the plaintiff while the employee was driving home from his work.*^ § 1083. Chauffeur on trip to secure parent's consent to drive car for owner. A chauffeur who was returning frOm his father's home in the defendant's automobile, having gone there at defend- ant's suggestion to secure his father's permission to drive the car, 49 Gibson v. Dupree, 26 Colo. App. 61 Bepue v. Salmon Co., 92 N. J. L. 324, 144 Pac. 1133 (1914). SSO, 106 Atl. 379 (1919). 60 Cooper V. Knight, — Tex. Civ. App. — , U1 S. W. 349 (1912). 1016 LAW OF AUTOMOB^ES was acting for the defendant, and the latter was responsible for his negligence.** § 1084. Employee practicing driving in evenings. Where a driver took a friend for a pleasure ride in his employer's machine, in an evening when he was not engaged in any business for the employer, the employer was not liable for his negligence; and the fact that he had been practicing driving evenings to learn to oper- ate the machine was of no consequence, his act being in violation of instructions of his employer, and the latter having supplied an instructor to teach him to drive during the day.** § 1085. Driving own automobile for another. One driving his own automobile, but employed by another, being directed by such other to convey the latter 's wife to a, car, while returning in the machine to the place of business of the other from such errand was a servant of the other, and the latter was liable for 'his negligence.** §1086. Deviation from route or instructions. If the servant step's aside from his master's business, for however short a time, to do an act not connected with such business, the relation of master and servant is for the time suspended, and an act of the servant during such interval is not to be attributed to the master.** However, a mere deviation, by the servant, from the direct route, or from the strict course of his duty, will not relieve the master, from responsibility.** 62 Elliott V. O'Rourke, 40 R. I. 187, 66 Ritchie v. Waller, 63 Conn. ISS, 2S 100 Atl. 314 (1917). Atl. 29, 27 L. R. A. 161, 38 Am. St. 6SKilroy v. Crane Agency Co., — Mo. Rep. 361; Krzikowsky v. Sperring, 107 App. — , 218 S. W. 425 (1920). 111. App. 493; Chicago Cons. Bottling 64 Foster v. Rinz, 202 Mich. 601, 168 Co. v. McGinnis, 51 111. App. 325; Quinn N. W. 420 (1918). V. Power, 87 N. Y. 535,^41 Am. Rep. 66 McCarthy v. Timmins, 178 Mass. 392; Pierce-Fordice Oil Ass'n v. Brad- 378, 59 N. E. 1038, 86 Am. St. Rep. 490; ing, — Tex. Civ. App. — , 212 S. W. Higgins V. Western Union Tel. Co., 156 707 (1919). N. Y. 75, 79, 50 N. E. 500, 4 Am. Neg. Slight deviation does not relieve from Rep. 320, 66 Am. St. Rep. 537; Solo- liability. Witte v. Mitchell-Lewis Mo- mon V. Reymer, 25 Pa. Dist. 479 (1915). tor Co., 244 Pa. St. 172, 90 Atl. 528 Where the driver of a carriage was (1914) ; Luckett v. Reighard, 248 Pa. ordered by the master to drive to the St. 24, 93 Atl. 773 (1915). stable, but he turned out of his course Slight things done by the chauffeur to a saloon to get a drink, and there for his own benefit and slight devia- left the horses unattended and they tions, will not relieve the employer of ran away and injured a person, the liability. Guthrie v. Holmes, 272 Mo. master was not liable. McCarthy v. 215, 198 S. W. 854 (1917). Timmins, 178 Mass. 378, 59 N. E. 1038, 86 Am. St. Rep. 490. LIABILITY OF OWNER 1017 It is held on good authority that if the servant makes a slight deviation from his master's ' business, for a purpose of his own, the master remains responsible for his acts. Such instances gen- erally occur when the act of the servant is so closely connected with the affairs of the master that, though the servant may derive some benefit from it, it may, nevertheless, fairly be regarded as within the course of his employment. An illustration of this kind is where a chauffeur, after transacting business for his employer, deviates from his course slightly for a purpose of his own, and after accomplishing his purpose, is returning to his employer's place of business when he collides with someone.*'' The question is sometimes one of fact for the jury, and some- times one of law for the court. "In cases where the deviation is slight, and not unusual, the court may, and often will, as matter of law, determine that the servant was still executing his master's business. So, too, where the deviation is very marked and unusual, the court in like manner may determine that the servant was not on the master's business at all, but on his own. Cases falling between these extremes will be regarded as involving merely a ques- tion of fact, to be left to the jury." ** Where, in taking his employer's automobile to a garage, a chauf- feur deviated from the shortest route a short city block, such devia- tion was negligible.*® An employer was sued for damages resulting from personal in- juries sustained in a collision with an autotruck negligently driven by his employee. The employee was required to deliver a box at a stated place, and had deviated from the, course of his employment to do an errand for a third person. Held, if the place where the accident occurred were a place where the driver, confining his con- duct strictly to the business of delivering the box, might properly be, and if, when at that place, the driver's movements were impelled by a purpose to deliver the box, the jury was authorized to say he was within the scope of his employment.®" The fact that a chauffeur follows the same physical route that it was intended by his employer he should follow, is not decisive of the question of deviation or variance.®^ 67 Gibson v. Dupree, 26 Colo. App. 80 Dale v. Armstrong, — Kan, — , 190 324, 144 Pac. 1133 (1914). Pac. 598 (1920). 68 Ritchie V. Waller, 63 Conn. 15S, 61 Donahue v. Vorenberg, 227 Mass. 28 Atl. 29, 27 L. R. A. 161, 38 Am. St. 1, 116 N. E. 247 (1917). Rep. 361. B9 Fisick V. Lorber, 9S Misc. S74, 1S9 N. Y. Supp. 722 (1916). 1018 LAW OF AUTOMOBILES On the return trip of a ;truck to the plate of business; the driver intending to stop at his home for lunch, a deviation of a few blocks was not, as matter of Jaw, a departure from the driver's scope of employment; the question being for the jury.®^ , If tie employer's implied consent to a mere deviation from the direct route can be inferred, the employer is liable for the chauf- f:eur's negligence during such deviation.®' § 1087. Same— Cases holding the owner not liable. Where a chauffeur, when ordered by his employer to take an automobile from the garage, which was situated in the rear of the house, to the front of the the house, and the chauffeur drove to a drug store and purchased cigarettes for himself, the owner was not liable for injuries negligently inflicted by the chauffeur while returning from the drug store.®* Where a chauffeur, who had been instructed by his enipioyer to drive an automobile from the garage to the employer's house, drove the car several miles in the opposite direction, the employer was not liable for injuries negligently inflicted by the chauffeur while returning from such trip.®* A chauffeur had nearly reached home on the return from a cer- tain trip, made pursuant to orders of his employer, when he turned aside, almost in an opposite direction, on business of his own. While returning, after looking after his personal affaits, but while farther from home than when he deviated from the route, he col- lided with another automobile. Held, that the employer was not liable.®® In an action to recover for the death of a person who was killed by the defendant's automobile, while being operated by his chauf- feur, it appeared that the chauffeur had been relieved from duty early in the afternoon, and had made an engagement to call upon a young lady that evening; that thereafter, about 6 o'clock p. m.,s defendant's wife called the chauffeur over the phone and gave him instructions, as she had a right to do, to take defendant's automo- bile and go to a certain place at about 5 minutes to nine to get her brother and convey him and his guests to and from a certain reception; that at 8 o'clock that evening the chauffeur took defend- - 62 Schrayer v. Bishop & Lynes, 92 66 Gouase v. Lowe, — Cal. App. — , Conn. 677, 17 N, C. C. A. 659, 104 Atl. 183 Pac. 29S (1919). 349 (1918). 66Crady v. Greer, 183 Ky. 67S, 210 eSBogorad v. Dix, 172 N. Y. Supp. S. W. 167 (1919). 489 (1918). 64Healey v. CockrUl, 133 Ark. 327, 202 S. W. 229 (1918). LIABILITY OF OWNER ' 1019 ant's automobile from the garage and went to inform his lady friend that he would have to work and would be unable to keep his engagement with her; that to reach her home he traveled a dis- tance of 7,385 feet; that after remaining 20 or 30 minutes at the young lady's home the chauffeur started, by a different route from the one over which he came, to the home of defendant's wife's brother, and traveled a distance of 5,564 feet wheii the accident in question happened ; that the distance from the place of the acci- dent to the brother's home was 2,363 feet, while the distance be- tween the garage and the brother's hoine was 997 feet; that the distance traveled by the chauffeur from the time he left the garage till the time of the accident was 12,949 feet, and that the home of the brother was almost directly between the place of the accident and the garage; that the accident occurred between 20 and 10 minutes before 9 o'clock. It was held that the action of the trial court in directing a ver- dict for the defendant on the ground that the chauffelir was not acting within the scople of his employment at the time of the acci- dent was proper, and judgment for defendant was affirmed.®'' A chauffeur, under general instructions in such circumstances to return the automobile to the garage, took his employer to an enter- tainment one evening, and was directed to return for her at midT night, and instead of returning to the garage he went oii a trip of his own, having nothing to do with his employer's affairs, and while so engaged he negligently inflicted an injury upon another. It was held that his employer, the owner of the automobile, was not liable,*' In this case the court in part said: "In the case under considera- tion, the chauffeur had no duties to perform for the owner until the hour of twelve o'clock p. m. approached. There was a period of about two hours and a half during which time he was at liberty from the service. While thus at liberty he set out on a journey exclusively his own and having no connection with his master's business. The case is not one where the journey, if continued until its termination, would have resulted in carr3dng out the object for which the chauffeur had been employed. It is not a case of mere deviation from the established route or of temporary departure from duty. It is a case where thesei-vant was at libeirty and was serving his own purposes wholly independent of his master's busi- ness. It will not do to say, therefore, that although the chauffeur 67Eakin's Adm'r v. Anderson, 169 68 Tyler v. Stephan's Adm'x, 163 Ky. Ky. 1, 183 S. W. 217 (1916). 770, 174 S. W. 790 (191S). 1020 LAW OF AU.TOMOBILES had undertaken the journey exclusively for his own purpose, the mere fact that he had turned the automobile around and was com- ing back into the city with the ultimate intention of returning for the defendant and her family, shows a resumption of the master's business." , A chauffeur was directed to take his employer's automobile from a town where he had carried the employer's brother, back to a garage in the employer's residence city, but instead of doing so, when near the city, he spent the day driving about with friends, going from roadhouse to roadhouse with them, and while so en- gaged ran into and dama-ged a carriage. Held, that, as matter of law, the employer was not liable.®' Where the owner of an automobile employed a chauffeur for the sole purpose of taking his car to a shop less than a mile away, and without the knowledge or consent of the owner, the chauffeur took the car to a place not on the way to the shop, had lunch, then with a friend, drove to a place six miles farther out of his way to get a chain for his own use, and just after turning back to go to the shop where he had been directed by the owner to take the car, he negligently injured a traveler, the owner was not liable, because the chauffeur was not acting in the scope of his employment. In this case the chauffeur's employment was limited to a specific and short trip, and the court said that the extent of the excursion which he undertook on his own account was so disproportionate to the length of the. route he was authorized to go that it could not be minimized to a deviation; that it was in fact- the chief journey.'''' Directed by his employer to take his automobile to Philadelphia from Egg Harbor for repairs, the employee took it back to Avalon, from where he had taken it that day. He kept it there two days without the employer's knowledge, and while driving it in the country with two persons, and while racing at a high rate of speed with another car, he collided with the plaintiff's car, which was tryipg to avoid him. It was held that, having disobeyed his em- ployer's instructions and deviated from the business he was di- rected to pursue, his use of the car was his own use, and that the direction of a verdict for the defendant was proper.''^ The defendant's chauffeur was instructjed to go to the railroad station, to load his truck with barrels of paint, and to return to the factory of the defendant. Instead of doing this, having loaded 69 Symington v. Sipes, 121 Md. 313, 435, 93 N. E. 801, 33 L. R. A. (N. S.) 88 Atl. 134, 47 L. R. A. (N. S.) 662 79 (1911). (1913). Tl Qronecker V. Hall, 92 N. J. L. 4S0, 70 Fleischner v. Durgin, 207 Mass. 105 Atl. 213 (1918). LIABILITY OF OWNER 1021 his truck, he proceeded in an opposite direction to carry some wood, gathered in the railroad yard, to his sister's home entirely as a personal brotherly service. Having delivered the wood to his sister, he turned his truck around to come back to his legitimate employment and route, and had proceeded but a short distance in the street in which his sister resided, when he ran over the plain- tiff. The point at which the accident occurred was not between the railroad station and defendant's factory, but beyond the station, in the opposite direction. Under these circumstances, his acts whiie on this personal unauthorized trip were not the acts of his employer or within the scope of his employment. The connection between the master and servant was broken while he was engaged upon that unauthorizd trip for his own personal ends and purposes.'''^ Where an employee was directed to take his employer's automo- bile to one of the latter's garages, and to there wash the machine and store it for the night, and after he had driven to the garage, without permission or authority and against his employer's express general orders, he took the car to carry another employee home, and after stopping at a restaurant for his supper was returning to the garage when an accident happened, it was held that he was not acting in the scope of his employrhent at the time of the accident.''^ Where it was the duty of a servant to drive, his employer's auto- mobile to the postoffice for mail, then to an express office, and then back to his employer's home, and after leaving the postoffice, to oblige a third person, he carried a note to that person's house, which was not on the road between his employer's house and the postoffice, nor on a road leading to the express office, and while so engaged an accident occurred, it was held that his employer was not liable, because the servant was acting outside of his employ- ment.'* Where the son of the owner of an automobile had returned with the family, and after leaving the other members at his father's store started to take the machine to the garage, when he met two friends whom he invited to go for a ride, and while on the trip he negligently injured another, the owner was not liable.''* Where a company was licensed to operate a jitney bus on a designated street, and it directed its chauffeur to operate only on that street, it was not liable for the chauffeur's negligence while he 72 Riley v. Standard Oil Co., 181 N. 74Northup v. Robinson, 33 R. I. 496, Y. Supp. 573 (1920). 82 Atl. 392, 2 N. C. C. A. 439 (1912). 73 Colwell V. Aetna B. & S. Co.; 33 R. 'S Cohen v. Meador, 119 Va. 429, 89 I. S31, 82 Atl. 388, 2 N. C. C. A. 430 S. E. 876 (1916). (1912). 1022 LAW OF AUTOMOBILES was taking a passenger to his home on another street, in violation of such instructions.''® Defendant owned an automobile which broke down while he was taking a trip from Atlantic City to Philadelphia. He then left the automobile in charge of the chauffeur with instructions to repair and bring the machine on to Philadelphia. While waiting for a ferry at the Delaware river, on his way into Philadelphia, the chauffeur consented to take a third person in the automobile to a place about a mile back on the road, and while making such trip, through his negligence in driving too fast, he collided with a horse and buggy on the highway, which caused injury to the plaintiff. It was held that, under the facts, the defendant was not liable for the injury.''"' § 1088. Same— Cases holding the owner liable. About plevto o'clock at night the defendant's automobile got. out of order while he was riding in it, and stopped near a theater where he conducted a moving picture show. When this happened he went to the theater, and, accompanied by one J., who was employed by him as an oper- ator of a moving picture machine, and two other theater employees, returned to the automobile. He was there engaged with the three other men in trying to get the automobile to run until. about 11:30 o'clock, when he left for home; leaving the automobile, the trouble with which had not been discovered, in charge of J., telling him that when he got through with it to leave it in front of the theater. J. worked on the machine, with the assistance of the two other men, until about one o'clopk, when he succeeded in getting it to run. He ran it to the theater, and then with his two companions rode out several miles into the country in it, and on the return trip at an early hour in the morning negligently collided with plaintiff's wagon. There was some evidence tending to show that J., in driving into the country, was testing the machine, and other evidence that he was using it for a purpose of his own and of the companions who accompanied him, and that such use had no connection with the purpose for which the custody and control of the machine had been intrusted to him by the defendant. It was held that the fact that J. performed such services gratuitously was not material; and that there was evidence from which the jury could have inferred, that at the time of the accident J. had not abandoned the duties of his employment, but was still using the machine in furtherance of the service which he had under- 76Youngquist v. L. J. Droese Co., "Patterson v. Kates. 1S2 Fed 481. 167 Wis. 458, 167 N. W. 736 (1918). LIABILITY OF OWNER 1023 taken for his employer. Accor4ingly, judgment for the plaintiff was affirmed.'" A chaliffeur in the employ of a public garage took an automo- bile and drove to a place of business, where he secured a battery which, in the course of his duties for the garage, he had left there to be charged, and after securing the battery he drove to a supply house and there purchased a pair of pliers for his own use, and while on the way back 'to the garage he negligently injured a bicyclist. It was held that the accident occurred while the chauf- feur was acting within the scope of his employment, and that the; owner of the garage was liable for his negligence.''* Where a servant was engaged to drive an automobile truck for a bakery over a certain route, and, contrary to the instructions of his employer, made a trip off his route to take a person home, and after having done so was returning to the bakery when he ran over a bby in the street, it was held that at the time of the accident the servant was driving the truck in the scope of his employment.*" In an action for personlal injuries incurred by being knocked down by defendant's automobile, driven by his chauffeur, there was evidence that it was the chauffeur's duty to go for defendant's children at a certain school; that he was permitted to use the car in going to his boarding place for dinner, and from there to a cer- tain shop on his way to the school; that at the time of the acci- dent he had been to his dinner and had stopped at the shop; that then, instead of driving the most direct route to the school, he took a longer route for the purpose of taking an acquaintance to a place he wished to go; and that while so accommodating his friend, the accident occurred. The chauffeur testified that the defendant never instructed him how to go to the school, and he could go by 3,ny route he chose; that after the accident he told the defendant "the whole story," and the latter said that he had a right to be there, and that there was nothing for him to worry about. It was held that the jury were authorized to find that the chauffeur was acting in the scope of his employment at the time of the a,ccident.*' Where, in making the return trip to his , place of employment, there were two ways open to a truck driver,. one 3.6 miles and the other 5.5 miles, the latter being a smoother way and less traveled by street cars, and the driver chose the latter route, and who testified that he wanted to get back as soon as possible and intended to 78 Colley V. Lewis, 7 Ala. App. S93, SODevine v. Ward Baking Co., 188 61 So. 37 (1913). 111. App. 588 (1914). 79 Gibson v. Dupree, 26 Colo. App. SlMcKeever v. Ratcliffe, 218 Mass. 324, 144 Pac. 1133 (1914). 1,7, lOS N. E. 552 (1914). 1024 LAW OF AUTOMOBILES return by the nearest and best way, that he thought that the way he took was a good way to go, that he did not know at that time that he was going so far out of his way, that he had heard that the way he went was a good way, and that there were no car tracks and not much traffic, it was held that the driver was properly found to have been, engaged in his employer's business during tEe return trip.*^ The defendant, expecting to be absent from home for a few wedss, had his chauffeur drive him to the railway station, where he directed the chauffeur to take two friends to their places of business, and to then take the machine home and put it away. Prior thereto the defendant had ordered the chauffeur to overhaul the machine during his absence, and to consult a certain expert about the work. The chauffeur took the two men to their places of business, then waited two or three hours at defendant's place of business for his wages, after which he started for a public gar- age where the expert was, ■ stopping at a laundry office for his collars, and at a saloon to get a drink on the way. The expert got into the machine with him and they drove around for a while to ascertain what the machine needed; after which the expert was left at the garage, and the chauffeur went to his home near by to get supper. After supper he drove back to the garage and took the expert home, and then started to take the car home, but when nearly there he discovered that he had lost his keys to his employer's garage, and he turned back to find them. During this time he had taken several drinks of liquor. After he turned back to look for the keys, he negligently collided with and injured the plaintiff. It was held 'that the chauffeur was acting within the scope of his employment at the time of the accident, and that defendant was liable for his acts at that time. "It was a part of the chauffeur's service to take the machine home and that he was slow about it, or went in indirect ways, does not alter the matter so long as he was in pursuit of that object." There was a reversal of the judgment for plaintiff, and the cause was remanded for a new trial, however, on account of error in instructing the jury that if they believed the chauffeur was at the moment of injuring plaintiff in the employ of defendant for the purpose of operating the machine those facts were sufficient to raise a presumption that the chauffeur was at that time acting 82Mathewson v. Edison EI. I. Co., 232 Mass. S76, 122 N. E. 743 (19i9). LIABILITY OF OWNER 1Q25 within the scope of his employment. As an a,bstract proposition the instruction was not objectionable, but in this case there was no room for a presumption of thie, kind, because there was evidence showing clearly all the facts relating to the employment and acts of the chauffeur, and that rendered it erroneous.*^ On tie sepond appeal of this case much was made of the point that the chauffeur had not in fact lost the keys, and, hence, it was contended that he was not within the scope of his employment while, looking for keys that were not lost. The court held the contrary, and in part said: "Suppose a chauffeur (while intoxi- cated) mislaid a certain tool needed to repair his master's car, and thought he had lost it, and should drive the automobile to a shop to procure another tool in order to make the repairs ordered by. Jiis master, and on the way he, should negligently injure a pedestrian: could the master relieve himself of responsibility for the servant's act by showing the tool was not lost, at all, but was iip the car all the time?" 8* '[ Where an owner permitted the chauffeur of his t^uck to dr;ve to his dinner in the truck, he was liable for an injury caused by the negligence of the chauffeur after starting on his way to deliver the goods on the truck, and when the truck was where it would not have been but for the chauffeur driving it to his dinner.** A chauffeur, who was in the continuous employment of defend- ant corporation, started to return with defendant's automobile to the garage, when he was compelled to stop and change a tire in the rain. His clothing became wet, and instea,d of returning to the garage immediately, he drove to his home in another part of the city, had his supper, changed his clothes, and started to re- turn to the garage where he had work to do preparatory to his eJmployment the following morning. In returning to the garage, he went out of his way several blocks to get some cigars, and while on this mission neigligently struck and injured some children. Held, that the question whether the accident occurred while the chauf- feur was acting within the scope of his employment was for the jury, and judgment against the defendant was affirmed.** Where a jitney chauffeur left his regular employment to take some friends to a place outside the city, and was returning with them to the city when he picked up some passengers, he was held 83 Whimster v. Holmes, i77 Mo. App. 8B gUa v. Bloomingdale, 184 App. Div. 130, 164 S. W. 236 (1913)., ' 65, 171 N. Y. Supp. 434 (1918). 84 Whimster v. HeSlmes, — Mo, App. 86 Blaker v. Philadelphia El. Co., 60 — , 190 S- W. 62 (1916). Pa. Super. Ct. S6 (191S). B. Autos. — 65 1026 LAW Of automobiles to be within the scope of his employment in carrying such passen- gers." The manager of a company, after business hours, made use of the company's automobile for' the purpose of mailing a report, which was in the line of his employitient, after which he intended to go on to his home. On the way to the post office he stopped to permit another employee, who was with him, to attend to some personal business. In order to start from this stop it was neces- sary, on account of other vehicles to back, and iri backing he rieg^ ligently injured a pedestrian. Held, that the company was liable.*' Where a chauffeur, in tha,rge of an automobile truck, returning from an errand for his employer, deviated, from the usual route to the garage for the purpose of taking another einployee home, a distance of a few blocks, and while on his way to the garage after doing so he negligently injured the plaintiff, it was held that whetl^er or not he was engaged in the line Of his employment at the time of the accident was a question for the jury. A finding that he was so engaged was upheld.*^ § 1089. Same— Accident occurring before deviation com- menced. Where it appeared that an automobile, belonging to a city and driven by its chauffeur, was driven to the home of the city's superintendent of streets, on city business, the automobile being used in the street department;, that after leaving the home of the superintendent it was the chauffeur's. duty to take the ma- chine to the garage; that he started to the garage, taking with him a young lady, who was not connected with any of the departments of the city; that he intended to deviate from his course in going to the garage in order to take the young lady home; that about half a mile' before arriving at the point where he would leave the route to the garage for the purpose of taking the young lady to her home, the machine was struck by a street car and damaged and the inmates were injured. It was held that the evidence jus- tified a finding that at the time of the injury the automobile was still being used in the business of the street department of the city, the intended deviation from the route to the garage not yet having become operative.'" § 1090. Same— Returning after deviation by regular route. 87 Chaufty v. De Vries, 41 R. I. 1, 17 89 George v. Carstens Packing Co., 91 N. C. C. A. 982, 102 Atl. 612 (1918). Wash. 637, 1S8 Pac. S29 (1916). 88 Pierce-Fordice Oil Ass'n v. Brad- 90 Fitzgerald v. Boston & N. St. R. ing, — Tex. Civ. App. —,212 S. W. Co., 214 Mass. 43S, 101 N. E. 108S 707 (1919). (1913). LIABILITY OF OWNER 1027 It was the duty of defendant's chauffeur to take a certain other employee home every evening. On the evening in question, when they reachpd the employee's home, the latter directed the chauf- feur to take a young lady home, in a section of the city where his duties did not require him to, go. He did as directed, and while on his return trip to the garage, on a route which he would have taken had he not carried the young lady home, he injured the plaintirf. Held, that the defendant was not liable; the test of lia- bility being the business in which the chauffeur was engaged, and not the route taken.'^ § 1091. Following proper route in improper manner. Where an employee is sent in an automobile upon an erraiid and during the return trip by a direct route inflicts injury in consequence of his reckless driving, the liability of his employer to the injured person is not affected by the fact that he had taken a friend in the car with him and was speeding for their common enjoynient.®^ § 1092. Act to gratify personal malice. Where a chauffeur, merely for the purpose of gratifying personal malice against the plaintiff, pulled a lever which caused the hoisting apparatus, of the truck he, was driving to operate, causijig injury to plaintiff, it was held that the defendant owner and employer of the: chauffeur was not liable.®* § 1093. Chauffeur with general control of automobile. It is a generally accepted rule that where an employee is entrusted with the possession and operation of a vehicle with p6rraissioh to use it at his discretion in the business of his employer, the latter will be held responsible for injuries resulting from the negligence of the employee in the use and operation of the vehicle. And in such a case it is not neces'safy for the perstin seeking damages arising from such source to prove that at the time the injury was inflicted the employee was engaged in executing any particuliar business or specific command of the master. It is only necessary for him to show that at the time the employee was acting within the general scope of his employment, and that the injury was due to his negli- gence.®* 91 Clawson 'v. Pierce-Afrow Motor Div. 384, 173 N. Y. Supp. 189 (19l8). Car Co., 182 App' Div. ill, 170 N. Y. MJessen v. Peteirson, N! & Co., 18 Supp. 310 (1918). Cal. Appi 349, 123 Pac. 219; Martinelli 92 Howard v. Marshall M. Co., — v. Bond, — Cal. App. — , 183 Pac. 461 Kan. — , 190 Pac. 11 (1920). (1919), citing this work. ' ''• 93 De Perri v. Motor H. Co., 185 App. 1028 LAW OF AUTOMOBILES Where it was shown that the defendant's chauffeur was em- ployed to take care of his automobile, run it and keep it repaired; and that at the time in question the chauffeur was driving thfe car to the garage, there was , evidence to go to the jury on the ques- tion whether the chauffeur was in the scope of his etnployment at the time.'* The plaintiff was run down and injured by defendant's auto- mobile, driven by its chauffeur. In appeared that the automo- bile was used exclusively in defendant's business; that the chauf- feur was employed by the month; and that his sole duty was to drive, repair, and care for the automobile, Relative to the scope of the chauffeur's authority, the president of defendant company testified: "He was authorized and directed that whenever we wanted the car, we called on him to get the car, and he looked after it if it was broken and any repairs necessary, he was to do that without even saying to us that it was to foe done, uiiless it was something serious; clean it, wash it, and repair it if necessary." The automobile was kept in a public garage, and on this occasion the chauffeur took it without the knowledge of the defendant. In reversing an order of the trial court granting defendant a new trial on the ground that the chauffeur was acting outside the scope of his employment, the court said: "There is no testimony in the case to indicate that the chauffeur did not take the machine from the garage as he had done, for the purpose of use and repair, continuously for the entire three years of his employment. It does not appear that during all that period he ever had a verba,! or written order from his employer to the management of the garage to permit the use or possession of the automobile. It is true that the president of the company testified ithat he instructed the chauffeur not to use the car except upon orders from himself or his son, who was the secretary of the defendant company, and the chauffeur corroborates this statement. But if the chauffeur did violate this instruction, it constituted nothing more than a violation of instructions, and this alone cannot relieve the defendant. It will be seen that the defendant did not each time, nor at any time, call on the garage company to let him have the car. It would be ab- surd, in the light of human experience, to so infer. There is noth- ing in the whole testimony to indicate that, during the entire period of his employment, any other person whatsoever either cared for, drove, handled, or repaired the car. Indeed, it seems to have 96 Ley V. Henry, 50 Pa. Super Ct. S91 (1912). LIABILITY OF OWNER 1029 been at all times in his exclusive charge, subject only to direction as to its use." ®® ( § 1094. Authority to "look the car over," Where a chauffeur was authorized to "look the car over" before entrusting it to a man who was to take his place temporarily, it was for the jury to say whether or not he was so employed when an accident occurred. "What does 'looking the car over' mean? Does it mean simply examining the car on the floor of the garage, or does it mean or imply a general examination of the machine and its parts, and, if proper, adjusting the parts, and running the car so far as necessary to see if it operated right? It can readily be seen that putting the car in proper shape might require running the car on the streets, to see that it was, in fact, in good operating condition. I think we may, perhaps, take judicial notice of the fact that cars of this class are commonly tested by an actual run. If taken to a repair shop and directions given to look a car over, we think that would be tantamount to an instruction to do whatever was required to dcr termine its condition." *'' §1095. Driver inviting another to " ride with him. The driver of a commercial truck, who had no authority to invite any- one to ride with him, and who invited a lady acqUqjntance to ride on the step, and she was injured while so riding, was not ili that respect engaged in the scope of his employment, and his employer was not liable for such injury. It was held in this case that for the servant to be acting in the scope of his employment he must be engaged in doing some act under authority from his master.^* § 1096. Returning for owner after using car for own pur- pose. It has beeii held that where the owner of an automo- bile has been driven to a place where he directs his chauffeur to return for him at a stated time, and permits the chauffeur during the interim to use the machine for the purpose of paying a visit to a relative, when the purpose for which the chauffeur borrowed the machine has been accomplished and he is returning for the owner, he is acting within the scope of his employment. In an action to recover for injuries incurred in an automobile accident, it appeared that on the night of the occurrence the de- fendant and his family had been driven by the chauffeur from 98 Ward V. Teller Reservoir & I. Co., »* McQueen v. People's Store Co., 97 60 Colo, 47, 1S3 Pac. 219 (191S). Wash. 387, 166 Pac. 626 (1917). ^ Hartnet v. Hudson, 16S N. Y. Supp. 1034 (1917). , 1030 LAW OF AUTOMOBILES their home in Germantown to the Bellevue Hotel in Philadelphia, where they expected to spend the evening; the time appointed for their return home was about 12 o'clock; after the arrival at the hotel the chauffeur drove the car to the neighborhood of Twelfth street and Columbia avenue, with a view to see his brother, who resided in that section of the city; failiiig to meet his brother, he started on his return, and it was when he was approaching Spring Garden street from Seventeenth street that the accident occurred. The defendant claimed, and so testified, that upon reaching the hotel he directed the chauffeur to park the car, and, if the night proved cold, to ta,ke it to a particular garage, and that he at no time had given permission, to the chauffeur to otherwise use it. In this he was corroborated by the chauffeur. The plaintiff intro- duced evidence to show admissions made by the defendant that he had given the chauffeur permission to use the car to make a visit to his brother on the night in question. It was held that whether or not the chauffeur was acting in the scope of his employment at the time of the accident was a ques- tion for the jury, and judgment for plaintiff was affirmed, the court saying: "If the chauffeur in using the car to make a visit to his brother was doing so, not only without the consent of the owner, but in disregard of the orders he had received, then it would fol- low that during the time he employed the car, down to the time he returned it to its proper place, the relation of master and servant between him and the defendant was wholly suspended, and the latter would not be liable for any negligence of his resulting in injury to a third party. If, on the other hand, permission had been given, while it might be argued that this also would result in an interruption of the relation of master and servant, a further question would require answer, namely, when was the relation re- sumed? For, whenever resumed, from that time forward the chauf- feur in driving the car would be engaged about his master's busi- ness and not his own. Was the relation resumed at once upon his accomplishing his visit to his brother, and was the chauffeur there- after in making his return drive acting as servant, performing a duty he owed the master because of the relation? Or was he st^l a licensee of the car? We are of opinion that the license, if given, expired when the visit to the brother was accomplished, and tliat on the return drive, when the accident happened, the chauffeur was acting not on his own, but on his ndaster's business." ^ 1 Graham v. Henderson, 2S4 Pa. St. 137, 98 Atl. 870 (1916). LIABILITY OF OWNER 1031 In an action to recover for the death of a person killed by de- fendant's automobile, there was evidence tending to show that the defendant's chauffeur on the night of the accident drove for the defendant from his home in Norwalk, Conn., a distance of two and a half miles, to a theater in South Norwalk; that when the defendant alighted, he told the chauffeur to be at the theater at 9:30; that the chauffeur, then borrowed a quarter from his employer with which to get his hair cut; that the chauffeur then visited two or three barber shops in South Norwalk, and, finding them crowded, drove to Norwalk,; and found the shops there also crowded; that he then started to drive back to the theater in South Norwalk, where he was going to wait for the defendant as he had been in- structed, and while on his way there he struck and killed the de- ceased. Held, that at the time of the accident the chauffeur was acting within the sqope of his employment.^ § 1097. Chauffeur testing car. Where the chauffeur testified that the accident happened after he had cleaned and put the car in order, and while testing it for use on the following day, the ques- tion whether or not he was acting in the scope of his employment was for the jury, althpugh the defendant denied having any knowl- edge of the fact that his chauffeur had taken the car out of the garage at stich time or that he had any authority to do so.* § 1098. Chauffeur testing car on pleasure trip of own. The chauffeur of defendant's automobile, testifying for the plaintiff, in a personal injury action^ stated that he was testing the car, which was new, that testing cars was his only duty, that at times he worked on Sunday — the accident in question happening on Sun- day. On cross examination he stated that he had asked for the car, that he was taking a pleasure trip, and had visited his home town. On re-examination he stated that he was "running in" the car at the same time, by which was meant loosening it up, making necessary adjustments, etc., and that "it was understood" when defendant's foreman allowed him to take the car, that it was to be tested. It was held that the defendant was not entitled to a binding instruction undpr this testimony, on the ground thai the chauffeur was not acting within the scope of his employment.* §1099. Chauffeur going for supplies or to have car re- paired. Where, without the knowledge of his master, a chauffeur 2McKiernan v. Lehmaier, 85- Conn. * Parker v. Matheson Motor Cai; C0.5 111, 81 Atl. 969 (1911). 241 Pa. St. 461, 88 Atl. 653 (1913). SCurran v. Lorch, 243 Pa. St. 247, 90 Atl. 62 (1914). 1032 LAW OF AUTOMOBILES took the master's automobile from the garage to a machine shop to have it fixed and while on the way an accident occurred, due to the chauffeur's negligence, it was held that the want of knowledge on the ma,ster's part would not affect his liability, because the act was within the scope of the chauffeur's employment and done in the prosecution of the master's business.* 'A chauffeur went to a hotel where his employer was staying and informed him that oil was needed for the lamps on the autoniobile, and the master told the chauffeur "to go down stairs in the hotel and get it," but instead the chauffeur drove the automobile to a garage for the oil, and while on his way collided with a horse and carriage damaging them and injuring the Occupant of the carriage. It was held tfiat, although the chauffeur made use of the master's automobile in apparent disobedience of the latter's instructions, he was nevertheless engaged in the furtherance of his master's busi- ness, a,nd that the inference is legitimate that he was acting within the general scope of his authority, which was to car,e for the ma- chine, keep it in order and. drive it on occasion.® § 1100. Hired automobile and chauffeur going beyond trip employed for. The plaintiff and five other youiig men entered into a contract with the defendant's son, who acted as chauffeur in the operation of his father's automobile, by the terms of which the son was to carry the six young men, by automobile, from Ish- peming to Marquette, Mich., and return for a certain consideration, which was paid. The trip to Marquette was made in safety. Upon the arrival in that city the seven young men visited several saFoons and partook more or less of intoxicating liquor. At the expiration of an hour or so of this entertainment the plaintiff and one of his companions, having made the acquaintance of a couple of young women, proposed to the chauffeur that a drive be taken around a certain driveway in Marquette. To this the chauffeur finally con- sented upon condition that the entire party went. The other young men were then found, and the party proceeded to a hotel where three other young women were added to the party, and the drive was begun. During this drive, in making a turn, a tire blew out, the automobile skidded, capsized, and fell upon the plaintiff, caus- ing the injuries complained of. It was contended that the defendant could not be held liable 6 Cunningham v. CasUe, 127 App. 6 Bennett v. Busch, 7S N. J. L. 240, Div. 580, 111 N. Y. SUpp. 1057. See 67 Atl. 188. also, Hannigan v. Wright, 5 Pennew, (Del.) 537, 540, 63 Atl. 234. LIABILITY OF OWNER 1033 because the trip around the driveway was not included within the original contract of hire. It was held, however, that the jury's finding that this drive was included in the scope of the trip .would not be disturbed.'' § 1101. Chauffeur, who took car to shop, injuring person while placing it as directed by shopman. When a person takes his automobile to a shop for repairs, the proprietor of the shop may indicate where he wishes it delivered, and if the owner com- plies, ill the absence of overruling circumstances, he presumably remains in the custody and control of the car and responsible for its usual operation. An owner directed his chauffeur to take his automobile to a shop for the purpose of having it painted. When the chauffeur reached the shop, the shop manager told him to run the car on the elevator. This was done, and the elevator raised to the third floor, where it was stopped, and the chauffeur ran the car onto the floor, stopping it about six feet from the elevator to wait until space had been cleared for it. When space was cleared, he was asked to run the car into the paint shop, and in doing so he injured the plaintiff. It was held that whether he was acting, at the time, for the owner of the car or as servant of the shop owner, was a question for the jury, and that the trial court was in error in holding that he was, for the time being, as matter of law, a servant of the shop owner.' Here the court said, in part: "The car in the present instance was carried to a paint shop on the third floor. Had the paint shop been on the first floor and the chauffeur been asked to take the car to it, the case would be equivalent. There is no presumption of law that when a car stops upon its first entrance a delivery is. effected." § 1102. Chauffeur driving land owner's car carrying client of real estate agent to look at land. A land company was ex- ploiting certain of its lands, which were located at Corey, a short distance from Birmingham, Ala., and it was its custom to furnish to prospective purchasers an automobile and driver to use in go- ing from Birmingham to Corey and return. A number of real estate agents of Birmingham were trying to sell the lands, and when a real estate agent had a prospective purchaser for any of the lands, he was free to use the automobile of the land company in going to and from Corey. While the driver supplied by the land company was taking a real estate agent and a prospective purchaser 7 Webber v. Billings, 184 Mich. 119, 8 Zorn v. Pendleton, 163 App. Div. ISO N. W. 332 (191S). 33, 148 N. Y. Supp. 370 (1914)... 1034 LAW OF AUTOMOBILES to Corey for the purpose of inspecting the lands, he negligently col- lided with a motor-cyclist, and the latter was injured. , It was held that the land company was liable for the driver's neg- ligence. "This is not the case of a loan," said the court, "by one person, of an automobile, with its chauffeur, to another person, for service in the exclusive business of the latter. This loan (if it be so considered) was a loan in furtherance of the efforts of the land company to advertise and sell its lands.!'® § 1103. Chauffeur permitting children to climb on automo- bile. Ordinarily the driver of an automobile has not, and is not presumed to have, authority to invite or permit children to ride with him; and if he does so upon his own initiative his employer is not liable for resulting injuries to the children. Where the driver of an automobile truck which belonged to the defendant company, and which was used solely for the purpose of carrying ice, while driving the truck, appatently in the ordinary discharge of his duties, upon the request of a boy having in charge as nurse a child of tender years, permitted the nurse and the child in his charge to get upon the running board of the truck, which was about 12 inches from the ground and about 12 inches broad, and ride thereon, such action upon the part of the driver in giving permission to the children to mount the running board and in allow- ing them to rjde was entirely without the scope of his duties as an employee of the owner of the truck. And where the child of tender years, in dismounting from the running board, fell under the wheels of the truck while it v^as in motion, and was killed, the company was not liable in damages to the mother of the child' who brought suit against the company, alleging that the child contrib- uted to her support and that she was dependent upon him; and the court did not err in granting a nonsuit at, the conclusion of the plaintiff's testimpny.^" It was held that a master who had placed a skillful driver in charge of his wagon, was not liable for injuries to a child who, at the invitation of the driver, had been riding on the wagon, and who, in attempting to get off, fell under- a wheel and was fatally hurt.^^ However, when a child has climbed onto the machine at the unauthorized invitation of the driver, and is in law a trespasser, the driver owes him the duty of using reasonable care not to injure Stovalf V. Corey Highlands Land H FosterrHerbert Cut Stone Co. v. Co., 189 Ala. S76, 66 So. S77 (1914). Pugh, US Tenn. 688, 91 S. W. 199, 4 10 Waller V. Southern Ice & C. Co., L. R. A. (N. S.) 804. 144 Ga. 695, 87 S. E. 888 (1916). LIABILITY OF OWNER 1035 him, knowing him to be on the machine. "The act Of negligence upon which liability is predicated is not the driver's invitation to the boys to get on and take a ride, but it was his act of suddenly and violently starting the truck when he knew the boy was in daii- ger and would likely be hurt thereby. The evidence concerning the driver's invitation was merely to explflin the boy's presence at the truck, attempting to get on. It showed how he happened to be there, but Uie sudden starting of the truck while the boy was attempting to climb on was the cause of his death, and if the driver knew of his situation when he started the truck it was ai; act of culpable negligence. He wks clearly acting within the scope of his employment in starting and driving the truck. His invitation to ride was an act beyond the scope of his authority, and hence, as to the driver's employer, the boy was in law a tres- passer. But, even so, the driver in the subsequent prosecution of "his master's business owed the boy the duty of using reasonable care not to injure him after he was discovered and known to be in a place of imminent danger or peril." ^^ Where an employee, to whom the owner has committed the oper- ation of a motor truck in the owner's business, permits an infant to ride on the truck in violation of his instructions, and the infant is injured by the wanton and wilful conduct of the employee, while in the course of his employment, the owner is liable.^' § 1104. Same— Truck as attractive nuisance. It has been held that the attractive nuisance doctrine cannot be extended to apply to motor trucks that are in common use. ' "An ordinary motor truck moving along a public street cannot be regarded as an attractive or alluring vehicle to an intelligent boy about 15 years old who is accustomed to the traffic of the streets, and the doctrine of the turntable cases is not applicable in an action brought by the boy to recover for injuries sustained while tr5nng to board the moving truck. The fact that the plaintiff and oliier boys had previously boarded or clung to the defendant's trucks did not amount to an invitation from the defendant to the plaintiff to board a moving truck, and evidence of that character was inadmissible in the case. Testimony that a person who chanced to be riding with the driver in charge of the truck and who was not an employee or agent of the defendant waved his hand in the direction of the plaintiff did not tend to prove negligence on the i2Stipetich v. Security S. & Mfg. iSHigbee v. Jackson, — Ohio — , 128 Co., — Mo. App. — , 218 S. W. 964 N. E. 61 (1920). (1920). 1036 LAW OF AUTOMOBILES part of the defendant, and was not admissible. The plaintiff, an intelligent young man who was accustomed to street traffic, who undertook to board the defendant's motorcar, which was moving at. a speed of from six to ten miles an hour, was a conscious tres- passer and responsible for his own negligence unless the driver of the motorcar wilfully and wantonly failed to protect him after he learned of his peril." ^* § 1105. Defendant and chauffeur riding in car registered in defendant's name. Touching the ownership' and control of the automobile, plaintiff introduced evidence to the effect that the car was painted red and of the Studebaker manufacture. It bore li- cense tag No. 2839 of. the city, of St. Louis, Mo., and the city records disclosed this license was issued to defendant on the 14th day of April before the collision occurred in July. A bystander on the street said he recognized defendant as one of the men in the automobile at the time and another witness testified that defend- ant's chauffeur seemed to him to be the chauffeur who was driving the car when the collision occurred. It was held that this evidence was sufficient to support a finding that the car was owned by defendant and being operated for him at the time of the collision, although defendant and other witnesses testified that, while he had been the owner of the car, he had sold it prior to the accident.''^ § 1106. Chauffeur carrjdng passengers contrary to orders. Where a company was engaged in the automobile livery business alone and forbade its chauffeur to solicit and "pick up" passenger, and it appeared that such order was habitually disregarded and that fares from "pick up" passengers were retained by chauffeurs, or if returned to the company they were accepted with a caution to the chauffeur, it was held that whether or not a chauffeur was acting in the scope of his authority when he picked up a passenger, agreed on the fare, and ca.used an injury to the passenger through negli- gent, driving, was for the jury.^^ § 1107. Chauffeur of automobile for hire taking young lady home without charge. The defendant owned a number of auto- mobiles which he operated for hire, and which he kept standing in front of a hotel, when not actually engaged in carrying passen- gers, with a view to securing passengers. On the occasion in ques- 14 Gamble v. Uncle Sam Oir Co., 100 iSSwaricutt v. Trout Auto Livery Kan. 74, 163 Pac. 627 (1917). Co., 176 111. App. 606 (1913). 16 Warrington v. Bird, — Mo. App. — , 181 S. W. 1079 (1916). LIABILITY OF OWNER 1037 tion one of his chauffeurs vplunteered to ,take a itelephone girl, who was employed in the hotel, to her home in the machine, which he had control of as chauffeur, and on the way back to the hotel he injured the plaintiff. It appeared that the, young lady was carried free of charge, and that the defendant had permitted this to be done on at= least one occasion, before. It was held that these facts raised a presumption that the chauffeur was acting within the scope of his employment, which was not overcome, as a matter of law, by the testimony of the defendant and the chauffeur that the latter was acting contrary to instructions in taking the young lady home without collecting a fare.^'' > § 1108. Chauffeur operating automobile for hire on commis- sion. Where a, private corporation, engaged in carrying passen- g^s in automobiles, had several machines in charge of boys .who were paid 20 per cent of the amount earned by the automobile for their work of drivirig, and all the cars were kept in the corpora- tion's garage, and the latter furnished the lights and gasoline, it was held that the boys were not independent contractors, but servants of the corporation. The court stated that a corporation chartered by the state for a specific purpose could not evade its obligations; to the public by delegating its authority to, another; and called attention to the law, requiring automobiles to be reg- istered, arid declared that, "The object of that law is for the iden- tification of the owner and to fix the liability in case of accidents or violations of law; and if a persoii or corporation could escape liability by leasing or renting cars to drivers on a percentage basis the law fails." The court also said that, "Because the driver was to receive 20 per cent of the earnings tends to prove that this mode of pay was established to offer an incentive to seek for and bbtaih passengers for the car, rather than to show that the chauffeur was an independent contractor." ^* § 1109, Injury to person riding with chauffeur. The plain- tiff was in the defendant's employ, and after he had finished his day's work he entered an automobile bdonging to defendant, at the invitation of the chauffeur, and while riding therein was injured. The chauffeur was forbidden to let anyone ride with him, and while this rule had been violated there was no evidence that the defendant acquiesced in any such violations, and, in fact, the, chauf- feur knew that employees had been discharged for violating it. It "Kneff V. Sanford, 63 Wash. 503, " King v. Brenham Auto Qo., — T^e^. lis Pac. 1040 (1911). ' Civ. App. — , US S. W. 278 (1912).: ^ 1038 LAW OF AUTOMOBILES was held that the chauffeur had no authority to invite the plain- tiff to ride with h'iin, and that, consequently, the latter was a Ires- passer and could not recover." Where defendant was hauling goods for the plaintiff in a truck used only for that purpose^ and without his consent the chauffeur permitted plaintiff to ride with him on the loaded truck, and was injilrfed, the defendant was not liable; there being no contract to carry the plaintiff personally, and no custom permitting him to ride with the goods. ^^ There is a presumption that the operator of a truck used for transporting goods has no authority to invite or permit persons to ride with him,^^ .. § 1110. Failure of owner to deny authority of chauffeur. In an action for damages for injuries sustained by being struck by defendant's automobile, defendant testified that the chauffeur, who was operating the automobile when the accident occurred, was act- ing outside the scope of his employment. The evidence showed th^t the defendant, a,t the time he was served with the summons and complaint, did not deny the authority of the chauffeur. It was de- clared error to instruct the jury that such failure to deny was proof that the chauffeur wa:s acting within the scope of his authority.^'' § 1111. Chauffeur permitting another to operate automobile. If a chauffeur, acting, withiri the scope of, his general employment, ag driver of his employer's car, , permits another to operate the car temporarily, and such other negligently injures someone, the owner is liable for such negligence, allJiough the chauffeur had been ex- pressly ordered not to permit anyone else to drive the car. , ".Could the owner of a car relieve himself of liability by instructing his driver not to drive the car at an excessive rate of speed and to exercise ordinary care, or to drive on certain streets and npt to drive 19\yalker v. Fuller, 223 Mass. 566, goods. On the way, the cart [b^oke 112 N.' E, 230 (1916). down, and the plaintiff was thrown out Also, Karas v. Burns Bros., N. J. L. and severely injured. Held that, as the (1920), 110 Atl. 567. defendant had not contracted to carry 20 Gruber v. Gater Tr^ Go., 96- Wash. the plaintiff, and as she had ridden in 544, 165 Pac. 491 (1917). the cart without his authority, he was "The plaintiff, a person of full age, not liable for the personal injury she contrf^cted with the, defenplant, to carry had sustained." Lygo y. I\fewbold, 9 certain goods for her in his cart. The Wels. & Hurl. (Exch. Rep.) 302. defendant sent his servant with his cart, 21 Gruber v. Gater Tr. Co., 96 Wash, and the plaintiff, by the permission , of 544, 165 Pac. 491 (1917). the servant, but without the defendant's 28 McEnroe v. Taylor, 56 Misc. 680, authority, rode in the ca.rt with her 107 N. Y. Supp. 565. LIABILITY OF OWNER 1039 on others, if a failure to obey, instructions caused injury to others? No more could he by instructing his driver not to permit an iriex- perienced person to drive the car." '^^ . ;, Where the owner of an automobile directed his chauffeur to talie the automobile, home, and the chauffeur was doing so, but on the way allowed another to negligently operate it to the injury of a third person, the owner was held liable for such injury.^* The defendant was in the taxicab and repair business, and on the day in question two employees, C. and H., had completed repairs on a car, and pursuant to custom took it out to the street prepara- tory to "trying it out." Defendant's foreman was , present and instructed the men to go to a repair supply house, while they were operating: the car^ and procure a piece of pipe. At this time one v., a taxicab driver in defendant's employ, came to the garage to take out the taxicab which h^ drove, but it was not yet returned to the garage. C. and H. were in the front seat of the repaired automobile, and in the presence of the foreman and with his ac- quiescence V. got into the rear seat and the automobile moved away, wijh C. at the wheel. They stopped at a supply shop, and, while C. went in for the pipe, V. climbed into his seat and took the' wheel. When C. came out, he got into the rear seat, and, V. driv- ing, they proceeded to other repair shops for the pipe, which they did not find. It was then suggested that they test the car on a certain hill, and while on the way^ to the hill with that object in view, the plaintiff was injured by V.'s negligent driving. It was held that the defendant was liable, the court placing the liability on the negligence of C. and H. in abandoning lie duty imposed upon them by the master by permitting V. to drive, but also stated that, "We do not intimate that, under the peculiar facts of the instant case, the defendant would not be liable without reference to negli- gence on the part of C. and H., on the ground that V. was its servant and impliedly authorized to operate the car." ^^ , The defendant With his wife was driven to church in his automo- bile by his chauffeur, whom he then directed to go to the Commerce Building, about 9 blocks west of the church, and get his son, .thpn return to the church and wait to take them home. Instead of per- forming these services directly, the chauffeur went a distance of 6 blocks east and S blocks south of the church to collect a debt 23 Prince v. Taylor, — Tex. Civ. App. 26 Geiss v. Twin City Taxicab Co., — , 171 S. W. 826 (1914). 120 Minn. 368, 139 N, W- 611 (1913). 24 Collard V. Beach, 81 App. Div. 582, 584, 81 N. Y. Supp. 619. 1040 LAW OF AUTOMOBILES owing to him by one S. He collected what was due him, and in- vited S. to ride with him, and with S. on the seat beside him, he started for the Commerce Building' to get his employer's son/ On the way S. asked to be allowed to drive, which the chauffeur per- mitted, and while S. was at the wheel he negligently injured the plaintiff. It was held that the defendant was liable, the court in part saying: "NoW in this case, the chauffeur had not 'quit sight' of defendant's business and, "without having in view' his orders, gonie off on business of his own. He had defendant's directions in mind all the while and was executing them, only going a round- about way to do so. Certainly, when he was on his return, on the way to the Commerce Building, as he was at the time of the collision, he had his orders in view and was performing them. . . . When the chauffeur let S. take the wheel, he remained on tile seat beside him, S.'s acts, practically speaking, were his, and his act in turning the wheel over to S. was the act of defendant, for it was done in the defendant's service arid while carrying out the chauf- feur's employment. It was not the act of a servant abandoning his master's service and turning it over to another." The court also held that it was of no consequence that the defendant had ordered the chauffeur not to permit anyone else tp drive the car.^® § 1112. Chauffeur temporarily in service of another. The rule is well settled that a servant in the general employment of one person may also become the special servant of anqdier, with all the mutual rights and obligations of master and servant between , them for the time of, and in relation to, the special service in which the servant is temporarily engaged; If an employer loans a servant to another for some special service, the latter with respect to that service may become liable as a master for the acts of the servant without any actual contract of employment between them or pay- ment for service.*'' This principle of law is so familiar that it scarcely needs the citation of authority to support it. One who is placed in charge of an automobile to try it out for another, and who is subject to the direction and control of such other, is the latter's servant, regardless of how many other em- 26Slothower v. Clark, 190 Mo. App. baum v. Brady, 143 App. Div. 220, 128 105, 179 S. W. SS (191S). Certiorari N. Y. Supp. 121 (1911); De Perri v. denied by Siipreme Court. Motor H. Co., 18S App. Div. 384, 173 87 Janik v. Ford Motor Co., 180 Mich. N. Y. Supp. 189 (1918) ; Olsen v. Ve- 5S7, 147 N. W. 510, 6 N. C. C. A. 365n, ness, 105 Wash. 599, 178 Pac. 822 52 L. R. A. (N. S.) 294 (1914); Frei- (1919). LIABILITY OF OWNER 1041 ployments he may then have with others.^* And one who entrusts his automobile to another as his chauffeur is responsible for the latter's negligence while so acting, although such chauffeur is in the general employment of and is paid by another.^® In any given case the inquiry is to determine which of the two persons involved was the servant acting for. Whose work was he performing? J^pparently he may be acting for a person other than his general employer, when in fact he is performing' a duty which his general employer owed to such other. In such case he continues as the servant only of the general employer. By "special seryice" is meant employment for that occasion, or temporary in point of time. For the time being such employee in reality ceases to be a servant of his general employer, who is not then liable for his conduct. It is enough to show that a' chauffeur was acting for a certain special employer, that the chauffeur was in charge of such person's automobile by his authority and direc- tion, and engaged upon his business and, as to such automobile and business, imder such person's orders and control.'" The general principles of law which goverh when one in the gen- eral employment of another is by his consent lent or hired by his employer to work for a third person in some special service, are well settled, but in their application distinctions of nicety often arise. The test to determine the legal responsibility of that third person for the conduct of the employee is, whether in the particular; service performed by him he continues subject to the control and direc- tion of his general employer as to the means to be employed, and the result to be achieved, or becomes subject to that of the third person. This must be considered, not merely with reference to the general .business which the act is intended to promote, but the particular business which calls for the act, in the smallest sub- division that can be made of the business in reference to control and proprietorship.'^ , In an action to recover for personal injuries by one Who was struck by an automobile of defendant, it appeared that the defend- ant was the vice president of a corporation that dealt in automo- biles, and that the chauffeur in charge of the automobile at the time of the accident was in the employ of the corporation; that one R. was the president of the automobile corporation, and on the 28 Trout Auto Livery Co. v. People's SOWennell v. Dowson, 88 Conn., 710, ,G. L. & C. Co., 168 111. Ai)p. S6 (1912). 92 Atl. 663 (1914). 29 Irwin V. Judge, 81 Conn. 492, 71 31 Tornroos v. White Co., 220 Mass. Atl. 572 (1909). 336, 107 N. E. 1015 (1915). B. Autos.— 66 1042 LAW OF AUTOMOBILES dayof the accident the company had engaged to carry certain per^ sons from a railroad stations to a place of meeting; that the service was gratuitous, and R. intended to look after it himself, but being unable to give his personal attention to the matter, he telephoned tp, the'defendant to send his >( defendant's) automobile with a driv- er; that thereupon the defendant directed the chauffeur to take the defendant's automobile and go to the train to meet the persons in question, take them to the meeting place, and then to take the autornobile to the defendant's house; that while the chauffeur was on the way to the railroad station the plaintiff was injured. It was held ^at, these facts were sufficient to support a finding that the chauffeur was at the time of the accident the servant of the defend- ant.3^ ', ; „ It is said that the relation of master and servant once established will continue, although fop the time being the servant may be taking orders f 1:0m a third person, and that the test is whether such third person is for the time being exercising exclusive control over the servant. If the third person is exercising exclusive contrbl over the servant he is the master for such time.^^ § 1113. Driver and machine hired to another. Where the owner of an automobile hires the same, with a chauffeur, to an- other, the latter exercising exclusive control and management over both machine and chauffeur, the owner is not liable for its negligent operation.'* An owiier who directs his chauffeur to take another person for a drive, and to drive where such other directs, is liable during such period for the negligence of the chauffeur.'* The plaintiff sued to recover for personal injuries caused by an t 32Wenn?ll v. Dowson, 88 Conn. 710, the care and management of the horse 92 AU. 663 (1914). , and vehicle." Pigeon v. Employers' Lia- SSMcHarg v. Adt', 163 App. Div. bility Assur. Corp., 216 Mass. 51, 4 N. 782, 149 N. Y. Supp. 244 (1914). C. C. A. 516, citing Shepard v. Jacobs, 84 Burns v. Southern Pac.iCo., — Cal. 204 Mass. 110, 90 N. E. 392, 26 L. R. A. App.,—, 185 Pac. 875 (1919); Finegant (N. S.) 442, 134 Am. St. Rep. 648; V. Piercy Cont'r Co., 189 App. Div. Hussey v. Franey, 205 Mass. 413, 91 69p, 178 N, Y. Supp. 7^5 (1919) ; Baum N. E. 391, 137 Am. St. Rep. 460; Cor- V. Link, 110 Misc. 297, 180 N. Y. Supp. liss v. Keown, 207 Mass. 149, 93 N. E. 468 ;(1920)'. 143; Hunt v. New York, N. H. & H. "It commonly has been held in cases R. R. Co., 212 Mass. 102, 107, 98 N.,E. where a horse and driver have been 787, 40 L. R. A. (N. S.) 778; Waldock lent by a general employer, into the v. Winfield, (1901) 2 K. B. 596. service of another, that the driver is SB Shevlin v. Schneider, 183 N. Y. subject to the. control and therefore is Supp. 178 (1920). the agent of his general employer as to LIABILITY OF OWNER 1043 automobile truck, and the evidence showed, without contradic- tion, that the truck ^ was owned by the defendant, and that the wages of the chauffeur were paid by defendant; that the truck, however, was rented out to another concern, the Turner Co., which was engaged in snow removal; that the chauffeur took his instruc- tions from that company, and that, in point of fact, although his wages were, under the agreement, to be paid by the defendant, he, personally, had been hired for this job by the Turner Co. It was held that if there was any liability it was upon the Turner Co. and not upon the defendant.*® Where an expressman furnished a delivery truck with driver to a furniture dealer, who had the use and control of the outfit for the time being as though it was his own, the furniture dealer, and not the expressman, was liable for the acts of the driver while so engaged.*'' Where one hired an automobile with a chauffeur for a specified time and for a fixed compensation, the chauffeur being subject to his directions alone, such chauffeur was his servant.** t: § 1114. Same— Cases in which owner held liable. When nothing is shown' as to the nature of the agreement b^tweeii_the owner of an automobile and a third person for whom work is being done, the presumption is that the, driver is under the control of his employer, the owner.*® "Where an owner of axLto trucks hires them oiit at a per diem compensation, furnishing driver, oil, gasoline and accessories, and the driver is under the control of the owner during the entire period of hire, while the bailee canriqt discharge the driver, and ha;S go authority over him except to direct the plajce to which he, shall drive, the owner is liable for an injury caused to, a third person by the negligent act of the driver occurring during the period of hire, if the bailee has not interf erred with the operatjcln pf the truck;*' «» , , ' 36 Diamond v. Sternberg Motor Truck semer '& L. E. R. R! Co., 22*6 Ta.'. St. Co., 87 Misc. 305, 149 N. Y. Supp. 1000 198; WoUaston v. Park, 47 Pa. Super. (1914). Ct. 90. '^ 3'' Howard v. Ludwig, 57 App. Div. Similar rule stated in Vile v. Chal- 94, 171 N, Y. 5,07, ,, , , , , fant, 69 Pa. Super. Ct. ,5^3 (1917).,; the 38 McNamara v. Leipzig, 180 App. difference in facts being that in the Vilp Div. 515, 167 N. Y. Supp. 981 (1917). case the bailee's work was completed 39Neuschafer V. Colonial S. & S. Co., and the truck' was being driven back to 180 N. Y. Supp. 413 (1920),. - the owner's garage when the accident ^OMatlack v. Chalfant, 69 Pa. Super. occurred. >. i Ct. 49 (1917), citing Gibson v. Bes- . ,;v, 1044 LAW OF AUTOMOBILES Where, the owner of trucks furnished' them with drivers to an- other, at a stipulated price per day, retaining control over the drivers,! their selection and pay, and the right to discharge them, the exclusive care, management, and operation of the trucks, and the drivers could be used for no other purpose than to truck the particular goods to and from designated places, such owner was held to be responsible for negligence of such drivers.*^ It appeared that appellant had an oraL agreement to furnish trucks and dtivers to deliver platforms of the Otis Company to various buildings under construction, for which appellant was to receive $9: a day for each truck and driver. The Otis Company was accustomed to call in advance on appellant's office for the number of trucks required, and the following day the trucks would proceed to the designated freight railroad station, where they would meet the superintendent of the Otis Company, who would give the different drivers the slips indicating the goods wjhich the, men iwould then load upon their trucks. Appellant's president, testified that the unloading was done by the Otis Company, although he had never instructed appellant's drivers not xto assist in such un- loiacling. If the Otis Company were dissatisfied with any driver^ that appellant would transfer him to other work, or discharge him. The drivers were told to return to appellaiit's stables^ when the Otis Company work was finished. Superintendent for the Otis Company, testified that on this day he had giveh Ta vis his load, also the receipts ; that he had not given the drivers any insfruclions as to unloading; that it was the duty of the Otis Company to un- load these platforms at their destination. Other testirtiony from the Otis Company was to the effect that it was not custoniary for the drivers to assist in unloading. Mr. Tavis, the driver in ques- tion, testified that he never had received' instructions from appelr lant's superinterident to unload platforms, but if, at the destina- tion, hands were short, he assisted in unloading; that on, this occasion there were two men short; when delivering goods to other customers than the Otis Company, that he always unloaded the trucks. IJe had also unloaded from his truck other goods than platforms for the Otis Company. Held, that the driver was the servant of appellant, and not of the Otis Co., while assisting to unload certain platforms which had been hauled for the Otis Co.*'' 4lSpellacy v. Hagerty M. T. Co., 182 ^^Nauyoks v. Otis Elevator Co., 176 N. Y. Supp. 355 (1920). To same ef- App. Div. ,623, 163 N. Y. Supp. 43C feet, Norwegian News Co. v. Simko- (1917). vitch, 182 N. Y. Supp. 595 (1920). LIABILITY OF OWNER 104S At the time of the accident complained of, a Mr. Barnes, a potato grower in Eastern Washington, had by agreement with appel- lant engaged a motor truck and driver from him to be used in the delivery of potatoes from the car or warehouse to various retail dealers in the city, who had purchased from Barnes under con- tracts requiring the delivery of the potatoes at the places of business of the several purchasers. Barnes agreed to pay appellant a cer- tain sum per hour for the services of the truck and driver, and the work was carried on by Barnes meeting the truck and driver at the appointed time at the car from which the potatoes were be- ing unloaded, or going to appellant's warehouse and there waiting for the truck to come in, and going thence with the truck and driver to the car. After Barnes and the driver had loaded the truck from the car, or warehouse, Barnes would give the driver instructions as to the places of delivery, and both would proceed with the truck to make the deliveries with as little loss of time and by the most direct and effective route that the knowledge of locations possessed by either would permit. Barnes did not operate the truck, nOr give directions as to the speed, such matters being left entirely to the driver, and, except to see that it reached the places where de- livery was to be made, as expeditiously as might be, assumed no control over it. On January 2 6,, 19 18, while so engaged, and after completing the delivery of potatoes from the truck to a retail mer- chant in West Seattle, Barnes returned to the truck ahead of the driver, and found respondent, an infant not then six years Of age, on the running board of the truck. In response to an inquiry by Barnes, respondent announced his intention or desire to take a ride. Mr. Barnes said, "No, you can't, Sonny," or words to that effect, and picked the child up and set him off in the street. Barnes then mounted the truck to his usual place on the right of the driv- er, and was followed by the driver, who immediately put the truck in motion, and they proceeded on their route. Held, that the evidence was not such that it could be said as matter of law that the driver was in the exclusive control of Barnes as his servant, and that the facts warranted a finding that he was the owner's servant.*^ Where a truck bore defendant's name, was its property, and con- tained its goods, that it was leased for a week to another did not 43 Macale v. Lynch, — Wash. — , 188 Pac. S17 (1920). 1046 LAW, OF AUTOMOBILES relieve • defendant, as matter of Jawj of liability for the negligence of the chauffeur ; the question being for the jury.** An express company hired an autorriobile from the owner for the purpose of delivering packages, the owner furnishing the chauf- feur whose sole duty it was to operate the automobile — a servant of the express company accornpanying the chauffeur and attending to the packages. On the return to the express company's office after making a trip, the chauffeur informed the person in charge of the express office that there was trouble with the machinery of the automobile. The chauffeur then left, either to take the automobile to the owner's office, or to go to his lunch, and on the way ran over and fatally injured a person. It was declared that the express company was not responsible for such injuries because the chauf- feur was not the company's servant at the time.*^ - In an action against defendants to recover for injuries caused by a motor truck then in their service, it appeared that the truck and driver were furnished by a company for a certain weekly sum; that defendants did not employ the driver, nor pay him, and had no right in regard to his selection, and that from time to time the owner of the truck sent different chauffeurs; that defendants merely indicated where the driver was to gO' to deliver or receive goods; that defendants sent with the truck two employees, who had no duties, except to load and unload merchandise. It did not ap- pear that the defendants exercised any control over the driver^ or that the latter had any duties to perform, except to operate the truck. Held, that the driver was not a servant of defendants, and that they were not liable for the negligent operation of the truck by'him.*« § 1115. Letting car under agreement that owner shall be liable for driver's acts. Where an owner let his car for hire to orie whose servant drove the car, the owner was not liable for the driver's acts, although he niay have assented to a statement of the hirer that' he (the owner) would have to be responsible for the driver; such being insufficient to make the driver a servant of the owner, the two never having conycirsed with each other, and the driver knowing nothing about the terms of hiring.*'' **Lj9rpnzo, V, Manhattan Stqam Bakr Howard v. Ludwig, S7 App. Div. 94, ery, 178 App', Piv. 706, 16S N. Y. Supp. 171 N. Y. 507. 847 (1917).' ' "' ' MWaldman v. Picker Bros., 140 N. *6Bohan v. 'Metropolitan Express Co., Y. Supp. 1019 (1912). 122 App. Div. 590, 107 N. Y. Supp. 530. 47 Melcliionda v. American Locomo- See also, Baldwin v. Abraham, 57 tive Co., 229 Mass. 202, 118 N. E. 265 App. Div. 67, aff'd 171 N. Y. 677; (1918). LIABILITY OF OWNER 1047 § 1116. Employee of repairman making trip for owner while testing truck. A garageman made some repairs on a truck, and then ordered his mechanic to. drive the truck in order to determine whether it worked properly. While making such test, the me- chanic delivered a load for, the owner at th^ mechanic's suggestion that he wanted to test the truck while loaded. The owner told him where to deliver it, and while so engage4 he negligently; injured the plaintiff. Held, that the garageman was liable for the mechan- ic's negligence.** § 1117. Chauffeur doing work for atiother employee. Where the practice of the operator of an automobile to haul goods for employees of his employer^ when not engaged in hauling for the employer, was known and approved by the latter, the ' operator was engaged in the scope of his employment by such employer while hauliilg an article for a foreman, who had the right to use the em- ployer's cars at any time when it did not interfere with the employ- er's business.*® Where a servant employed as a driver of defendant's automo- bile tinick was directed by his superior to bring to defendant's re- pair shop, for repairs, an automobile owned by a fellow employee, and while towing such machine plaintiff was injured through the negligence of the truck driver, it was held that the truck driver was acting within the scope of his employment as a servant of de- fendant at the time, although defendant charged its employee only the actual cost of repairs.*" A chauffeur was held not to be within the scope of his employ- ment while delivering a barrel of apples to the home of a fellow employee, which the latter had kept for a time in the. employer's refrigerator.*^ DEALER FUR^fISHING CHAUFFEUR TO DEMONSTRATE CAR OR TO INSTOUCT PURCHASER § 1118. Furnishing chauffeur to instruct purchaser. Where a dealer sells an automobile and as part of the contract of sale, or as an inducernent to bring about the sale, or where he promises before the sale that if the prospective purchaser buys a car from 48 Muroy v. Tarulli, 190 App. Div. 167 Cal. 500, 140 Pac. 25, 6 N. C. C. A. 637, 180 N. Y. Supp. 427 (1920). 371n (1914). 49 Studebaker Bros. Co. v. Kitts, — ^1 Ostrander v. Armour & Co., 176 Tex. Civ. App. —, 152 S. W. 464 (1912). App. Div. 1S2, 161 N. Y Supp. 961 60 Chamberlain V. Southern C. E. Co., (1916). 1048 LAW OF AUTOMOBILES him, that he will furnish an instructor to teach the pmrchaser to operate the car, such instructor, while engaged in teaching the pur- chaser to operate the car, is ordinarily a servant of the dealer, who is responsible for the negligence of the instructor during such time.*^ In the absence of an agreed period of time during which such instructions are to continue, it will be presumed that they are to continue for a reasonable time, having in view the difficulty or ease with which a person of ordinary intelligence could learn to opei:- ate an automobile. The purchaser is not bound by any' secret in- structions given by the dealer to the instructor regarding such period of instruction.** This rule is not affected by the purchaser requesting the in- structor to speed the car in order to demonstrate its swiftness to a friend. In such a case the purchaser was held not to take upon himself the risk of the instructor's negligence in operating the car in such a manner as to cause a wreck, as the purchaser could not anticipate that he would be negligent.** Although the order for the machine in question was in writing arid signed by both seller and buyer, oral testimony is admissible to prove that the seller agreed to furnish the buyer an instructor to teach him to operate the car ; a fact not contained in the written order.** Where, at the time of an accideint, the buyer was at the wheel in active control of the car, but the instructor furnished by the seller was in control of and supervising its operation, it is generally for the jury to say whether the negligence of the buyer or the in- structor was the efficient cause of the injury.*® Actions were brought against the defendants, the Autocar Co. and the White Co. on account of injuries inflicted upon the minor plaintiff by the negligent operation of a motor truck belonging to the latter company, and the facts appeared as follows: The Auto- car Co. sold to the White Co. two motor trucks, and agreed as a part of the contract to furnish with each for seven days without 82 Dalrymple v. Covey Motor Car 63 Buick Automobile Co. v. Weaver,, — Co., 66 Oreg. S33, 135 Pac. 91, 48 L. Tex. Ctv. App. — , 163 S. W. 594 (1914). R. A. (N. S.) 424 (1913), quoting from 54 Buick Automobile Co. v. Weaver, this work; Holmboe v. Morgan, 69 Oreg. — Tex. Civ. App. — , 163 S. W. 594 395, 138 Pac. 1084 (1914); Burnham v. (1914). Central Auto. Exchange, — R. I. — 65 Holmboe v. Morgan, 69 Oreg. 395 (1907), 67 Atl. 429; Buick Automobile 138 Pac. 1084 (1914). Co. V. Weaver, — Tex. Civ. App. — , 56 Holmboe v. Morgan, 69 Oreg. 395, 163 S. W. 594 (1914). 138 Pac. 1084 (1914). LIABILITY OF OWNER 1049 CQst a chauffeur, who was a thorough mechanic and who would instruct the men of the White Co., and to "garage" the trucks, including the making of all ordinary repairs, for 12 months. The contract was in writing. During the seven-day instruction period chauffeurs took the trucks from the garage of the Autocar Co. to the stable of the White Co. where one of its men boarded each of the trucks, which thereafter were used in the delivery of goods of the White Co. until the end of the day, when the men of the White Co. left, and the trucks were then driven from its stable to the garage of the Autocar Co. by the chauffeurs. During the day the employees of the White Co. gave directions as to streets and houses to which the trucks should be driven in the delivery of goods, but the manner and speed of driving was wholly within the control of the chauffeurs, who were skilled mechanics in the general employ of the Autocar Co. On one of the journeys from the garage of the Autocar Co. to the stable of the White Co. during the seven-day period, and when the chauffeurs employed and paid by the Autocar Co. were alone on the trucks, the plaintiff was injured. It was held that the Autocar Co. alone was liable for the injury^ It was also held that evidence that bills were rendered by the Auto- car Co. for services of chauffeurs after the seven-day period, and these bills covered the entire period with a credit "less 7 days no charge," and contained a clause that, "Cars operated by our em- ployees only at owner's risk," was properly excluded, as no such provision was referred to in the contract between the parties.®' § 1119. Taking car through congested part of city for pur- chaser. The plaintiff brought suit to recover for personal injuries inflicted by an automobile operated by an employee of the defend- ant. It appeared that the defendant was engaged in the automobile business, and a few days prior to the accident sold the car in ques- tion to a customer; that in accordance with the arrangement, an employee of the company, two days before the accident, gave the purchaser instructions as to running the automobile; that on the rnorning in questioii the purchaser came to defendant's garage to take the car away, and defendant's head salesman directed the same chauffeur who had given instructions to the p;urchaser, to take the car through the populous part of the city, as the purchaser had no experience as a driver, after which it was intended that the pur- chaser should take charge of the car himself; that on the way the chauffeur negligently injured the plaintiff; that the chauffeur was 67Tornroos v. White Co., 220 Mass. 336, 107 N. E. lOlS (191S). 1050 LAW OF AUTOMOBILES employed in tJiat capacity and as garage-hand, and generally unloaded cars when received and' took them to the garage, drove ears to and from the garage nights and mornings, and at different times took parties out, and also instructed purchasers in the opera- tion of cars and had the general handling of the latter as a rule. He testified that his object in going with the purchaser that morning was "simply to take the car through the city and to get him over to the East Side, out of town, where he could go from there by himself y because I refused to let him drive through town alone;" that at the time of the accident the owner was sitting in the front seat with him; that defendant's salesman also gave instructions as to operating' carS; ' The jury found that the chauffeur at the time of the accident was engaged in doing the 'work of the defendant, and judgmient entered on their verdict in favor of the plaintiff was affirmed." ,. §1120. As mere accommodation to purchaser. A dealer in automobiles went to the defendant's plant and purchased and paid for an autoniobile; vfhich he expected to sell to a man who accom- panied him,,; He was an experienced driver, but when he, paid for the car he asked the. salesman if he could have a driver to take f hem to the city limits; as the dealer expected to- drive the car to the small town where be lived. He testified that, while he was an experienced driver, he was not familiar with the ,city streets, and for that reason asked for a driver; that he had made this request when he had purchased cars before, and as a matter of accommo- dation defendant had sent a man with him, and upon reaching the citj^ limits he himself would take the calr and go on. A regular employee of defendant, serving as repairman, tester and demon- strator, was instructed to drive the car to the city limits, turn the car over to the iheii, and return on a street car. While this employee was driving the car, Jie collided with' and injured a pedestrian. Attached to the car was a card marked with the license number registered for the defendant under the motor vehicle law of that stkte. It appeareid to be the custom of defendant to mark its license number on pasteboard tags and put them on cars, having as a manufacturer but one regular license number on a metal plate issued by the state. These tags were sOttietimes left upon cars when sold and driven away, if the purchaser wished, until he could secure a license for himself. BSDalrymple v. Covey Motor Car R. A. (N. S.) 424 (1913), citing this Co., 66 Oreg. S33, 135 Pac. 91, 48 L. work. LIABILITY OF OWNER IQSl It was held that the employee was not acting as a servant of defendant at the tintie of the accident; that the presence of the license number on the car under the circumstances enumerated raised no inference against such employee acting in the capacity of servant for the purchaser of the car. In part the court said: "In the instant case there was no agreement or suggestion, as a part of the negotiations and purchase, that the motor company should assume, or undertake, any instructions to the . purchaser relative to operating the car, or to see that when it left the salesrooms it was properly run for any length of time, or to any place. He was a dealer in cars himself, experieiiced in their j use, and fenewi what was necessary. The deal was closed, he had his receipt, i and; the car had been delivered to him at: the time he asked i for th6 accom- modation." ®® . § 1121. Salesman demonstrating automobile. One B. was employed by defendant as salesman and to demonstrate automo- biles, it being his duty to take cars on the street and "to demon- strate them" only" when directed"^ by the general manager. In the present instance he had authority to take a car i out. for that pur- pose, but he was ordered to do his best not to keep it out after one o'clock. No directions were given as to route or distance to travel. During the demonstration B., with the customer and a companion of the latter drove to a place where! they indulged to some extent in intoxicating liquor, and on the return trip a colli- sion occurred with plaintiff's rriachine. The jury could have found that the accident happened while the return trip was ' being made by the most direct route to defendant's garage, where it would have arrived by one o'clock if the collision had not occurred. Held, that the jury properly found that B. was acting as defendant's servant.^" ' ; , - § 1122. Returning' from making demonstration. Whet-e de- fendant automobile sales company's car was being driven )by one of its salesmen, and there was evidence that he was .returning from making a demonstration of the car to a prospective pur- chaser within territory in which he was permitted to make sales, the question whether or not he was acting for defendant at the time was for the jury.^^ 69 Janik v. Ford Motor Co., 180 Mich. 61 Auto Sales Co. v. Bland, — Tex. 557, 147 N. W. 510, 6 N. C. C. A. 36Sn, Civ. App. — . 194 S. W. 102,1 (1917). 52 L. R. A. (N. S.) 294 (1914). 60 Hoffman v. Liberty M. Co., .— Mass. — , 125 N. E. 845 (1920). 1052 LAW OF AUTOMOBILES §1123. Demonstrator permitting prospective purchaser to crank car. The defendant sent an automobile in charge of a demonstrator in an attempt to effect a sale of a car to the plain- tiff. At a time when the demonstrator found that the automobile would have to be cranked in order to start, and so expressed him- self, the plaintiff inquired, "Can I do it for you?" to which the demonstrator replied, "Yes; anybody can crank a car." The plain- tiff thereupon, to learn how to crank a car, attempted- to do so, and the crank "kicked back" and broke his arm. It was conceded that the process of cranking an automobile is a dangerous one, on account of the likelihood of the crank flying back, and the demon- strator did not warn plaintiff of the danger nor jnstruct him how it should be done, although he knew that plaintiff was ignorant of the process. It was held that the plaintiff was an invitee in attempting to crank the car, the demonstrator having implied authority to permit and invite him to crank it, and judgment in his favor was affirmed.®^ §1124. Operated by employee of prospective purchaser under control of demonstrator. Where an automobile truck was on a demonstration trip in charge of the selling agent, to > make a delivery of groceries for the prospective purchaser, a groceiy- man, the latter having instructed the agent to show his employee how to run the machine, and "all about it," as he was "the man who would run it" if purchased, and while the employee of the grocer}nnan was driving the truck he injured a pedestrian, it was held that the question whether the employee was acting at that moment in the capacity of servant of the groceryman so as to render the latter liable for his negligence was properly submitted to the jury. The jury's finding that he was so acting was accord- ingly upheld.®^ § 1125. Demonstrating car by delivering goods for prospec- tive purchaser. Where, for the purpose of demonstrating a motor truck to a prospective purchaser, a sales company sent the truck and a driver to deliver goods for the prospective purchaser, an employee of the latter accompanying the driver to direct him over the route and where to stop, the driver was not a servant of the prospective purchaser, and the latter was not liable for his negligence.^* 62 Martin v. Maxwell-B. M. V. Co., 6* McGuire v. Autocar Sales Co., ISO 1S8 Mo. App. 188, 138 S. W. 6S (1911). App. Div. 278, 134 N. Y. Supp. 702 SSHammons v. Setzer, 72 Wash. SSO, (1912). 130 Pac. 1141 (1913). LIABILITY OF OWNER 10S3 § 1126. Seller's employee permitting employee of prospec- tive purchaser to drive car. The owner of an automobile sent it to an auction company to be sold, arranging to send bjs >ahauf- feur to demonstrate the car whenever called on the phone to 4o so. A prospective purchaser saw the car, and sent jiis employee to look at the engine, with a view to buying the car if the report on the engine was satisfactory. After the employee finished his inspection of the engine, an employee of the auction company sug- gested that they secure a demonstration of the car, ^hich was arranged. The owner's employee came and tqok the car out. .to demonstrate it; the prospective purchaser's employee sitting beside him on the front seat, and the employee of the company occupy- ing the rear seat. While on the trip the employee of the auction company suggested that it might be well to let the prospective pur- chaser's employee drive the car for a while. This being acquiesced in by the other two, the suggestion was followed, and while the employee of the prospective purchaser was operating the car, he negligently injured the plaintiff. Held, that the owner of the car was liable, as the act of his employee in permitting the other to drive the car was in the scope of his employment in demonstrating the car; that the prospective pnrchaset was not liable, because his employee was instructed merely to look over the engine, and his acts in riding in and driving the car, both of which: were done at the suggestion of the other employees, was beyond the scope of his employment.®* § 1127. Owner driving car while mechanic listens to engine. An automobile dealer ordered a car for a customer,' and when it arrived he supplied it with gasoline, oil, water, and air, inspected and tested it, dui-ing the fprenoon. That afternooiji the owner came for the car, paid for it, declined assistance in operating it, because he had had experience, and drove away. About an hour later he returned for someone to go with him to listen to the work- ing of the car, see if it was running properly, and if it was not, to make the necessary adjustments. An employee of the sellpr who was a machinist, and not a demonstrator or teacher, got into the car for this purpose only, and the owner started for a certain school to get his daughter. On the way, the owner driving, the car collided with and injured the plaintiff. It was held that the owner was in no sense a servant or agent of the seller, who could exercise no control over him, and that the seller was not liable to plaintiff for his injuries.®® 65 Wooding V. Thom. 148 App. Div. 66 Keck v. Jdnes, 97 Kan. 470, ISS 21, 913, 132 N. Y. Supp. SO (1912). Pac. 950 (1916). 1054 LAW OF AUTOMOBILES BORROWER AND HIRER § 1128. Owner not liable for acts of borrower or hirer. The liability of one person for the negligence of another depends upon the contractual relation between the two of master and servant. In the absence of such, relation no one can be held responsible for the conduct of another. Consequently, the owner of an auto- mobile is not liable for an injury to a third person due to the neg- ligent operation of his automobile by one to whom he has loaned the machine,®'' although he is riding in the machine with the bor- rower.®* However, it has been held, that where the owner lends his machine and becomes a passenger in it, it is his duty, if possi- ble, to prevent such persdn driving at a reckless speed .®'^ , _j The , same jTijle applies where the owner, lets his machine, with- put more, for hire,®^ ^nd where heUends both his car and chauf- feur, to another.'''* Thfe defendant owned an automobile which he kept at a garage under an agreement whereby the garageipan stored, cleaned, and kept 'inf readiness the machine, furnishing gasoline, oil, and extras therefor, for a stated monthly sum. The garageman also furnished a chauffeur to operate the car; this particular man being subject to defendant's^ call at all times. The defendant paid the garage- ^1 Alabama: Beville v. Taylor, — Nebraska: Neff v. Braiideis, 91 Neli. Ala. — /80'So. 370 (1918)j, .' "~ ' ■11, 135 N. W/232, 39 l' R. A. (N. S.) Calijornta: Hall v.ijPjiente Oil Co^, '933 (1912), citing this' work, — Cal. .App. — , 191 Pac. 39 (1920), New Jersey: Doran v. Thomsen, 74 citing this, work;' Brown v. Chevrolet N. J. L. 44S, 447, 66 Atl. 897. Motoi: Co:,'^— Cal. App. — , 179 Pac. 697 New York: Limbacher v. Fannon, (1919), citing this work. 102 Misc. 703, 169 N.Y. Supp. '490 Georgia: Lewis v. . Amorous, 3 Ga. (1918). App, SO,, 59 S. E. 338. 68 Zeeb v. Bahnmaier, 103 Kan, S99, , Illinois:,^ Arkin v.Page, 287 III. 420, 895, 176 Pac. 326, 2 A. L. R. 883 (1918),; 'i23' n]'E..'30,. S, A. L. R. 216 (1919). Hartley v. Miller, 165 Mich. 115, 1.30' N. '" ifawios.-'^Halverson v. Blosser, 101 W. 336, 33 L. R. A. (N. S.) 81 (1911)"; Kan. 683, 168 Pac; 863 (1917). Virginia R. & P. Co. v. Gorsuch, 120 Louisiana: MaruUo v. St. Pasteur) Va. 655, 91 S. E. 632 (1917). 144 La, 926, ,81 So. 403 (1919). 68a Randolph v. Hunt, — Cal. App. — , Massachusetts: Q^Rourke v, A-G 183 Pac, 358 (1919). ^ .Co., 232'j Mass. ',129, 122 N.' E. 193 • 69phillips v. Gookin, 231 Mass. '250, ■(l91^);"'Marsar''v. Hickey, ' 225 Mass. 120 N. E. 691 (1918). ' ' 170, '114 'n. E. 301 (1916); Hetlihy' v. ' 70 Dunmbre v. Padden; 262 Pa. St. Smith, 116 Mass. 265. ., 436, 105 Atl. 559 (1918). iMissQuri: Allen v. Coglizer; ^ ^ Mo. >, App. —, 208 S. W. 102 (1919). . ,;•, LIABILITY OF OWNER 1055 man a fixed amount monthly for the services of the man. On the day in question the defendant's brother borrowed ' the car 'and chauffeur, the defendant having nothing to do with the trip, an3 while returning to the garage after haying driven the , brother, ,the chauffeur collided with the wagon in which the plaintiff was riding and the latter was injured. It was held that at the time of the accident the chauffeur was not acting as the servant of the defend- ant, and judgment against the defendant was reversed.'^ ' However, even although an automobile may be loaned to another, and is performing services for him alone, the oWner may b.^ held responsible for its negligent operation if his chauffeur aloiie had full edntrol of the actual management of the car, and the borrower in no way directed or interfered with such management.''® Where two brothers, owners of automobiles, agreed that either could use the car of the other as he desired, the owner was hot liable for injuries occasioned by the negligent operation of his c^r while it was being used by his brother solely about the latter's business; and the fact that the owner's chauffeur was operating the car did not render him liable.''* The fact tiiat the owner's son was riding with the borro'wers of his father's car at their" invitation, and was operating the ' car at the time an accident occurred, did not render the owner liable therefore.''* ' ' '""' Where an automobile had been repaired and returned to the owner, who permitted it to be used in taking the repairman back to his garage, the owner's son accompanying him, it was held that the machine was not being used in the owner's business.''* The owner is not liable for the negligence of One to whom his salesman had loaned his car.''® The owner of ^n automobile who lends it to anothe;r,, is not liable to a -guest of the latter for injuries; he not having undertaken to transport such guest.'''' §1129. Same— Statutory liability. An owner was held lia- ble for negligent injury caused by his car while it was being driven TlNeff' V. Brandeis, 91 Neb. 11, 135 76 Martin v. Lilly, — Ind. — , 121 N. N. W. 232, 39 L. R. A. (N. S.) 933 E. 443 (1919). (1912). 76 Quirk v. Worden, 190 App. Div. 72 Cowell.v. Saperston, 149. App. Div. 773, 180 N. Y. Supp. 647' (1920). 373, 134 N. Y. Supp. 284 (1912). 77 Kennedy v. R. & L. Co., 224 Mass. 73Freibaum v. Brady, 143 App. Div. 207, 112 N. E. 872 (1916). 220, 128 N. Y. Supp. '121 (1911). - 74 Halverson v. Blosser, 101 Kan. 683, 168 Pac. 863 (1917). 1056 LAW OF AUTOMOBILES by a borrower, under a statute making the owner liable for any injury caused by the negligent operation of his car when being driven with his express or implied consent or knowledge.''* § 1130. Chauffeur or other employee as borrower. Achauf- fejir may borrow, his employer's automobile for use about his own affairs, or about the business of another; and while he is so using the car his employer is not liable for his conduct, negligent or otherwise.''® The ov,ner may lend his automobile to his chauffeur with the sanae ipmunity from liability for the latter's conduct as when he lends jt to any other person, provided the chauffeur uses the car for purposes not connected with the affairs of the owner.'" So, the owner was not liable where, when the injury occurred, his car wa,s being used by his chauffeur for the sole purpose of taking his (the chauffeur's) family for a ride, with the consent of the ov\rner." / , , jhe mere fact that the relation of master and servant exists does not render the master responsible for the acts of the servant done while usin^ an automobile borrowed from the master but being used on a private enterprise of the servant.'^ '* Stapleton v. Independent Brewing Co., 198 Mich, , 170, 164 N. W. S20 (1917). ' TS California: Brown v. Chevrolet Motor Co.) — Cal. App. — , 179 Pac. 697 (1919), citing this work. Michigan: Brinkman v, Zuckerman, 192 Mich. 624, 159 N. W. 316 (1916). Minnesota: Menton. v. Patterson Merc. Co., — Minn. — , 176 N. W. 991 (1920); Mogle v. Scott Co., — Miriii. — , 174 N. W. 832 (1919). New York: Ostrander v. Armour & Co.; 176 App. Div. 152, 161 N. Y. Supp. 961 (1916) ; Bogprad v. Dix, 176 App. Div. 774, 162 N. Y. Supp. 992 (1917); Davies v. Anglo-American Auto Tire Co., 145 N. Y. Supp. 341 (1913). Pennsylvania: Hannis v. Driver, 68 Pa. Super. Ct. 548 (1917) ; Overland Motor Co. v. Goodman, 62 Pa. Super. Ct. 622 (1916); Scheel v. Shaw, 60 Pa. Super. Ct. 73 (1915). 80 Fielder v. Davison, 139 Ga. 509, 77 S. E. 618 (1912). "The law does not prohibit the owner of an automobile loaning jt to his chauf- feur, or to any one else, for any lawful purpose, and he is not liable for dahiages raused thereby when in use by his con- sent on the business or pleasure of others." Bogorad v. Dix, 176 App. Div. 774, 162 N. Y. Supp. 992 (1917). 81 Scheel v. Shaw, 252 Pa. St. 448, 97 Atl. 684 (1916). / ^^ Michigan: Eberle Brewing Co. v. Briscoe Motor Co., 194 Mich. 140, 160 N. W. 440 (1916). Missouri: Calhoon v. D. C. & E. Min. Co., — Mo. App. — , 209 S. W. 318 (1919). New York: Fallon v. Swackhamer, 226 N. Y. 444, 123 N. E. 737 (1919); Stenzler v. Standard Gaslight Co., 179 App. Div. 774, 167 N. Y. Supp. 282 (1917); Cunningham v. Castle, 127 App. Div. 580, 111 N. Y. Supp. 1057. Washington: Lloyd v. Northern Pac. R. Co., 107 Wash. 57, 181 Pac. 29, 6 A. L. R. 307 (1919). LIABILITY dF OWNER 1057 Where the owner of an automobile permitted a designer in its employ to use the car, upon the request and for the sole purposes of the designer, the owner was not liable for the latter's negligent operation of the car.** But where a chauffeur, while acting within the general line of his authority, used the automobile for his own purposes, with the acquiescence of his employer, and injured a person, the employer's liability was held to be for the jury under proper instructions.** §1131. Same— Illustrative cases. An pil company, which lent to its salesman an automobile for use in covering his territory, and which penriitted him to use the car evenings for his personal pleasure, was not liable for the negligence of such salesman while he was using the car one evening purely for his own pleasure.** The act of an employee in borrowing a car from another to con- vey a salesman of the employer to the latter's plant, there being no evidence .that either was about the employer's business, did not render the employer liable for his acts.*® Where the owner lent its automobile to its employees to attend a picnic, the fact,^that its superintendent ordered the driver to take two men to their homes, was not such a resumption of control by the owner as to render it liable for the driver's acts while so doing.*' The fact that an accident happens while' the chauffeur is return- ing the car to its place of lodgment, does not change the status of owner or borrower, and a general instruction to return the car cannot be regarded as a specific direction from the owner plac- ing the car under his control. So, where the chauffeur takes the car on an errand for the owner, and after he has completed such errand, takes the car under a general permission to use it when not engaged for the owner, and drives it exclusively on his own 83 Siegel V. White Co., 81 Misc. 171, ed by the trial court, would render the 142 N. Y. Supp. 318 (1913). owner of a shotgun liable for the act 84 Anderson v. Southern Cotton Oil of one to whom he had loaned it for,, Co., — Fla. — , 74 So. 975 (1917). use on a hunting trip and due to whose 85 Hall V. Puente Oil Co., — Cal. negligent use thereof he .had shot an- App. — , 191 Pac. 39 (1920). other." Hall v. Puente JOil Co., — Cal. "We are unable to draw any distinc- App. — , 191 Pac. 39 (1920). tion between a case where the use of 86Eberle Brewing Co. v. Briscoe the car by a servant for his own pur- Motor Co., 194 Mich. 140, 160 N. W. pose is without the master's consent and 440 (1916). that where such use is permissive. Car- 87stenzler v. Standard Gaslight Co., ried to ifs logical conclusion, the con- ,179 App. Div. 774, 167 N. Y. Supp. 282 tention of respondent, which was adopt- (1917). B. Autos.— 67 1058 LAW OF AUTOMOBILES business, to a number of places some distance apart, and in a di- rection opposite to that where the garage is located, the owner will not be liable for the negligent act of the driver committed while the latter is driving the car to the garage.** The mere fact that a demonstrator was returning to the garage a machine, which his employer had permitted him to use /in his personsil affaiirs, did not rende^ the employer liable for his acts of negligence.*® Where an automobile was damaged by the negligence' of a third person while it was being used by a servant of lie owner, with the owner's consent about the affairs of the servant, the negligence of the servant was not imputable to the owner.'" . § 1132. Car borrowed by committeeman to transport politi- cal speaker. An automobile was negligently backed against plaintiff's team, causing him to be injured, and he broiight suit against H., the chauffeur, and against the occupants, W. H., J. H., and G. It appeared that one M. was the owner of the car, and that H.- was his regularly employed chauffeur; that W. H. had requested M. to lend the car to him to carry G., a political speaker to several places where G. was to make speeches, and his request was granted, with the understanding that ^. H. would furnish and pay for a chauffeur and gasoline, there being no charge made for the car; that J. H. was also interested in the political campaign; that he spoke to M. about the car, and M. told him that W. H. had asked for the car and that J. H. could go with him; that J. H. secured the services of H., the chauffeur, to make the trip, for which he afterwards paid him; that W. H., who was present when the car reached the town where G. was met, put the car, as he stated, in G.'s' charge when he left the hotel, and "the car was for his use, and to be returned when he got through with it, at the end of his tour, the way I understand it." H. was driving the car when it was backed against plaintiff's team. It was held, that W. H. and J. H. were liable for the injury, and judgment was ren- dered against them in favor of the plaintiff, and in favor of defend- ants H. and G." In passing on the liability of the two defendants against whom SSHannis v. Driyer, 68 Pa. Super Ct. Wash. S7, 181 Pac. 29, 6 A. L. R. 307 S48 (1917). (1919). 89 Van Cleave v. Walker, — Tex. »! Pease v. Gardner, 113 Me. 264, 93 Civ. App. — , 210 S. W. 767 (1919). Atl. SSO (191S). 80 Lloyd V. Northern Pac. R. Co., 107 LIABILITY OF OWNER 1059 judgment was rendered, the court in part said: "So far as this trip was concerned, the original master, M., was as a stranger, and the new masters, W. H. and J. H., not only had the right to exer- cise control over the chauffeur but actually did exercise it. JH., for the time being, was their chauffeur wliom they could retain or discharge at will, and who was in charge of a car over which they had the temporary right of possession. He was conveying their invited g^uests, and the fact that the guests were allowed by the new master to choose the route which they should travel did not take away the legal right of control existing in such masters. H. still remained their servant, and for his negligent acts while thus employed they were legally liable." In this case W. H. and J. H. sought to avoid liability on the ground that they were themselves only agents, W. H. being a mem- ber of a state political committee and J. H. being a member of a town political committee, for which they claimed to act; their defense being that an agent is not ordinarily liable for the acts of a subagent. "The folly of this proposition," said the court, "lies in the fact that these two men were not agents, but were members of a larger body and principals in themselves. They were carry- ing out no orders from a superior authority, but were acting on their own initiative in forwarding the campaign. They each had associates and equals in their work, but no superiors, and so far as the transportation of speakers was concerned, there is nothing to show that each did not have absolute authority to conclude all necessary arrangements." §1133. Family car, borrowed by campaign committee, driven by owner's daughter. On the day of an election a cam- paign committee requested the use of defendant's automobile for the afternoon. The defendant, who had purchased the car for the use of his family, consented that the car, driven by his 16 year old daughter, be so used. The daughter reported with the car to the committee, who gave her names of persons to go after, and while on her way, as thus directed, she collided with and injured the plaintiff. Held, that the owner of the automobile was not liable.®^ § 1134. Liability of borrower. A borrower is liable for the negligence of his chauffeur in the operation of the borrowed car, although he is not riding in it.^' 92 Stafford v. Noble, 105 Kan. 219, 98Hobbs v. Hurley, 117 Me. 449, 104 182 Pac. 650 (1919). Atl. 815 (1918). 1060 LAW OF AUTOMOBILES MISCELLANEOUS §1135. Mechanic employed to repair automobile. ,Where an owner places his car in the hands of a mechanic to be repaired, paying him therefor, but exercising no control over the work, the .owner is not liable for the negligent injury of a person by the mechanic while testing the car; the mechanic being an independent contractor.'* The owner of an automobile had used the same for two years and it was in need of overhauling and repair. Work at the factory of the company which made the machinfe being slack, the company told one of its mechanics to go to the owner and perhaps he could get a job. He did so and reached an agreement with the owner to overhaul the car and put it in repair for pay at the rate of $20 a week. The owner told the mechanic thalt if any new parts were needed to order them and charge them to him. .The owner was not a mechanic, and did not know what repairs were needed, but left what repairs were to be made and how they were to be made, entirely to the judgment of the mechanic, to whom he gaVe no directions. The work was done on the owner's premises. After working on the car for about two weeks, the mechanic took it out on the road for a test. On the trip he purchased some small needed piarts, got his luncheon, and then, with several friends went to a certain town in order to further test the car on a hill on that road. On the return trip he collided with the plaintiff's vehicle, which caused the latter to be injured. It was held that the owner could not be held liable for the negli- gence of the mechanic, because the latter was an independent con- tractor.'* § 1136. Garageman demonstrating car left by owner for purpose of sale. Where an owner left his. car with a garageman, 94Segler v. Callister, 167 Cal. 377, and in violation of a municipal ordi- 139 Pac. 819, Si L. R. A. (N. S.) 772 nance injures another while testing the (1914); WooUey v. Doby, 19 Ga. App. car, the owner is not liable in an action 797, 92 S. E. 29S (1917), citing this for damages for the injury, and the fact work. that the owner's driver was, on the invi- "Where the owner of an automobile tation of the repairer, riding in the car delivers it to a mechanic for the purpose at the time of the injury does not alter of repair, and surrenders the entire con- the rule." WooUey v. Doby, 19 Ga. trol of it to him, the mechanic is not App. 797, 92 S. E. 29S (1917), citing the servant of the owner, but an inde- this work. pendent contractor. Where the mechan- 95 Woodcock v. Sartle, 84 Misc. 488, ic, under such circumstances, negligently 146 N. Y. Supp. S40 (1914). LIABILITY OF OWNER 1061 the latter being either a prospective purchaser or a sales agent, the relation of master and servant did not exist between them while the garageman was demonstrating the car.^® § 1137. Employee getting automobile from repair shop. The defendant owned an automobile, which he used in his butter, cheese, and egg business in Camden, N. J. One S. was in his employ as chauffeur, salesman, and collector, and used the machine in his work for defendant. The automobile having gotten out of repair, was sent to Philadelphia^ to the company from which de- fendant had purchased it, to be repaired. On the day in, question this company had promised to have the car ready for use, and to deliver it to a ferry' landing on the New Jersey side of the river. S. was directed by defendant to get the car at the ferry landing, but When he went there the car had not arrived, and he went across to Philadelphia to get it, as he needed it in the defendant's business. As S. had no license to operate a car in Philadelphia, he took with him an employee of the automobile company, who had the com- pany's dealer's license, which was attached to the car. On the way to the ferry the car got out of order, whereupon the employee who was accompanying S. telephoned to the shop of the automobile company, and a mechanic was sent from there with no more definite instructions than that the car had broken down and needed fixing. The mechanic was unable to properly repair it, and "advised," "told," or "ordered" S. to take it back to the shop. S. stated that he did so of his own volition, as representative of defendant. There was no change in the possession or control of the car. S. drove it back to the repair shop, while the mechanic sat on the other em- ployee's lap by the side of S. to listen to the working of the engine. On the way back to the shop S. negligently injured the plaintiff. Held, that whether S. was acting in the capacity of servant for the defendant at the time of the accident was a question for the jury, and a finding that he was nofso acting was sustained.®'' § 1138. Car driven by conditional buyer, title being in seller. The fact that the conditional seller of an automobile, operated by the buyer for hire, retains, the title in his name until the machine is paid for, does not render him liable for the negligence of the conditional buyer.®* 96 Emery v. McCombs, 167 N. Y. »« Coohse v. Bechold, — Ind. App. Supp. 474 (1917). ■ — , 12S N. E. 416 (1919). »7Lane v. Roth, 195 Fed. 2SS, US C. C. A. 227 (1912). 1062 LAW OF AUTOMOBILES § 1139. Gash register sales agent employed on commission driving car in business. A sales agent for a cash register com- pany owned an automobile and employed a man to drive it. He was employed on a commission basis, and made charges for repair- ing cash registers, ptirchasing the required parts from the company. By his contract of employment he was required to devote all of his time to that business; to take orders only on blanks furnished by the company; to make all repairs, certain of which were to be done free of charge' to the customer, while others where charged for; to comply with all rules and regulations made by the com- pany's officers; to employ such salesmen to assist him, and upon such terms and conditions, as the company might require; to sell only for prices established by the company, and to conform to many other requirements that gave the company the right to con- trol his work in detail. It was held that the driver of the sales agent's automobile in delivering a cash register that had been re- paired Was, through the sales agent, a servant of the company, the sales agent being such, and that the, company was liable for injuries negligently inflicted by him in the operation of the machine.^ § 1140. Repairman driving owner's car to repair shop. Where the owner of an automobile, desiring to have some repairs made thereon, and also desiring to go to his club, drove by a gar- age kept by the repairman, took the latter into his automobile, drove to his club, where he turned the automobile over to the re- pairman for him to drive the same back to the garage for the pur- pose of making the repairs, the owner was not liable for injuries inflicted upon another by the negligent driving of the automobile by the repairman on his way back to the garage; the repairman not being a servant of the owner .^ § 1141. Friend of chauffeur driving car to police station for chauffeur after latter 's arrest. Where two friends were rid- ing together in an automobile, which had been loaned them for a 1 Williams v. National Cash Register templated that some kind of vehicle Co., 157 Ky. 836, 164 S. W. 112 (1914). would ' be used in carrying the heavy A similar holding on a state of facts cash registers, and that the fact that it practically the same as those recited in was provided at the expense of the the foregoing Kentucky case was made agent did not make it any less necessary in Lewis v. National Cash Register Co., in carrying on the business, for which 84 N. J. L. S98, 87 Atl. 34S (1913). In the agent had agreed to pay all neces- this case it was urged that the use of sary expenses. an automobile by the agent was not zperry v. Fox, 93 Misc. 89, 156 N. authorized by the contract. The court Y. Supp. 369 (1919). declared that it must have been con- LIABILITY Of OWNER 1063 pleasure ride, when the one who was driving was arrested for speeding, an,d the other then drove the car to the central police station to arrange fqr bail and release of his friend, and on the return trip ran against and injured a woman, the arrested driver was not liable, as the relation of master and servant, or any simi- lar relation did not exist between him and his friend.' § 1142. One volunteering to take car to garage when owner arrested. The owner of an automobile was arrested for careless driving, and while he was in custody one M. came up and stated to the officer that he knew the owner, that he knew how to handle a car and that he would take it to the garage. The officer asked the owner if he knew the man and would let him take charge of the machine, to which he replied in the affirmative. M. then went into the street and started to crank the car, which started suddenly, knocking him down, and the hub of the car caught in plaintiff's dress, causing serious injuiy to her. Held, that the evidence justi- fied a finding against the owner for the acts of M.* § 1143. Car owned by corporation and driven by its presi- dent. The fact that the president of a corporation, engaged in selling automobiles, was driving one of its cars to his home after business hours, and collided with a truck, injuring the plaintiff, was not enough to hold the corporation liable therefor.^ Where, at the time of a collision between an automobile and a bicyclist, it appeared that the automobile was the property of a corporation engaged in the automobile business, and in charge of the president "of the corporation, who was the principal stockholder in the corporation, and who, at the time, was permitting a young lady to drive; that the accident was due to the negligence of the president; that the president boarded at the young lady's home, and was using the car for the purpose of taking the young lady to church, and before going to church they went on a pleasure ride, when the accident happened; that the president had some hope at the time of selling the young lady's family a machine of the kind he was running; that the accident occurred on Sunday; and that the young lady had operated the car in question prior to the accident between 500 and 1,000 miles, it was held that there was no evidence on which the corporation could be held liable for the injury.® 3 Stoddard v. Fiske, — Cal. App. — , S Miller v. National Auto Sales Co., 170 Pac. 663 (1917). ^ 177 111. App. 367 (1913). * Rowand v. Germantown Trust Co., 6 Louisville Lozier Co. v. Sallee, 167 248 Pa. St. 341, 93 Atl. 1070 (1915). Ky. 499, 180 S. W. 481 (1915). 1064 LAW OF AUTOMOBILES § 1144. Oar owned by corporation used by its officers. One cannot recover from a corporation for injuries inflicted by the negligent operation of its automobile, although driven and occupied by its officers, where the car was being used by them for their own personal pleasure.'' § 1145. Car owned by president of corporation and operated by chauffeur employed by corporation. The plaintiff was run into by an automobile driven by a chauffeur, who was the only occupant of the car, which was registered in defendant's name. Defendant denied, however, that the chauffeur was in his employ. The defendant was an employee and director of a corporation, and after , purchasing the car, he arranged with the directors that the car should be maintained and its running expenses paid by the corporation. It was thereafter used for the convenience of the corporation and its officers, and for anything belonging to the cor- poration. The corporation "directors engaged the chauffeur to operate the car; the chauffeur being paid by the defendant but out of corporation funds. The defendant lived in England ; most of the stock of the corporation was owned by him or members of his family; he was president and treasurer of the corporation; had come to this country shortly before the accident, and returned to England shortly thereafter. He bought the car because he wanted to go in it to and from the corporation's mills, and other places. It was agreed upon as fair, between him and the other directors, that he should use the car and take his family about when it was not in use for the corporation, and it nvas used, when the chauffeur drove it, sometimes for the corporation and sometimes 'for de- fendant. There w^s no direct evidence as to the use of the car at the time of the accident, but there was testimony showing the distance it was from defendant's hotel, and the direction it was go- ing with reference to the hotel, and fixing the time of day when the accident occurred. It was held that it was for the jury to say whether, at the time of the accident, the chauffeur was acting for defendant, the corporation, or for himself, and judgment for plain- tiff was affirmed.* §1146. Car owned by corporation and driven by its man- ager. An automobile owned by a corporation, and being driven T Power Y. Arnold Eng. Co., 142 App. 8 Benn v. Forrest, 213 Fed. 763, 130 Div. 401, 126 N. Y. Supp. 839 (1911). C. C. A. 277 (1914)'. LIABILITY OF OWNER 1065 I by its manager, was held to be presumptively , operated in its busi- ness.^ Where a general manager, sales agent and demonstrator of a motor car company was operating an automobile of the com- pany at the time of an accident, it was held that such facts raised an inference that he was acting for the company. It was also held that the fact that he invited persons to ride with him did not alter his relation to the company.^" From the fact that the operator of a racing automobile, which was the property of defendant, was the general manager of the defendant's automobile business in the city in question, and that, with other automobile men in the machine, with whom he had, been in conference, was on the way to inspect the availability of a track for racing automobiles, apparently with a view to a race or some sort of automobile exhibition, the jury were authorized to infer that he was acting within the scope of his employment by the defendant.^^ § 1147. Manager for automobile company testing car for customer. One H. was negligently operating an automobile when it struck and killed the plaintiff's intestate. H. was the New Eng- land manager for an automobile company, and about a year before the time in question had sold this automobile to B., and in th( meantime had had possession of it occasionally for testing and foi minor repairs. B. stored the machine in the company's garage in Boston. One of the ordinary duties of H. was the testing of cars of the company that had been sold to customers. On the morning of the accident B. had trouble operating the engine, at low speed, and he asked H. to drive the automobile from Sharon ~ 9 Grantham v. Ordway, — Cal. App. dence raises a presumption that the J 182 Pac. 73 (1919). chauffeur was engaged in the defendant's "The authority of the master is im- business and acting within the scope of pUed when it is the duty generally of his employment, and the burden then the agent, under the terms of his em- shifted to the defendant to prove that ployment, to drive the automobile, and the chauffeur was not, at the time, act- when the authority, either express or ing for him." Wood v. Indianapolis implied, is proven the presumption is Abattoir Co., 178 Ky. 188, 198 S. W. indulged the employee was on the 732 (1917). master's business. Thus it has frequently 1° Stern v. International R. Co., 167 been held that where it not only appears App. Div. S03, 153 N. V. Supp. S20, that the defendant was the owner of the 9 N. C. C. A. 949 (1915). machine, but also that it was in charge " Pangburn v. Buick Motor Co., ISl of his chauffeur, an employee whose App. Div. 756, 137 N. Y. Supp. 37 duties are to operate an automobile, at (1912). the time the injury occurred, suc;h evi- 1066 LAW OF AUTOMOBILES to Boston, for the purpose of finding out the cause of the trouble and of making the necessary repairs in time to enable him to use it later in the day. B. expected to pay whatever charge should be made by the company for such services. H. drove and had full charge of the automobile from the time that he entered it until the accident occurred. Held, that it was properly found that H. was acting within the scope of his eihployment by the company at the time of the accident.^^ §1148. Car owned by officer of corporation driven by an- other officer. The fact that an automobile, owned by the gen- eral manager and vice president of a corporation, was driven at the time of an accident by the assistant manager, who reported the accident to the owner, was. no evidence that the assistant manager was employed by, or acting for the owner.^' § 1149. Superintendent using employer's car to drive home. Where a superintendent of an exposition company injured a pe- destrian while driving home frorn work in the company's- automo- bile, the company was not liable.^* § 1150. Motor sales agent inviting another to ride, contrary to rule of employer., A sales agent for a motor company invited one who had contracted to buy a car to ride with him as his guest, contrary to a rule of the company that no "employee of the com- pany is permitted to take anyone in a car of the company other than a customer who is being demonstrated a car." Held, that the company was not liable for injury to the guest due to the agent's negligent driving." § 1151. Salesman using car for private purpose. The defend- ant, a Michigan corporation, engaged in the manufacture and sak of farm, machinery, furnished Nichols, its general agent for North Dakota; an automobile to facilitate the discharge of his duties, which he used and operated whenever convenient in his work. After business hours one day, Nichols and one Gregory, general agent for the defendant for the northwest, who was visiting Nichols, took the automobile so furnished by defendant, and started for a neighboring city, on a mission and for a purpose purely personal to themselves, and wholly distinct from the affairs and business of 1« Roach V. Hinchcliff, 214 Mass. 267, Exp. Co., — Cal. App. — , 174 Pac. 101 N. E. 383 (1913). 400 (1918). ISSantoro v. Bickford, 229 Mass. 357, 16 Dearborn v. Fuller, — N. H. -^, 118 N. E. 66S (1918). - 107 Atl. 607 (1919). 1* Mauchle v. Panama-Pacific Int. LIABILITY OF OWNER , 1067. the defendant. On the way they met the plaintiff driving a team of horses to a buggy. Plaintiff's horses became frightened by reason, as alleged, of the negligent manner in which the machine was operated, and ran away, injuring plaiiitiff and damaging his buggy. The defendant was held not to be liable for the wrongful acts of its agents; the same not having been committed in the course of their employment, although the agents were using the instrumen- tality furnished by the master with which one of them performed his duties.^® § 1152. Car kept for salesman operated by bookkeeper. In an action to recover for the death of plaintiff's intestate, who was killed by the negligent operation of an automobile, the plaintiff proved that the automobile was owned by defendant, it having purchased the machine for use by a traveling salesman, who had full charge of its storage in the garage and repairs for it; that one T. was operating the car at the time of the accident; and that T. was an employee of defendant, being employed in its office as book- keeper or general office clerk. The general sales manager of de- fendant, who had charge of its office, and who employed T., testi- fied that T. was employed as bookkeeper and cashier; that his duties were to keep books, take off balances, take care of the office, etc., and that his duties were absolutely in the office. He admitted that he had stated in a deposition that T. had full charge of the office in his absence. The defendant's general manager testified that T.'s duties were entirely in the office. T. testified that he had intended to use the automobile on the afternoon of the day in question on a purely personal mission, and had it brought to the office that morning by an employee of the garage; that when the accident occurred he was driving the car for the purpose of ascer- taining whether it needed any repairs before undertaking the trip in the afternoon. He also stated that on several occasions prior to this one he had used the automobile about his personal ajEfairs without the consent of his employer; that when the manager was not in the office, and people called and asked for the manager in connection with matters he (T.) felt able to handle, he had stated that he was assistant manager. The sales manager was not absent from the city on the day of the accident. It was held that, as it was not shown that T. was employed or authorized to operate the automobile, the facts proved were insuf- 16 Slater v. Advance Thresher Co., 97 Minn. 30S, 107 N. W. 133, S L. R. A. (N. S.) S98. 1068 LAW OF AUTOMOBILES ficient to raise an inference that he was acting within the scope of his employment. Judgment for plaintiff was accordingly reversed and rendered for defendant. In answer to the suggestion that, as T. was driving the auto- mobile for the purpose of ascertaining whether it needed repairs before he used it for his own personal business, and that such in- spection might result in benefit td his employer, he, therefore, was acting in the interest of the defendant, the court said: "There is not even an intimation that this bookkeeper had any authority to inspect this automobile, so that whatever was done by him was done voluntarily. A master has the right to select and choose his agents and to determine himself, and assign to the servants so selected, their respective duties, and no assumption by an employee of duties not assigned to him will bring those duties within the course or scope of his employment as defined by the master, and when an act is not within the scope of a servant's employment, it cannot be within either the express or implied authorization of the master." " § 1153. Employee taking car to demonstrate. In an action to, recover for injuries incurred when an automobile, owned by defendant and operated by an employee of his, collided with the carriage in which plaintiff was riding, there was evidence that the driver had taken the car out of defendant's garage to demonstrate it to a possible buyer, and that the defendant was in the automobile at the time of the collision. A verdict in favor of the plaintiff was upheld, although there was evidence that defendant was not in the car at the time of the accident, and the driver testified that he had borrowed the car and was using it for purposes of his own on the trip during which the accident occurred.^* § 1154. Employee of third person testing car for defendant. The plaintiff was struck by an automobile of the defendant being operated by one Ennis, an employee of a rubber company who had never been in the employ of the defendant. Under a contract between the rubber company and the defendant the operator was employed by the rubber company as inspector of automobile tires for the defendant, and also of mileage meters, and to see that the running gears on all cabs would run properly in order to give the best mileage that could be had from the tires. He testified that 1'' White Oak Coal Co. v. Rivoux, 88 18 Ouimette v. Harris, 219 Mass. 466, Ohio 18, 102 N. E. 302, 46 L. R. A. 107 N. E. 43S (1914). (N. S.) 1091, Ann. Cas. 1914C 1082 (1913). LIABILITY OF OWNER 1069 the engine of the cab that he was driving at the time of the acci- dent had been overhauled, and at the request of a Mr. Cassiday, an employee of defendant, he took the cab out to test it for him; that in company with one Casey he drove the machine out a distance and came back arid then drove out the road in question; that while on this road he had to do some repair work to the car. Furthier, he said: "It takes 100 miles to run an engine before you get it right when you have overhauled it. If you take it out of the shop, and give it to a chauffeur before you have tried' it, you will have to send somebody out to take it home." Asked what his purpose was in taking the cab out, the witness said: "I have had quite a lot of experience with automobiles, and Mr. Stewart seemed to be a little busy, and Mr. Cassiday, his office man, asked me if I would take it out and test it for him, as my time had finished with the rub- ber company 12 o'clock noon." He had tested cabs out for Mr. Cassiday as often as once a month. Harry L. Stewart was the general manager of the defendant company. He said it was his duty to look after the .business gen- erally, and to keep a watch on everything; that there was no other person in active charge of the business; that Mr. Cassiday had been in the employ of the company ever since it was organized; that he was employed in the capacity of starter; and that he had no authority to send out cabs in the control of any one except the employees of the company. He denied that he had known that Cassiday had sent this car out on the night in question, but he did not deny that he had knowledge thalt Cassiday had permitted Ennis to take cars out on other occasions as testified to by him. It was held that the evidence was sufficient to justify the jury in finding that, at the time of the accident, the operator was the servant of the defendant.'" § 1155. Employee procuring another to drive car. Where an employee was sent by his employer to bring an automobile to the employer's place of business, but instead of bringing the machine himself the employee procured another to do so, and the latter was guilty of negligently driving the machine so that it injured the plaintiff, it was held that the employer was not liable, in the absence of authority in his employee to employ the other to bring in the car, unless he ratified the act.^" § 1156. Orderly of hospital interfering with driving of am- bulance by employee of garage. In an action to recover dam- is Stewart Taxi-Service Co. v. Roy, " 20 white v. Levi & Co., 131 Ga. 269, 127 Md. 70, 95 Atl. 10S7 (191S). 73 S. E. 376 (1911). 1070 LAW OF AUTOMOBILES ages to a tnotor truck which was collided with by an ambulance be- longing to a hospital and driven by an employee of the garage where it was kept, accompanied by an orderly from the hospital, an instruction that if the orderly participated by direction or inter- ference or suggestion in the speed of the ambulance, or in cutting the corner where the collision occurred, his negligence was charge- able to the*^hospital, was held to' be justified; it appearing that the driver took orders from whoever accompanied him from the hos- pitaL^i § 1157. Owner present, permitting another to operate car. If the owner or person in control of an automobile permits another to operate it while he remains present and in fact retains general control oyer the car, he is lialile for injuries inflicted by the negli- gent operation of the car by such person. Where the owner or person in control of the automobile was using the same to take a young lady to church, and before time for services was on a pleas- ure ride, during which time the young lady was permitted to operate the car, the owner occupying a seat beside her, the owner was held responsible for injury to a bicyclist caused by her negligent opera- tion of the machine.^^ § 1158. Owner riding in car with tester. An automobile was removed from a.garge without the owner's knowledge or consent. Later, meeting the person operating the car, and being told by him that something was wrong with it, the owner entered the car with him, and while the latter was operating the car for the pur- pose of enabling the owner to ascertain what the trouble was with it, the car collided with and injured a child. It was held that the driver was operating the car about the owner's business at the time of the accident, or, at least, that they were engaged in a com- mon enterprise in ascertaining what was the cause of trouble with the car, and judgment against the owner for the injuries caused the child was affirmed.^' § 1159. Liability of automobile school for negligence of student. The defendant conducted an automobile school for the purpose of instructing pupils in the operation of automobiles. One S. was- a competent chauffeur employed by the defendant to give 81 Balfer v. Allen & A. R. * Co., 190 28 Carpenter, v. Campbell Automobile App. Div. 34, 179 N. Y. Supp. 67S Co., 1S9 la, 52, 140 N. W. 225, 4i^f. C. (1919). C. A. 1 (1913); 22 Louisville Lozier Co. v. Sallee, 167 Ky. 499, 180 S. W. 481 (1915). LIABILITY OF OWNER 1071 instructions to the pupils. One H. was a pupil at the school; having paid .to be instructed in the operation of automobiles. Ok the occasion in question H. was being instructed by S., who had turned the active management of the machine over to H., who so negligently operated it that he collided with plaintiff's vehicle, causing serious injuries. It was held that the defendant was liable for the injuries inflicted. The court in part said: "The de- fendant, as part of its business, employed S. to give H. instruc- tions. It paid S. for so doing. S.,^ in the performance of this employment, used his own jucjgment, which by operation of law became the defendant's judgment, in turning the management of the car over to H. when and as he did. That the accident resulted from the ignorance and inexperience of H. may not for a moment be doubted, and while, of course, H. would be responsible for his own act in the premises, and S. in turn responsible, none the less the defendant, under whose directions all of these things were done, is likewise responsible." ' It was also held that evidence that H. was not a qualified driver was properly admitted.** 24Easton v. United Trade S. C. Co., 173 Cal. 199, 159 Pac. S97 (1916). CHAPTER XXVI LIABILITX OF OWNER WHEN AUTOMOBILE OPERATED BY MEMBER OF FAMILY OR GUEST § 1160. Generally. §1161. Owner made liable by statute. § 1162. Son as employee. § 1163. Automobile kept for use and pleasure of family. § 1164. Same— Contra. § 1165. Same — Denying use to certain member of family. § 1166. Son-in-law using, family car. § 1167. Daughter lending family car to stranger. § 1168. Third person driving family car at request of wife of owner. § 1169. Daughter being taught to drive. § 1170. Son learning to operate car under instructions of selling agent. § 1171. Presumption from son driving father's car. § 1172. Intrusting automobile to incom- petent child. § 1173. Son known to be reckless. § 1174. Permitting minor to operate car in violation of statute. § 11 75. Duty of owner accompanying wife or minor child. § 1176. Automobile used partly for pur- pose of child and partly for purpose of parent. § 1177. Car kept partly for benefit of son's health. § 1178. Adult child. § 1179. Adult son using car for own purpose. § 1180. Owner riding with adult son. 1072 § 1181. Adult son using car without ask- ing permission. § 1182. Adult daughter using car about own affaii;s without express permission. §1183. Adult son taking fellow employ- ees for ride. § 1184. Son driving car containing wife of owner. § 1185. Son driving car containing own- er's wife and daughter and guests. § 1186. Son taking servant home who had assisted at daughter's luncheon. § 1187. Son and daughter returning from dance. § 1188. Son driving car to take young lady home. §1189. Son general chauffeur of father. § 1190. Car borrowed by son and op- erated by third person. §1191. Son leaving car unUghted in street according to custom. § 1192. Daughter using car owned by father and mother. § 1193. Automobile operated by chauf- feur under orders of daughter. § 1194. Children using car in absence of parents. § 119S. Minor daughter on errand for mother in violation of owner's instructions. § 1196. Minor son driving car. § 1197. Minor son driving car in father's business — Presumption. LIABILITY OF OWNER 1073 § 1198. Minor son taking car without authority, § 1199. Minor son operaling car for hire. § 1200. Minor son driving with sister and guest. § 1201. Minor son driving with wife of owner. § 1202. Minor sons using car to take guests to a dance. § 1203. Minor son using car contrary to father's orders. § 1204. Owner riding in car with minor son. §1205. Father riding with minor son driving son-in-law's car. § 1206. Mmor son habitually using father's car. § 1207. Liability of owner to guest of daughter. § 1208. Girl driving car belonging to uncle. § 1209. Liability of husband for negli- gent driving of wife. § 1210. Liability of husband to wife. § 1211. Wife as servant or agent of owner. § 1212. Wife driving husband's car with his consent. § 1213. Legal title to car in wife who I employs chauffeur. § 1214. Mother riding with minor son, over whom she has control. § 1215. Mother using daughter's car and chauffeur. § 1216. Wife riding in husband's car driven by thir4 person. §1217. W^ife sending chauffeur ' for phy- sician for injured person found on highway. § 1218. Husband driving wife's car. § 1219. Owner's brother driving car in which mother is riding. § 1220. Owner's chauffeur driving son- in-law. § 1221. Chaiiffeur driving for guests at direction of member of fam- Uy. § 1222. Owner in Europe — Daughter using car in general control of chauffeur. § 1223. Member of family permitting another to drive car tempo- rarily. § 1224. Physician permitting son to use his automobile. § 122S. Autoniobile used by guests.' § 1226. Liability of guests riding with owner. § 1227. Guest operating car for partners. § 1228. Owner being driven by hus- band's employee. § 1160. Generally. The owner of an automO|bile is not liable for injuries resulting from -the negligent operation of his car by a member of his family, merely because of his ownership, or because it was being driven by a member of his family, or because he per- mitted a member of his family to drive it.^ 1 Georgia: Rape v. Barker, — Ga. Missouri: Bolman v. Bullene — Mo. App. — , 103 S. E. 171 (1920); Griffin — , 200 S. W. 1068 (1918). V. Russell, 144 Ga. 27S, 87 S. E. 10 (191S). Kansas: Zeeb v. Bahnmaier, 103 Kan. S99, 895, 176 Pac. 326, 2 A. L. R. 883 (1918). Massachusetts: Flynn v. Lewis, 231 Mass. 550, 121 N. E. 493, 2 A. L. R. 896 (1919). Mississippi: Woods v. Clements, 113 Miss. 720, 75 So. 119 (1917). B. Autos.— 68 New Jersey: Doran v. Thbmsen, 76 N. J. lV754, 19 L. R. A. (N. S.) 335, 131 Am. St. Rep. 677. North Carolina: Bilyeu v. Beck, 178 N. C. 481, 100 S. E. 891 (1919). Utah: McFarlane v. Winters, 47 Utah, 598, 155 Pac. 437 (1916). Washington: Warren v., Norguard, 103 Wash. 284, 174 Pac. 7 (1918). 1074 LAW OF AUTOMOBILES The relation of parent and child is not sufficient of itself to ren- der the parent liable for the negligent operation of his automobile , by his child, whether adult or minor.^ 2 Alabama; Parker v. Wilson, 179 Ala. 361, 60 So. ISO, 43 L. R. A. (N. S.) 87 (1912); Erlick V. Heis, 193 Ala. 669, 69 So. S30,(191S). , ^ Connecticut: Carrier, v, Donovan, 88 Conn. 37, 89 Atl. 894 (1914). Georgia: Dougherty v. Woodward, 21 Ga. App. 427, 94 S. E. 636 (1917)! Illinois: Arkin v. Page, 287 111. 420, 123 N. E. 30, S A. L. R. 216 (1919) ; Kitchen v. Weatherby, 205 111. App. 10 (1917); Iowa: Sultzbach v. Smith, 174 la. 704, 1S6 N. W. 673 (1916) ; Lemke v. Ady, — la. — , 159 N. W. 1011 (1916). Mississippi:.. Dempsey v. Frazier, 119 Miss. 1, 80 So. 341 (1919) ; Winn v. Haliday, 109 Miss. 691, 69 So. 685 (1915) ; Woods v. Clements, 113 Miss. 720, 75 So. 119 (1917). Missouri: Daily v. Max^yell, il5^ Mo. App. 415, 133 S, W. 351 (1911); Hays V. Hogan, 273; Mo. 1, 200 S. W.' 286, L, R. A. 1918C 715, Ann, Cas. 1918E 1127 (1917). New Jerspy: Doi;an v. Thqmsen, 76 N. J. L. 754, 71 Atl. 296, 1? L. R. A. (N. S.) 335, 131, Am. St. Rej). 677. New York: Van ,Blaricom v. Dpdg- son, 220 N. ,y.. Ill, illV N.E. 443 C19l7'),aff'gl70 Apii. Div. 935; Schultz V. Morrison, 91 Misc. 248, 154 N. Y. Supp. 257 ,(1915). North Carolina: Taylor v. Stewart, 172 N. C. ?03, 90 S. E, 134 (1916); Linville v. Nissen, 162 N. C. 95, 77 S E. 1096 (1913). Ohio: Elms v. Flick, — Ohio, — , 126 N. E. 66 (1919). , Oklahoma: McNeal v. McKain, 33 Okl. 449, 126 Pac. 742, 41 L. R. A. (N. S.) 775 (1912). Pennsylvania: Kunkle v. Thompson, 67 Pa. Super. Ct. 37 (1917). South Carolina: Davis v. Littlefield, 97 S. C. 171, 81 S. E. 487. (1913). Tennessee: King v. Smythe, 140 Tenn. 217, 204 S. W. 296 (1918). Texas: Allen v. Bland, — Tex. Civ. App. — , 168 S. W. 35 , (1914),. Virginia: Blair v. Broadwater, 121 Va. 301, 93 S. E. 632 (1917). Federal: Denison v. McNorton, 228 Fed. 401, 142 C. C. A. 631 (1906). ' "We premise our discussion of de- fendant's responsibility with the obser- vations that, as father is not liable merely because of the relation for the torts of his child, whether the same are negli- gent or wilful and as an automobile can no longer be deemed inherently danger- ous, no responsibility of the defendant for the accident, in question can be suc- cessfully asserted if the machine was taken without his' knowledge or con- sent,^ or, if with his consent, it was taken for a purpose foreign to that for which it was kept and customarily used." Lewis v. Steele, 52 Mont. 300, 157 N.> W. 575 (1916). Whether a minor, driving an automobile is under such control of the , parent , as to render the minor's negligence im- putable to the parent, is a question of fact. Gustavson v. Hester, 211 111. App. 439 (1918). ' ' ■' Where plaintiff was injured in collision with defendant's automobile while driven by defendant's son, where there was no evidence whether said son was a minor or adult, or car' was being used in defendant's business, or son had ever received permission to use car or was at time of accident using it with defend- ant's knowledge or had ever so used it, evidence was insufBcient to show de- fendant's liability for the accident. Kitchen v. Weatherby, 205 III. App. 10 (1917). Nor does the relation of husband and wife raise the relation of master and servant. Ricci v. Mueller, 41 Mich. 214. LIABILITY OF OWNER I07S A child, however, may occupy the position of a servant or agent of his parent, and for his acts as such the parent may be liable under the general principles governing the relation of rtias- ter and servant, or principal and agent,* and, to render the parent liable for the negligence of his child who is competent to operate an automobile, the act complained of must have been done in the course of the performance of some business for the parent.* There must exist an authority from the parent to the child to do the act in question, or a subsequent ratification of it, before re- sponsibility attaches to the pai*ent for the wrongful act of the child.5 Even when the son is a servant of his father, the latter is not liable for his negligence unless, at the time of the accident com- plained of, the son was acting within the scope of his employ- ment.® Where it was charged that the automobile which caused the injury complained of, and which belonged to the defendant, was being operated at the tirne in question by the defendant's niece, with defendant's "knowledge, consent and approval," and the evi- dence showed that the niece, who resided in defendant's house- hold, was not operating the machine for the general purposes, or any particular purpose, of the ' def enda:nt, but for her own pur- poses, the defendant was held not liable for her negligence.' There must be some evidence that the child was operating" the car by authority of his father, as agent or servant of his father, before the latter can be held liable for his negligence*^that the machine was being operated in connection with the father's bUsi- 8 Griffin v. Russell, 141 Ga. 27S, 87 Pennsylvania: Kunkle v. Thompson, S. E. 10 (1915). ^ 67 Pa. Super. Ct. 37 (1917). * Georgia; Dougherty v. Woodward, Washington: Warren v. Norguard, 21 Ga. App. 427, 94 S. E. 636 (1917). 103 Wash. 284, 174 Pac. 7 (1918). Kansas: Zeeb v. Bahnmaier, 103 Kan. Federal: Denison v. McNorton, 228 599, 895, 176 Pac. 326, 2 A. L. R. 883 Fed. 401, 142 C. C. A. 631 (1916). (1918). 5 Carrier v. Donovan, 88 Conn. 37, Mississippi: Winn v. Haliday, 109 89 Atl. 894 (1914). Miss. 691, 69 So. 685 (1915). SLinviUe v. Nis^en, 162 N. C. 95, 77 New York: Fallon v. Swackhamer, S. E. 1096 (1913). 226 N. Y. ,444, 123 N. E. 737 (1919); ''Roberts v. Schanz, 83 Misc. 139, 144 Maber v. Benedict, 123 App. Div, 579, N. Y. Supp. 824 (1913). 108 N. Y. Supp. ^228. * Owner is liable when son operates North Cai'olina: Bilyeu v. Beck, 178 car for him.- Cutts v. Davison, — Mo. N. C. 481, 100 S. E. 891 (1919). App. — , 184 S. W. 92J (1916). Ohio: Elms v. Flick, — Ohio, — , 126 N. E. 66 (1919). 1076 LAW OF AUTOMOBILES ness, or to carry out some wish or desire or purpose of the fathers, — it may be to furnish pleasure to the child .^ The authority of the child to act for the parent may be ex- press, or it may arise by implication from all the attendant cir- cumstances. Such authority may be found in the actual presence of the parent, in his express or implied direction, or in a precedent course of conduct.^** It is not necessary that a Son be a hired chauffeur in order to make his relation an employment by the father.^^ If the act is within, the general scope of authority conferred by the father, or in carrying out the enterprise for which the son has been commissioned, then the father may be liable even though he had no knowledge of the specific conduct in question and it was contrary to his direction. If the act is not done by the son in furtherance of the father's business, but in performance of some independent design of his own, the father is not liable.^^ Evidence that the owner of an automboile was a physician, and used the car in his ^ business; that the owner's son on several oc- casions had operated the car both when the doctor was in it and when only other membprs of the family were in it, was insufficient to charge the owner with liability for injuries caused by the son's negligent driving of the car when, besides the son, the owner's wife and little child, and two young ladies were in the car.^* A resident of Chicago rented a house in Aiken, S. C, where his family spent the winter, and he provided an automobile for their "health and pleasure." One of his sons, who was staying at Aiken, drove the car most of the time, and when his other sons were there they ran it when they pleased. The first mentioned son and his mother had authority to use the car when they, or either of them, saw fit. On the day in question this son took the car intending to get some friends of his and take them for a ride, the mother having no interest in the trip, and while going alone for them he negligently injured the plaintiff. The owner of the car was held liable for the injuries.^* SDempsey v. Frazier, 119 Miss. 1, 80 12 Smith v. Jordan, 211 Mass. 269, 97 So. 341 (1919); Schultz v. Morrison, N. E. 761 (1912). 91 Misc. 248, 1S4 N. Y. Supp. 257; 18 McFarlane y. Winters, 47 "Utah S98, Linville v. Nissen, 162 N. C. 9S, 77 S. ISS Pac. 437 (1916). E. 1096 (1913). • 14 Davis v. Littlefield, 97 S. C. 171, 81 10 Carrier v. Donovan, '88 Conn. 37, S. E. 487 (1913). 89 Atl. 894 (1914). - 11 Denison v. McNorton-, 228 Fed. 401, 142 C. C. A. 631 (1916). LIABILITY OF OWNER 1077 Where father and son, officefs of a corporation, frequently used an automobile belonging to the corporation in going between their homes and place of business, the father was not liable for the acts of the son while the latter, unaccompanied by the father, was driv- ing the car; there being no evidence that he was doing so in the interest of the father." ' § 1161. Owner made liable by statute. In Michigan, by stat- ute, the owner of a motor vehicle is made liable for all injuries inflicted by the negligent operation of his machine, when it is being operated with his express or implied consent or knowledge. It is also provided that if the vehicle was driven by an immediate member of the owner's family, it shall be conclusively presumed that it was with his consent or knowledge.^® § 1162. Son as employee. In an action for death caused by defendant's automobile the facts appeared as follows: A few days prior to the accident defendant, Donn, told a Mr. Maher, an auto- mobile mechanic, that he was going away for a short time and "wanted the car looked over and repaired before he came back." On the evening of the accident, this man went to the defendant's garage and made some repairs, after which, accompanied by the de- fendant's son, Samuel, he took the car out on a testing tour, during which he made other adjustments, at one time working on the clutch three-quarters of an hour. Finally, after determining that the machine was in proper condition, Mr. Maher turned it over to Samuel and "told him to take the car back to the barn," or garage, from which it had come. The latter pursued a direct route home, and the accident happened on the way. Among other pur- suits, the defendant conducted a livery stable and undertaking busi- ness, and Samuel was in his employ. This son was in the habit of, operating his father's car, and was frequently seen driving it when occupied by "Mr. Donn and his family." At the police sta- tion, after his arrest, young Donn said "his father wa.s away and he was taking care of the business," and made other statements to that effect. Held", that the son was acting in his capacity as employee of his father." ISSwitzer v. Baker, 178 la., 1063, 14 " Raub v. Donn, 254 Pa. St. 203, 98 N. C. C. A. 1089, 160 N. W. 372 (1916). Atl. 861 (1916). 16 Hatter v. Dodge Bros., 202 Mich. 97, 167 N. W. 93S (1918). 1078 LAW OF AUTOMOBILES § 1163. Automobile kept for use and pleasure of family. Thei rule is followed in some of the states in which the question has been decided, that one who keeps an automobile for the pleas- ure and convenience of himself and his family, is liable for injuries caused by the negligent operation of the machine while it is being used for the pleasure or convenience of a member of his family.^* "As to whether the son was erigaged in the father's business: It is the rule, supported by the better weight of authority (although there are cases seemingly taking a contrary view), that where a father provides an automobile for the purpose of furnishing mem- bers! of his family with outdoor recreation, the use of the car for such purpose is within the scope of the father's business, analo- gously to the furnishing of food and clothing or ministering to their health." 19 '^^ Arizona: Benton v. Regeser, 20 Ariz. 273, 179 Pac. 966 (1919). .^ Colorado: Hutchins y. Haffner, 63 Colo. 36S, 167 Pac. 966 (1917), quoting from this work. Illinois: Arkin v. Page, 287 111. 420, S A. L. R. 216, 123 N. E. 30 (1919), citing this work in dissenting opinion. Iowa: Landry v. Oversen, — la. — , , 174 N. W. 2SS (1919) ; CoIIinson v. Cut. ter, — la. — , 170 N. W. 420 (1919). Kentucky: Miller v. Week, — Ky. — , 217' S. W. 904 (1920). Minnesota: Plasch v. Pass, — Minn. — , 174 N. W. 438 (1919), citing this work; Mogle v. Scott Co., — Minn. — , 174 N. W. 832 (1919); Johnson v. Smith, 143 Minn. 350, 173 N. W. 67S (1919). New Mexico: Boes v. Howell, 24 N. M. 142,^ 173 Pac. 966 (1918), quoting from this work. North Dakota: Ulman v. Lindeman, — N. D. — , 176 N. W. 25 (1919) ; Van- nett V. Cole, — N. D. — , 170 N. W. 663 (1919). Pennsylvania: Crouse v. Lubin, 260 Pa. St. 329, 103 Atl. 725 (1918), quoting from this work. Tennessee: King v. Smythe, 140 Tenn. 217, 204 S. W. 296 (1918). This is on the theory that the prin- cipal or master is responsible for the wrongful acts of his agent or servant committed while acting under his ex- press or implied authority and in fur- therance of his business. Ploetz v. Holt, 124 Minn. 169, 144 N. W. 745 (1913). "// a man owns a car which he keeps, among other things, for use as a pleas- ure vehicle by his family and permits his son to drive it, if his son takes the mother out for a drive in the car the son would be the agent of the father, and the car under such circumstances would be used in the father's service, the furnish- ing of comforts and enjoyments within his means to his wife and family being part of a father's business or service." Lemke v. Ady, — la. — , 159 N. W. 1011 (1916). "The adoption of any rule contrary to that followed in this opinion would, in many instances, deprive the injured party of any remedy, owing to the usual financial irresponsibility of the owner's' wife or child who may have been driv- ing the automobile at the time of the accident. The view taken herein tends to insure justice to parties injured by the negligence of driver's of automobiles without imposing undue hardship upon the owners, is favorejd by the weight of authority, and is supported by prin- ciple and reason.'' Hutchins v. Haffner, 63 Colo. 365, 167 Pac. 966 (1917). 19Denison v. McNorton, 142 C. C. A. 631, 228 Fed. 401 (1916). LIABILITY OF OWNER 1079 This rule is not a new one. In the old case of Lashbrook v. Patten,^" a minor son, while driving 4 his two sisters to a picnic in his father's carriage; drawn by his father's horses, and with his father's approbation, all of the children being members of 'his father's family, through negligence ran against the carriage of an- other, causing damage. The Court of Appeals said: "The son must be regarded as in the father's employment, dis- charging a duty usually performed by a slave, and therefore must, for the purposes of this suit, be regarded as his father's servant. The doctrine that masters are responsible for the injuries arising from the carelessness of their servants whilst in the malster's em- ployment and the discharge of their duties has been so long recog- nized and acted on that we scarcely deem it necessary to elaborate the reasons or recite authorities." The act of an owner, who keeps an automobile for the uSe of his family, in allowing his child to driye it as chauffeur for the purpose for which it is kept, does not involve the same principle of law as does the act of the owner in lending his rnachine to his servant on a particular occasion when the servant i^ not engaged in the performance of his master's business, but is free to en- gage in his own pursuist.^^ ; .; Automobiles may be used, not only for the business of th§ master for profit, but also in his business for pleasure.^* "Business," as the term is used in this connection i$ used, in its broad sense. "The word 'business' is commonly employed in con- nection with an occupation for livelihood or profit, but it is not limited to such pursuits. When Jesus said 'Wist ye not that I must be about my Father's business?' he had no reference to mat- ters involving pecuniary rewards." ^* In Connecticut this rule has been applied in a case where the wife was owner of the automobile, which was driven by her hus- band.^* The son of the owner of an automobile, which the latter kept for family use, who was permitted by his father ,to drive' members of the family whenever requested by them, was acting as servant of his father when conveying his sister to a railroad station with the father's knowledge.*^ 80 1 Duv. (Ky.) 316. 28 Griffin v. Russell, 144 Ga; 2?S, 87 M Griffin v. Russell, 144 Ga. 275, 87 S. E. 10 (191S). - S. E. 10 (191S). 24 Wolf V. Sulik, — Conn. — , i06 22McNeal v. McKain, 33 Okl. 449, 126 Atl. 443, 4 A. L. R. 3S6 (1919).. Pac. 742, 41 L. R. A. (N. S.) 77S 26 jaeger v. Salentine, — Wis.—, 177 (1912). N. W. 886 (1920). 1080 LAW OF AUTOMOBILES Where defendant did not need an automobile in his business but bought and used one for his family and allowed it to be gen- erally driven by his son, and at the time in question told his son to take the machine to the garage, but the son, without his father's permission or knowledge, first went to another place, as he was accustomed to do on such occasions, defendant was liable for his son's negligence while so running the car.**® One who buys an automobile for the pleasure of himself and family, permitting a grown son to use the car at any time without obtaining special permission, is liable for the negligence ,of the son who so takes the car and uses it for his own pleasure.^'' An owner who kept an automobile for business purposes, and also for the pleasure of the members of his family, and whose minor son was authorized and permitted to use it for either pur- pose:, was held liable to one injured by the negligence of the son while riding with him as his guest, although the son was using the car for his own pleasure and that of his friends at the time. It was also held, that in these circumstances, possession of the car by the son would be presumed authorized by the father, in an absence of a showing to the contrary.^* However, there is quite a difference in the holding of the courts as to the evidence necessary to establish the fact that, on a par- ticular occasion, an automobile kept for family use and being operated by a mebiber of the family, was being operated for a family purpose; that is, for a purpose for which the owner kept the car. This fact clearly appears from the cases hereafter set forth under appropriate section headings. §1164. Same— Contra. Some of the states have refused to adopt the rule expressed in the last preceding section, holding that the facts incorporated in the rule are not sufficient to establish the relation between the driver and owner necessary to render the latter liable for the negligence pf the former.^' 26 0ffner V. Wilke, 208 111. App. 463 Indiana: Smith v. Weaver, — Ind. (1917). App. — , 124 N. E. 503 (1919). ^TFarnham v. Clifford, 116 Me. 299, Maine: Farnham v. Clifford, 118 101 Atl. 468 (1917). Me. 145, 106 Atl. 344 (1919); Pratt v. 28 Johnson v. Evans,' 141 Minn. 356, Cloutier, — Me. — , 110 Atl. 353 170 N. W. 220, 2 A. L. R. 891 (1919). (1920). ^^ Kansas: Watkins v. Clark, 103 Missouri: Hays v. Hogan, 273 Mo. Kan. 62.9, 176 Pac. 131 (1918). 1, 200 S. W. 286, L. R. A. 1918C 715, Illinois: Arkin v. Page, 287 111. 420, Ann. Cas. 1918E, 1127 (1917); Buskie 123 N. E. 30, 5 A. L. R. 216 (1919). v. Januchowsky, — Mo, App. — , 218 LIABILITY OF OWNER 1081 The daughter of an owner of an automobile, who purchased it for the use of his family, had general permission to use the car whenever she desired. She and other members of the family used the car as they pleased, having the consent of the owner to do so. The daughter was so using it when the accident in ques- tion occurred. Held, that on these facts the owner was not liable.^" In Maine the following instruction was held to have been prop- erly refused: "If the automobile in question was purchased by the defendant for general use of his family, of which the son was a member, and the automobile was so used, and if such use of the automobile in^ eluded its use by the son whenever he wanted it, then the de- fendant would be liable for any injury caused by the negligence of the son in operating the automobile.'^ In Maine the following instruction has been upheld as a proper statement of law: "Liability cannot be cast upon the defendant in this case because he owned the car, or because the driver at the time of the acci- dent was his son, or because he permitted his son to use the car. There must be the further relation of master and servant between them, and the son at the time of the accident must have been using the car in the business of the defendant." *^ In that state, it is held that the owner of an automobile who keeps it for the pleasure of his family, is not liable for the negli- gent operation of the car by a minor son while driving it solely for his own pleasure, and who is permitted to drive it whenever he desires.^' The Maine court distinguishes between this case and those in which one or more members of the family are occupying the car with the member who is driving, declaring that their presence might be sufficient to take the case to the jury on the question whether or not the member of the family driving was acting for the owner. Without questioning the wisdom of the court's de- S. W. 696 (1920) ; Mayes v. Fields, — Virginia: Blair v. Broadwater, 121 Mo. App. — , 217 S. W. S89 (1920); Va. 301, 93 S. E. 632 (1917). Bright V. Thacher, — Mo. App. — , 215 30 Watkins v. Clark, 103 Kan. 629, S. W. 788 (1919). 176 Pac. 131 (1918). New York: Tanzer v. Read, 160 31 Farnham y. Clifford, 118 Me. 14S, App. Div. 584 145, N. Y. Supp. 708 106 Atl. 344 (1919). (1914); Van Blaricom v. Dodgson, 220 32Farnhani v. Clifford, 118 Me. 145, N. Y. Ill, 115 N. E. 443 (1917), aff'g 106 Atl. 344 (1919). 170 App. Div. 935. 33 Pratt v. Cloutier, — Me. — , 110 Ohio: Elms v. Flick, — Ohio — , 126 Atl. 353 (1920). N. E. 66 (1919). 1082 LAW OF AUTOMOBILES cision, one might ask what difference it would make if the boy's sis- ter was riding with him, if the car was being used solely for his or her pleasure, or the pleasure of both? What has numbers to do with the law involved when it is established that the car was not being used in any business of the owner, but for the pleasure solely of the occupants? What difference does it make whether part or all of. the family for whose pleasure the car is kept are occupying it? The Missouri Supreme Court has laid , down the rule as fol- lows: "The mere ownership of an automobile purchased by a father for the use and pleasure of himself and family does not ren- der him liable in. damages to a third person for injuries sustained thereby, through the negligence of his minor son while operating the same on a public highway, in furtherance of his own business or pleasure; and the fact that he had the father's special or general permission to so use the car is wholly immaterial." ** The Court of Appeals of Missouri states the law as follows: "If the member of the family (competent to run a car and to exer- cise the care required by statute) who takes the car out, though with the consent of the husband or father, is on his own business or pleasure, the husband or father is not liable for his negli- gence; but if such member under the direction of the husband or father, express or implied, is performing a duty which the latter owes, a liability arises for negligence. It should, however, be borne in mind that the member of the family cannot force his or her service on the husband or father against his will, and, however conducive to the health or pleasure of the member of the family taking out the car, or to the health or pleasure of other members of the family he may take with him, there must_appear authority from the father, express or implied, before the former may be called his servant engaged in his business. It is plain to see that questions of fact, hard to determine, will present themselves in certain instances, but they must be settled by a jury as in other difficult cases, unless, as in this case, the facts are so far uncontro- yerted that the court may pass judgment upon them as a matter of law." '^ The fact that the member of the family driving the car has the father's (owner's) special or general permission to use the car for his pleasure is not material.'® 84 Hays V. Hogan, 273 Mo. 1, 200 S. 86 Bright v. Thacher, — Mo. App. W. 286, L. R. A. 1918C 715, Ann._ Cas. — , 21S S. W. 788 (1919). 1918E, 1127 (1917). 86 Mast V. Hirsh, 199 Mo. App. 1, 202 S. W. 27S (1918). LIABILITY OF OWNER 1083 The defendant kept an auttAnobile for the use of himself and his wife, which, at the time in question, was being driven, by her for the pleasure of herself and her mother and sister, who were guests of her and defendant. Defendant knew that his wife was so using the car, but there was no evidence that he ordered or requested her to drive the car on that, or any other day: Held, that defend- ant was not liable for his wife's negligence while so operating the car.*'' To hold the owner of an automobile for its negligent operation by his minor son, it must be shown that the son was acting for the father as his agent or servant.** In a New Jersey case, in which recovery against an automo- bile owner was sought for injuries caused by his machine while it was operated by the 19-year-old daughter of the owner, the fol- lowing instruction was held to be erroneous: "If she took that machine out at that time in pursuance of a general authority of her father to take it whenever she pleased for the pleasure of the fam- ily and for her own pleasure, for the purpose for which the master bought it, for the purpose for which her father owned it, for the purpose for which he expected her to operate it, then she was the servant of the father. Under those circumstances that was the business for which the father bought the piachine." In this case the court said: "This makes the defendant's lia- bility to depend upon the object for which he purchased the ma- chine, which was for the pleasure of the family, in connection with the fact that his daughter operated it for that purpose, the jury being instructed that thereby she became his servant. It would subject a parent to liability if he bought for his son a baseball, or for his daughter a golf club, and, by permitting them to be used by his children for their appropriate purposes, injury occurred. It bases the creation of the relation of master and servant upon the purpose which the parent had in mind in acquiring ownership of the vehicle and its permissive use by the child. This proposition ignores an essential element in the creation of that status as to third persons, that such use must be in furtherance of, and not apart from, the master's service and control, and fails to distinguish between a mere permission to use and a use subject to the control of the master and connected with his affairs." In the case just quoted from it was shown that the defendant owned the automobile; that his daughter, 19 years of age, was 87 Mast V. Hirsh, 199 Mo. App. 1, 38 Mayes v. Fields, — Mo. App. — , 202 S. W. 275 (1918). 217 S. W. S89 (1920). 1084 LAW OF AUTOMOBILES accustomed to drive it, and did ^ whenever she pleased, asking permission to use it when the father was at home, but when he was not at home she would sometimes take it without permission; that while the daughter was using the car for her own pleasure in driving her friends she negligently injured the plaintiff. It was held that the proof was not sufficient to constitute the daughter a servant of the father.^^ In New York it has been held that the husband, owner of an automobile which he kept for the mutual pleasure of himself and his family, including his wife, who was privileged to use the same, could not be held responsible for the negligence of his wif£ while operating the car solely for her own pleasure, and not on any business for the husband. It appeared that the husband had provided a chauffeur for the operation of the car, and at the time of. the accident the chauffeur was in the car, but he had shortly before the accident given up the wheel to the owner's wife. There is a statute in that state relieving the husband of liability for his wife's torts while she is independently engaged in pursuing her own pleasure. But the interesting part of the decision is the fact- that the court disregarded the principle of agency or master and servant followed by courts in some cases of this kind. "I know of no law," said the court, "which compels a husband to afford to his wife either the opportunity ,or means for recreation, but if he does so, I do not think that while engaged in such recreation she is in any sense acting as her husband's agent, even though she utilize his property as a means for her pleasure." *" The respondent had a family consisting of his wife, a married daughter and son-in-law, and. an adult son, all of whom resided with him. He was also the owner of an automobile which he "had pur- chased for the pleasure of the members" of his family and himself j and which car his wife drove from time to time "for her pleasure" as his son "also did." Said son also drove the car in taking out the daughter and her husband, and "the car was used for the enter- tainment of the members of the family and defendant's guests." Interpreted in the light of ordinary experience, this evidence means that respondent kept the car for family use, whether of pleasure or convenience, and that "he permitted his son, from time to time to use the same for his individual accommodation. On a given occasion the son, unaccompanied by any other members 39 Doran v. Thomsen, 76 N. J. L. 754, 40 Tanzer v. Read, 160 App. Div. 584, 71 Atl. 296, 19 L. R. A. (N. S.) 335, 145 N. Y. Supp. 708 (1914). 131 Am. St. Rep. 677. LIABILITY OF OWNER 1085 of the family and pursuing solely and exclusively his own pleasure and not any object of family entertainment or convenience, took the car, and so negligently operated it as to kill plaintiff's intestate. There is no claim that he was ignorant of or generally unskilled in the management of an automobile, and the question is whether under such circumstances the respondent was so the principal of the son as to be responsible for his negligent conduct under the ordinary rules of agency. The court denied existence of liability on the part of the owner.*' *1 "// the owner of a car directly or indirectly causes some one, whether his son or hired chauffeur, to drive the same for the benefit of members of his family, it is familiar law that such driver may become the agent of the owner. The proposition of liability urged in this case, however, goes fur- ther. It asserts that the father is liable for negligence in the management of his automobile by an adult son when the latter is pursuing his own exclusive ends, absolutely detached from accommoda- tion of the family or any other member thereof. On its face a proposition seems to be self-contradictory which asserts that a person who is wholly and ex- /clusively engaged in the prosecution of his own concerns is nevertheless engaged as agent in doing spmething for some one else. It has always been supposed that a person who was permitted to use a car for his own accommodation was not acting as agent for the accom- modation of the owner of the car. The attempt is made, however, to reconcile these apparently contradictory features of this proposition by the assertion that the father had made it his business to furnish entertainment for the mem- bers of his family, and that therefore, when he permitted one of them to use the car, even for the latter's persbnal and sole pleasure, . such one was really carry- ing out the business of the parent, and the latter thus became a principal and liable for misconduct. This is an ad- vanced proposition in the law_ of prin- cipal and agent, and the question which it presents really resolves itself into the one whether, as a "matter of common sense and practical experience, we ought to say that a parent who maintains some article for family use and occasionally permits a capable son to use it for his individual convenience ought to be re- garded as having undertaken the occupa- tion of entertaining the latter and to have made him his agent in this business, although the act being done is solely for the benefit of t^e son. That really is about all there is to the questign. Not much can be profitably said by way of amplification or in debate of the query whether such a liability would rest upon reasonable principles, or whether it would present a case of such theoretical and attenuated agency, if any, as would be beyond the recognition of sound prin- ciples of law as they are ordinarily ap- plied to that relationship. The ques- tion largely carries on its face the an- swer, whichever way to be made. Un- questionably, an affirmative answer has been given by the courts of some states. But it seems to us that such a theory is more illusory than substantial, and that it would be far-fetched to hold that a father should become liable as principal every time he permitted a capable chUd to use for his personal convenience some article primarily kept for the family use. That certainly would introduce into the family relationship a new rule of con- duct which, so far as we are aware, has never been applied to other articles than an automobile. We have never heard it argued that a man who kept 4pr family use a horse or wagon or boat or set of golf sticks had so embarked upon 1086 LAW OF AUTOMOBILES In a case in which it appeared that the defendant, a lawyer, owned the automobile which injured the plaintiff, and that at the time of the accident his wife was operating the car and was the sole occupant thereof, and the defendant admitted that his wife had authority from him to use the car for her pleasure or for any pur- pose whatever, it was held that there was no presumption that the defendant's wife was in his service and engaged in his affairs, and that therefore the principle of respondeat superior did not apply.*^ So, in an action for damages against a husband to recover for injuries inflicted by an automobile jointly owned by said defend- ant and his wife, and which at the time in question was being used by the wife and her son, who was the defendant's stepson, the son being in active operation of the car when the injury was caused, it was held that the defendant was not liable, as he was not present and took no part in the trip.*' Where the evidence was that the automobile was in general use the occupatipn and business of furnish- ing pleasure to the members of his fam- ily that if some time he permitted one of them to use one of thoBe articles for his personal enjoyment, the latter was engaged in carrying out, not' his own purposes, but, as agent, the business of his father. , "It seems to us that the present the- ory is largely due to the thought that because an automobile may be more dangerous when carelessly used than any of the other articles mentioned, there ought to be a larger liability upon the part of the owner, and to this end an extension of the doctrine of principal and agent in order properly to safeguard its use. "And in the present case it is in effect argued that because the use of an auto- mobile upon a highway may be danger- ous, and therefore is a privilege subject to license by the state, the courts can apply a different rule of. agency to its use than would or could be applied to the case of the other articles which have been mentioned. This kind of argument, as it appears to us discloses the novelty and weakness of the propo- sition which is being urged upon us. It seems to disclose '• the idea, as an es- sential part of the argument, that be- cause an automobile is different than a horse or boat, some advanced rules ought to be applied to its use. But the rules of principal and agent are not thus to be formulated. They are believed to be constant and not variable in response to the supposed exigencies of some particu- lar situation: The question whether one person is the agent of another in respect of some transaction is to be determined by the fact that he represents and is acting for him rather than by the con- sideration that it will be inconvenient or unjust if he is not held to be his agent. If, contrary to ordinary rules, the owner of a car ought to be responsible for the carelessness of every one whom he permits to use it in the latter's own business, that liability ought to be sought by legislation as a condition of issuing a license rather than by some new and anomalous slant applied by the courts to the principles of agency." Van Blari- com V. Dodgson, 220 N. Y. Ill, 115 N. E. 443 (1917), aff'g 170 App. Div. 935. *2 Farthing v. Strouse, 172 App. Div. S23, 158 N. Y. Supp. 840 (1916). 48 Towers v. Errington, 78 Misc. 297 138 N. Y. Supp. 119 (1912). LIABILITY OF OWNER 1087 for the members of the defendant's household; that the chauffeur who operated the machine at the time in question was not only in the employ of the defendant and subject to his control at that time, but was acting in obedience to the general orders of defend- ant to take the machine at any time to such places as might be required by mernbers of defendant's family, it was held that the defendant was responsible for the chauffeur's negligence at such time.** The owner may lend his machine to a member of his family with- out liability on his part for its negligent use. The person driving must at the time be engaged in the owner's business or purpose, to render the owner liable.** ' The burden is held to be on the plaintiff to prove that the use of the automobile was under the control of the parent (owner).*® The owner of an automobile, purchased for the use of his fam- ily, was held not liable for injuries caused by the negligent opera- tion thereof by his adult son, living at home as a member of the family, who upon the occasion of such injury was not in any wise agent of or acting for the father, but was using the automobile for his own individual and exclusive purpose.*'' In a Pennsylvania case it has been held that the paternal interest which a father has in his son's welfare is not to be confused with a business interest, which would make the father liable for the son's negligent acts. In that case it was said that a father cannot be held liable for the negligent act of his son^ nineteen years of age, in driving alone an automobile owned by the father, unless it is shown that the son was the agent of the father, engaged in further- ance of the father's business or pleasure, or in and about a matter in which he had an interest. "Such agency is not established where the evidence in effect is that the son was a competent driver, that he was permitted by his father to drive the car whenever he desired, and if the members of the family chose to enjoy the car, the son drove it for them; that the son had been educated at a business college; had had employment with various persons; that he had received with his father's consent the wages he earned, and out of them educated and partially clothed himself; lliat on the day of the accident, desiring to go to a neighboring town, in response 44 Cohen v. Borgenecht, 83 Misc. 28. 46Legenbauer v. Esposito, 187 App. 144 N. Y. Supp. 399 (1913). Div. 811, 176 N. Y. Supp. 42 (1919). 46 Fallon V. Swackhamer, 226 N. Y. 47 Elms v. Flick, r— Ohio, — 126 N. E. 444, 123 N. E. 737 (1919). 66 (1919). 1088 LAW OF AUTOMOBILES to a letter offering him a position, he reque&ted his father to per- ■ mit him to take the car for the journey, first advising him of the purpose of his visit, that the father consented, and that the accident occurred while the son was returning home." ** In Virginia it is held that it is not enough to charge an owner with liability for the negligent operation of his automobile by his daughter, that the car was purchased by him for the use and pleasure of his family and the daughter was using it for that purpose at the time in question; this being no evidence that the daughter was using the machine in her father's business.*' § 1165. Same— Denying use to certain member of family. Although the head of a household may buy a car for the general use of the members of his family, he nevertheless has the right to deny its use to any member whenever he sees fit, and, when he does so, he cannot be held liable if such member surreptitiously takes the car and negligently operates it to the injury of another.^" Howev.er, the question whether or not the car was so denied is usually one for the jury. This may be true in a case in which the only testimony on the subject is that given for the defendant to the effect that the use of the car was denied, and that the operator took the car without permission and contrary to orders. In a case of this character the court held that the question was for the jury, and said (Edward being the son who was said to have been denied the use of the car and John Fischer being the owner) : "Immediately upon being denied the car, Edward, in broad day- light, boldly proceeds to take it out, loads it up with some children, and passes in front of the house where he had just left his father, either on. the porch or inside telephoning. Would a son, who deem- ed it necessary to ask his father's permission to use the car, conduct himself in this manner upon receiving a refusal? Edward and ari older brodier took care of the car. Is it likely that they had to' go to the father or mother for the key each time they had occasion to go to the garage? The key Edward claims to have made bears evidence which a jury might coiisider a refutation of the claim; and although John Fischer, no doubt, found out how Edward got into the garage on the night of the accident, he was, allowed to re- tain the key for about six months thereafter, or until the trial, *8 Kunkle v. Thompson, 67 Pa. Super. 6* Jensen v. Fischer, 134 Minn. 366, Ct. 37 (1917). 1S9 N. W. 827 (1916V. *9 Blair v. Broadwater, 121 Va. 301, 93 S. E. 632 (1917). LIABILITY OF OWNER 1089 when, at the request of plaintiff's attorneys, it was surrendered to be received in evidence as an exhibit." " § 1166. Son-in-law using family car. The defendant, who kept an automobile which he allowed his daughter and her husband, both members of his family, to use, was not liable for injuries caused by his son-in-law while the latter was using the car with his permis- sion on an errand solely in the interest of the son-in-law.*^ § 1167. Daughter lending family car to stranger. Where a parent keeps an automobile for the use of her family, and a daugh- ter 16 years of age takes the same in the absence of the parent and turns it over to a stranger, who operates the same, in the absence of t&e daughter, so negligently as to cause injury to others, the parent is not responsible for such negligence.*^ § 1168. Third person driving family car at request of wife of owner. Under the rule that the owner of an automboile who keeps it for the business and pleasure of his family is liable for its negligent operation by his wife, it was held that he is liable for its negligent operation by a third person, directed or permitted by his wife, in her presence, to drive the automobile for purposes of the business or pleasure of the owner's family.** § 1169. Daughter being taught to drive. Where there was evidence that defendant owned the machine that caused the injury in question; that he had purchased it for family use; that his daughter was being taught to operate the car with his consent; Bl Jensen- v. Fischer, 134 Minn. 366, same at an unlawful rate of speed at the 159 N. W. 827 (1916). time of the accident. The facts are un- "The fact that there is no conflict in like those in Geiss v. Twin City Taxicab the testimony does not make the case Co., 120 Minn. 368, 139 N. W. 611, 45 one for Uie court instead of the jury, L. R. A. (N. S.) 382. There the servant if the evidence is for any cause incon- was present and acquiesced in the doing . elusive in its nature — as, for example, of the negligent act which was the where different conclusions may be rea- proximate cause of the accident, and the sonably drawn from it, or where its negligence was held to be that of the credibility is doubtful." Burud v. G. N. servant for which the master lyas re- Ry. Co., 62 Minn. 243, 64 N. W. 562. sponsible. In the present case the uegli- B2 Bolman v. BuUene, — Mo. — , 200 gent act, the driving of the car around S. W. 1068 (1918). a curve in the dark at a dangerous rate 53 "We have, then, a case where the of Speed, was done by one without au- parent owned the car.^ She had caused it thority, a third party, and not in the to be stored away for the winter. In presence of the daughter." Wilde v. Pear- her absence and without permission the son, 140 Minn. 394, 168 N. W. 582 daughter had taken the car and turned (1918). it over to a third party, who, in the ab- B*Ulman v. Lindeman, — N. D. — , sence of the daughter, was operating the 176 N. W. 25 (1919). B. Autos. — 69 ' 1090 LAW OF AUTOMOBILES that she was, driving the car at the time of the accident, it was held that defendant was properly charged with her negligence.^^ §1170. Son learning to operate car under instructions of selling agent. In an action to recover for injuries inflicted by defendant's automobile while it was being driven by his 17-year- old son, it appeared that defendant had purchased the machine a few days before the accident, and had an understanding with one of the members of the selling firm that he would instruct the defendant's son to run it; that the son lived with his father, and occasionally worked in the father's store, but received no compen- sation therefor; that defendant bought the machine mainly upon the solicitation of his son, and that it was understood that the son should learn to operate the automobile and teach other members of the family- to operate it, or operate it for their benefit; that the son was to have the right to take the machine whenever he had time and, with the aid of the firm member, learn to operate it; that on the day of the accident the son took the machine and the mem- ber of the firm, at the son's request, went with him to give him instructions; that after going considerable distance the machine was turned over to the son to operate, and while he was operating it he negligently injured the plaintiff. Held, that the jury were warranted in finding against the de- fendant on the theory that the son was in charge of the machine as a servafit of defendant.^® § 1171. Presumption from son driving father's car. It has been held that where an automobile is kept by the owner for family use and pleasure, it will be presumed, until the contrary is made to appear, that a son operating the same had authority from his father to do so.*'' This rule is in keeping with the rule adopted in some states relative to the presumption arising when a member of the owner's family is operating the car, kept for the use and pleasure of the family.** In Massachusetts it is held that proof of ownership of an auto- mobile in the defendant, and the fact that his son was operating the car, raises no presumption that the son was acting for the father, and that to hold the father responsible for the sQn's negli- 66 Williams v. May, 173 N. C. 78, 91 67 Johnson v. Evans, 141 Minn. 356, S. E. 604 (1917). 170 N. W. 220 (1919); Ploetz v. Holt, 66Hiroux V. Baum, 137 Wis. 197, 118 124 Minn. 169, 144 N. W. 745 (1913). ' N. W. 533, 19 L. R. A. (N. S.) 33*2. ^» See ante, § 1183. LIABILITY OF OWiNER 1091 » gence the plaintiff must prove that the son was acting for his father.«9 It has been held by the Supreme Court of Missouri that proof that defendant owned the car in question, ai>d that it was being operated by defendant's son, does not raise the implication that the son was engaged in the father's business. "A presumption," says the court, "must be based upon a fact, and not upon infer- ence or upon another presumption." *" § 1172. Intrusting automobile to incompetent chi],d. Aside from the question of agency or the relation of master and servant, in order to render a parent liable for an injury caused by the negligence of his minor child, it is essential that the parent might reasonably have anticipated the injury as a consequence of per- mitting the child to employ the instrument which produced the injury, and that the parent's negligence made it possible for the child to cause the injury complained-' of .®^ Thus, if a parent should place his automobile in charge of a child of tender years, who is incompetent and unable on account of his youth to safely operate such a machine, he will be held liable for injuries caused thereby. But this liability is on account of his own negligence in intrusting his automobile to the child, and does not arise from any imputed negligence of the child.®* An automobile in the hands of a careless and incompetent driver would be a dangerous machine to turn loose on busy streets and^ would constitute a menace to travelers. "The owner of an auto- mobile must exercise reasonable care in the' selection of a chauf- feur and, failing in this, will be held liable for the consequences of his own negligence in sending out his car in charge of an in- competent operator." ®* It has been held that from the mere fact that an automobile driver was a boy only 16 years of age, the jury were entitled to say that he lacked the judgment, discretion, and care to be expected of a mature person, and which was essential to the proper and careful operation of a vehicle as powerful as an automobile.®* BSWeiner v. Mairs, — Mass. — , US 108 N. E. 406 (1915) ; Linville v. Nissen, N. E. 149 (1919). 162 N. C. 95, 77 S. E. 1096 (19i3) ; 60 Hays V. Hogan, 2?3 Mo. 1, 200 S. Riley v. Fisher, — Tex. Civ. App. — , W. 286, L. R. A. 1918C 715, Ann. Cas. 146 S. W. 581 (1911). 1918E 1127 (1917). SSDaUy v. Maxwell, 152 Mo. App. 61 Allen V. Bland, — ' Tex. Civ. App. 415, 133 S. W. 351 (1911). — , 168 S. W. 35 (1914). 64 Daily v. Maxwell, 152 Mo. App. 62 Ferris v. SterUng, 214 N. Y. 249, 415, 133 S. W. 351 (1911). 1092 LAW OF AUTQMOBILES Where a parent purchased a large, heavy automobile for the use of his son, 11 years old and weighing 85 pounds, and the ma- chine was kept at a garage subject to the boy's orders, the father paying the bills, and^the boy was permitted to drive the machine whenever he wanted to, and he injured a pedestrian on a busy city street, along which he was recklessly driving at the time, it was held that a judgment against the parent would be sustained, there being evidence that the boy was more or less habitually negligent in the operation of the car, and the jury having found that the parent should have anticipated that danger and injury to others would result from the boy's use of the car.®® When the issue is raised in a case as to the competency of a minor to operate an automobile, it is competent for persons ex- perienced in driving automobiles, and who h^ve observed the minor drive a machine, to express their opinions as to whether or not at a given time he was a competent operator.®® Although permitting a child to operate an automobile may be negligence per, se, such negligence must be the proximate cause of the injury complained of in order to create liability,®'' A finding that the injury complained of was not due to the neg- ligence or incompetency of the child is conclusive as to the father.®® § 1173. Son known to be reckless. A son of the owner of an automobile, which was kept by thp latter for the use of himself and his family, and which was also used in the work of collect- ing bills* incident to his business, took the machine without the knowledge or consent, and contrary to the express direction of the father, and, with three friends, was on a pleasure trip when he negligently collided with another machine. There was testimony tending to show that, prior to this occasion, while the son was driv- ing the machine he had damaged two buggies; that when he had another machine the father had taken off a wheel on one occasion to keep the son from using it; and that, although he had forbidden his son to use this machine, he had not locked the garjige, on which there was no lock. It was argued that as the son, as a member of the family, had an implied authority to use the machine and that if forbidden to use it, his father, being aware of his reckless and negligent driving, was himself negligent in not locking up the machine to prevent his fi6 Allen V. Bland, — Tex. Civ. App. 67 Taylor v. Stewart, 17S N. C. 199, — 168 S. W. 3S (1914). 9S S. E. 167 (1918). 66 Riley v. Fisher, — Tex. Civ. App. 68 Taylor' v. Stewart, 17S N. C. 199, — , 146 S. W. 581 (1911). 95 S. E. 167 (1918). LIABILITY OF OWNER 1093 son from taking it out, and hence was responsible for the conse- quent injury that occurred. The court held, however, that {here was no evidence on which the father could be held liable for the son's tort.*' § 1174. Permitting minor to operate car in violation of stat- ute. It has been held that when' a statute forbids the employment of a child under a certain age, it is in effect a determination that a child of that age does not possess the judgment and discretion necessary for the pursuit of a dangerous work.'" So, where a father permits his minor child to operate his auto- mobile upon highways in violation of a statute, it is negligence on the part of the father, and he becomes responsible for injuries which are the result of such violation of law.'^ Under the rule that, where the parent's negligence made it possible for the child to cause the injury complained of and prob- able that the child would do so, he is liable for such injury, the lia- bility being based on his own negligence^ it is held that a, parent who permits his child, who, on account of his youth, is forbidden by statute to operate an automobile, to drive his automobile on the highways, he becomes a party to the violation of the statute, and should be held responsible for the injuries that follow there- from to another. "The object and purpose of the statute is to promote the safety of those traveling the public highways. While' a motor vehicle is not, in and of itself, to be deemed a dangerous machine, nevertheless it becomes such in the hands of a careless and inexperienced person. The statute has, in effect, so declared when it forbids its operation by persons under the age of 18. It, in substance, declares that such persons do not possess the requi- site care and judgment to run motor vehicles on the public high- ways without endangering the lives and limbs of others." ''^ Under a statute providing that the owner of any automobile shall not allow it to be operated by any person in violation of the terms of such statute, an owner was held liable where, with his per- mission to use his machine, his minor son drove it so recklessly that he struck a pedestrian on the sidewalk.'" Under a statute providing that "It shall be unlawful for any fiSLinvUIe v. Nissen, 162 N. C. 9S, 77 N. W. 962 (1916); Taylor v. Stewart, S. E. 1096 (1913). ' 172 N. C. 203, 90 S. E. 134.(1916). 70 Daily v. Maxwell, 1S2 Mo. App. ^aschultz v. Morrison 91 Misc. 248, 415, 133 S. W. 3S1 (1911), citing 26 Cyc. 1S4 N. Y. Supp. 2S7 (191S). 1221. '* Crittenden v. Murphy, — Cal. App. 71 Walker v. Klopp, 99 Neb. 794, 157 — , l73 Pac. 595 (1918). 1094 LAW OF AUTOMOBILES person under sixteen years of age, or for any intoxicated person to operate a motor vehicle, and any owner, dealer, or manufacturer bf motor vehicles who permits a person under sixteen years of age, or an intoxicated person to operate a motor vehicle shall be deemed guilty of a misdemeanor and shall be punished as hereinafter pro- vided for violation of the provisions, of this article," it has been held that a parent, who wilfully permitted his child, under the age of 16 years, to operate his automobile on the public high- ways, was liable for all damages proximately resulting therefrom, if the other elements of actionable negligence were established; the violation of the. statute by him constituting negligence on his part.'* In an action to recover for personal injuries inflicted by the defendant's automobile while it was being driven by his minor son, evidence that the son had frequently and for a long time pre- vious to the accident, and after the accident, driven the defend- ant's automobile upon the streets of" the city in question, with the knowledge and permission of defendant, was held competent as proof that at the time of the accident the son was driving the auto- mobile by permission of the defendant.''* §1175. Duty of owner accompanying wife or minor child. When a man is with his wife or minor child in an automobile which the wife or child is operating, it has been held that he is pre- sumed to exercise some control of such wife's or child's* actions, at least to the extent of preventing an act of negligence which is calculated to result in injury to others, and that it is his positive duty to do so.'* § 1176. Automobile used partly for purpose of child and partly for purpose of parent. The fact that the child is using ''* "The clear and unmistakable purpose lation of this statute, such permission of the Legislature in enacting the and such violation of the statute consti- Nebraska statute under consideration tutes in him such negligence as is by the was to protect persons and property direct sequence of events the proximate from the injury and damage that experi- cause of any damage that may be sus- ence had shown were more likely to be tained by another to his person or prop- occasioned by the driving of motor ve- erty by the driving of such automobile hides on the public highways by minors by such minor, when the other elements under 16 years of age, than would be of actionable negligence are (established." occasioned by the driving of motor ve- Walker v. Klopp, 99 Neb. 794, 1S7 N. hides by older persons of more mature W. 962 (1916). judgment; and when a person wilfully 75 Walker v. Klopp, 99 Neb. 794, 157 permits his minor child, under the age N. W, 962 (1916), of 16 years, to drive his automobile 76 Minor v. Mapes, 102 Ark. 3S1, 144 upon the public highways, in direct vio- S. W. 219 (1912). LIABILITY OF OWNER 1095 the car for purposes purely his own and in no way connected with the uses for which it is kept by the parent, does not necessarily absolve the parent from liability if the car, at the same time, is also being used for a purpose for which it is intended by the parent.'''' The general proposition that a servant in the transaction of his master's business shall have no purpose, of his own is nowhere maintained. "When a master sends his servant, to town on the master's business, we know ofi no court that has held that if the servant is induced to go mainly because he wants to make purchases for himself, the private purpose of the servant will relieve the master from liability for the negligence of his servant in the con- duct of the master's business." ''* § 1177. Car kept partly for benefit of son's health. An auto- mobile belonging to a mother was used by her minor son, with her permission, in part for the improvement of his health, and in the ordinary course of the life of the family. Held, that the mother was liable for an injury caused by the negligent act of the son in operating the machine.''® § 1178. Adult child. It makes no substantial difference as regards the liability of a parent for the acts of his child while the latter is operating an automobile kept by the parent for family use, whether the child is a minor or an adult. The question of lia- bility does not depend upon the relation of parent and child, and the parent is under no more legal obligation to supply an auto- mobile for the use and pleasure of a minor child than he is for the use and pleasure of an adult child. Frequently fathers continue not only to support their children after the latter have become sui juris, but to provide them, as members of the family, with the means of recreation and pleasure. The question is whether the child, be he an adult or a' minor, was acting for the parent, was using the car for a purpose for which the parent provided it, and the evi- dence to support the affirmative of this issue is not different wljen the child is an adult than it is when the child is a minor. Where there was evidence that an adult son was operating his father's automobile, which the latter kept for the use and pleasure of himself and his fan^ily, of which the son was a member; that the son was not employed by his father as a servant for hire to run "Ploetz V. Holt, 124 Minn. 169, 144 79 Fox v. Cahorowsky, 66 Pa. Super, N. W. HS (1913). Ct. 221 (1917). 78 Davis V. Littlefield, 97 S. C. 171, 81 S. E. 487 (1913). 1096 LAW OF AUTOMOBILES the car, but had performed the duties of a chauffeur for the family and was permitted to use the machine for his own pleasure and convenience as well as in the service of other members of the fam- ily, and he testified that, at the time in question, he was running the car himself to keep from walking, and that he was alone in the car, but he did not explain whose business he was engaged in at the time, it was held that the son was properly found to be opierating the car as agent of the father for one of the purposes of its intended use, and that the father was responsible for his acts.'" § 1179. Adult son using car for own purpose. Where the head of a family kept an automobile for the pleasure of himself and family, and it was customary for his son, 24 years of age, who was a law student, and lived at home, to act as chauffeur when the car was used by his father or any other members of the family, it was held that the owner was not liable for injuries caused by the negligent operation of the car by the son when he had taken the car for a pleasure drive accompanied by several of his friends, neither the owner nor any other member of the family, except the son, being in the party. The court held, that at the time of the accident the car was neither expressly nor constructively in the use or service of the owner, and that in driving the car the son was in no way acting as the agent of the father.*^ On the trial of an action for damages caused by a collision be- tween automobiles, the evidence introduced proved that a father and his 23 year old son, with the wife of the father, lived together as one family, and that the father and son jointly owned an auto- mobile, which was used for family purposes, and, when so used, was ordinarily driven by the son. The evidence also proved that the son used the automobile in his private business ; that in the absence of the father, and without his knowledge, the son took the automobile to make a trip of his own; that the mother got into tha automobile to ride with him; and that an accident then occurred which resulted in an injury to the party bringing the action. Held, that the evidence was not sufficient to establish the relation of master and servant between the father and the son.*^ Where there was no express authority for a son, engaged in busi- ness for himself, to use his mother's automobile, there being at 80 Marshall v. Taylor, 168 Mo. App. 82 Knight v. Cossitt, 102 Kan. 764, 172 240, 153 S. W. S27 (1913). Pac. S33 (1918). 81 Heissenbuttel v. Meagher, 162 App. Div. 7S2, 147 N. Y. Supp. 1087 (1914). LIABILITY OF OWNER 1097 most merely an implied consent growing out of the relationship of the parties aind a previous use of the car by the son, the mother was not liable for the son's negligence while he was using the car about his personal affairs.** § 1180. Owner riding with adult son. An adult son, carry- ing on his own business, frequently used his father's automobile about his own affairs, sometimes in going to. church. On the day in question (Sunday), the son invited his parents to go with him to church, and they and other members of the family did so. The son testified that he was somewhat of a leader in the family; that his father paid for the gasoline for the car and kept up re- pairs; that sometimes he ran the car, and sometimes his father ran it. Held, that the father was not liable for injury due to the negligent operation of the car by his son while they were return- ing from church.** § 1181. Adult son using car without asking permission. The ladies aid society of a church in a rural community held a meet- ing at the home of one of its members which was attended by plaintiff and by the wife and daughters of one of the defendants, the father. At the close of the meeting plaintiff had gotten in a buggy brought for her by her husband, and while seated therein the other defendant, the son, drove an automobile owned by the father in close proximity to the team, which became frightened and ran away, seriously injuring the plaintiff. There was evi- dence that the son was of age, and during this season had hired to his father to work on the latter's farm, with the exception of sheep-shearing time, when he worked for whom he pleased, shearing sheep with a machine he owned; that he resided in the father's home, and on the day of the accident had beeri engaged in shear- ing his father's sheep, not under his contract of general hiring, but at rates he charged others for the same work; that he had sus- pended work under his genpral hiring several days before the acci- dent and engaged in the business of shearing sheep; that on the day in question he and a younger brother, who had been assisting ' him, were the only ones at home, and after finishing the day's work, they took the automobile and went to the neighbor's house where the ladies' meeting was being held for supper, acting, in so doing, wholly of their own volition and without any expectation on the part of the parents that they would go to the neighbor's or use 83 Gardiner v. Solomon, — Ala. — , IS 84 Zeeb v. Bahnmaier, 103 Kan. S99, So. 621 (1917). 89S, 176 Pac. 326, 2 A. L. R. 883 (1918). 1098 LAW OF AUTOMOBILES the car; that the son had driven the car from time to time ever since his father had owned it, but the members of the family testified that he had never taken it previously without first ask- ing and obtaining his father's express permission. It was held that the jury were authorized in finding that the son was driving the car with the implied authority of the father, and a verdict against both father and son was sustained. In part the court said: "Such cars are usually procured and kept for the use .of the family, and, ordinarily, such use is not limited to any special purpose. It does not appear that the father had ever placed any restrictions upon the use of the car. The various mem- bers had ridden in it frequently. While the son had been accus- tomed to obtain express permission before taking it, there is no evidence that he had ever been forbiddn to use it without first ob- taining siich permission. His use of the car is presumed to be rightful until the contrary is shown. If, at the time, it was being used in part for the purposes for which it was kept by the father, the fact that the son may also have been using it in part for pur- poses personal to himself, would not necessarily absolve the father from liability. We think the circumstances shown by the evidence are such that the jury might infer therefrom that among the pur- poses for which the son took the niachine was that of bringing home his mother and sisters, and that he had implied authority to do so." 85 § 1182. Adult daughter using car about own affairs without express permission. Where an owner's adult daughter took his automobile without his consent, he was not liable^ for her negli- gence.8® Where the adult daughter of a member of a real estate firm, who kept an automobile which he allowed his family to use when not needed" in his business, took the car, without his express con- sent, for a pleasure trip on Sunday, she was not his servant or agent during such trip.*'' § 1183. Adult son taking fellow employees for ride. About a year prior to the accident in question the defendant father bought the automobile for the use of himself and family, which consisted of several members, including the defendant son and two other sons, all of whom learned to operate the machine, but the father 86Ploetz V. Holt, 124 Minn. 169, 144 8T Woods v. Clements, 113 Miss. 720, N. W. 745 (1913). 74 So. 422 (1917). , 86 Woods V. Clements, 113 Miss. 720, 75 So. 119 (1917). LIABILITY OF OWNER 1099 did not learn to operate it. The defendant son had reached his majority, was married, worked in the bank of which has father was president, and lived with his father's family, paying no board. The father testified that when he purchased the machine none of the children were to use it without his or his wife's permission, but that at no time had any of them been refused the use of it when requested. On the day of the accident the father was absent, and the son was working in the bank as usual. That afternoon the machine was left in front of the bank by, the mother, and about 4:30 in the afternoon the son and the other employees of the bank took the machine and went into the country a few mijes for a pleasure ride, and on the return trip, owing to the son's al- leged negligent driving, the deceased's horses were frightened, ran away, and deceased was killed. It was held that the father was not liable. In answer to the contention that proof of ownership of the car and that the owner's son was driving the car, raised a presumption that the son was acting for the father, the court said: "If the insistence of counsel for plaintiff is correct, then the court would be required to enforce one presumption upon another, namely: First, that the son was the agent of the father; and, second, that the agent wks acting within the scope of his authority. TJiis is never done. A pre- sumption must be based upon a fact, and not upon inference or upon another presumption." ** § 1184. Son driving car containing wife of owner. "That the automobile was owned by the defendant, that the defendant's wife was being conveyed in the machine at the time of the injury, and that the defendant directed his son to take the plaintiff home was evidence 'taken in the light most favorable to the plaintiff, with the most favora'ble inferences which the jury could draw from it,' sufficient to submit the case to the jury." ** § 1185. Son driving car containing owner's wife and daugh- ter and guests. One H. owned an automobile which he kept for the general use of his immediate family, and it was for this purpose habitually operated by himself and his two sons (who were mem- bers of his family), sometimes with and sometimes without Jiis express consent or direction. On the occasion in question one of the sons was driving the car, and it contained also the wife aiid 88 Hays V. Hogan, 273 Mo. 1, 200 S. 89 Clark v. Sweaney, 17S N. C. 280, W. 286, L. R. A. 1918C 71S, Ann. Cas. 95 S. E. S68 (1918). 1918E 1127 (1917), rev'g 180 Mo. App. 237, 16S S. W. 112S (1914). 1100 LAW OF AUTOMOBILES daughter of the father, who were also members of his immediate family, and two others, a young lady guest of the daughter, and a young man guest of the son. While on this trip the plaintiff, a little girl 7 years of age, was injured by the negligent operation of the automobile. It was held that these facts were sufficient to form a basis for a finding that the son was acting as the servant of the father and within the scope of his employment as such. Hence, judgment against the father was affirmed. In this case the court said : "In the present case there exists a very important fact, \y^hich is that the automobile af the time of the accident was occupied by the father's immediate family and their guests. This fact constituted affirmative evidence that the automobile was being used in the father's affairs or business. It was within the scope of the father's business to furnish his wife and daughter, who were living with him as members of his im- mediate family, with outdoor recreation just the same as it was his business to furnish them with food and clothing, or to minister to their l^ealth in other ways. It cannot be said, therefore, that in this case there was no evidence of possession except a mere pre- sumption which could be overcome by proof of inconsistent facts. Here there was affirmative proof of the fact of possession quite apart from any presumption." '" § 1186. Son taking servant home who had assisted at daughter's luncheon. A married woman owned an automobile as her separate property, and with her consent it was used for and by the family in the usual manner of family conveyances, being driven by different members of the family, including her son. On the day in question she was absent from home, but, with her ap- proval, given before her departure, her daughter, a member of the family, gave a luncheon to some of her friends. To assist in the work of the luncheon, an extra servant was procured for the day, and, during the evening, it became necessary to convey this servant to a street car that she might return to her home, The son, at the request of the daughter, his sister, then proceeded with the servant to the street car in his mother's automobile, and during the trip, negligently ran over and injured a person. The owner knew nothing about this use being made of the machine, but, as she testified, the machine was there to be used for family purposes as the occasion might arise. It was held that the owner of the automobile was liable.®^ 90 Missell V. Hayes, 86 N. J. L. 348, M Guignon v. Campbell, 80 Wash. . 91 Atl. 322 (1914). S43, 141 Pac. 1031 (1914). LIABILITY OF OWiNER 1101 § 1187. Son and daughter returning from dance. That de- fendant's son was returning from a dance in thfe former's automobile accompanied by his sister, and defendant knew they were so using the machine, which was kept for family use, was' held to sustain a finding against defendant for injuries negligently inflicted ,by,the son at such time.®** § 1188. Son driving car to take young lady home. The defendant, a hardware dealer, had decorated an automobile to be used in a parade; after the parade the automobile was returned to his place of business and the defendant, just before leaving the store, directed an employee to take the automobile in. Before the employee did so defendant's son, who was employed as a clerk in his father's store, but who was on a vacation that day, arrived at the store with a young lady, and the young lady desiring to go home, accepted his invitation to ride home in the automobile. He took her home by the nearest rdute, and on his way back to the store the plaintiff's horse became frightened at the machine causing an accident which resulted in an injury to the plaintiff. Held, con- ceding that the son was negligent, such negligence was not charge-^ able to the father. The automobile was being used for the son's and young lady's convenience and pleasure and in no way was it connected with his employment or the defendant's business. And the mere fact that the automobile still bore the decorations and might on that account attract attention and incidentally advertise defendant's business would not justify the finding that the son was about his father's business at the time.®' § 1189. Son general chauffeur of father. If a son is driving his father's car in his capacity of general chauffeur for his father, it is immaterial that the son is driving in disobedience of his father's instructions; the latter being liable for his negligence.'* Where the weight of the testimony was that a son of the owner of an automobile was using the car with his' father's permission, 92Uphoff V. McCormick, 139 Minn. and this instruction was disobeyed. But 392, 166 N. W. 788 (1918). it also appears without conflict that the 9* Reynolds v. Buck, 127 la. 601, 103 trip was being made for a purpose N. W. 946. within the general scope of the author- 94 "The court's finding that the automo- ity of Lawrence Fry as chauffeur for his bile was being driven without the knowl- co-defendant, and for the purpose of edge of William C. Fry and contrary to finding WiUiam C. Fry to bring him his express order is sustained by the evi- home, as was customary with them." dence. He had sent a telephone instruc- House v. Fry, 30 Cal. App., 157, 157 Pac. tion, which was communicated to his 500 (1916). son, to wait at home for further orders. 1102 LAW OF AUTOMOBILES solely for his own purposes, but there was also testimony that the son was the regularly employed chauffeur of the father ^ that he lived in his father's family, that persons whom he took to a dance in the evening arid carried home again just before the accident in question, were in the presence of his father and hjs family at the dance, that his father saw him start to take them home from the dance and told him he had better light his l^eadlights, it was held that whether the son was acting for the father was a question for the jury.®^ Where a minor son was charged with the duty of keeping his father's automobile in repair and of driving it when in use by the father or mernbers of his family, he being placed in exclusive con- trol of the machine, the father was liable for. the son's negligence while the latter was driving the car, with the father's knowledge and consent, on a trip to see a baseball game, and carrying several boys and girls, among whom were two of the owner's children, accompanied by a chaperon.®^ § 1190. Oar borrowed by son and operated by third person. The defendant owned an autompbile, and on the day in question his son, 20 years of age, told him that he wanted to borrow the car to take three young ladies on a pleasure ride. The father replied that he could have the car if one S., a man in whose ability and skill as a chauffeur the defendant had great confidence, would go with him and drive. It appeared that S. had frequently ridden with the defendant, and had said that he would go with the son and show him how to run the car at any time. The son secured the promise of S. to drive the car, and S., the son, and the three young ladies, together with, the plaintiff, a young lady who joined the crowd without the knowledge of the defendant, and at the invi- tation, of S., went op the trip. While on the drive the automobile was run into an obstruction, turned over, and the plaintiff was injured. It was claimed that the accident was due to the negli- gence of S. It was held that the defendant was not liable for the plaintiff's injuries; that as to her the relation of master and servant did not exist between him and S., whose guest she was; that in so far as plaintiff's rights were concei:ned, they were to be determined as if S. was the owner of the car. In part the court said: "The auto- mobile was loaned by the father to the son for the purpose of 96 Bourne v. Whitman, 209 Mass. ISS, 96 Winn v. Haliday, 109 Miss. 691, 69 95 N. E. 404, 35 L. R. A. (N. S.) 701 So. 68S (191S). (1911). , ' LIABILITY OF OWNER 1103 enabling him to extend a courtesy to the three young lady friends, with the understanding that S. was to become a member of the party and handle the machine. The evidence plainly shows that in this matter the requirement that, as a condition to the loan of the car, S. should drive it was a precautionary measure taken by the father for the benefit of his son and the three young ladies who were to be his guegts." '^ § 1191. Son leaving car unlighted in street according to custom. An owner is liable for the negligence of his son in leav- ing an unlighted automobile standing in the street at night, he having used the car with the express 'or implied consent of the father, and it having been customary for the father to leave the car unlighted" in the street at night at the place in question. "The appellant may not complain if his son used the machine with his consent, and left it standing at the place and in the condition that he himself was accustomed to leave it. In short, if he had two places for standing his car- and the son left it at either, it then ceased to be in the care of the latter as between them, and the appellant became responsible to third parties for its position and condition." " § 1192. Daughter using car owned by father and mother. A man and wife owned an automobile, which was purchased and kept for the use of the family, and it was customary for the mem- bers of the family to drive it at their pleasure. On a certain day when the man and wife were absent from home, the daughter entertained a number of friends at luncheon. In taking them home in the automobile she negligently struck and injured a woman on the highway. In a suit for damages, the jury found for the plain- tiff against both the girl and her parents; and this finding was held by the supreme court to be authorized by the evidence. Ellis, J., said: "It seems too plain for cavil that a father, who furnishes a vehi- cle for the customary conveyance of the members of his family, makes their conveyance by that vehicle his affair, that is, his busi- ness; and any one driving the vehicle for that purpose with his consent, express or implied, whether a member of his family or another, is his agent." ^ 97 Powers V. Williamson, 189 Ala. 600, 1 Birch v. Abercrombie, 74 Wash. 486, 66 So. S8S (1914). 133 Pac. 1020, SO L. R. A. (N. S.) 59 98Jaquith v. Worden, 73 Wash. 349, (1913). 132 Pac. 33 (1913). 1104 LAW OF AUTOMOBILES Where an automobile was owned by husband and wife ^as com- munity property, and was used by them in a community business carried on by them, and also for the pleasure of the family, it was held that the community — husband and wife — ^were liable for an injury caused by the negligent operation of the machine by their daughter, using the' car with the consent of the parents, whether she was driving it for pleasure or business.^ § 1193. Automobile operated by chauffeur under orders of daughter. Where it appeared that the defendant was the owner of an automobile which collided with the plaintiff; that at the time of the collision her chauffeur was operating it, not upon any errand of his own, but in obedience to an order given by defendant's daughter, who, with the other occupant of the car, wsts on the way to defendant's home, it was held that the burden was upon defend- ant to show that, at the time of the accident, the chauffeur was not acting within the scope of his employment. The question was held to have been properly submitted to the jury by the following instruction: "It is for you to determine whether or not it is the fact that the owner of the machine in this case allowed the machine to be used. If you believe it was under the control of a member of her family, if you believe that in that way, the natural way, in a common ordinary way, this automobile was permitted to be used for the benefit and pleasure of members of the family, then it would be for you to say whether or not it would be a legitimate inference to draw that it was being used within the scope of the employment of the chauffeur, and if so, if he was negligent, the defendant in this case would be responsbile." ' The plaintiff brought suit to recover for injuries inflicted by defendant's automobile. It appeared that the automobile was kept by defendant for the use of herself and her daughter, the latter being eighteen years of age and a member of defendant's house- hold; that the automobile was being driven by the regular chauf- . f eur of defendant, who had then been employed by defendant be- tween two and three weeks, and had driven the car every week day during that time, sometimes with the daughter, sometimes with defendant, and sometimes with both; that on the afternoon of the day of the accident the daughter with two other young ladies had been to a nearby town, the chauffeur driving the car; that before ^Switzer v. Sherwood, 80 Wash. 19, SHazzard v. Carstairs, 244 Pa. St. 122, 141 Pac. 181 (1914) ; Vannett v. Cole, — 90 Atl. SS6 (1914). N. D. — , 170 N. W. 663 (1919), citing this wol-k. LIABILITY OF OWNER 1105 they started defendant tequested the chauffeur to be home before dark, and she did not see any of the party again until after the acci- dent; that upon their return, at which time defendant was not at home, the chauffeur took the car and went to his home, about a mile and a quarter distant, to get supper, he being allowed by defendant to gd home for his meals; that on the return trip from his home after supper to the home of defendant, the chauffeur injured the plaintiff. This much was conceded, and the plaintiff introduced evidence tending to prove that the daughter acted as agent for defendant in employing the chauffeur; that on some occasions he had been directed as to the management of the car by defendant, but it was her custom to give her instructions as to its use through the daughter; that defendant had instructed the chauffeur to take his orders as to the use of the car frorn the daughter, in the ab- sence of direct orders given by the defendant; that on the evening in question, the daughter directed the chauffeur to take the car to his home, get his supper, and then i-eport with the car at the defendant's home; that on several prior occasions the chauffeur had received similar instructions, sometimes from defendant and at other times from the daughter; that shortly after the accident defendant stated that she always gave the chauffeur permission to take the machine home to get his supper. ) It was held that the evidence was sufficient to support a finding that the daughter was acting as agent of her mother, the defendant, in giving orders to the chauffeur, and a verdict for the plaintiff was sustained.* § 1194. Children using car in absence of parents. Defendant was actively connected with a manufacturing corporation; his home was about seven hiiles from his business ; his immediate family con- sisted of defendant, his wife, four sons, and one daughter, all liv- ing at home; two of the sons as well as the daughter were adults, one of the adult sons being engaged in the business with which the father was connected; the third son (William) was about 20 years old, and was employed in the same business; the fourth was 1(6 or 17 years old, and still in school. The defendant owned the car, which was used, not only for taking him and his sons back and forth between home and business (as well as for some business purposes), but also for purposes of pleasure and recreation for the family, not only on weekdays, but on Sundays. As one of the ,sons expressed it: "The car was more or less in constant use when in * Carrier v. Donovan, 88 Conn. 37, 89 Atl. 894 (1914). B. AntoB. — 70 1106 LAW OF AUTOMOBILES proper condition." No chauffeur was kept, and this car was the oiily one defendant or any member of his fa,mily had. The father drove comparatively seldom; usually one of the sons drove and William was usually the one to drive when in the car, by reason of his greater experience as driver. The mother and daughter never drove, but were frequently taken out in the car; the driving being done by one of the sons, and more often by William. On the day of the accident, which was Sunday, the father and mother were away from the city on a few days' absence; the four sons and the daughter remaining at home. An automobile trip to a resort some 60 miles distant being planned, the daughter put up and took a lunch for the refreshment of the party; the car* carrying the four sons and the daughter, as well as another man, a friend of the family, who, as the daughter testified, was "visiting us." The maid was the only member of the household left at home. There was testimony on the part of defendant that only his wife had the right to use the car without express permission from de- fendant; that they had no right to use the car when the father was away from home; and that they were using the car without permis- sion on this occasion. It was held that the jury were not bound to accept defendant's evidence on this question, and that thfey were justified in finding that the son William, in operating the car on this expedition, was lawfully representing the defendant.* § 1195. Minor daughter on errand for mother, in violation of owner's instructions. A minor daughter of the owner was driving his automobile, which he maintained for the use of his family, on an errand to procure a fixture for his residence. She was acting under orders of the owner's wife, wh6 was authorized by the owner to procure it, but the owner had given orders that his daughter should not drive the car unless accompanied by him- self or his son. Held, that it was for the jury to find whether the car was being driven by authority of the owner, and judgment against the owner was sustained.® § 1196. Minor son driving car. Where defendant was sued on account of injuries caused by an automobile, evidence that he SDenison v. McNorton, J42 C. C. A. business hours, including Sundays), for 631, 228 Fed. 401 (1916). the enjoyment and recreation of the "And, obviously, the fact that the car family." Denison v. McNorton, 142 C. was used during business hours for busi- C. A. 631, 228 Fed. 401 (1916). ness purposes wovild not alter the rule 6 McCaffrey v. Lukens, 67 Pa. Super. otherwise applicable to a use (out of Ct. 231 (1917). LIABILITY OF OWNER 1107 owned the machine in question and that it was driven by his minor son, calls for explanation by defendant, although it does not estab- list his liability.'' Where it appeared that a IS-year-old son of the owner of an automobile was driving the machine, having with him two of his associates, at the time he caused the death of another traveler on the highway, and that he was driving the machine solely for his own pleasure, and with the permission of his father, the latter was held not liable.* § 1197. Minor son driving car in father's business— Pre- sumption. An instruction that presumption is that a minor child, living with his father and using his father's automobile in his father's business, is acting in his father's behalf and on his direc- tion, was held to be erroneous, as stating as a presumption what is merely an inference of fact, which may be drawn by the jury.® § 1198. Minor son taking car without authority. Where a son, 17 years of age, took an automobile of his father, which the latter kept for the use and pleasure of his family, without the con- sent of either of his parents, which he had no right to do, the father was not responsible for his negligence while operating the car for his own purposes, although the son was sometimes permitted to use the car. It was held that the ownership of the car by the father raised no presumption of liability.^" § 1199. Minor son operating car for hire. A father was not liable for the negligence of his minor son in the operation of an automobile for hire; it not appearing that the son was a negli- gent driver when the father gave him the machine, and the son be- ing practically emancipated.''^ § 1200. Minor son driving with sister and guest. A father who kept an automobile for his family's use was liable for injuries caused by its negligent operation by his minor son, who was a mem- ber of^his family, and who was driving the machine for the pleasure of himself and sister, and a friend, who was a guest of the father's family, it being held' that the son was performing the business of the father at the time.-'^ 7 Wilson V. Polk, 17S N. C. 490, 9S H Johnston v. Cornelius, 193 Mich. S. E. 849 (1918). 115, 159 N. W. 318 (1916). 8 Loehr v. Abell, 174 Mich. 590, 140 H Dempsey v. Frazier, 119 Miss. 1, N. W. 926 (1913). 80 So. 341 (1919). 9 Garcia v. Borino, — Fla. — , 81 So. l^McNeal v. McKain, 33 Okl. 449, 126 155 (1919). * Pac. 742, 41 L. R. A. (N. S.) 775 (1912). 1108 LAW OF AUTOMOBILES So, where a father kept an, automobile as a means of recreation and amusement for his family, he was held liable for an injury caused by the negligence of his 18-year-old son while the latter was operating the car in taking his sister and some visiting ladies on a pleasure trip, although the trip was planned without his knowl- edge; the members of his family haying the right to use the car when they chose to do so.^' § 1201. Minor son driving with wife of owner. Where the owner of an automobile gave his wife general authority to use the machine whenever she desired to do so, and his son, who was the only member of the family licensed to drive the machine, was ex- pected to obey the mother, such owner was held liable for injuries caused by the negligent operation of the machine by the son who was driving it with his mother and at her request. In this case the court said: "If the father had employed a chauffeur outside the family at a stated compensation, it could not be contended seriously that taking the wife out for an afternoon call was not the business for which he had been employed. If, instead of hiring a stranger, the father chose to have the work performed by his minor son, to whose time and services he was entitled as a matter of law, it could not be ruled as matter of law that a jury mighl; not find the business to be that of the father. This is not a case of permissive use of the father's vehicle by the son for his own pleas- ure. Although the father had no knowledge of the particular journey which was taken on the occasion of the accident, his knowl- edge that on previous occasions the wife had iised the car and his testimony of the purpose for which it was bought and that it was not customary when the wife was going on errands with the auto- mobile to ask his permission were enough to support a finding that the trip in question was authorized by him. The fact that the son was the only person in the family who could legally operate the car had some tendency in that direction. The relation of husband and wife is such that, when the former has purchased an autornobile for family use, a ride by the wife in it with his general permission is not as matter of law the business of the wife, but may be found to be that of the husbaiid." ^* § 1202. Minor sons using car to take guests to a dance. An owner kept an automobile for the use of himself and his family. He had two minor sons who were permitted to use the car, and I'Stowe V. Morris, 147 Ky. 386, 144 "Smith v. Jordan, 211 Mass. 269, S. W. S2, 39 L. R. A. (N. S.) 224. 97 N. E. 761 (1912). LIABILITY OF OWNER il09 on the occasion in question the sons were using the car with the father's permission to take their guests to a dance; it being in- tended that the boys should return in the car for their father and mother. Held, that the father was responsible for the negligence of the sons at the time." §1203. Minor son using car contrary to father's orders. Where a father forbade his minor son to use his automobile, he was not liable for injuries inflicted by the negligent operation of the car when the son took it out without the father's knowledge and contrary to his express directions, to give some of his friends a ride, although the son had taken the car on occasions before with-' out the father's knowledge and in disobedience of his orders, and although the father frequently permitted the son to drive the car when he was present.^® § 1204. Owner riding in car with minor son. If the owner is riding in his car, driven by his minor son, it is held that he is chargeable with the driver's negligence — running without proper lights, reckless speed, etc. — ^and that the fact that he took no part in the operation of the car was immaterial.^'' § 1205. Father riding with minor son driving son-in-law's car. A father was held not liable for the negligence of his minor son. while the latter was driving an automobile belonging to the former's son-in-law, on the business of a third person, although the father was riding in the machine at the time.^' § 1206. Minor son habitually using father's car. The owner of an automobile habitually permitted his son, 13 years of age "to operate his automobiles since the latter was ten years of age; that the father had ridden with the son repeatedly and permitted him to carry other niembers of the family out in! the machine. It is true that on this occasion he sent a colored chauffeur with the machine to execute a certain commission, and that the son got in the machine en route, and the chauffeur turned over the operation of it^ to him. The chauffeur had a right to assume that the father approved of this. It was the latter 's habit to allow his son to run his machines in direct violation of the statute of the state." Held, "Lewis V. Steele, $2 Mont. 300, 157 "Daggy v. MiUer, 180 la. 1146, 14 N. Pac. 57S (1916). C. C. A. 4S3, 162 N. W. 854 (1917). 16 Sultzbach v. Smith, 174 la. 704, 156 .18 Holland v. Goode, — Ky. — , 222 N. W. 673 (1916). S. W. 950 (1920). 1110 LAW OF AUTOMOBILES that the jury were warranted in finding that the boy. was driving the machine with the consent of his father on this occasion.^' § 1207. Liability of owner to guest of daughter. Where a father gave his daughter permission to use his automobile for an errand of her own, and on the return trip a guest, whom she had invited to ride with her, was fatally injured by the chauffeur's fleg- ligence, the owner's liability depended upon whether or not he had authorized the daughter to invite such guest.^° § 1208. Girl driving car belonging to uncle. Where there .was. no tiling to show that the automobile in question, and which was being operated by the unaccompanied minor daughter of one' of the defendants (the father of the other defendant, the owner of the car), was being operated with the knowledge or consent of either defenda,nt, or about the business of either, there being merely an admission on the part of the father that the daughter "had been in the habit of driving down to his office at lunch time and taking him home in the car," but no evidence of the time of day the accident happened, or for what purpose the car was being used at the time, a nonsuit was proper.^^ § 1209. Liability of husband for negligent driving of wife. At common law the husband is liable for the; torts of his wife, though committed put of his presence and without his authority. Under this rule he will be held liable for her negligence in operat- ing an automobile, resulting in injury to another, although he was not present at the time the injury occurred. It has been decided that this rule is not affected by the Married Woman's Acts, author- izing her to transact business on her own account, and to sue and be sued without joining her husband.^^ The common law rule has been changed in some states by stat- ute.23 Where a statute relieves a husband from liability for the torts of his wife, a chauffeur is not liable for damage done to a car of his employer by his wife, who took the car out of his employer's garage, without the latter's knowledge or consent.** iSTaylor v. Stewart, 1^2 N. C. 203, 2Spiasch v. Pass, — Minn. — , 174 90 S. E. 134 (1916). ' N. W. 438 (1919); Laws Mo., 191S, p. aOFIynn v. Lewis, 231 Mass. 550, 121 269. N. E. 493, 2 A. L. R. 896 (1919). 24 Killingsworth v. Keen, 89 Wash. aiQuinn v. Neal, 19 Ga. App. 484, 597, 1S4 Pac. 1096 (1916). 91 S. E. 786 (1917). 22 Aronson v.' Ricker, 185 Mo. App. 528, 172 S. W. 641 (1915). ' LIABILITY OF OWNER 1111 Where a husband or wife is liable for injury caused by the neg- ligent operation of an automobile by the other only by reason of his or her interest in the community property, a judgment impos- ing a separate liability is erroneous. ^^ § 1210. Liability of husband to wife. Under the law of Georgia a wife cannot recover of a hiisband, with whom she is living in lawful wedlock, for a tort resulting from his negligent operation of an automobile in which they were riding at the time of the injury.*® § 1211. Wife as servant or agent of owner. If the owner of an automobile directs or authorizes his wife as his agent to operate the same in carrying him from his hom,e to a railroad station and to drive the machine back, he is liable for injuries negligently in- flicted by her on the return trip; and he may be sued therefor without joining his wife as a party defendant. He is liable on the theory of respondeat superior?'' § 1212. Wife driving husband's car with his consent. In California it is held that proof fliat a wife was driving her husband's automobile, with his express consent, raises a presumption that she was acting as her husband's agent at the time. Such proof establishes a prima facie case, authorizing an inference by the court or jury, in the absence of substantial proof to the contrary, that the wife was using the car as agent of the husband.** §1213. Legal title to car in wife who employs chauffeur. Although it appeared that the legal title to the automobile causing the injury complained of was in defendant's wife, and that she em- ployed the chauffeur, but it further a,ppeared that the car was in the defendant's possession, used and controlled by him for the pleasure of himself and his family, that the car and chauffeur were under 25 Mogelberg v. Calhoun, 94 Wash. for' divorce. When the wife is by stat- 662, 163 Pac. 29 (1917). ute given full control over property ac- An automobile acquired after marriage quired by her, the martial relations will is presumed to be community property. not protect the husband against an Marston v. Rue, 92 Wash. 129, 159 Pac. action for unlawfully interfei'ing with 111 (1916). the property; but under such a statute 26 Heyman v. Heyman, 19 Ga. App. the wife cannot maintain an action 634, 92 S. E. 25 (1917). against the husband for a personal in- "For a personal tort by the husband to jury.'" Cooley on Torts (3d Ed.) 474. her person or reputation the wife can 27 Beard v. Davis, — W. Va. — , 103 sustain no action. She must rely upon S. E. 278 (1920). the criminal law for her protection, or 28 McWhirter v. Fuller, — Cal. — , seek relief in separation or in proceedings 170 Pac. 417 (1918). 1112 LAW OF AUTOMOBILES full control and dominion of defendant, and that the wife paid the chauffeur out of allowances made to her for such expenses by her husband, he was properly held liable for the injuries caused by the negligent driving of the chauffeur.'^' § 1214. Mother riding with minor son, over whom she has control. It has been held /that a mother, riding with her minor son, over whom she had control, in an automobile owned by her hus- band, was equally liable with the son for injuries inflicted on an- other by his negligent operation of the car.'" § 1215. Mother using daughter's car and chauffeur. A mother, using an automobile and chauffeur furnished for her use by her daughter, was representing her daughter and was not a bailee of the car.*^ § 1216. Wife riding in husband's car driven by third person. Where a husband owned an automobile which his wife was in the habit of using for her own pleasure, with the knowledge and con- sent of her husband, frequently operating it herself, and at the time in question one C. was operating the car, taking the owner's wife and some children to a baseball game, and there was nothing to indicate that the owner or his wife had any right to command the services of C, who was a boarder or guest in the owner's family and was accorded the privilege of using the car when it was not otherwise engaged, and the trip was taken at his suggestion, it was held that the owner was not liable for an injury negligently in- flicted with such automobile by C. on the trip mentioned, there being no evidence that any one of the party was engaged about any affair of the owner.** § 1217. Wife sending chauffeur for physician for injured person found on highway. The defendant owned an automobile, which he used in his profession, and which was also used generally by himself and members of his family. His chauffeur was subject to the orders of his wife, and on the occasion in question the wife was using the machine. Discovering an injured woman by the roadside, the wife had the machine stopped, and, finding the woman too badly injured to be moved, she sent tiie chauffeur in the ma- chine for a physician. When a physician was found the chauf- feur took him into the car, and on the return trip to the injured 29Penticost v. Massey, — Ala. — , 77 31 Crouse v. Lubin, 260 Pa. St. 329, So. 675 (1918). 103 Atl. 72S (191?). SOCoUinson v. Cutter, — la. — , 170 82 Armstrong v. Sellers, 182 Ala. S82, N. W. 420 (1919). 62 So. 28 (1913), LIABILITY OF OWNER 1113 woman he negligently collided with a wagon, and the physician (the plaintiff in this case) was injured. Defendant contended that he was not liable because the trip for the physician had nothing to do with the affairs of himself, and his wife had no right to send the chauffeur on such an errand. The court held that it could not be said, as matter of law, that the chauffeur was not acting in his customary capacity as servant of defendant, and judgment for plaintiff was affirmed. In part the court said: "We cannot say as a matter of law that the sending for a doctor under the circumstances must be deemed unreasonable. Such an act was presumably as natural and conducive to the wife's peace of mind as any other impromptu business or pleasure trip she might order the chauffeur to make. If then the wife had authority, express or implied, to direct the chauffeur to go for a doctor her orders to him so to do did not in any way destroy the relation of master and servant otherwise admittedly existing." " § 1218. Husband driving wife's car. A wife, owning an auto- mobile which she permitted to be used as a family car, was not liable for an injury caused by the negligence of her husband when driving the car, in the absence of evidence that he was driving the car in the course of her business or pleasure at the time.'* § 1219. Owner's brother driving car in which mother is rid- ing. The mere fact that an owner's brother was driving the car, in which their mother was riding, when an accident occurred did not render the owner liable for the brother's acts; the car not then being used about the owner's business.'® § 1220. Owner's chauffeur driving son-in-law. In an action to recover for injuries inflicted by the defendant's automobile whife it was being driven by his chauffeur, it appeared that the defend- ant's son-in-law was the only occupant of the machine other than the chauffeur; that the son-in-law was a member of defendant's household, and had been accorded the privilege by defendant of using the automobile for his business or pleasure when it was not being used by defendant; and that at the time of the accident the son-in-law was so using the machine with this general consent of defendant. "In other words, the chauffeur, defendant's servant, was merely following the general directions of his master in driv- 33 McHarg v. Adt, 163 App. Div. 782, 34 Smith v. Weaver, — Ind. App. — , 149 N. Y. Supp. 244 (1914). 124 N. E. 503 (1919). ^foo, Vannett V .Cole, — N.p. — , 170 36 De Smet v. Niles, 17S App. Div. N. W. 663 (1919), citing this work. 822, 161 N. Y. Supp. 566 (1916). 1114 LAW OF AUTOMOBILES ing the machine for the benefit of a member of the master's house- hold. No one can doubt that in so doing the chauffeur was acting within the scope of his employment, and that defendant must re- spond for any actionable negligence on his part while in the per- formance of such duties." *® § 1221. Chauflfeur driving for guests at direction of mem- ber of family. Where an automobile at the time of an accident was being operated by the owner's chauffeur, in obedience to an order of a member of the owner's family, and not for any private purpose of his own, and the occupants were friends of the^ owner and guests of his sister, and the errand was entirely proper and fitting in itself, the presumption was that the chauffeur ^as act- ing within the scope of his employment, although the owner was not present.''' > § 1222. Owner in Europe— Daughter using car in general control of chauffeur. In an action to recover for injuries caused by a collision of defendant's automobile with the plaintiff's vehicle, it appeared that at the time of the accident defendant and his wife were in Europe; that when they departed they left the chauffeur in general control of the automobile; that a rnarried daughter of defendant, who had a home of her own, but who frequently stayed at defendant's home, was staying at defendant's home at the tim"E in question, her husband being temporarily absent; that this daughter was at liberty to use the car whenever she chose to do- so, both before and after defendant's departure; that on the day in question she telephoned to the defendant's home for the chauf- feur to bring the car down town for her, which message was con- veyed to the chauffeur, who did as requested, and on the way down town he negligently caused the accident mentioned. Held, that the chauffeur was acting within the scope of his employment at the time of the accident.** § 1223. Member of family permitting another to drive car temporarily. The liability of the owner who keeps an automo- bile for the use and pleasure of himself and family extends to the negligent acts of one to whom a member of the family, authorized to use the car, temporarily entrusts the operation thereof, but not 86 Freeman v. Green, — Mo. App. Also, Vannett v. Cole, — N. D. — , — , 186 S. W. 1166 (1916). 170 N. W. 663 (1919), citing this work. 37 Moon V. Matthews, 227 Pa. St. 38 Winfrey v. Lazarus, 148 Mo. App. 488, 76 Atl. 219 29 L. R. A. (N. S.) 388, 128 S. W. 276 (1910). 856 (1910). LIABILltY OF OWNER 1115 relinquishing control over the car nor leaving the same to his sole care. The head of a family kept an automobile for the use, conve- nience, and pleasure of himself and the members of his family. It was usually driven by. his daughter, 19 years of age, and she was authorized to use it whenever she desired to do so. On the day of the accident she took it, and, accompanied by her younger sister, drove to the home of a relative, where they were joined by other young people. From this point the daughter permitted a cousin, then riding with them, to drive the car, a:nd from his negligent driving injury occurred. In regard to the liability of the parent for the acts of his daugh- ter, the court said: "Defendant's daughter, while operating the car by his authority and upon his business, was defendant's servant within the meaning of the rule, and he was responsible for her acts to the same extent that he would have been .responsible for the acts of any other servant. Defendant might properly make it an element of his business to provide pleasures for his famil^; and, as the car was intended for the use of the members of the family, for purposes of pleasure as well as for other purposes, and the daughter had authority to take it and operate it for such ptirposes, it was at least a question for the jury whether, at the time of the accident, she was not the servant of defendant and engaged upon the business of defendant." In regard to the contention that the owner was not liable for the negligent operation of the car by the third person, who was not a member of his family, the court said: "The daughter re- mained in the car, and, although not personally . operating it, had not relinquished control over it, nor turned it ove\ to another to use for his own purposes. It was still being used in furtherance of the purpose for which she had taken it out." ** In a Georgia case one count of a petition alleged that a widow, having, the exclusive control of her minor, unmarried daughter, owned an automobile; that the daughter was riding in it, having authority and command over the movements of it, and that it was driven by another named perspn, when it negligently, col- lided with a passer and injured him. No relation of master and servant, or principal and agent, was alleged to exist between the driver of the car and the owner, nor did there appear to have 39 Kayser v. Van Nest, 12S Minn. 277, 146 N. W. 1091, SI L. R. A. (N. S.) 970 (1914). 1116 LAW OF AUTOMOBILES been any allegation to show that the owner was liable for a tort of her daughter save the mere relationship of parent and child. An amendment was offered, alleging that the owner of the auto- mobile kept it for the comfort and pleasure of her family, including her daughter, who was authorized to use it at any time for such purpose. The Court of Appeals held that the count of the petition as it originally stood was insufficient; that if the daughter had been driving the automobile at the time of the collision, under certain decisions of courts in other states, the mother might have been held liable, but that, under the statute of this state and the con- struction which the Supreme Court had put upon it, they did not think that if the amendment had been allowed the count of the petition being discussed would have shown a cause of action against the mother. This court, referring to decisions holding the owner liable on the theory that the automobile was being used for the pleasure of a member of his family, which was the purpose for which the car was kept, said: "These decisions seem to be based upon the theory that the minor child was driving the machine when the accident occurred; none of them go to the extent of holding that a parent would be liable for the result of . an accident caused by the negligence of a driver who had been selected to drive the machine, not by the parent, but by the minor child." *" § 1224. Physician permitting son to use his automobile. A physician owned two automobiles, which he used in connection with his practice, and regularly employed a chauffeur to drive them. His son, 18 or 19 years old, was permitted to use one of the machines for his own purposes when it was not otherwise in de- mand. On the occasion in question he was so using the machine, having with him two other young men, who were not members of his father's household, and ran down and killed a pedestrian. It was held that the father was not liable for the son's negligence at such time. In this case the court declared that the evidence, at best, authorized a finding of a mere permissive use by the son of the father's automobile, and , that for the son's negligence therein the father was not liable." § 1225. Automobile used by guests. The undisputed evidence in a personal injury action showed that the defendant was enter- 40Schumer v. Register, 12 Ga. App. « Parker ,v. Wilson, 179 Ala. 361, 60 743, 78 S. E. 731 (1913). So. ISO, 43 L. R. A. (N. S.) 87 (1912). ^ LIABILITY OF OWNER 1117 taining as guests two women and two men; that the women urged him to take them out in his automobile, but he 4id not want them to go, and during the most of the afternoon refused to yield to their request; that he finally told them that they could go, but not to be gone very long, and at the same time he took from his pocket the key with which to unlock the switch of the automobile and threw it down; that one of the male guests, who had been em- ployed by the firm of which defendant was a member until a day or two before the occasion in question, and who held a chauffeur's license and knew how to operate defendant's car, took the key and prepared the automobile, which was near by, for starting and in defendant's presence drove away with the women, and while so engaged negligently injured the plaintiff. The defendant was re- luctant to allow his machine to be used by his guests, and when he gave his consent he told them that he did not want them to go. He said that he supposed he knew the male guest was going to drive the car, and thought he would "drive those girls around a little way and bring them back." He denied that the man went on any mission of his or was sent by him to take the women for a ride. The case was submitted to the jury*, who found in favor of plain- tiff, and the verdict was upheld. The court said: "If the de- fendant merely lent his automobile to Thompson (the male guest) or the women for their own pleasure or business, or permitted them to use it for a purpose in which he had no interest, plainly he could not be held answerable for any injury resulting from care- lessness in its operation. Although the case is close to the line, there are circumstances enough to require the submission of thai question to the jury. The women were the guests of the defend- ant at his house by his invitation for a week-end party. He yielded to their importunities, addressed directly to him, that they should be given a ride. There was evidence that the relation of host and guest did not end with their departure, for it might have been found that the defendant's parting admonition to them was that they should return soon. His consent to the use of the car was based not on anything said by Thompson, but it is manifest that he knew that the car would be driven only by Thompson, whom he knew to be licensed therefor. His conduct in delivering the key, by which alone the automobile could be started, under all the circumstances .disclosed would support a finding that, not- withstanding his protestations of reluctance and without express authority, the defendant nevertheless impliedly empowered Thomp- 1118 LAW OF AUTOMOBILES son as his representative to take his car for the purpose of gratify- ing- the desires of his women guests for an automobile ride." *^ § 1226. Liability of guest riding with owner. One riding in an automobile as a guest of the owner and who exercises no con- trol over the driver, is not liable to one injured by the negligent operation of the machine.*^ § 1227. Guest operating car for partners. Two partners owned an automobile, and .both were present riding in the same for pleasure on the occasion in question. L. was riding in the automobile as a guest of both partners, and one of the partners requested him to operate the car; the other partner impliedly acquiescing in such arrangement. While L. was operating the car he negligently injured the plaintiff. It was held that L. was not a volunteer, and that the partners were liable for his negligence. "The very fact that he was their guest in the car," said the court, "is in no wise inconsistent with his agency derived by ex- press authority from one owner, with the acquiescence and, implied consent of the other, to drive the car for their benefit and in their place and stead as their alter ego." ** § 1228. Owner being driyen by husband's employee. The owner of an automobile, who was riding in the machine while it was being driven by an employee of her iiusband, was held not to be liable for such employee's negligence.** 42 Campbell v. Arnold, 219 Mass. 160, « Potts v. Pardee, 220 N. Y. 431, 17 106 N. E. 599 (1914). N. C. C. A. 42, 116 N. E. 78 (1917), 43Hutchings v. Vacca, 224 Mass. 269, rev'g 162 App. Div. 936, 147 N. Y. 112 ;N. E. ,6,52 (1916). Supp. 1136. 44 Solan & Billings v. Pasche, — Tei. Civ. App. —,153 S. W. 672 (1913). CHAPTER XXVII LIABILITY OF OWNER FOR INJURIES TO CHAUFFEUR § 1229. Presumption as to chauffeur's competency. § 1230. Employee having full control of automobile. § 1231. Owner moving spark lever caus- ing engine to back fire when cranked. § 1232. Engine backfiring, injuring inex- perienced employee. § 1233. Demonstrator injured by defec- tive steering gear. § 1234. Defective brakes. § 123S. Brake faiUng to hold. § 1236. Automobile starting due to de- fective brakes. § 1237. Starting lever flying back. § 1238. Wrench slipping off of lug. § 1239. Band flying off of wheel. § 1240. Using automobile contrary to orders. § 1241. Injured while exceeding speed limit. § 1242. Injured on testing track. § 1243. Mechanician injured on defective race track. § 1229. Presumption as to chauffeur's competency. A chauf- feur is presumed to be famihar with the ordinary parts of an auto- mobile, and to be compet^nt.^ § 1230. Employee having full control of automobile. The fact that an employee has full charge of an automobile, with in- structions to have it repaired at the employer's expense when, and where he desires, may relieve the employer of liability for injuries to such employee caused by the defective condition of the machine.^ § 1231. Owner moving spark lever causing engine to back fire when cranked. In an action by a chauffeur to recover damages against his employer for personal injuries, there was evi- dence that the chauffeur entered the defendant's employ on the day before he was injured; that he met with the accident on his first trip; that the automobile had been purchased the day before; that, while he was a chauffeur of experience, he was not familiar with the mechanism of that particular car; that just before he was injured the defendant directed him to crank the machine; that "lie plaintiff put the switch on the batteries and set the lever IPlasikowski v. Arbus, 92 Conn. SS6, 2 Morris & Co. v. Thurmond, 262 103 Atl. 642 (1918). Fed. 384 (1920). 1119 1120 LAW OF AUTOMOBILES in a retarding position on the operating wheel, and went to the front of the machine and started to crank it when the defendant touched some of the levers on the front of the machine, the plain- tiff being in the act of cranking, there was a back fire, that is, the crank of the machine canae back and struck the plaintiff on the wrist, severely injuring him;" that at the time of the accident the machine was not equipped with batteries, which fact was known to defendant and unknown to plaintiff. It also appeared that if there were no batteries in the automobile the motor could not have been started at all, and therefore the only way in which there could have been a "back fire" was by reason of the switch having been placed on the- magneto. The plaintiff contended that after he had put the switch on the batteries and set the lever in a retarding posi- tion and started to crank the car, the defendant moved the levers on the front of the car, causing the crank of the machine to fly back and strike him on his wrist; that as he was ignorant of this change in the position of the levers by the defendant, he did not use the same energy in cranking the car that was necessary and that would have been applied by him had he known that the lever had been moved from the batteries and set upon the magneto. The defendant testified that iie knew how a car should be operated, but did not know how to operate it himself. It was held that the jury would have been warranted in find- ing that the defendant was negligent, and that the plaintiff was in the exercise of reasonable care, and that it was error to direct a ver- dict for the defendant.' In reference to the conduct of the defendant, the court said: "If, without the knowledge of the plaintiff, he changed the posi- tion of the levers while the plaintiff was cranking his machine, and knew that the probable consequence would be to cause a 'back fire,' it is plain that his act might be regarded as negligent. If he was. ignorant of the consequences of such an act on his part, and changed the position of the levers without knowing what the effect would be, he would be equally culpable. To interfere with the mechanism of the machine under such circumstances could be found to be an act lacking in reasonable care and prudence. In view of the serious consequences which reasonably might be ex- pected to follow from changing the position of the levers, such acts might be found to be negligence, and for the consequences of such negligence the defendant would be liable to the plaintiff." 'Norris v. Allen, 217 Mass. 573, 105 N. E. 364 (1914). LIABILITY FOR INJURIES TO CHAUFFEUR 1121 The plaintiff was employed as a grocer clerk by the defendant, who, on the occasion in question, ordered him to crank an automo- bile, which plaintiff attempted to do and was injured by the engine back firing. The plaintiff testified that he was not familiar with automobiles, and was not familiar with the method of safely start- ing the engine, and thafe while he was in the act of cranking the engine th^ defendant advanced the spark so as to cause the engine to back fire or kick back. There was evidence that when a person is turning the engine, or cranking it, the advancement of the spark lever will cause the engine to back fire; that defendant knew, or should have known, this fact; that defendant knew that plaintiff was cranking the machine when he moved the spark lever; that when the engine kicks back the person holding the crank is placed in immineiit danger. Held, that the evidence showed negligence on the part of the defendant, and judgment for plaintiff was af- firmed. The court spoke as follows, regarding an instruction in this case: "In the instructions to the jury the court, in substance, told the jury that, wheij an employee is ordered or permitted by one having authority over him to do a temporary work beyond the work which he had engaged to do, and, the one in authority knows, or ought to know from all the circumstances in the case, that such work is dangerous, it is the duty of the employer to caution and instruct a disqualified employee sufficiently to enable him to understand the dangers he vyill encounter. Another instruc- tion was also given along the same lines. It is argued by the appellant that the court erred in using the words if the 'defendant ordered or permitted the plaintiff to attempt to set the engine of the automobile of defendant in motion,' because the use of the word 'permitted' was confusing to the jury. It may be that the use of the word 'permitted,' taken from its connection with the facts of the case, was not apt; but it is plain from a reading of the instructions in connection with the facts that the court meant to tell the jury that, if the defendant ordered the plaintiff to set the engine in motion, then it was the duty of the plaintiff to instruct an ignorant servant if dangers were attendant liiereon." * Where, in an action by a servant to recover for injuries caused by the engine of an automobile back firing when he tried to crank it, it appeared that he and his employer and another man were ■taking turns at trying to start the engine, each having his own idea *Godley v. Gowen, 89 Wash. 124, ,154 Pac. 141 (4916). B. Autos. — 71 1122 LAW QF AUTOMOBILES : about the proper position, of the spark lever while so doing and each setting the lever to suit his idea; and that the plaintiff was injured by reason of the lever having beevK changed from the posi- tion in which he left it, it was held that, as the servant knew that the lever was being changed by everyone, he had no right to rely upon it being kept in the position he thought to be safest; that the lever was in plain view and plaintiff should have taken the precaution to have observed its position before attempting to crank the engine himself, and that not to do so may well be con- sidered as negligence on his part barring recovery.' . § 1232. Engine back firing, injuring inexperienced employee. The plaintiff was employed by defendant as helper to a driver of an automobilfe truck. He had been So employed about two months, and had learned to stop and start the truck and to drive it on a smooth road. He had frequently seen the driver crank the engine, but prior to the time in question had never attempted to do so, and he had no knowledge of how to adjust the spark prior to crank- ing the engine. On the morning of the accident the driver ordered plaintiff to take the truck and go to a gal-age and secure certain equipment. He did so, and in backing the truck out of the garage: the engine stopped, and he attempted to crank it, with the fesiilt that the engine back fired, owing to the advanced position of the spark lever, and he received a broken arm. When the truck was turned over to plaintiff the spark was advanced, and owing to a defect in the magneto it was necessary to keep the spark ad- vanced in order to start and to operate the truck. The truck had been in this condition for some time, to the knowledge of defendant, but plaintiff had no knowledge thereof. Plaintiff was required to take orders from the driver. It was held that the defect in question was not open and obvi- ous, and that it could not have been discovered by plaintiff in the exercise of ' ordinary care, and that, consequently, he did not assume the risk; that plaintiff was not contributorily negligent as matter of law; and that at the time in question, and in the circum.- stances, plaintiff and the driver were not fellow servants. Ac- cordingly, judgment for plaintiff was affirmed.^ § 1233. Demonstrator injured by defective steering gear. . Where the employer undertakes to repair and put in good condi- tion an automobile for the use of a servantj who is not himsell 6 Keller v. Blurton, — Mo. App. — , 6 Collins v. Terminal Tr. Co., 91 183 S. W. 710 (1916). Wash. 463, 1S7 Pac. 1092 (1916). LIABILITY FOR INJURIES TO CHAUFFEUR 1123 charged with the duty of keeping it in repair, it is his duty to use reasonable care to the end that no injury results to the servant by reason of thej lack of care in placing the machine in good con- dition. In ah action in which a demoilstrator in the employment of an automobile company, was injured while demonstrating a machine to a prospective purchaser,' by the steering gear becoming sepa- rated which caused the machine to collide with a tree with such force as to demolish the automobile and seriously injure the dem- onstrator, there was evidence that the automobile was an old one, but had been overhauled by defendant and furnished to plain- tiff as sufficient, and ass.erted to be in fine shape but a week or ten days before the accident; that about 6 weeks prior to the accident the plaintiff reported to the defendant's manager that the car needed repairing in regard to several matters, and the manager directed him to turn the car into the factory and he would have it over- hauled thoroughly and "go all the way through it; " that when the car was repaired it was given to plaintiff to be used for demon- strating purposes, and the manager stated to him that it was in fine shape; that the car appeared to be in good shape, but it de- veloped that the steering gear, which was concealed, was so worn that it was caused to separate, thus causing the injury; that at the time the accident occurred plaintiff was violating the speed law. Held, that the question of the defendant's negligence and plain- tiff's contributory negligence were for the jury, and that to defeat recovery on the ground that plaintiff was exceeding the speed limit at the time of the accident it must be shown that such conduct was the proximate cause of the injury, which was also a question for the jury. Judgment for plaintiff was accordingly affirmed.'' §1234. Defective brakes. Where a chauffeur had operated an automobile through various parts of the state, any defective condition of the brakes was as obvious to him a^ to the owner, and the latter owed him no duty to warn him thereof, and no duty to indemnify him for expenses incurred, in defending a prose- cution for reckless driving, arising out of an accident due to the condition of the brakes.' § 1235. Brake failing to hold. The plaintiff, an employee of defendant, while backing an automobile, was precipitated over a 1 Cabanne v. St. Louis Car Co., 178 8 Plasikowski v. Arbus, 92 Conn. SS6, Mo. App. 718, 161 S. W. 597 (1913). 103 Atl. 642 (1918). 1124 LAW OF AUTOMOBILES steep bluff by reason of the brakes failing to hold the car. He further testified that the defendant stated, a day or two after the accident, that he was sorry that he had never said anything about the brakes; that the brake was loose from the drum, and had been "all along." It also appeared that plaintiff had never driven this machine before the day of the accident, and only for a short time prior to the accident. It was held that the evidence was suf- ficient to sustain a verdict for plaintiff.' § 1236. Automobile starting due to defective brakes. If a chauffeur, employed to oper'ate an automobile, which he tests from time to time, continues to drive the same with knowledge that the brake is defective, he cannot recover for injuries due to the ma- chine starting, owing to the brake slipping. Such chauffeur is guilty of contributory negligence.^" The plaintiff, a chauffeur of 5 years' experience, had been operat- ing defendant's automobile 3 or 4 weeks when he was injured by the sudden starting of the car, owing to a defective brake, the same being in need of a new dog. ' This condition of the brake was known to him at least two weeks before the accident, and he knew that, on this account, the car was liable to start of its own motion. He had been furnished tools with which to make repairs of this kind, and he testified that to put in a new dog would take but a short time. It was held that an instruction that, "even though you find that the plaintiff knew of the defective condition of the dog, you cannot find from that fact that he assumed the risk of injury therefrom," was erroneous; that the question of assumption of risk was for the jury; and that verdict in favor of plaintiff was against the evidence. The court further said: "There is another reason which it seems to me should be fatal to a recovery in this action. In a populous city like New York, where thousands of people are in the streets at all hours of the day and night, an experienced chauf- feur, unless it be under exceptional circumstances, who runs an axitomobile in the street, knowing that the brake is defective, ought to be estopped, as matter of law, from recovering damages against his employer for injuries occasioned by such defect." ^^ § 1237. Starting lever flying back. The plaintiff j a chauffeur of four years' experience, alleged that on a certain day he was 9 Gianini v. Cerini, 100 Wash. (587, " Marks v. Stolts, 165 App. Div. 462, 171 Pac. 1007 (1918). ISO N. Y. Supp. 9S2, 9 N. C. C. A. SSn "•Pierce v. Morrill Bros. Co., 116 Me. (1914). 517, 102 Atl. 230 (1917). LIABILITY FOR INJURIES TO CHAUFFEUR 1125 employed to operate defendant's automobile, and was ordered to go to the garage where the car was kept and begin such service; that defendant's husband and agent stated that the automobile was in good order; that plaintiff examined said automobile and after satisfying himself that it was in running order as far as external appearance went, he pulled the starting lever; that owing to some latent defect, not discernible by plaintiff's examination, said lever flew back and fractured plaintiff's right arm. Then followed for- mal allegations, and a statement that the inspection required by law would have shown the defect, and prevented said injury, and that, upon information and belief, no such inspection was made. Held, that the facts alleged failed to show negligence on the part qf the defendant; that there was no law requiring such an inspec- tion as alleged to be made, but that if there was it would be neces- sary to allege facts showing that such failure to inspect was the proximate cause oi the injury; that the complaint did not allege any defect in the car; that no liability could be predicated on the alle- gation that defendant's agent stated that the car was in good order, because plaintiff did not rely upon the statement, but made his own examination, and he alleged no facts showing this staetment to be untrue; and that a demurrer to the complaint should have been sustained.^* A chauffeur, having advanced the spark lever of a comparatively new truck one-third of the distance it would go, attempted to crank the engine, and was struck by the handle flying back, owing to the engine kicking back. Held, not to show any negligence on the part of the owner.^^* § 1238. Wrench slipping off of lug. A taxicab chauffeur was injured by a wrench, which he was using to take off a punctured tire, slipping from the first nut to which it was applied due to the socket in the wrench ha^^ing become so worn that when placed on the end of the liigi it "would just catch enough so that, when you pulled up on it, it would slip off." The wrench struck the chauffeur in the eye, inflicting the injury complained of. The acci- dent happened at night. It was held that the case should have been submitted to the jury, the wrench being supplied by the em- ployer, and the chauffeur having no right of selection.^' 12 Anderson v. Van Riper, 128 N. Y. 1* Ridley v. Portland Taxicab Co., Supp. 66, 9 N. C. C. A. 61n (1911). 90 Oreg. 529, 177 Pac. 429 (1919). 12a Card V. Turner Center D. Ass'n, 224 Mass. S25, 113 N. E. 187, 13 N; C. C. A. 499 (1916). 1126 LAW OF AUTOMOBILES § 1239. Band flying off of wheel In an action by a chauffeur to recover for injuries sustained when a band flew off a wheel, on which he was inflating a tire, striking him in the face, he testi- fied that he had notified his employer about the defective condi- tion of the wheel, and told him that it ought to be examined by an expert, and that the employer said that the band was all right, that he was not going to use the machine very long, as he had ordered a new one and would get rid of this one. The defendant denied that he had been notified as to the condition of the wheel. It was held error not to submit the question of assumption of risk to the jury, and judgment for plaintiff was reversed and the cause remanded. In remanding the case the court said: "On the liext trial the evidence should show the usual and ordinary duties of a chauffeur, what, as such, the plaintiff did while in the service of the defend- ant, what knowledge a chauffeur should have of the mechanism of an automobile, and whether his duties require him to be suffi- ciently familiar with it to discover defects in the machine similar to the one alleged to have existed here, and the consequent danger, if any, to a competent chauffeur replacing a tire under the circum- stances." 1* § 1240. Using automobile contrary to orders. An employee as a general utility man, among whose duties was the distribution of newspapers, at one time used an automobile of ,his employer and met with an accident. He was then forbidden to use the machine, but he continued doing so until, while driving it, an acci- dent occurred which caused his death. On the day of this acci- dent, before he used the automobile, he was distinctly ordered not to take it. Held, that the accident did not "arise out of and in the course of his empIo5Tnent," within the New Jersey Workmen's Compensation Act, and that no recovery could be had under that act for his death. ^'' i § 1241. Injured while exceeding speed limit. An employee driving an automobile at a rate of speed prohibited by a penal stat- ute, ^as guilty, of wilful misconduct, which barred recovery for his death while so driving, under the provisions of a workmen's compensation statute which made the wilful misconduct of an em- ployee a bar to recovery for his injury or death caused by such 14 Richardson v. Flower, 248 Pa. St. IB Reimers v. Proctor Pub. Co., 85 35, 93 Atl. 777, 9 N. C. C. A. 63n N. J. L. 441, 89 Atl. 931 (1914). (191S). LIABILITY FOR INJURIES TO CHAUFFEUR 1127 conduct; such rate of speed being unnecessary at the time. It was also declared to be immaterial that the violation of the speed statute was a common occurrence.^^ § 1242. Injured on testing track. The defendant automobile manufacturer maintained a track, one-half mile in circumference, for the purpose of testing automobiles. It was planked to a width of 16 feet, and at the curves the outer ends of the planks were raised for the purpose of overcoming the centrifugal force by which a machine would be affected while^ being propelled around the track. The plaintiff was an employee of defendant^ and engaged in testing cars by driving them on this track. While driving around a curve at about 40 miles an hqur, the car skidded and the right rear wheel went off the planked portion of the track, and in trying to right the machine an accident occurred which resulted in injury to the plaintiff. He sought to recover on the ground that the track at the curve had not been properly pitched, and not pitched so as to neutralize the centrifugal force of the car. It was held that the employer was not required to furnish an absolutely safe place for the plaintiff to work; that he was not required to construct the track at such angles at various points in the curves so as to neutralize the centrifugal force of cars at maxi- mum speed; that if so constructed as to be reasonably safe when cars were driven at extreme speed on the straight portions and at a less or moderate rate of speed at curves, the track was sufficient; and that the trial court properly directed a verdict for the de- fendant.^' ^ § 1243. Mechanician injured on defective race track. It is a duty devolving upon those in charge of an automobile race track to exercise reasonable care to maintain the track in a safe condition. It is the duty of those entering cars in races to exercise a like care to the end that their employees in charge of such cars are not in- jured through any defect in the track which a proper degree of care and vigilance would have discovered and remedied. A mech- anician employed on an autoipobile in a race does not assume the risk of a defect in the track which is not discoverable by him in the proper performance of his duties. It is not his duty to exam^ ine the track for latent defects. The same rules are applicable in respect to the question of his contributory negligence. It is his "Fidelity & Dep. Co. v. Industrial "Blick v. Olds Motor Wks. 17S Mich. Ace. Com'n, 171 Cal. 728, 1S4 Pac. 834 640, 141 N. W. 680, 49 L. R. A. (N. S.) (1916). 88 (1913) 1128 LAW OF AUTOMOBILES duty to employ his vision and other senses to discover danger, and if he fails to see a defect which, in the exercise of ordinary care, he should see, he is charged with constructive knowledge of it. In determining whether he exercised the required degree of care for his own safety, it must be considered that the car moves oVer the ground at a very high rate of speed; that the mechanician wears goggles to protect his eyes from insects and dirt; that there is gen- erally much dust and oil smoke in the air when racing is going on, and that the accumulation of oil and dust on the goggles generally requires frequent wiping of them to enable the mechanician to see the track; and that as a rule it is his duty to look over the mechani- cal parts of the car, to use a pump to regulate air pressure in tjie oil ta,nk, and to watch the gauge to see when pumping is needed, to vfatch for racing cars in the rear, and to keep a watch on the two rear and one front tires. If the track owner or manager and the employer of a mechanician know, or in the exercise of ordinary care should know, of a defect in the track that is likely to cause injury, " they will be held liable for injury resulting therefrom, in the absence of assumption of risk and contributory negligence on the part of the employee.^* 1* National Motor Vehicle Co. v. Kel- lum, 184 Ind. 457, 109 N. E. 196 (I91S). CHAPTER XXVIII - IHE GARAGE § 1244. Garage defined. § 1245. Garage not a livery stable with- in Sunday closing law. § 1246. Public garage. § 1247. Same — ^In which automobiles "are kept in storage or for sale or rent." § 1248. Garage not a nuisance per se. § 1249. Restraining erection of garage in violation of permit. REGULATION § 1250. Power of municipality to regu- late garages. § 1251. Reasonableness of municipal reg- ulation. § 1252. Statute requiring notice to land owners before issuance of per- mit. § 1253. Buildings used exclusively for residence purposes — Determin- ing character of buildings. § 1254. Requiring consent of property owners to location of garage. § 1255. Prohibiting garage near school. § 1256. Prohibiting garage where two- thirds of lots are devoted to residence purposes. §1257. Meaning of "block." § 1258. Cancellation of illegal permit for garage. § 1259. Prohibition of conduct or main- tenance of garage does not prevent erection. ft / § 1260. Prohibiting gasoline in building used for garage as amounting to eviction. AS VIOLATIVE OF PROPERTV RESTRICTIONS §1261. Small private garage as violation of restriction against garages. § 1262. Not included in restriction against stable. § 1263. Offensive to neighborhood. § 1264. Offensive to neighborhood for dwellings. § 1265. Offensive purpose or occupation. § 1266. Land restricted to residence pur^ poses. § 1267. Restricted to dwelling and usual outbuildings. § 1268. All buildings excluded except dwelling. § 1269. Restriction against nuisance. § 1244. Garage defined. A garage is "a station in which motor-cars can be sheltered, stored, repaired, cleaned, and made ready for use; also, a place of private storage for a motor-car; a stable for motor-cars." ^ "A garage, which is the modern substitute for the livery stable, is defined as a place for the care and storage of motor vehicles, and in which such vehicles are kept for hire. A livery stable is a place 1 Century Diet. & Cyc, 1129 1130 LAW OF AUTOMOBILES where horses are groomed, fed, and hired, and vehicles are kept for hire." 2 "But the word 'garage' is not to be regarded as synonymous with 'stable,' nor is a clause in a contract prohibiting the erection of a: 'stable' to be held breached. by the construction of a garage thereon. The word 'garage' was recently appropriated from the French language, there meaning keeping under cover, or a place for keeping, and, as employed in English, is accurately defined by Webster's Dictionary, substantially like that of the Century Dic- tionary, as 'a place where a motor vehicle is housed and cared for.' To be such, the place need not be apart from other buildings, though that may be the more common and appropriate way. If the 'place' be in a 'leanto' attached to another building, as a barn or corncrib constructed for the purpose, or, having been erected, is set apart for the housing of the automobile, it is none the less a 'garage,' within the meaning of that word in either language." ^ - An ordinance of Chicago relating to the location of garages, defines the yyord "garage" to mean any building where automobiles, auto cars, or any similar self-propelled vehicles are let for hire or are kept ready for use upon the payment of fees for such serv- ices.* § 1245. Garage not a livery stable within Sunday closing law. A garage is not exempt from the provisions of a Sunday clos- ing law, which exempts livery stables from complying with its terms. Nor does the sale of engine oil by a garageman fall under the exception of "works of necessity." * § 1246. Public garage. One who conducts a public automobile repair shop, and in the same building stores the automobiles of his customers without charge, but tells them that he expects to do their repair work when needed, was held to be conducting a "pub- lic garage," and liable to pay a privilege tax imposed by statute on pfublic garages. The court said that whether the garage was run in connection, or formed a part of the repair shop, or the repair shop was an incident to the garage, was unimportant. "There was a public garage; and while there was no fee charged for the 2 Grimes v. State, — Tex. Cr. App. 368, lOS N. E. 315, Am. Cas. 191SC — , 200 S. W. 378 (1918). 183 (1914). 3 White V. Home Mut. Ins. Ass'n, — 6 Grimes v. State, — Tex. Cr. App. la. — , 179 N. W. 31S (1920). — . 200 S. W. 378 (1918). * People ex rel. v. Ericsson, 263 111. THE GARAGE 1131 storage, yet charges were made for the repair of vehicles stored, and vehicles were stored for repair." ® §1247. Same— In which automobiles "are ke^t in storage or for sale or rent." The defendant was charged with the viola- tion of an ordinance imposing a license tax upon every person, firm, or corporation keeping or operating a public garage in which automobiles "are kept in storage or for sale or rent." It appeared that the defendant, a corporation, kept a place at which it carried on the business of selling iautomobiles ; sales beirig made iii the ■following manner: After a purchaser ordered a car defendant would send the order to the factory. In due course the factory would ship a car to the defendant with a bill of lading, and de- fendant would then take the car from the freight station and de- liver it to the pxirchaser. This constituted its main business, It also appeared, however, tliat defendant used a "denionstrator" in making sales, which was its property; that within little more than a year it actually sold four automobiles which, it had stored in itp garage, and which were not shipped to it from other states to be delivered to purchasers on orders previously taken, one of which was sold prior to the institution of the syit and three thereafter; that these cars had been used as demonstrators, and were sold .|3e- cause of the termination of defendant's contract of agency for thi)se makes, which rendered them useless as demonstrators, that any such cars owned by defendant, while not purchased for the pur- pose of sale, would be sold for a reasonable price; that defend- ant stored no cars for others, and sold no supplies of any kind. The court held that the ordinance was applicable to defendant, and that it must pay the license tax imposed thereby. It was contended by defendant that the few isolated sales of automo- biles on hand did not constitute the doing of business within the meaning of the ordinance, but the court held that the principle referred to is confined to cases where there is no intention on the part of such person to engage in such business, and illustrated its meaning by referring to the case of a farmer who effects a sale of his neighbor's farm under a special contract by which he should re- ceive a commission therefor; that defendant's intention must be determined from its conduct; and that it would require a sale of fewer automobiles than of other articles less valuable to consti- tute the carrying on of such business. Further the court said: "Doubtless defendant's primary purpose in purchasing the cars and B Lawrence v. Middleton, 103 Miss. 173, 60 So. 130 (1912). 1132 LAW OF AUTOMOBILES in having them on hand was to use them as demonstrators, but the fact that it actually sold them justifies the conclusion that it in- tended to sell them if as a matter of fact they were of no use as demonstrators, and under the circumstances we cannot say that such sales did not constitute a substantial part of its regular busi- ness. On the contrary, we conclude that tiie evidence is sufficient to show that defendant operated a public garage, in which auto- mobiles not^ previously shipped by manufacturers doing business in otljer states, to be delivered to purchasers in response to orders theretofore taken by defendant as their agent, were kept for sale; and is therefore subject to the license tax in question." ' § 1248. Garage not a nuisance per se. A garage is not a nuis- ance per se,^ even when constructed on land abutting on a boule- vard,' though it may be so conducted as to become a nuisance.^" Owing to its location and surroundings it may be found to be a nuisance/^ and equity may restrain as a nuisance the operation of a public garage in an exclusively residence section.^^ The business conducted by the garage is necessary, and the evils arising from odors of smoke and gasoline, and the noise, have or may be reduced to a tninimum.^^ They occupy, with relation to automobiles, the same place that stables do with regard to horses, and stables have not been held to bie nuisances per se}* Garages as a rule are located in the thickly populated portions of a city, often adjacent to dwelling houses. They are, under such circumstances, liable to become nuisances on account of the way in which gasoline is handled, or the quantity in which it is stored on the premises.^* For instance: In action for an injunction to restrain the de- fendants from storing gasoline in their building, used as a garage, 7 Louisville Lozier Co. v. Louisville, v. Toman, 74 N. J. Eq. 702, 70 Atl. 1S9 Ky. 178, 166 S. W. 767 (1914). 606. 8 People ex rel. v. Ericsson, 263 111. " Prendergast v. Walls, 2S Pa. Dist. 368, lOS N. E. 315, Ann. Cas. 191SC 1079 (1916). 183 (1914); Diocese of Trenton v. To- i2Hohl v. Model!, 264 Pa. St. 516, man, 74 N. J. Eq. 702, 70 Atl. 606; 107 Atl. 885 (1919). Sherman v. Levingston, 128 N. Y. Supp. 18 Sherman v. Levingston, 128 N. Y. 581 (1910) ; Stein v. Lyon, 91 App. Div. Supp. 581 (1910)'. 593, 596, 87 N. Y. Supp. 125; Eckman 14 Diocese of Trenton v. Toman, 74 v. Irvin, 27 Pa. Dist. 795 (1918). N. J. Eq. 702, 70 Atl. 606, citing St. 9 Stein v. Lyon, 91 App. Div. 593, 87 James' Church v. Arrington, 36 Ala. N. Y. Supp. 125. 546, 76 Am. Dec. 332. 10 L^ Tourneau v. Jacques, — Me. — , IB Heeg v. Licht, 80 N. Y. 579, 36 98 Atl. 939 (1916); Diocese of Trenton Am. Rep. 654. THE GARAGE 1133 the evidence showed the garage to be a frame building with frame buildings adjacent on three sides; that the defendants had a permit from the city to store, and did store, one barrel of gasoline in their building, and that they had the care of six or seven automobiles, the tanks of which usually contained gasoline. The court found such conditions to render the place a nuisance and ordered the defend- ants to store the gasoline outside the building; to fill the automo- bile tanks outside the building, and to empty such tanks before storing the automobiles in the building, by so doing "the danger is minimized to the point where, under the necessities of the case, the complainants and others must endure the remaining risk." ^* An injunction restraining the establishment of a garage, such location not being expressly prohibited to it, will not issue where the results from its operation are entirely problematical.'''' But the operation of a public garage in a first class residence neigh- borhood, within a short distance of churches and a parochial school, and which will necessarily create noises, odors, and dangers, there- by interfering with church services, increase irjsurance rates, cause the value of nearby property to deteriorate, and tend to cause persons to remove therefrom, will be enjoined.^* The use of a dilapidated wooden building for an automobile garage is not a nuisance per se, although the fire risk of the neigh- borhood may be increased thereby.^' ' § 1249, Restraining erection of garage- in violation of per- mit. It has been held that the attempt to erect a garage in vio- lation of the terms of the permit issued for its erection was suf- ficient to warrant the issuance of a temporary injunction restrain- ing such erection until the issues involved in the action could be tried.2» REGULATION § 1250. Power of municipality to regulate garages. Munici- pal regulations concerning the location and conduct of the busi- ness of garages have very generally been upheld as legal.' These regulations generally refer to the character of the streets on which 16 0'Hara V. Nelson, 71 N. J. Eq. 161, l9Radney v. Ashland, — Ala. — , 15 63 Atl. 836, 63 Atl. 842. So. 25 (1917). 17 Sherman v. Levingston, 128 N. Y. ^OXrauernicht v. Richter, 141 Minn. Supp. S81 (1910). 496, 169 N. W. 701 (1918). isprendergast v. Walls, 2S7 Pa. St. S47, 101 Atl. 826 (1917). 1134 LAW OF AUTOMOBILES they may be located, , and the conditions precedents— such as the consent of a majority of the property owners within a specified distance from the proposed location — to their establishment.^^ Garages are lawful and necessary buildings, but they are of such a character that regulation of the place of their location and of their use is well within the settled principles of the police power. Under a statute granting municipal corporations the power to regulate buildings "for the prevention of fire and the preservation of life," a city was held to be authorized to provide by ordinance that "no building shall beerected for or converted to use as a garage unless such use is previously authorize^d by the board of alder- men." ^^ In ,the case last cited it was also held that the mayor's veto of an ordinance to authorize the opening of a garage, which stated as the reason therefor, "not because it appears to be necessary for the prevention of fire and the preservation of life," but because he thought some policy respecting garages in residential districts should be adopted by the city and because he was opposed to their establishment in residential districts contrary to the sentiment of abutting property bwners, was good and effective; that it was not necessary that the mayor's objections to the ordinance be based upon any defect in law, nor that they be such as to commend themselves to an outside tribunal. ; Where a city was expressly empowered to "direct the location and regulate the use and construction of" garages, it was held that such city had authority to prohibit any garage within two hundred feet of any building used as and for a hospital, church, or public or parochial school, or the grounds thereof, or in any block "in which two-thirds of the buildings on both sides of the street are used exclusively for residence purposes, or within one hxmdred feet oiE any such street in any such block, without securing the written consent of a majority of the property owners, according to front- age, on both sides of the street." The court declared that, as the statute granting such authority gave no details as to the manper in which this direction and regulation should be exercised, it was incumbent upon the city to be reasonable in the terms which it imposed; and that the city was not empowered thereby to prohibit the location of a garage anywhere within its limits.^* 21 Weeks v. Heurich, 40 App. D. C. 88 People ex rel. v. Ericsson, 263 111. 46, Ann. Cas. 1914A 972 (1913). 368, lOS N. E. 31S, Ann. Cas. 191SC 22Storer v. Downey, 215 Mass. 273, 183 (1914). i 102 N. E. 321 (1913). THE GARAGE 1135 § 1251. Reasonableliess of municipal regulation. Under an express grant of power the city of Chicago enacted the follow- ing ordinance: "It shall be unlawful for any person, firm or cor- poration to locate, build, construct or maintain any garage within two hundred feet of any building used as and f6r a hospital, church or public or parochial school, or the grounds thereof, and it shall be unlawful for any person, firm or corporation to locate, build, construct or maintain any garage in the city in any block in which two-thirds of the buildings on both sides of the street are used exclusively for residence purposes, or Within one hundred feet of any such street in any such block, without securing the written consent of a majority of the property owners, according to frontage, on both sides of the street, as provided by the ordinances of the city of Chicago." In upholding the validity of this ordinance, the court said: "Conceding, as the parties do, that the business of conducting a public garage does not constitute a nuisance per se, it is a matter of common knowledge that the automobile propelled by the use of gasoline is a large and sometimes noisy machine, which fre- quently, when in operation, emits an offensive odor. Automobiles go in and out of public garages at all hours of the day and night, producing noises which must necessarily interfere with the comfort and welfare of those in the immediate vicinity. In the starting of these machines and in the testing and repair of their engines a con- siderable noise is unavoidable. Gasoline and oil are used in places of this kind, and it is necessary to keep a considerable quantity of gasoline constantly on hand, which is transferred to the tanks of automobiles propelled by this means. In making this transfer a portion of it necessarily becomes vapor,~ thus creating a menace both because of the odor of the fumes and their inflammable char- acter. The power of the Legislature to regulate such, a business is in no way dependent upon the question whether it is a nuisance per se. It is of such a character that it becomes a nuisance when conducted in particular localities and under certain conditions, and it is clearly within the province of the Legislature, in the exercise of the police povi/er, to authorize the municipalities of the state to direct the location of public garages. . . . The conduct Of the affairs of a church, with its various meetings and assemblies in carr)nng out the purposes for which it is organized, is of such a character that a city is warranted in making such a restriction. The conduct of the business of a public garage would be as of- fensive to the members of a church as it would be to the occupants 1136 LAW OF AUTOMOBILES of a private residence, and would affect their comfort and welfare to the same extent." '^^ An ordinance provided, after requiring garages to be conducted only under permits issued therefor, as follows: "No garage permit authorizing the storage of volatile inflammable oil shall be issued for any premises, storing more than 4 motor vehicles, which are not provided with an oil separator, trap or other similar appa- ratus attached to the house drain, for the purpose of preventing volatile inflammable oils from flowing into the sewer: Provided, however, that the fire comnlissioner may exempt from the require- ments of this section a garage draining into a short sewer line." In refusing to hold the ordinance invalid or oppressive, it being shown that the installation of the required device would cost $200, the court said: "In the case at bar the expenditure required for the installation of an oil separator as claimed by the petitioner is not so great, con- sidering the dangers sought to be averted and the business to be conducted on the premises as to justify the court in declaring it oppressive. It is manifest that the quantity of gasoline finding its way into the effluent depends upon the care with which the business is conducted. The validity of a statute or ordinance, or its appli- cability, is not to be decided upon what has been or is being done, but what may be done, and not by its effect in a particular case, but upon a consideration of its general purpose and its efficacy to effect that end. While a question of fact arises with respect to the effi- cacy of oil separators and with respect to the danger from fire and to health arising from gasoline in the public sewers, yet it appears by uncontroverted evidence that a separator, if used, will tend to minimize these dangers, and therefore I think as matter of law the ordinance must be sustained." *** § 1252. Statute requiring notice to land owners before issu- ance of permit. A statute requiring a petition for a permit to erect a public garage to "contain the names and addresses of every owner of record-of each parcel of land abutting thereon," and that before the license is granted notice shall be given by registered, mail "to every owner of record of each parcel of land abutting on the parcel" on which the building is sought to be erected, is mandatory, and failure to give such notice goes to the jurisdiction of the mu- nicipal board authorized to grant the permit, and renders it power- 24 People ex rel. v. Ericsson, 263 III. 2B Stubbe v. Adamson, 1S9 N. Y. Suppi 368, lOS N. E. 31S, Ann. Cas. 191SC 7S1, 173 App. Div. 305 (1916). 183 (1914). THE GARAGE 1137 less to issue a valid permi;t. In case an abutting estate is owned by tenants in common, each one must be notified."^ § 1253. Buildings used exclusively for residence purposes- Determining character of buildings. Within the meaning of an ordinance making it unlawful to construct or maintain a building for a public automobile garage on any site where two-thirds of the buildings within a radius of 500 feet of the site are used exclusively for residence purposes, without the written consent of a majority of the property owners, according to frontage, within a radius of 500 feet of the site of said building, it was held that barns and private garages were not to be counted as buildings not used exclusively for residence purposes.*'' Under an ordinance providing that no garage shall be built on any street where two-thirds of the buildings on both sides of the street in the block are used exclusively for residence purposes, un- less the consents of the majority of property owners, according to frontage, are obtained, it has been held that, in determining the character of the buildings in a block, the ruins of a building de- stroyed by fire are not to be "counted at all; that a structure di- vided by frame partitions into three small shops is to be counted as one business building; that a structure having two street num- bers may be counted as one residence building; that a building at a comer having shops on the street level, with their entrances on another street, but its main entrance on the street in question, may be counted as a fiat building on the latter street; that two buildings at the rear of a court and facing the street are to be counted, the court extending from the street, and forming a yard for the residents, and used in common for light and air, ingress and egress to and from the buildings.** Where municipal regulations pennitted garages to be located, under varying conditions, upon a residence street or avenue, and upon a business street or avenue where the rear of the property opens upon a street or alley, a further provision that they might be located "upon property fronting upon a public alley," was con- strued to mean property fronting upon a public alley; but without the rear upon a street or alley.*' §1254. Requiring consent of property owners to location of garage. A city ordinance which prohibited the erection or 26 Wright V. Lyons, 224 Mass. 167, 112 28 Wise v. Chicago, 183 111. App. 21S N. E. 876 (1916). (191S). 27 People ex rel. v. Oak Park, 266 III. 29 Weeks v. Heurich, 40 App. D. C. 365, 107 N. E. 636 (1914). 6, Ann! Cas. 1914A 972 (1913). B. Autos.— 72 1138 LAW OF AUTOMOBILES maintenance of any garage unless the consent of all owners of real estate within 300 feet of th6 location thereof was obtained, was held to be invalid, because it attempted to delegate to individuals the city's legislative power. In part the court said: "It will be noted that, under the terms of the ordinance the real estate owners are not to determine whether a garage shall be erected within any certain specified limits, but may determine whether a particular garage shall be erected by a Specified property owner at a particular place. The delegation of this power to adjacent property owners, without any restriction or limitation whatever, vests in, such property own- ers the power to say as a matter of discretion that another property owner shall not be permitted to use his property in a certain way. No attempt is niade to place it upon the ground of public welfare, public health, or any other interest which the public might have in the rnatter; but the, determination is left to the desire, whim, or caprice of the adjacent owners." '" , Under an, express grant of power to direct, the location of public garages, an ordinance, prpviding that it shall be unlawful to con- struct or maintain a building for a- public automobile garage on any. site where two-;tlairds of thp buildings within a radius of 500 feet therefrom are used exclusively for residence purposes, with- out the written consent of a majority of the property owners, ac- cording to, frpiitage, within a radius of 500 feet of the site, was held to be reasonable and yalid,. It was also held that such ordinance applied to public garages already being maintained as well as those to be esjtablished in the future, and that, consequently, it did not discriminate between the two.^^ Where the ; loea,t;ion: of a garage in a residence district is pro- hibited unless the consent of a majority of the property owners in,, the vicinity is obtained, any attempt to establish a garage in a residence district without .havirig complied with such requirement may be enjoined at the instance of property owners within the prescribed radius.'^ , In Delaware it was held that an ordinance which prohibits the erection of a public garage in the residence portion of the city with- out the consent of the owners of adjoining lands is unreasonable, is not uniform and is a (delegation of power to the adjoininjg owners which can be exercised only by the duly constituted legislative so State ex rel. v. Harper, 162 Wis. rel. v. Richards, 3S App. D. C. S40 S89, 1S6 N. W. 941 (1916). (1910).- 81 People ex rel. y. Oak Park, 266 HI. 32 Weeks v. Heurich, 40 App. D. C. 36S, 10?' N. E. 636 (1914). 46, Ann. Cas. 1914A 972 (1913). Similar holding in United States ex THE GARAGE 1139 body. In part the court said: "By it an ownqr of land may be restricted in a proper use of hjs land for a particular purpose by his failure to obtain the consent of his neighbor, either because of the arbitrary will, or caprice of his neighbor,, or because he is inac- cessible, or hostile, or for any reason indifferent. The adjoining owner and not the Council makes the ordinance effective. The liberty to erect the garage is granted or withheld not by the city, or any of its officers, but by some one or more, of the owners of prop- erty adjoining the land on which the garage is to be erected.; .This is unreasonable and an unwarranted delegation of , legislative power." '* § 1255. Prohibiting' garage near school. An ordinance mak- ing it unlawful for any person to store, house or keep within the city of New York any motor vehicle containing volatile inflam- mable oil, except in a building, shed or inclosure, for which a garage permit shall have been issued, and providing that no garage permit allowing the storage of volatile inflammable oil shall be issued for any building, shed or inclosure situated within SO feet of the nearest wall of a building occupied as a school, theater; or other place of public ariiusement or assembly, or which is occupied as a tenement house or hotel, has been held to be a fair, reasonable, and appropriate exercise of the police power. It was also held that the fact that property had been used for the purposes of a garage for a number of years prior to the enactment of the ordinance did not affect its validity. In this case a garage keeper sought to enforce the issuance of a permit to use a building for garage purposes, in which he ex- pected to store volatile inflammable oil, located within . 50 fe,et of a school, and the court, in affirming judgment denying the pertnit, said: "He challenges the regulation quoted as being in violq,- tion of his constitutional rights, because it deprives him of his prop- erty without due process of law, and denies to him the equal pro- tection of the law. It seems to me that the regulation is not ob- jectionable on the score stated by the relator. The object sought is the preservation of public safety and the welfare of the , com- munity. The enactment is not an arbitrary interference with the rights of the individual, but is a fair, reasonable and appirbpriate exercise of the police power. "The relator's main objection to the ordinance is that it is made applicable to a building that had been used as a garage and for 33 Dangel v. Williams, — Del. Ch. — ', 99 Atl. 84 (1916). 1140 LAW OF AUTOMOBILES the storage of gasoline, lubricating and other oils prior to the time the enactment took effect. The building on the relator's premises was constructed in 1903. The school was built two years be- fore. From the time of its erection the relator's building has been used as a garage by himself or others, and a permit therefor was issued each year under previous regulations until the year 1910. Sinc6 that time the business has been carried on without a permit. The relator holds under a. lease which has 21 years to run at an annual rent of $300. This rent the relator is under obligation to pay and his allegation is that the building is not available for any kind of business other than a garage. "The relator in his brief says that in the city of New York there are 75 garages, some of them valuable structures, which will come within the provisions of the ordinance under consideration if it is declared valid. To my mind that does not furnish an argument against the enactment sufficient to condemn it. The storing of volatile inflammable oil in garages located near buildings wherein" people congregate is plainly a dangerous practice. The Legislature has authorized the adoption of this ordinance which will stop that practice. In particular instances some loss will follow the enforce- ment of the ordinance, but it cannot be avoided on that ground. It must, be tested with a view to its general purpose and its effi- ciency to effect that end. It is not the hardship of the individual case that determines the question, but rather the general scope of the legislation as an exercise of the police power in protecting health and promoting the welfare of the community at large." ** § 1256. Prohibiting garage where two-thirds of lots are de- voted to residence purposes. Under an ordinance providing that "when two-thirds of the lots fronting on one street in any block not within the business section are occupied by buildings devoted to residence purposes, then no garage shall be erected. on any lot in such block on such street," the building inspector was not justi- fied in refusing a permit for a garage in a block having 12 lots, 6 of which were occupied by residences, one by a saloon, and the remainder vacant.** § 1257. Meaning of ' 'block." In an ordinance providing that no garage shall be built on any street where two-thirds of the buildings on both sides of the street in the block are used exclusively 84 Mcintosh V.Johnson, 211 N. Y. 26S, 8B State ex rel. v. Harper, 166 Wis. lOS N. E. 416 (1914), aff'g 160 App. 303, 165 N. W. 281 (1917). Div. S63. • THE GARAGE 1141 for residence purposes, unless the consents of the majority of prop- erty owners, according to frontage, are obtained, the word "block" means only that part of the street lying between the two nearest intersecting streets, one on either side of the location of the pro- posed garage, although one of the latter streets does not cross, but only, intersects, the street on which is the proposed location.'® § 1258. Cancellation of illegal permit for garage. Where a commissioner of buildings issued a permit for the construction of a garage to which the owner was not entitled because of his failure to comply with a city ordinance relating thereto, and withdrew the same after the owner had done preliminary erection work, it was held that the city was not estopped from interfering with the erec- tion of the garage.''' §1259. Prohibition of conduct or maintenance of garage does not prevent erection. An ordinance providing tjiat, "No person, firm or corporation shall hereafter maintain or conduct a public garage for the storing, maintenance, keeping, caring for or repairing of automobiles or motor vehicles within the city limits, without permission of the superintendent' of buildings," was held not to forbid without such permission, the erection of a building adapted to use as a garage, but which could be used for other pur- poses, there being no satisfactory evidence of an intention to use it as a garage." § 1260. Prohibiting gasoline in building used for garage as amounting to eviction. The storage of gasoline in a private garage is not necessary to the use of a building for that purpose; and where, during the term of a lease on a wooden building for a private garage, an ordinance was enacted prohibiting the issuance of garage permits for buildings not fireproof for storing gasoline, in addition to that contained in the tanks of vehicles, and the stor- ing of motor vehicles except in buildings having a garage permit, does not prohibit the use of a wooden building for the purpose of a private garage so as to constitute an eviction of the premises." 36 Wise V. Chicago, 183 111. App. 2 IS 38 People ex rel. v. Stroebel, 209 N. (1913). Y. 434, 103 N. E. 735 (1913), rev'g 1S6 "Block" defined. People ex rel. v. App. Div. 457, 141 N. Y. Supp. 1014. Miller, 188 App. Div. 113, 176 N. Y. 39McNamara v. Rings, 80 Misc. 239, Supp. 398 (1919). 140 N. Y. Supp. 934 (1913)^ 37 Wise V. Chicago, 183 111. App. 2 IS (1913). 1142 LAW OF AUTOMOBILES -A^ VIOLATIVE OF PROPERTY RESTRICTION § 1261. Small private garage as violative of restriction against garages. Land was conveyed subject to the restriction that it should be used and occupied solely for residential purposes, and that no bathing house, slaughter house, blacksmith shop, forge, foundry or factory, etc., hospital, shop, stable or garage, should be erected thereon, and that it should not be used for any show or jjliblic entertainment. It was held that a lean-to about 10 feet wide, 15 feet deep, and 8 feet high, which the defendant erected against her private dwel- ling, two sides of which formed two sides of the lean-to, in which she housed and stored her automobile, was not in violation of the restrictive covenant. Said the court: "The present structure, painted to conform to the house to which it is attached, is siniply an addition to the dwelling. While used to house a motor-car, it might serve as a storeroom, or for other needs of a private dwelling. Thpre is a clear distinction between a private and a public garage; the latter being often offensive in the neighborhood of dwellings. It is a familiar principle that separate terms in the enumeration of things and uses prohibited or limited by such restrictions are to be taken subject to the general qualifying words expressive of the scope and purpose of the covenant as a whole. This entire covenant is di- rected against offensive trades, and further to quasi public uses, such as trade or business, which would detract from the private residential character of the occupation. Under the eptsdem generis rule, the. latter portion of the covenant against buildings or struc- tures 'for any hospital, cemetery, asylum, manufactory, trade, shop, store, hotel, clubhouse, boarding house, stable or garage' does not apply to this structure." *" A restriction against the building of a garage on the property conveyed ; was violated by the erection thereon of a portable garage." § 1262. Not included in restriction against stable. A re- striction prohibiting the placing of a stable on land imposed before the time when automobiles came into common use, has been held not to include a garage. 40 Sullivan V. Sprung, 170 App. Div. 41 Seibert v. Ware, 158 N. Y. Supp. 237, 1S6 N. Y. Supp. 332 (1915), citing 229 (1916). Berry, Restrictions on Real Property, § 41. THE GARAGE 1143 This case was decided on the theory that such restriction must be interpreted in the light of the circumstances existing at the time it was imposed, and that the word "stable" must be construed as including only such buildings as were fairly indicated by the word at that time. In reference to this question the court said: "Under this rule of interpretation is this building a stable? In Webster's Dictionary, edition of 1864, a stable is defined as 'a house or building for horses or other beasts;' in Webster's edition of 1903, as 'a house, shed, or building for beasts to lodge and feed in; es- pecially a building or apartment with stalls for horses^ as a horse stable, a cow stable;' and in the edition of 1910 in practically the same language; in the Century Dictionary, as 'a building or inclos- ure in which horses, cattle, and other domestic animals are lodged, and which is furnished with stalls, troughs, racks, and bins to con- tain their food and necessary equipments; in a restricted sense, such a building for horses and cows only; on a still narrower, and now the most usual sense, such a building for horses only;' in the Standard Dictionary, edition of 1895, as a 'building or part of a building set apart for lodging and'^ feeding horses or cattle; es- pecially one fitted with stalls, fastenings, etc.; also 6f,ten for stor- ing hay or putting up vehicles; sometimes specifically carriage stable, cow stable, etc' In 36 Cyc, page 812, and in 26 Am. & Eng. Ency. of Law, page 154, it is defined as a 'house, shed or building for beasts to lodge and feed in.' While it is true, as stated by the plaintiffs, that in the Standard Dictionary, editions of 1895 and 1908, a stable is defined as a building often used for putting up vehicles, and that in the Standard and Century Dictionaries a garage is defined as 'a stable for motorcars' and 'a building, as a stable for the storing of automobiles or other horseless vehicles,' we nevertheless think that the word 'stable' as commonly used and understood at the time the imposition of those restrictions, espe- cially when contrasted with other buildings usually appurtenant to a dwelling house, carried the idea of not only a building, but also the presence of domestic animals like horses or cattle as its occu^ pants, arid that such is the meaning of this word in the restriction. Accordingly it must be held that the building is not a stable within the- meaning of the restriction. And this is so even if, as argued by the plaintiffs, a garage is as objectionable as a stable." ^ A private garage constructed on the southeast corner of a lot was not in violation of a restriction in the use of the lot that a *2 Riverbank Impt. Co. v. Bancroft, 209 Mass. 217, 95 N. E. 216, 34 L. R. A. (N. S.) 730 (1911). 1144 LAW OF AUTOMOBILES "stable, if one should be erected, shall be placed on the northwest comer of said lot;" it being held that the garage was not a stable within the meaning of such restriction.*' § 1263. Offensive to neighborhood. A garage intended for the storage of 29 machines, and where the owner may store his own car, was held not to violate a restriction against any "building offensive to good neighborhood." "A good neighborhood," said the court, "is not necessarily an exclusively residential neighborhood." ** § 1264, Offensive to neighborhood for dwellings. In one case it was shown that lots, in a residence district were conveyed under a restriction that they should not be used for any business "which shall be offensive to the neighborhood for dwelling houses." The defendant attempted to erect a garage on one of the lots which, it appeared from the evidencie, was for the accommodation of about one hundred and twenty-five automobiles. Part of one story was intended for a repair shop, and a portable forge was to be placed in the building; demonstration cars were to be kept with demon^ strators to run them; and seventy-five to one hundred customers were expected to store automobiles there, such machines to go in and out of the place on an average of once a day. A steel tank enclosed in cement was to be placed in front of the building to hold ten gallons of gasoline. It was held that the evidence warranted a finding that the maintenance of such building would violate the restrictions on the lots." § 1265. Offensive purpose or occupation. Whether or not a business is offensive to neighboring inhabitants must be determined from its effect upon the normal and rational man. If it is such as would only annoy and disturb a supersensitive or highly nervous person it would be unfair to hold that the business or occupation falls within the mekning of such a description. -On the other hand it would be equally unfair to hold that such a description is appli- cable to business which would annoy and disturb persons accus- tomed to such annoyances. A restriction forbidding the erection upon the land in question of "any tavern, drinking saloon, steam mill, tannery, slaughter house, skin dressing establishment, glue, soap, candle or starch factory, or other building for offensive purpose or occupation," 4SAsbury v. Carroll, S4 Pa. Super. 46 Evans v. Foss, 194 Mass. 513, 80 Ct. 97 (1913). ' ♦ N. E. S87, 11 Ann. Cas. 171, 9 L, R. A. « Hammond v. Constant, 168 N. Y. (N. S.) 1039. Supp. 384 (1917). THE GARAGE 1145 was held to be sufficiently broad to include a public garage for the, hire, storage an^ repair of automobiles and the furnishing of such supplies as they might need. In this case the court said: "The restriction above quoted is not a residential restriction limiting the property to residential uses, nor is it intended to be, but to guard and protect residences and inoffensive business places from the annoyance, discomfort and inconvenience of offensive establish- ments, such as are enumerated and others of like character. And in applying the restriction to trades, occupations and establishments other than those specifically prohibited it must be given a reason- able and fair 'construction. If the noise and odors were slight and infrequent and such as would only annoy and disturb a supersen- sitive or highly nervous person, it would be unfair to hold that the business or occupation came within the restriction; while on the other hand it would be equally unfair to hold that it was only appli- cable when they reached that degree which would annoy and dis- turb persons accustomed to noise and unpleasant odors by reason of their occupation or business. The test should be the effect upon the normal or rational man. "Exclusive of the taverns and drinking saloons, the remaining enumerated occupations or businesses may be divided into two classes, the noisy and the malodorous and both are designated as offensive. Now from the great preponderance of the testimony it seems clear to us, that a garage is of necessity, both noisy and malodorous, not to the same degree or extent as some of the specifi- cally pr6hibited occupations, but sufficient to annoy and disturb the witnesses of the plaintiff, apparently normal and rational men, in the quiet and comfortable enjo3mient of their homes." *® § 1266. Land restricted to residence purposes. The erection of a small building connected with the dwelling house to be used as a private automobile garage, is not in violation of a covenant restricting the use of the property to residential purposes and pro- hibiting their use for "any public or private stable for horses, or other animals, nor any pig sty, cow shed, hen house, slaughter house, or other nuisance of any kind, description or nature." In this respect the court said: "Is either the spirit and intent or the letter of the covenant violated by the erection of a garage such as this one is intended to be? There is no allegation that it is to be of a public character. Its dimensions would hardly make that possible. If after its erection an attempt should be made to 46Hibberd v. Edwards, 23S Pa. St. Also see, Hohl, v. Modell, 264 Pa. St. 454, 84 Atl. 437 (1912). 516, 107 Atl. 88S (1919). 1146 LAW OF AUTOMOBILES use it for such a purpose, and to thus carry on the business of storing automobiles for hire, a different question would be pre- sented. We think that this structure is incidental to the reason- able use of property for residential purposes. If one having a fond- ness for flowers should attach to his residence a small extension for the purposfe of a conservatory or green house, or being a lover of music, should attach a similar extension to be used as a private music room; or being a patron of art, should in like manner con- struct a building to, be used as an art gallery, we think it could hardly be claimed that this was a violation of the covenant. How- ever much we may differ upon a question of taste, it seems to us that: if one has a fondness for automobiles, and desires to build an addition to his dwelling house for the storing of his own automobile, it cannot be claimed that he is destroying the character of the property as residential property, or devoting any portion of it to a use which is not fairly incidential thereto." *' \ § 1267. Restricted to dwelling and usual outbuildings. A restriction forbidding the placing of buildings on the land con- veyed other than a d|Welling and the usual outbuildings appurtenant thereto, has been held not to permit the erection thereon of a gar- age for private use. , This decision was reached on the theory that such restribtiohs must be interpreted in the light of the circumstances existing at the time they were imposed, and that the word "outbuildings" includes only such buildings as were fairly indicated by the word at that time. "The question," said * the court, "is whether the building is of the kind which was usually appurtenant to dwelling houses at the time the restriction was imposed. If it is not, then its erection, was in violation of the restriction. It is to be borne in mind that we are dealing with a proposed residential district of a high grade, and that this district is not in a country town, but in a city, — a district to be divided into building lots and to be cov- ered Sjubstantially with dwelling houses. Whatever buildings were usually needed and occupied as aid to the use of the dwelling houses might be erected and occupied as such aids. The automo- bile is a large machine, and it is noisy, especially when starting. The odor of gasoline, by which many of them are propelled, is pene- trating and disagreeable; and there can be no doubt that the noises and odors attendant upon the care and action of such ma- chines, especially when stored so near to dwelling houses as in this i'i'Beckwith v. Pirung, 134 App. Div. 608, 119 N. Y. Supp. 444 (1909). THE GARAGE 1147 case, may be annoying to a person desiring a quiet home. 'At the time these restrictions were put on, the garage was not the kind of building usually appurtenant to a dwelling house. Its erection was a violation of the restriction." *' § 1268. All buildings excluded except dwelling. The owner of premises subject to a. restriction providing that they should be used for residential purposes only and that no "building or struc- ture of any kind whatsoever other than a dwelling shall be erected thereon," will be 'enjoined from erecting a small private garage on such premises where such structure is separate and distinct from his dwelling house. The violation complained of was precisely op- posed to the limitations of the restrictive covenant. It is a build- ing or structure other than a dwelling house, and separate and dis- tinct from such house.*' § 1269. Restriction against nuisance. The operation of A, public garage not being a nuisance per se, cannot be enjoined under a restrictive covenant prohibiting the use of the premises for any nuisance whatsoever. In this respect the court said: f'The erection of a public garage eo nominie is not prohibited, but it is insisted that to permit one to be erected and operated would create a nuisance. To read this into the clause inhibiting nuisances necessarily requires a finding that a public garage is a nuisance per se. This it surely is not. It is a place for the housing of automobiles. The business is a lawful one, and the presumption is that it will be lawfully carried on. In such circumstances a court of equity will not interfere. If, in the prosecution of the business, a nuisance is created, it may inter- pose." «» 48Riverbank Impt. Co. v. Bancroft, SORonan v. Barr, 82 N. J. Eq. S63, 209 Mass. 217, 9S N. E. 216, 34 L. R. 89 Atl. 282 (1913). A. (N". S.) 730 (1911). 49 Hepburn v. Long, 146 App. Div. S27, 131 N. Y. Supp. 1S4 (1911). CHAPTER XXIX FILLING STATIONS i 1270. Storing of explosives as constitut- ing a nuisance. i 1271. Same — Gasoline. i 1272. Filling station as nuisance — In- junction. i 1273. Maintenance of filling station in violation of ordinance enjoined, when. § 1274. Power of legislature to pthor- ize placing of filling pumps in streets. § 127S. Permitting use of public street for gasoline pump — ^Power of municipalities. § 1276. Same — Revocation of permit. § 1270. Storing of explosives as constituting a nuisance. If the keeping of explosives becomes a nuisance per se, the person so keeping them is liable for injuries caused by their explosion, regardless of the degree of care exercised in their keeping.^ But if their keeping is not a nuisance per se, then the liability of the per- son so keeping them for damages due to their explosion depends upon the want of care in the manner or place of keeping them, or some other negligent act.^ If the storing or keeping more than a certain amount of explosive substances is not contrary to some ordinance or statute, whether or not it is a nuisance depends upon its proximity to other buildings, the amount stored, and all other attending circumstances.* 1 Illinois: Laflin & Rand Powder Co. V. Tearney, 131 111. 322, 23 N. E. 389, 7 L. R. A. 262, 19 Am. St. Rep. 34. New Jersey: McAndrews v. CoUerd, 42 N. J. L. 189, 36 Am. Rep. 508. New York: Prussak v. Hutton, 30 App. Div. 66, 51 N. Y. Supp. 761. Ohio: St. Mary's Woolen Mfg. Co. v. Bradford Glycerine Co., 14 Ohio Cir. Ct. S22. Federal: Hazard Powder Co. v. Vol- ger, 58 Fed. 152, 7 C. C. A. -130. 2 Collins V. Alabama G. S. R. Co., 104 Ala. 390, 16 So. 140; Lee v. Vacuum Oil Co., 54 Hun (N. Y.) 156, 7 N. Y. Supp. 426. ^Illinois: Laflin & Rand Powder Co. v. Tearney, 131 III. 322, 23 N. E. 389, 7 L. R. A. 262, 19 Am. St. Rep. 34. New Jersey: McAndrews v. CoUerd, 42 N. J. L. 189, 36 Am. Rep. 508. New York: Reilly v. Erie R. .Co., 72 App. Div. 476, 76 N. Y. Supp. 620,' aff'd 177 N. Y. 547, 69 N. E. 1130. Pennsylvania: Wier's Appeal, 74 Pa. St. 230. South Carolina: Emory v. Hazard Powder Co., 22 S. C. 476, 53 Am. Rep. 730. Texas: Ft. Worth & D. C. R. Co. v. Beauchamp, 95 Tex. 496, 68 S. W. 502, 93 Am. St. Rep. 864. "A lawful business cannot be a nui- sance per se, but from its surrounding 148 FILLING STATIONS 1149 Any dangerous explosive stored and imperfectly guarded in the vicinity of residences, may become a nuisance.* It has been held that the keeping of explosive substances in large quantities in the vicinity of a dwelling house or place of business, is a nuisance per se, and may be abated as such by action at law or injunction in equity.* Its storage in suitable tanks is not a nuisance per se.^ If liability of explosion is small, and the tanks are at such a dis- tance from buildings that danger therefrom is not likely, the con- struction of such tanks will not be enjoined.' It has been held to constitute a nuisance to store 20,000 gallons of gasoline in underground tanks within a few feet of- a private dwelling, although every known precaution was taken to guard against accidents. "We may concede that in the instant case every precaution that human ingenuity has conceived has been made use of in the construction of the tanks, as testified to by defendant's experts. Considering, however, the dangerous character of the sub- stance and its power as an explosive, of which, iii this age of its wonderful development as a power to propel automobiles, traction engines, and airships, we can well take judicial notice, and also considering human fallibility, that accidents in the operation of the most perfect mechanism will occur, and all that it needs to change what is, when properly protected, a harmless agency, to a most dangerous explosive, is a earless person, — can it be said that to have 20,000 gallons of such an agency stored within but a few feet of one's dwelling house is not sufficient to be an unreasonable interference with the comfortable enjoymeiit of that home?" * places and circumstances, or the manner Montana: Cameron v. Kenyon-Con- in which it is conducted, it may become nell Conjcl. Co., 22 Mont. 312, S6 Pac. a nuisance." McGregor v. Camden, 47 3S8, 44 L. R. A. 508, 74 Am. St. Rep. W. Va. 193, 34 S. E. 936. 602. "Keeping explosive substances in large South Carolina: Emory v. Hazard quantities in the vicinity of dwelling Powder Co., 22 S. C. 476, S3 Am. Rep. houses or places of business is ordinarily 730. regarded a nuisance, whether so or not Texas: Comminge v. Stevenson, 76 being dependent upon!, the locality, the Tex. 642, 13 S. W. SS6. quantity, and the surrounding circum- SMcAndrews v. CoUerd, 42 N. J. L. stances." Cook v. Anderson, 8S Ala. 99, 4 189, 192, 36 Am. Rep. 508. So. 713. 6 Harper v. Standard Oil Co., 78 Mo. i Alabama: Kinney v. Kpopman, 116 App. 338. Ala. 310, 22 So. 593, 37 L. R. A. 497, 67 ' Cleveland v. Citizens Gas & L. Co., Am. St. Rep. 119. 20 N. J. Eq. 201. Illinois: Laflin & Rand Powder Co. v. SWhittemore v. Baxter Laundry Co., Teamey, 131 lU. 322, 23 N. E. 389, 7 L. 181 Mich. 564, 148 N. W. 437, 52 L. R. R. A. 262, 19 Am. St. Rep. 34. A. . y 1168 LAW OF AUTOMOBILES, f 3,ct of his possession, and he is liable for ■ the act of the servant in negligently damaging the car although deviating from the line of his duty. "At the time of the mishap to the machine defendant's servant- had not cortipleted the service it was his duty to perform. He was still engaged upon that service, though performing it contrary to his master's command and making his performance serve a pur- pose of his own. As we have said, he had possession by virtue of his employment and his; employer's contract of bailment. If he had acquired possession without the master's knowledge or consent, express or implied, or if, having acquired possession by the master's express command, as evidently he did, he had in the operation of the machine negligently caused injury to a stranger to the con- tract, a different question would be presented about which there might possibly be more or less difficulty." In other words, the deviation by the servant, in such circum- stances, from his line of iduty, did not affect the liability of the garage keeper under his contract of bailment.®" While on his way to the sidewalk after having alighted from a street car the plaintiff was struck by an automobile negligently driven past the car. The accident occurred about 10 o'clock in the evening. The automobile was shown to belong to one S., and there was evidence that it was in charge of an employee of the defend- ant. S. testified that for a year previous to the accident he kept his machine at the defendant's garage under a verbal contract by which "they were to store my car and wash and polish it every night, and if I drove around to the garage in the evening they would furnish a man to take the car up to my houSe and bring it back to the garage for me, and in the morning they would send a man up to my house with the car." He paid a certain sum monthly for this service, which he said included the services of an employee for taking the car from the garage to his residence and bringing it back. He did not employ or pay those who performed this service. On the evening in question he called at the garage in his machine at about 8:45, picked up an employee of the defendant, and then drove to tiis residence where he left the machine with the employee to return to the garage. It was about 9 o'clock when he turned the car over to the employee. The defendant denied that at the time of the accident the machine was in charge of or being operated by his servant, and 60 Southern Garage Co. v. Brown, 187 Ala. 484, 6S So. 400 (1914). THE GARAGEMAN AND REPAIRMAN 1169 claimed that if the automobile which struck plaintiff was in charge of a person in his employ, he was not acting at the time in the scope of his employment. Defendant's manager testified, and S. admitted, that he made the contract with S. for the storage of his machine at the garage, and that he agreed to store the car in the garage' and wash and polish it for a stipulated sum a month; that S. asked him in addition to storing the car to deliver the car* at his home and return it to the garage, but he declined to do so; that he did not agree to furnish a man from the garage to run the car between the garage and S.'s home; that there was an arrange- ment whereby S., "through his own arrangements could use one of" the employees, if the employee was not busy, to bring the car back to the garage from S.'s residence, but that it was understood that S. was to pay the employee for such service; that the duties of the employee in question were to wash and polish cars. It was held that the evidence supported a finding that the auto- mobile was being operated by an employee of defendant acting with- in the scope of his employment, although it appeared that it re- quired only fifteen minutes to drive in a direct route from the home of S. to the garage, and that the accident did not occur for more than an hour after the employee started to return with the machine to the garage, and that the machine was not being driven from the " direction of S.'s home at the time it struck the plaintiff.*^ Where, under a contract whereby the plaintiff kept his automobile at defendant's garage, and the' defendant called for and delivered the car when so desired by the plaintiff, the plaintiff delivered his automobile into the charge of a servant of defendant for the pur- pose of taking it to the garage, and while in the custody of the servant the automobile was damaged, the burdeii was on the de- fendant to show that the machine had not been damaged by the negligence of the servant. "The burden is upon the bailee to show that property damaged while in his possession was not so dam- aged by want of ordinary care on his part." ^^ Where a contract provided for the storage of a car at a speci- fied charge a month and that extras should be charged for in ad- dition, and taking the car to and from the owner's honie was charged for as an extra, such service was rendered as a part of the one entire contract, and no new contract was created in this respect filLuckett V. Reighard, 248 Pa. St. 62 Southern Garage Co. v. Brown, 18V 24, 93 Atl. 773, Ann. Cas.' 1916A 662 Ala. 484, 6S So. 400 (1914). (1915). B. Autos. — 74 1170 LAW OF AUTOMOBILES every i time the car was driven to the owner's home or from his home to the garage.®* § 1295. Chauffeur furnished by garageman to drive owner's car. Where, when the owner of an automobile desired to make use of his car, he procured a chauffeur from a garage,- the garage company selecting such chauffeur, and the owner paying the garage therefor on a monthly account, such owner was liable ior "injuries negligently inflicted by the chauffeur while returning to the garage with the car, after its use by the owner.®* § 1296. Garage employee as servant of owner of car left to be repaired. There was evidence that on the day of the accident the defendant took his automobile to the place of business of the Vulcan Garage Company, where one Elderkin was employed ; that he told Elderkin that therfe was "something wrong" with hisi car and that there was a "skip" in his motor, and further directed him "to take the car out." Elderkin also testified that the defendant told him "to fix it (the car); take it out and try it." The de- fendant was president of the company, and it did not' appear what ^services, if any,, were performed by him in connection with the company's business. Elderkin's duty as an employee was to repair * trucks belonging to the company. He testified that in addition to the instructions given by the defendant later, but before the acci- dent, one Norman, the superintendent of the company, directed him to take out the car. Elderkin was paid by the company, and its garage was not one "where private individuals could go and have their cars repaired." No charge was made either by Elderkin or by the company, for any services relating to the automobile. The accident happened while Elderkin was operating the car for the purpose of trying it. "This evidence justified a finding under appropriate instructions that Elderkin did not act under his general employment, and that with his consent or acquiescence he temporarily had become the servant of the defendant. It was for the jury to determine whether Elderkin acted under the instructions of the superintendent as the representative of the company, or for the defendant with the con- sent of the superintendent." ®^ §1297. Employee in vulcanizing department voluntarily 6» Banks v. Strong, 197 Mich. S44, 6B Chute v. Morey, — Mass. — , 12S 164 N. W. 398 (1917). N. E. S74 (1920). 64 Jimmo V. Frick, 2SS Pa. St. 353, 99 Atl. lOOS (1917), citing this work: THE GARAGEMAN AND REPAIRMAN 1171 calling for car to be stored. An employee of a garage whose duties were confined to the vulcanizing shop and the oil station, was not in the scope of his employment when he accompanied ^ customer to her home to drive her car back to the garage for storage; he acting without instructions from his employer in so doing. "The master is not responsible for an unauthorized act of the servant not within the scope of the servant's employment. In going with the ladies to their home and bringing the car back Hall was not acting in the line of his duty, nor, so far as the- evidence shows, in the prosecution of his employer's business, but was act- ing entirely outside the duties of his employment. He was not employed as a driver nor to work in the storage department" of the garage, but in the vulcanizing shop and oiling station, and the appellant is no more responsible for his negligence in driving the car to the garage than it would be for that of any other volunteer who had for the accommodation of the owner driven it there for storage. The question in this case does not arise from the failure of the servant to obey instructions of the master in the manner of performing the duties of his employment, nor from the servant in the execution of the master's business in the scope of his employ- ment combining therewith some private business of his own." ®® § 1298. Employee driving passenger without authority. The plaintiff's automobile broke down and she telephoned to a personal friend, who was manager of the bureau of adjustment of accounts in defendants' general store, and requested him to send her a competent man to repair the machine and to run it back home with her as a passenger. The request for a man to make repairs was complied with by the automobile department of de- fendants' store. The repairs were made, and on the return trip the machine was upset and the plaintiff was injured, which she alleged was due to the negligence of defendants' employee who was driv- ing the car. The automobile department was maintained by de- fendants for the purpose of selling and repairing automobiles, and they sent men out to bring in automobiles to be repaired and to deliver them when repaired, but they did nof undertake to carry persons as passengers. The person to whom plaintiff telephoned had no connection with this department, and it was not shown that either he or the manager of the automobile department had author- 66 Main Street Garage v. Eganhouse Optical Co., — Tex. Civ. App. — , 223 S. W. 316 (1920). 1172 LAW OF AUTOMOBILES ity, real or apparent, to contract to bring plaintiff ' back, or that the latter made- or was requested to make such a contract. It was held that, as matter of law, defendants were not liable.®'' § 1299. Duty of garage keeper in letting vehicles. A garage keeper is bound to use ordinary care and skill in furnishing auto- mobiles to customers.®* He is not a common carrier, and the rule of law which exacts the strictest and highest degree of diligence from a common carrier is not applicable to him.®' He is liable to a hirer of an automobile for injuries which happen by reason of defects iii the automobile which might have been discovered by the most careful and thorough examination.'''' But he is not liable for ah injury which happens in consequence of a hidden defect which in all likelihood would not have been discovered by such exami- nation.''^ I While he is not liable for injuries caused by latent defects, where a latent defect causes an accident which would not have occurred had the driver had the machine under proper control when it be- came unmanageable, he is liable for injuries resulting therefrom; because the negligence of the driver, if not the sole proximate cause, was at least a concurring prOximate cause of the accident.''^ § 1300. Letting automobile to one unfamiliar with that kind. A garage keeper is not liable to a third person for an in- jury inflicted by the operation of an automobile by one to whom he let the car, knowing that he was without experience in operat- ing automobiles of that kind, where the latter was experienced in operating other makes of automobiles, and he was given instruc- tions as to the use of this one. "Cases may be imagined," said the court, "where an owner recklessly lets his spirited team or his automobile to an immature child, or to a person who is intoxicated or otherwise manifestly incompetent to manage or control it, with the natural result of a collision updn the public street and conse- ' quent injury to others. It may well be that under such circum- fi' Gresh v. Wanamaker, 237 Pa. St. 70 Denver Omnibus & Cab Co. v. Mad- 13, 84 Atl. 1108 (1912). igan, 21 Colo. App. 131; Hadley v. 68 Stanley v. Steele, 77 Conn.. 688, 60 Cross, 34 Vt. S86, 80 Am. Dec. 699. Ati. 640, 69 L. R. A. 561; McGregor "Stanley v. Steele, 77 Conn. 688, 60 V. Gill, 114 Tenn. S21, 86 S. W. 318, 108 Atl. 640, 69 L. R. A. S61; Hadley v. Am. St. Rep. 919. ' Cross, 34 Vt. 586, 80 Am. Dec. 699. 69 Stanley v. Steele, 77 Conn. 688, 60 Tajphnson v. Coey, 237 111. 88, 86, N. Atl. 640, 69 L. R. A. 561; Siegrist v. E. 678, 21 L. R. A. (N. S.) 21, aff'g Arnot, 86 Mo. 200, 205, 56 Am. Rep. ,142 111. App. 147. 425; McGregor V. Gill, 114 Tenn. 521, 86 S. W. 318, 108 Am. St. Rep. 919. THE GARAGEMAN AND REPAIRMAN 1173 stances the owner would be held liable in damages, not because the hirer is his servant or because as owner he is required to vouch to the public for the competency of all persons to whom he may let his teams or his cars for hire, but because he knew the incom- petency of this particular driver and the imminent peril to which he thereby exposed others who were in the lawful use of the streets and as a person of ordinary prudence should have refrained from so doing. Nothing of this manifest want of prudence is shown in this case now under consideration." ''' The court further declared, that the fact that here and there a driver carelessly and recklessly converts his vehicle into an engine of injury or destruction to others is not a sufficient reason for re- quiring the owner of such vehicles for hire to test and ascertairf the competency and skill of every customer before intrusting him with the custody of a car. §1301. Car let by night watchman having no authority. Where a night watchman, in a garage, who had no authority to let cars, hired out a car that was left in the garage by a third person, the garageman was not liable to the hirer for the defective condi- tion of the car, nor for the negligence of the chauffeur, supplied by the watchman.'* § 1302. Duty of garage keeper in hiring chauffeurs. It is the duty of the garage keeper to exercise ordinary skill, care and diligence in selecting and furnishing to his customers chauffeurs who are possessed of such skill and caution and experience as is usual and ordinary in persons exercising such special pursuit.'''' Slight neglect or want of care in this regard creates a liability on the part of the garage keeper for injuries thereby occasioned.''® But if an accident happens which could not have been avoided by the chauffeur by the exercise of reasonable skill, caution and prudence, and an injury results, the garage keeper is not liable.''"' § 1303. Care required of hirer of automobile. One who hires an automobile and has control of the same while so using it, must exercise reasonable care and skill in its use and operation, and if 73 Neubrand v. Kraft, 169 la. 444, 151 58 III. App. 17. N. W. 455 (1915). 76 Benner Livery & U. Co. v. Bus- 's'* Spradlin V. Wright Motor car Co., son, 58 111. App. 17; Perez v. New Or- 178 Ky. 772, 199 S. W. 1087 (1918). leans, C. & L. R. Co., 47 La. Ann. 1391, ''B Payne v. Halstead, 44 III. App. 97, 17 So. 869. ^02, 103; McGregor v. Gill, 114 Tenn. ''"''See Payne v. Halstead, 44 111. App. 521, 86 S. W. 318, 108 Am. St. Rep. 97, 103. 919; Benner Livery & U. Co. v. Busson, 1174 LAW OF AUTOMOBILES he fails to do so and breaks or damages the automobile by reason thereof, he is liable for such injury, whether caused by himself or his servants* The degree of care required of such hirer is that degree of care, attention and exertion which, under the circumstances, a man of ordinary prudence and discretion would exercise in reference to tJie automobile were it his own.'" If there is a special contract providing for the degree of care to be exercised by the hirer in the use and care of the automobile, he willbe required to use such care as the contract prescribes. Thus, where a person hired a horse and buggy to drive to a certain town, and agreed to put the horse and buggy in a livery stable while there, but hitched the horse with the buggy to a public hitching rack and they were stolen, he was held liable in damages therefor.'" The plaintiff was the owner of an automobile which he used for hacking p'urposes, and on the occasion in question the defendant hired the car by the hour, plaintiff furnishing the chauffeur. While on the trip the automobile was run into a ditch, and defendant em- ployed a man living nearby to get the car out oi the ditch and care for it until called for. This man went to the car after dark, carry- ing a lantern. As he started to lift the car there was a strong odor of gasoline, and* it appeared that gasoline had leaked from the ma- chine and soaked into the ground. Shortly thereafter the gasoline ignited from the lantern, and the car was destroyed. It was held that the man employed by defendant was his servant, and that he was liable for his negligence. Judgment in plaintiff's favor was accordingly affirmed.'^ § 1304. Hirer going beyond trip^ or putting car to different use, than car was let for. A hirer engages to put the thing hired to no other use than that for which it is hired; and if he does so, and the thing is injured, lost or destroyed, the owner may sue as for a conversion, even though the hirer be an infant.'^ . Thus, if an automobile is hired for one purpose and is used for a different purpose, or if it is hired for a specified period of time, or for a specified journey, and the hirer uses it for a different pur- pose, or for a longer time, or on a different or longer journey, he is liable for all damages to the automobile arising while it was be- 78 Mooers V. Larry, IS Gray (81 Mass.) 80 Line v. Mills, 12 Ind. App. 100, 39 4S1; Chase v. Boody,,5S N. H. 574. N. E. 870. 79 Columbus V. Howard, 6 Ga. 213; 81 Brown v. Freeman, 84 N. J. L. Power V. Brooks, 7 Ky. L. Rep. 204; 360, 86 Atl. 384 (1913). Chase v. Boody, 55 N. H. 574, 578. 8aMalone v. Robinson, 77 Ga. 719. THE GARAGEMAN AND REPAIRMAN 1175 ing used outside of or beyond the terms of the contract, of hiring. He is liable as for a conversion.** Where an automobile and chauffeur were hired for a trip within the city where the garage was situated, and was driven outside the city into another state, where an accident occurred, the garageman was not liable. "When the hirers of this machine took it out of the city of Ashland and into the state of West Virginia, the car was not en- gaged in the service for which it had been hired, nor was the chauffeur employed in the service for which he had been engaged. At the time of the accident he was acting as the servant of the occupants of the car, and not as the servant of Pemberton." ** But a slight and immaterial departure from the course agreed upon will not render the hirer liable as for a conversion.*^ Like- wise, where he hires a vehicle to drive to and from a place with- out stopping, mere delay is not sufficient to render him liable.*^ § 1305. Liability of employer when hired automobile is stolen while servant using it for own purpose. The defend- ant hired an automobile from the plaintiff for use in his business and put it in charge of his driver. After finishing his deliveries on the day in question, the driver stopped at his home for supper; then in driving to the garage he deviated frohi his course and stopped to buy some tickets, leaving the automobile unlocked, but in charge of a boy in one of the most frequented streets in Newark. During his absence of about 10 minutes, the machine was stolen. Held, that the defendant was liable on his bailment contract for the value of the machine. ^ "The servant was in the empllbyment of the master until >he had finished his work for the day and returned the automobile to the garage. The automobile was hired for the defendant's busi- ness and neither the defendant nor the servant was authorized to use it in the servant's private affairs. The defendant could not escape responsibility for the servant's using it for a different ptir- S^Arka^sas: Stewart v. Davis, 31 107 Mass. 251, 9 Am. Rep. 30; Gregg Ark. 518, 25 Am. Rep. 576. v. Wyman, 4 Cush. 322. California: Welch v. Mohr, 93 Cal. Missouri: Kellar v. Garth, 45 Mo. 371, 28 Pac. 1060. App. 332. Georgia: Malone v. Robinson, 77 8*Spradlin v. Wright Motor Car Co., Ga. 719; Columbus v. Howard, 6 Ga. 178 Ky. 772, 199 S. W. 1087 (1918). 213. 85 Young V. Muhling, 48 App. Div. Indiana: Line v. Mills, 12 Ind. App. 617, 63 N. Y. Supp. 181. 100, 39 N. E. S70. 86 Evans v. Mason, 64 N, H. 98, 5 Massachusetts: Hall v. Corcoran, Atl. 766. 1176 LAW OF AUTOMOBILES pose or' for a longer time than was agreed by the parties." ** § 1306. Duty and liability to hirer and third persons for acts of chauffeur. A private carrier is not bound to exercise the highest degree of care for the safety of his passengers, as in the case of a common carrier; but he is bound to exercise ordinary care and diligence to carry his passengers in safety.*' Where a garageman lets an automobile for hire and furnishes a driver, and the hirer exercises no control or supervision over the driver, except to direct him where to go and what route to take, and to caution him against improper driving, the person so letting the automobile is responsible for the negligence of the driver to both -the hirer and to third persohs.'" This rule is based upon the fact that such person, and not the hirer, has the right to select the chauffeur, and has the right of control over him,®^ and is true regardless of the degree Of care exer- cised by the owner in the selection of the driver.®^ "If a private carrier should drive his own vehicle and should cause injury to his passengers by his negligent driving, he could not escape liability by proving that he was ordinarily; a safe and careful driver. The reason is that in such case he is a wrongdoer, and his primary negligence being the proximate cause of the injury, he is liable for the damages sustained. So, too, if he delegates to 88 Donaldson v. Ludlow, — N. J. L. Co., 49 Pa. Super Ct. 183 (1912) ;' Eng- — , 110 Atl. 690 (1920). lish v. Acme Motor Car Co., 49 Pa. 89 Forbes v. Reinman & Wolfort, 112 Super Ct. 187 (1912). Ark. 417, 166 S. W. 563, SI L. R. Wisconsin: Ouellette v. Superior Mo- A. (N. S.) 1164 (1914). tor & M. Wks., 157 Wis. 531, 147 N. 90 Illinois: Dunne v. Boland, 199 111. W. 1014, 6 N. C. C. A. 357, 52 L. R. App. 308 (1916). A. (N. S.) 299 (1914), citing this work; Indiana: Crockett v. Calvert, 8 Ind. Gerretson v. Rambler, Garage Co., 149 127. Wis. 528, 136 N. W. 186, 40 L. R. A. Iowa: Fenner v. Crips, 109 la. 455, (N. S.) 457 (1912). 80 N. W. 526. Federal: Cargill v. Duffy, 123 Fed. Massachusetts: Huff v. Ford, 126 i 721. Mass. 24, 30 Am. Rep. 645. England: Lauger v. Pointer, 5 B. & C. Minnesota: Meyers v. Tri-State Auto 547, 8 D. & R. 550, 4 L. J. K. B. (O. S.) Co., 121 Minn. 68, 140 N. W. 184, 44 309, 11 E. C. L. 579; Quarman v. Bur- L. R. A. (N. S.) 113 (1913). nett, 6 M. & W. 497. New York: Moore v. Stainton, 80 SiNeumDler v. Acme Motor Car Co., App. Div. 295, 80 N. Y. Supp. 244, aff'd 49 Pa. Super. Ct. 183 (1912). 177 N. Y. 581, 69 N. E. 1127. 92 Meyers v. Tri-State Auto Co., 121 Pennsylvania: Wallace v. Keystone Minn. 68, 140 N. W. 184, 44 L. R. A. Auto Co., 239 Pa. St. 110, 86 Atl. 699 (N. S.) 113 (1913). (1913) ; Neumiller v. Acme Motor Car THE GARAGEMAN AND REPAIRMAN 1177 another the duty to drive, his vehicle and his passengers are in- jured by reason of the neghgence of his driver, Uie rule of respon- deat superior applies, and the owner is liable. . . . This rule is especially applicable in the case of one letting out automobiles for hire. Motor vehicles are complicated machines, and are capa- ble of being run at a very high rate of speed. It is necessary for the safety of their occupants,, as well as for the protection of pedes- trians and other persons in vehicles Using the streets, that the drivers of such machines should be competent persons, and that such drivers be required to esiercise ordinary care and diligence in running their machines." " Defendants had been engaged in the livery business in the city of Little Rock for a number of years, and in connection with that business they rented automobiles to such persons as they chose. On the day in question the deceased, who had rented automobiles from defendants before, tedephoned them for an automobile and driver to be used by him and some guests in driving about the city. Defendants sent the automobile and driver to the place desig- nated, and deceased and his guests entered the machine and gave directions to the driver as to the places they wished to go. The driver had control of the machine, and the management of it, and drove it to the places indicated by deceased. 'While on the trip the automobile collided with a wagon, and deceased" was killed. There was evidence that the collision was due to the negligence of the driver of the automobile. The defendants testified that the chauffeur was careful, experienced, and competent; that he had never had an accident before while in their employ; and that the automobile was a good one and in perfect condition. The trial court directed a verdict in favor of the defendants, on the ground that the only duty defendants owed to the occupants of the car was that of exercising ordinary care in furnishing a safe automobile and a careful and reliable chauffeur. On appeal the judgment was reversed and a new trial granted, the court holding that the defendants were responsible for the negligence of their driver.'* Where the owner of an automobile let it with a licensed chauf- feur to a third person for a period of two days, for which he re- ceived $50, the chauffeur to follow the directions of the hirer as to when and where to drive, the owner was held liable for the »8 Forbes v. Reinipan & Wolfort, 112 94 Forbes v. Reinman & Wolfort, 112 Ark. 417, 166 S. W. S63, SI L. R. A. Ark. 417, 166 S. W. 563, SI L. R. A. (N. S.) 1164 (1914). (N. S.) 1164 (1914). 1178 LAW OF AUTOMOBILES chauffeur's negligence while acting in such employment.®^ The passenger or hirer in such circumstances is not liable for the chauffeur's negligence.'® Neither is one who is riding therein by permission or invitation.®'' But where the chauffeur permits a guest of the hirer to operate the automobile, the hirer will be held liable for injuries caused by the negligent operation of the car by the guest.'* In such a situation the hirer's act in assuming control over the, operation of the vehicle renders him liable. "Where the owner of an automobile stores it at a garage under an agreement by which the garage keeper, for an agreed compen- sation, is to furnish a chauffeur from time to time as requested to drive the car, it being left to the garage keeper to select the driver and pay him his compensation, and to hire and discharge him at pleasure, the garage keeper is liable for the negligence of the driver while operating the car, the owner being an occupant thereof, but not assuming to direct or control the method or manner of driving, further than to tell the driver where he desires to go." ®® Where an automobile is let by the owner without a chauffeur, and the chauffeur engaged to operate the car has no connectibn with the owner, not being in his general or special employ, the owner cannot be held liable for his negligence.'^ But if the automobile and the chauffeur are placed under Ihe exclusive control and disposition of the hirer, then the hirer and not the owner is liable for the chauffeur's acts.^ § 1307. Liability to guest of hirer. A company engaged in the business of automobile livery, renting out automobiles driven by chauffeurs of their own selection and paid by them, who rented a car and driver to a regular customer, knowing of the latter's cus- tom on such occasions to invite friends to ride with him, were liable to a person so invited by the customer for injury to him while so riding due to the negligence of the chauffeur, where the cus- 96Shepard v. Jacobs, 204 Mass. 110, , N. C. C. A. 3S7, S2 L. R. A. (N. S.) 90 N. E. 392, 26 L. R. A. (N. S.) 442 299 (1914). (1910). , IHornstein v. Southern B. R. Co., 79 96 Wilkinson v. Myatt-D. M. Co., 136 Misc. 34, 138 N. Y. Supp. 1080 (1913). La. 977, 68 So. 96 (1915), citing this 8 Brown v. Smith, 86 Ga. 274, 12 S. E. work. 411, 22 Am. St. Rep. 456; Kimball v. , »7 Wilkinson v. Myatt-D. M. Co.. 136 Cushman, 103 Mass. 194, 4 Am. Rep. La. 977, 68 So. 96 (1915). 528; Howard v. Ludwig, 57 App. Div. SSWoUaston v. Park, 47 Pa. Super. Ct. 94, 67 N. Y. Supp. 1095, 171 N. Y. 507, 90 (1911). ' 64 N: E. 1-72; Kelton v. Fifer, 26 Pa. 99 0ueirette v. Superior Motor & M. Super. Ct. 603. Wks. 157 Wis. 531, 147 N. W. 1014, 6 THE GARAGEMAN AND REPAIRMAN 1179 tomer did not exercise such control over the chauffeur as to make his negligent act his own. The duty of the garagemen in such cir- cumstances is similar to that which the owner of an apartment house owes to visitors of his tenants with regard to the condition of the common passages. While the guest was riding in their car, driven by their driver, they owed him the duty at least of reason- able care for his safety, and the failure of ^eir driver to use such care would render them liable, in the absence of contributory negli- gence.* One who lets an automobile and furnishes a chauffeur for the purpose of conveying the hirer and his guests, enters into a con- tract of hire for the benefit of the guests as well as the hirer, and owes the same duty to each, without regard to the fact that he does not know the names or number of the guests.* § 1308. Liability for negligence of hirer. The owner of a garage who lets automobiles to persons for hire is not responsible ordinarily for the conduct of such persons in the operation of the cars." If he lets a car to one whom he knows is incompetent to man- age it, such as an intoxicated person, a child, or, perhaps, one who is known to be habitually reckless and negligent, he may be held liable for injuries inflicted by such person in the operation of the car intrusted to him, but such liability is based upon the garage keeper's own negligent act in placing an automobile in the hands of a person, when to do so would likely result in injury to some one. §1309. Ordinance making failure to pay for rig misde- meanor invalid. The following ordinance was declared invalid because it attempted to authorize imprisonment for debt: "That any person who shall hire a horse-drawn or power^propelled vehicle, whether carriage, buggy, wagon, automobile or taxicab, for the purpose of riding therein or transporting any goods, wares, or mer- chandise, and shall refuse to pay the agreed price, or the reasonable price therefor, or the rate therefor as fixed by any ordinance of Kansas City, shall be deemed guilty of a misdemeanor, and, on conviction, shall be fined not less than one dollar nor more than five hundred dollars." The remainder of the ordinance prescribed rates and regula- tions for automobiles used for carrying passengers for hire. Com- 8 Rodenburg v. Clinton Auto & Gar- 1 Dunne v. Boland, 199 HI. App. 308 age Co., 84 N. J. L. 545, 87 Atl. 71 (1916). (1913), aff'd in 8S N. J. L. 729, 91 Atl. ^Neubrand v. Kraft, 169 la. 444, 151 1070 (1914). N. W. 455 (1915). 1180 LAW OF AUTOMOBILES mitment for failure to pay the fine was part of the judgment in this case. . The proceeding in question grew out of the defendant's failure to pay for the use of an automobile in which he rode. In its opin- ion the court in part said: "In this case the ordinance did not require, nor did the evidence tend towards, proof of fraud in the procurement and use of the vehicle. It is hiardly disputable that the chauffeur knew appellant had no money with him when accepted as a passenger. The ordinance constitutes an effort to do indirectly what the Constitution declares shall not be directly done, and is therefore invalid." ® § 1310. Letting automobile on Sunday. It has been held that, as letting of automobiles for pleasure is a work neither of charity nor of necessity, a contract of hire of an automobile made and executed on Sunday is void, and that it cannot be rendered binding by a subsequent promise to pay, such promise being with- out consideration, and the hirer cannot collect on such contract. "If one's ordinary calling is lawful, a contract made in further- ance thereof is neither illegal nor immoral. If made on Sunday, it is unenforceable solely because the state, in the exercise of its police power, has prohibited the citizen from pursuing his usual business or calling on the Sabbath day. . . . The owner of the automobile knew it was illegal to let his machine on Sunday. With this knowledge he took the risk of -voluntary payment by the de- fendant. The contract was wholly executed on Sunday; nothing remained to be done but to pay for the use of the machine. The new promise to pay was founded upon no new consideration, and there was no such obligation to pay as would support the new promise. The hirer of the automobile was engaged in an illegal act, one which is denounced by our law as a crime. The original promise to pay was made in furtherance of a crime. Therefore it could not furnish a consideration for a new promise made on a secular day." The court also mentioned the rule that, "where a sale is made on Sunday, the retention of the property on a secular day will be treated as evidence of a new promise to pay, the continued use of the property being sufficient consideration for the promise; though upon principle it seems that the new promise ought to be confined to the value of the property and not to the amount contracted to be paid on Sunday." ' 6 Kansas City v. Pengilley, 269 Mo.' 7 j ones v. Belle Isle, 13 Ga. App. 437, 59, 189 S. W. 380 (1916). 79 S. E. 3S7 (1913). THE GARAGEMAN AND REPAIRMAN 1181 Where the hirer of an automobile and chauffeur is injured by the negligent driving of the chauffeur, the fact that the contract of hiring is void because made on Sunday does not affect the liability of the garageman from whonl the vehicle was hired for the chauf- feur's negligence; the liability being in tort.* A law forbidding "unnecessary servile work" on Sunday, does not necessarily forbid the hiring of a motor truck over that day. "In the first place, there is nothing in the case to show that plain- tiff let the truck for unnecessaty work on Sunday, as it does not appear that he knew what was to be carried by it. I know of no law which forbids the hire of a truck over Sunday. The Sunday law is to forbid unnecessary servile work on Sunday. But, assum- ing that the Sunday law applies to the original contract, and that the work of the chauffeur was illegal, and that plaintiff could not recover for the chauffeur's hire; nevertheless whether the contract was tainted with illegality makes no difference." ® § 1311. Liability for injuries to persons in garage on busi- ness. The owner of a garage was held liable for injuries to the chauffeur of a customer of the garage, who was lawfully on the premises, and who, without negligence on his part, fell down an elevator shaft negligently left open by the garage keeper.^" The defendants conducted a shop where they repaired automo- biles, and kept automobile parts, as well as parts for farm machih- 8 Gerretson v. Rambler Garage Co., death of the horse because the contract 149 Wis. S28, 136 N. W. 186, 40 L. R. A. was made on Sunday. Rejecting this (N. S.) 4S7 (1912). contention, the court said: "Having One who hires a horse for pleasure, taken the horse into his possession, on Sunday, from a liveryman, and neg- though under a void contract, he yet ligently overdrives the horse so as to owed a duty to the plaintiff to exercise kill him, is liable for the loss of the some degree of care over it. He was horse, although the liveryman knew the bound to give the plaintiff notice of the horse was hired for a pleasure drive on disease, so that the plaintiff might have Sunday, which was in violation of law. removed the property, or have taken The death of the horse was due to a some precaution himself, or to have re- tort, and the Sunday hiring and driving fused to put the horse in the pasture merely furnished the conditions under there." which the death of the horse was "This gave the plaintiff a right of ac- brought about. Hinkel v. Pruitt, 151 tion wholly disconnected from the stat- Ky. 34, ISl S. W. 43. ute relating to the observance of Sun^ In Costello v. Ten Eyck, 86 Mich. day." Merritt v. Earle, 29 N. Y. 115, 86 348, 49 N. W- 152; 24 Am. St. Rep. 128, Am. Dec. 292. the defendant had taken the plaintiff's 9 Fine v. Sedacca, 179, N. Y. Supp. horse to graze, and the horse had died 68 (1919). , from being subjected to a disease by l" Kinsey v. Locomobile Co., 235 Pa. negligence of the defendant; but he in- St. 95, 83 Atl. 682 (1912). sisted that he was not liable for the *■ 1182 LAW OF AUTOMOBILES ery, for sale. The building was situated on a lot which extended back to a 20-foot unpaved, ungraded, littered alley. Plaintiff and other customers had frequently entered the building from the rear for the purpose of transacting business in the front of the building. Plaintiff entered on this occasion the rear of the building for the purpose of transacting business, and while he was walking towards the front of the building, an employee of defendants' negligently ran an automobile against, and irijured him. The defendants con- tended that plaintiff, entering as he did, was no more than , a li- censee, to whom they owed no duty except to refrain from wilfully injuring him. The court held, however, in affirming judgment for the plaintiff, that plaintiff was an invitee; that "the fact that the alley was unim- proved and strewn "with rubbish, such as is usually found in such places, is not of importance; for farmers, who of necessity are often confronted with such coi^ditions, would naturally be frequent customers of the business conducted in the front of the building, and the persons in charge must have known that the condition of the alley would not, and did not, prevent them from using the rear entrance when more convenient than the front." ^^ Where the plaintiff as a prospective purchaser had been invited into defendant's garage to inspect an electric automobile, and while the car was being manipulated for his inspection by defendant's general manager, and while the plaintiff was standing in front of it, it moved forward suddenly, forcibly crushing him against a post, it was held that he could recover, as the rule of res ipsa loquitw applied.^^ § 1312. Liability to employee slipping on oily floor. Plaintiff, employed as a washer in defendant's garage, testified that on that date he with other workmen of the defendant washed a large auto- mobile on one of the Washstands in that place; that after the ma- chine was washed it became necessary to skid the car around on the washstand, so as to get it back into the space where it be- longed; that the workmen were unable to make the car skid, and that the superintendent or foreman instructed one of the men to put some kerosene oil under the rear wheels, so as to make it skid; that in pursuance of said direction about a pint of kerosene oil was then put under the rear wheels, and that plaintiff, standing with his back against one of the rear wheels and his hands on the spokes, tried with the other workmen to push the car over; that 11 Jewison v. Dieudonne, 127 Minn. 12 Barnes v. Kirk Bros. Auto. Co., 32 163, 149 N. W. 20 (1914). . Ohio Cir. Ct. R. 233 (1911). THE GARAGEMAN AND REPAIRMAN 1183 the foreman said, "Stick to it; don't stop;" and then, as the car moved, the plaintiff's foot went from under him on the oily sur- face, and his back or shoulder struck the hub of the automobile, and he thus sustained the injuries complaimed of. The plaintiff further testified that in other garages where he had worked there was either a turntable or skids used to turn the cars around; that there. were no skids in the defendant's garage, and no turntable there, that a "skid," referred to in his testimony, is a small platform about two feet long and six inches wide, with four revolving wheels underneath; and that when an automobile is backed on two of these skids it can be skidded as desired. The plaintiff's testimony was corroborated by that given by two other witnesses. At the close of the plaintiff's case the trial justice dis- missed the complaint on the ground that the plaintiff had failed to prove a cause of action. This was held to be erroneous, the court saying: "It was the duty of the defendant to use reasonable care in providing its work- man for use in its work sufficient, safe, and suitable appliances in the prosecution thereof; and on the record as it stood at the close of the plaintiff's case the question arose whether, in view of the evidence that thqre were no skids or turntable in the garage, the defendant had performed that duty. It is inferable from the tes- timony that, if skids or a turntable were provided at the garage, the defendant's superintendent would not have ordered kerosene oil to be thrown under the wheels of the automobile, and if the oil used by the superintendent, because of the absence of appliances like skids or a turntable, created a dangerous^ condition in the prosecution of the work, the defendant would be chargeable with negligence." ^* § 1313. Liability for injuries due to explosion of gasoline. An employee of the defendant, while filling a tank in a garage with gasoline permitted 45 gallons to be spilled, due to his failure to insert the funnel he was using in the filler pipe. A portion of the gasoline ran down into a cellar, which had recently been dug in connection with the construction of an addition to the garage which was to be a plant to supply heat to the garage. At this time a number of mechanics were at work in the cellar, and a plumber's helper informed the employee that gasoline was running into the cellar. Thereupon defendant's employee went into the cellar with a broom and swept the gasoline into a pit in the floor, which was 1* Bowers v. Columbia Garage Co., 93 ■ Misc. 49, 156 N. Y. Supp. 286 (-1915). 1184 LAW OF AUTOMOBILES intended to receive seep-water and the like. The pit had no out- let, but there was an automatic arrangement for pumping it out when the liquid in it was more than seven inches deep. At this depth the pit lield about 33 gaillons. The employee informed the garage owner that he had spilled about 45 gallons of gasoline. This occurred on January 25, on which day the garage owner was not in the cellar, and, in fact, this addition to the. garage was being constructed by the owner of the property for use by the garage owner, and at this time was not in the latter's possesssion. After the gasoline ran into the cellar, a plumber working there caused the cellar doors to be nailed up as a matter of safety, because of the gasoline. They remained nailed for three or four days, when the workmen were again at work in the cellar, using torches and candles around the floor. The garage owner was told that gaso- line was in the cellar, but he did not know that it had been swept into the pit. On February 1 , the addition was turned over to the garage owner, with fires going under the boilers in the cellar. The intestate entered the employ of the garageman on February 7, pr 14, his duties being to wash cars, to stay at the garage in the evening, and to fix up the fires when leaving to go home. On the evening of March 4 the intestate, during the absence of the garageman, noticed that the water in the boiler was too low, and he opened the feed valve, but did not know how to turn it off. Later when the garageman returned the intestate told him that the water to the boiler was turned on. The latter turned the water off and finding that the water in the boiler was too high, drained the sur- plus water onto the cellar floor. Immediately thereafter the intes- tate went into the cellar to put some coal on the fire and for this purpose opened the door of the fire box. Thereupon three explo- sions occurred, causing injuries to the intestate from which he died. Prior to March 4 there was a cover over the pit. An expert testified in substance that the gasoline would remain on the surface of the water and the gasoline vapor, being heavier than air, would stay in the pit provided the cover of the pit was not removed; that so long as the vapor remained in the pit there would be no « explosion; that the explosion was due to the water that overflowed the basin; that the gasoline, being lighter than water, then flowed out of the pit over the floor; that a vaporiza- tion of the gasoline ensued and, the vapor coming in contact with the fire, the explosion occurred; that sweeping the gasoline into the pit was a very unsafe way of disposing of it; that if the door of the fire box was opened, while there was a fire in the box, the raising THE GARAGEMAN AND REPAIRMAN 1185 of the diluted gasoline in the pit would be sufficient to cause an explosion. The trial court left it to the jury to decide whether the defend- ant or the garage keeper, the latter being the intestate's employer, caused the accident, and there was a verdict for defendant. This was held to be error. It was further held that the trial court should have charged; as requested by the plaintiff, that if the neg- ligence of the garage keeper and the negligence of defendant's employee (if both were found to have been negligent) were contrib- uting proximate causes of the accident, the plaintiff was entitled to a verdict against defendant. Accordingly a new trial was granted." At a subsequent trial of this case there was a verdict for the plaintiff against the defendant oil .company which was upheld. The court in part said: "It is not necessary to decide what the rule of law is which would have governed this case if the jury had found Sullivan's intervening act to have been an innocent one. If, for example, Sullivan neither knew nor ought to have known of the presence of the gasoline in the pit, his act of emptying the boiler by running out the water onto the cellar floor would not have been a negligent act. The intervening act of a third person 'is important, not qua cause, but qua wrong-doer.' An innocent inter- vening act of a third person stands 'on no different footing from the force of gravitation' for example. It must now be taken to be settled (at least in this commonwealth) that the natural and prob- able consequences of the defendant's act are to be looked to in determining its character. But in cases of negligence for example that when the character of the defendant's act is determined, i< e., when it is determined that the defendant's act was a negligent one, the question of causation, i.e., the, question whether the injury suffered by the plaintiff was in fact caused by the defendant's neg- ligent act, is one not affected by what the natural and probable consequences of that act were." ^^ The plaintiff's automobile was driven by his son to a drug store for the purpose of replenishing the supply of gasoline. It was about dark, and the son turned down the lamp on the rear of the machine because he thought it was too high, and then turned to the sidewalk. The gasoline tank was attached to the rear of the automobile over the tail light, and the distance between the lamp and the intake of the tank was about 24 inches. The lamp had 1* Leahy v. Standard Oil Co,, 220 16 Leahy v. Standard Oil Co., 224 Mass. 90, 107 N. Ei! 458 (191S). Mass. 3S2, 112 N. E. 9S0 (1916). B. Autos. — ^75 1186 LAW OF AUTOMOBILES two glass sides, but the side next to the drug store was of metal. The drug clerk brought a 5-gallon can of gasoline, and, not noticing that the lamp was burning, placed a funnel in the intake of the tank, and, gently placing the mouth of the can over the rim of the funnel, commenced to pour in the gasoline. When he had poured about a gallon, the gasoline became ignited, by a quantiy which he had unconsciously spilled coming in contact with the lighted lamp and an explosion followed which damaged the machine. The plaintiff sought to recover from the druggist, and secured a judg- ment for damages, but on appeal the judgment was reversed, the court holding that in the absence of evidence as to who removed the cap from the intake of the tank, it would be presumed that plaintiff's son removed it before he ordered the gasoline; that the light should have been extinguished, but, from the facts found, pla,intiff had not shown this to have been incumbent on the defend- ant; that negligence was attributable to plaintiff's son in merely lowering the light, removing the cap from the tank, and walking away without any explanation to the defendant that the machine had pot been put in readiness for the tank to be filled; that the negligence of plaintiff's son in leaving the light burning was the proximate cause of the injury; that if, notwithstanding defendant's • fault, the negligence of plaintiff's son continued and contributed to the accident, then either the negligence of the parties was con- current, or else plaintiff's son himself must be' held as having had the opportunity of avoiding the injury, and his contribution was, in either event, not remote in the chaim of causation; and that where plaintiff and defendant were both guilty of acts of negli- gence, which together constituted the proximate cause of the in- jury, the negligence of plaintiff, however slight, . barred recovery.^® § 1314. Employee pumping gasoline before motorist ready. It was held to be negligence for an employee of a filling station to commence pumping gasoline to fill the tank of an automobile before he was certain that the motorist was ready to receive it; the lamps on the machine being lighted and the danger of gasoline catching fire being great.^' § 1315. Explosion of tank caused by open flame blowpipe.— Res ipsa loquitur. The owner of a "brass gas tank, \i«^ho had taken it from his automobile to a lamp company for repairs, and 16 Grigsby & Co. v. Bratton, 128 IT Sanders v. Austin, — Cal. — , 182 Tenn. 597, 163 S. W. 804, 8 N. C. C. A. Pac. 449 (1919). 237n (1913). THE GARAGEMAN AND REPAIRMAN 1187 who was standing near while an employee of the lamp company was working on the same with a blowpipe open flame lamp, with- out having cleaned the t&nk, was held to be entitled to recover for Injuries caused by the explosion of the tank; the court further holding that the doctrine of res ipsa loquiiuf apiplied}^ § 1316. General duty and liability of repairman. When an automobile is delivered to one who agrees to repair it for a con- sideration the contract is one of bailment for hire, and the bailee is required to exercise ordinary care for its protection." But a gratuitous bailee is liable only for gross negligence or bad faith. So, where a repairman agreed to repair an automobile free of charge, he was not liable for damage to the machine inpur red while he was testing it after the repairs were made, in the absence of gross negligence or bad faith.^" When a repairman undertakes to make repairs on an automo- bile, nothing to the contrary appearing, it is presumed that he undertakes the entire job, and it is immaterial, so far as his lia- bility is concerned, that he secures the services of others to do the work, wholly or in part.^^ § 1317. Lien of garageman and repairman. The garage keeper has no common law lien for keeping an automobile for the owner's use. A lien of such kind depends upon continuous pos- session of the property, which would be destroyed the first time the owner took the automobile from the garage.^^ Nor can he claim a lien on such automobile under a statute which provides that "A person who makes, alters, repairs, or in any way enhances the value of an article of personal property, at the request or with the consent of the owner, has a lien on such article, while lawfully in possession thereof, for his reasonable charges for the work done, and materials furnished, and may retain possession thereof until such charges are paid." The garage keeper is liot a warehouseman within the meaning of a statute providing that, "A warehouse company, warehouseman or other person lawfully engaged in the business of storing goods, . 18 Pulvin V. Hudson Auto Lamp 22 Smith v. O'Brien, 46 Misc. 32S, 94 Works, 172 N. Y. Supp. 340 (1918). N. Y. Supp. 673, aff'd 103 App. Div. 596; 19 Allen V. Fultdn Motor Car Co., 71 Grinnell v. Cook, 3 Hill. (N. Y.) 48S, Misc. 190, 128 N. Y. Supp. 419 (1911). 492, 38 Am. Dec. 663; McFarland v. 20 Thomas v. Hackney, 192 Ala. 27, Wheeler, 26 Wend. (N. Y.) 467, 474-475 ; 68 So. 296 (1915). , Jackson v. Cummins,' 5 M. & W. (Eng.) 21 Russell's Express v. Bray's Garage, 520, 522. — Conn. — , 109 Atl. 722 (1920). 1188 LAW OF AUTOMOBILES wares and merchandise for hire has a lien on the goods deposited and stored with him for his storage charges, and for moneys ad- vanced by him for cartage, labor, weighing and coopering in rela-' tion to such goods, or other goods belonging to the same owner; and he may detain such goods until his lien is paid." While the garage keeper may be said to keep a storage place, an automobile kept by him subject to the orders oi the owner is not "stored" within the meaning of such statute. Statutes giving livery stable' keepers a lien for boarding or pastur- ing animals, or who in connection therewith keeps or stores vehi- cles, do not apply to garage keepers. The livery stable keeper had no lien at common law, so a garage keeper must have a statute of his own if he is to have a lien.^' However, a garage keeper's lien may be created by express agree- ment,''* and if the garage keeper takes an automobile to repair or to expend money or labor upon he has a lien on the automobile for ' his reasonable charges.*® He can have no lien for storage unless the machine is stored under contract with the owner.*® And his lien for repairs depends upon an agreement, express or implied, with the owner.*'' And if upon an implied contract, he must show that the repairs were reasonably necessary.** Where the repairman agreed, as a part of the contract to repair an automobile, that he would wait for his money until the damage to the machine was settled for by thp insurance company carrying the risk, he had no lien for such repairs.*' 28 Smith V. O'Brien, 46 Misc. 325, 94 "Automobiles are a species of vehicles N. Y. Supp. 673, aff'd 103 App. Div. 596. which were unknown at common law, 24 Perkins v. Boardman, 14 Gray but little doubt can be entertained that (Mass.) 481; Grinnell v. Cook, 3 Hill in the absence of a statute on the sub- (N. Y.) 485, 38 Am. Dec. 663. ject. wheelwrights and mechanics repair- 25 Lord V. Jones, 24 Me. 439, 41 Am. ing other kinds of vehicles would be en- Dec. 391; Winton Co. v. Meister, 133 titled to a lien on an automobile." Md. 318, lOS Atl. 301 (1918) ; City Na- Lowe Auto Co. v. Winkler, 127 Ark. 433, tional Bank v. Laughlin, — Tex. Civ. 191 S. W. 927 (1917). App. — , 210 S. W. 617 (1919); Bevan 26 White v. Texas Motorcar & Supply V. Waters, 3 C. & P. (Eng.) 520, 14 E. Co., — Tex. Civ. App. — , 203 S. W. 441 C. L. 693, 22 E. C. L. 515; 2 Kent's (1918). Com., 634-635. 27 Granier v. DeMarco, 171 N. Y. At common law a livery stable keeper , Supp. 258 (1918). had no lien for food furnished, and the 28 Granier v. DeMarco, 171 N. Y. care of, horses entrusted to him, but if a Supp. 258 (1918). horse was lame and was left with the 29pezenik v. Greenberg, 94 Misc. 192, keeper to be kept and cured he had a 157 N. Y. Supp. 1093 (1916). lien for the same. Lord v. Jones, 24 Me. 439, 41 Am. Dec. 391. THE GARAGEMAN AND REPAIRMAN 1189 A repairman who holds title as conditional seller of an automo- bile cannot have a lien thereon for repairs, so it has been held." In an action to recover possession of an automobile left with defendant for repairs, that defendant has a lien on the machine is an affirmation defense, which does not have to be negatived in the plaintiff's petition or complaint.®^ A statute providing, that one furnishing, material and labor in repairing an automobile and who shall obtain from the owner a written memorandum thereof signed by the owner shall have a lien therefor, abolishes common law liens. Under such a statute it is necessary for the enforcement of such lien that the memoran- dum be proved.*^ § 1318. Recovering less than amount demanded.— Effect on lien. The fact that a larger amount is claimed than is sub- sequently found by the court to be the correct amount, does not authorize the rejection of the entire lien, in the absence of bad faith.33 The fact that a repairman offered to accept less than his charge for repairs, and in an action to recover for the repairs secured judgment for a sum smaller than he had offeired to accept, did not affect his right to a lien, and did not render him a wrong- doer in refusing to surrender possession of the car before his claim was paid.^* § 1319. Recovery of automobile by owner in case of exces- sive charge. Where an owner authorizes repairs to be made on his machine, he cannot recover possession of it from the repair- man because of overcharge or a charge for work not authorized, unless he pays or offers to pay the proper charge.'^ § 1320. When lien attaches. The garage keeper's statutory lien attaches as soon as any sum becomes due.^® § 1321. Lien on automobile repaired for lessee. Where one was using an automobile under a lease which provided that no repairs should be made on the car without the consent of the lessor, the lease having been made in Pennsylvania, under the laws 30 Alexander v. Mobile Auto Co. — 8*Macumber v. Detroit Cadillac Mo- Ala. — , 76 So. 944 (1917). ' tor Car Co., 159 N. Y. Supp. 890, 173 31 J. G, Auto Trucking Co. v. Cole & App. Diy. 724 (1916). Dixon, 172 N. Y. Supp. 668 (1918). 3BKnauff v. Yarbray, 21 Ga. App. 94, 32 Butterworth v. Soltz, 199 Mo. App. 94 S. E. 75 (1917). 507, 204 S. W. SO (1918). 36 Koroleff v. Schildkraut, 179 N. Y. 33 Duffy V. Hardy Auto Co., 180 la. Supp. 117 (1919). 745, 163 N. W. 370 (1917). 1190 LAW OF AUTOMOBILES of which state the lessee is not the representative of the owner of the car for the purpose of creating a lien for repairs and supplies, a garageman in New Jersey was held not entitled to a lien under the Garage Act of that state for repairs or supplies furnished at the request of the lessee.*'' Where a lease of an automobile for a specified period at a weekly rental, provided that the automobile should be returHed at the termination of the lease in as good condition as when delivered, but which gave the lessee no right to impose a lien on it for re- pairs, and after a period the lessee defaulted in the payment of rental, a repairman who had possession of the automobile when the default occurred, was held not entitled to claim a lien upon it for repairs ordered by the lessee^ nor to withhold it from the lessor until his charges were paid." § 1322. Statutory lien as good against innocent purchaser. Under a statute in New Jersey giving a garage keeper a lien on an automobile for which he has furnished supplies, the garageman has a lien for such supplies, although the automobile was never in his possession, and such lien may be enforced against an innocent purchaser of the car, who had no notice of the lien." § 1323. For what lien attaches. It has been held that where an owner refused to pay a bill for repairs on his car, and left the car in the garageman's possession, the latter's common law lien extended to cover the charge for the repairs and also a reasonable charge for the subsequent storage of the machine.*" The plaintiff owned an automobile, which he shipped to one E., who owned a garage, under an agreement that the latter should put it in repair. When the machine arrived, E. paid the freight thereon. In addition to repairs made on the automobile, E. fur- nished one new tire, which was strapped into the receptacle for extra , tires on the side of the machine. Later a settlement was made ^and plaintiff paid to E. $75 on account, and at this time it was agreed that the automobile should remain for the present with E., and that plaintiff should pay storage on it until he should pay the account and take the car. Later E. went out of business and assigned his account and claim to the defendant. Plaintiff de- 37 stern v. Ward, ^ N. J. L. — , 109 40 Malcolm v. Sims-Thompson Motor Atl. 566 (1920). Car Co., — Tex. Civ. App. — 164 S. W. 38 Stern v. Sica, 66 Pa. Super. Ct. 84 924 (1914). (1917). 39 Frank v. Daily, 92 N. J. L. 118, IDS Atl. 9 (1918). THE GARAGEMAN AND REPAIRMAN 1191 manded his automobile without offering to pay the account, and upon defendant's refusal to surrender the same, the former brought replevin to recover the car. It was contended, among other things, that no lien attached to the automobile for the freight charges amounting to $33.60, or for the price of the extra tire. Without deciding whether a lien could be asserted for the freight if nothing had been paid by the plaintiff on account, the court stated that as a matter of fact $75 was paid after the freight bill was paid, and as the amount paid for the freight was the first item of E.'s claim, the payment could well be applied upon the freight bill, which it would more than pay. It was held that the lien attached for the price of the extra tire under a statute providing as follows: "When any person shall de- liver to any mechanic, artisan or tradesman, any watch, clock, arti- cle of furniture or jewelry, implement, clothing or other article of value, to be altered, fitted or repaired, such mechanic, artisan or tradesman shall have a lien thereon for the just value of the labor and skill applied thereto by him, and may retain possession of the same until such charges are paid." . "One familiar with automobiles and the use made of them," said the court, "would regard an extra tire as part of a properly equipped automobile. A prudent, experiented owner would hardly venture away from home with it without carrying an extra tire." *^ In Arkansas, a lien does not attach for tires furnished even though the old tires are removed and the new ones are put on by the seller (repairman); such work being considered a mere incident of the sale of the tires.*^ One who sold new tires and employed men to set the tires sold by him, was an "automobile repairer," and entitled to a lien on an automobile on which he had placeti new tires, under a statute pro- viding that, "Every * * *' automobile repairer * * * who has ex- pended labor, skill, and materials on any chattel at the request of. its owner, reputed owner, or authorized agent of the owner, shall have a lien upon said chattel for the contract price for such expen- diture * * * notwithstanding the fact that the possession of such chattel has been surrendered to the owner thereof." *' The rule of law that the work or expense of the artisan must be bestowed upwn the identical thing left in his possession in order that a lien may attach, does not have the effect of defeating a re- « Gardner v. Le Fevre, 180 Mich. 219, son, 132 Ark. 101, 200 S. W. 273 (1917). 146 N. W. 6S3 (1914). « Courts v. Clark, 84 Oreg. 179, 164 42 Weber Imp. & Auto Co. v. Pear- Pac. 714 (1917). 1192 LAW OF AUTOMOBILES pairman's lien where the only work done was to make an automo- bile body and attach it to the chassis. In such a case his lien at- taches to the entire car. The making and fixing of the body on the chassis necessarily involved some work on the latter in order to fasten it permanently thereto. The work, if well done* and. according to contract, certainly added value to the chassis and made it a completed and entire instrumentality. The evidence, even from plaintiff's side, was to the effect that an automobile body is no more a separate and distinct part of an automobile than a buggy body is a separate part of a buggy. Neither is complete without a body of some sort.** It has been held that a lien attaches for storage charges,** but it has also been held, that the garage keeper is not eiititled to a lien on an automobile for keeping and caring for the same in his gar- age, nor -for supplies such as gasoline and oil furnished by him to the owner while the machine was being kept in the garage.** § 1324. Lien as, dependent upon possession. Under the com- mon law, and the statutes of some states, the lien of a repairman depends upon the continued possession of the automobile.*'' Byt sometimes, by statute, he -is given a lien for repairs that continues to attach even after surrender of possession.** Where the owner of an automobile left it with a garageman to have a new tire attached and went about his business for a short 44 Kansas City Auto School Co. v. JKnue, — Ind. App. — , US N. E. 108 Holcker-E. Mfg. Co., — Mo. App. — , (1917). 182 S. W. 7S9 (1916). New Jersey: Crucible Steel Co. v. Po- 48poody V. Collins, 223 Mass. 332, lack Tyre & R. Co., 92 N. J. L. 221, 104 111 N. E. 897 (1916) ; Bernheim v. Roth, Atl. 324 (1918). 1S7 N. Y. Supp. 902 (1916). New York: Grand Garage v. Pacific Actual possession of taxicabs by a gar- Bank, 170 N. Y. Supp. 2 (1918) ; Greene age keeper gave him a lien thereon for v. Fankhauser, 137 App. Div. 124, 121 his storage charges. Cuneo v. Freeman, N. Y. Supp. 1004 (1910). 137 N. Y. Supp. 88S (1912). North Carolina: Maxton Auto Co. v. 46Rehm V. Viall, 18S 111. App. 425 Rudd, 176 N. C. 497, 97 S. E. 477 (1918). (1914). Tennessee: Shaw v. Webb, 131 Tenn. iT Alabama: Alexander v. Mobile Auto 173, 174 S. W. 273 (1915). Co., — Ala. — , 76 So. 944 (1917). Texas: White v. Texas Motorcar & Arkansas: Weber Imp. & Auto Co. v. Supply Co., — Tex. Civ. App. — , 203 S. Pearson, 132 Ark. 101, 200 S. W.,^ 273 W. 441 (1918). (1917). , ** Frank, v. Daily, 92 N. J. L. 118, 105 Illinois: Rehm v. Viall, 185 111. App. Atl. 9 (1918); Crucible Steel Co. v. Po- 425 (1914). lack Tyre & R. Co., 92 N. J. L. 221, 104 Indiana: True both as to common laW Atl. 324 (1918) ; Shaw v. Webb, 131 and statute in this case. Vaught v. Tenn. 173, 174 S. W. 273 (1915). THE GARAGEMAN AND REPAIRMAN 1193 time, the possession of the garageman was sufficient for his lien to attach.*^ The unconditional surrender of an automobile will destroy the repairman's lien; and so will conduct showing a design to discharge the lien, or which is plainly inconsistent with it.^° A garage keeper claiming a lien on an automobile for repairs loses his right to assert such lien against a previously recorded chattel mortgage by surrendering the machine to the mortgagor," , although possession was surrendered under an agreement with the mortgagor that it was not to divest him of his lien.*^ Under the Illinois statute, section 3a, relating to liens by gar- age keepers upon motor vehicles "kept by them" for charges for keeping and repairs, and section 3b, providing for replevin of motor vehicles, upon which garage keepers acquire liens, anywhere within the jurisdiction of the court, garage keepers are not en- titled to a lien for charges where they have voluntarily allowed the owner to take his car away, and may not maintain an action of replevin to recover possession thereof.^* After unconditionally surrendering the possession of an automo- bile on which he had a lien for repairs, thereby terminating the lien, the lien is not reinstated by his subsequently coming into pos- session of the car, although the repair bill still remained unpaid.** it is held, however, that the holder of the lien may allow the owner of the property on which he has the lien to take it into his possession and remove it without prejudice to the lien, if so agreed.** And as between the immediate parties, a change of pos- session does not defeat the right of the repairman to claim a lien, unless by surrendering possession he can fairly be understood as waiving his lien.*® It is undisputed that a lien cannot be destroyed by a removal of 49 Courts V. Clark, 84 Oreg. 179, 164 BSMorfa v. Rhodes, 213 111. App. 354 Pac. 714,(1917). (1919)l fiOVaught V. Knue, — Ind. App. — , 64 white v. Texas Motorcar & Supply lis N. E. 108 (1917); Gardner v. Le Co., — Tex. Civ. App. — , 203 S. W. 441 Fevre, 180 Mich 219, 146 N. W. 6S3 (1918); Caldwell v. Auto Sales & S. Co., (1914). — Tex. Civ. App. — , 158 S. W. 1030 50 held in regard to lien on other (1913). property in Nash v. Mosher, 19 Wend. B5 wheeler v. McFarland, 10 Wend. (N. Y.) 431. (N. Y.) 318. BlRehm V. Viall, 185 111. App. 425 66 Rehm v. Viall, 185 111. App. 425 (1914). (1914). 62Thourot. V. Delahaye Imp. Co., 69. Misc. 351, 125 N. Y.. Supp. 827 (1910). 1194 LAW OF AUTOMOBILES the property, without the consent of the lienholder, from his pos- session.^'' Where it appeared that on July 12, 1912, after having made re- pairs on an automobile for which the owners refused to pay, the repairman voluntarily and unconditionally gave the owners posses- sion of the Car; that. it remained in the possession of the latter until December, 1912, when they voluntarily took it to the repair- man's place of business for other repairs; that these repairs were made and paid for, but the repairman refuse^ to surrender the car, claiming to have a statutory lien thereon for the repairs made in July, 1912, it was held that such retention of the automobile was wrongful, as the repairman had lost any lien he may have had for the repairs made in July. The court held against the conten- tion that the lien would be revived if no interest of a third person intervened between the time the repairman lost and regained pos- session of the automobile.** . It has been held that where the owner secures possession of his machine wrongfully, the repairman does not lose constructive pos- session of it or his lien.*' Where an owner secured possession of his automobile by giv- ing a check to the repairman for repairs, and stopped payment on the check because the repairs were not satisfactory, he could not deny the right of the repairman to possession for the purpose of enforcing his lien.*" § 1325. Special agreement may waive lien. A special agree- ment entitling the garageman to the use of the automobile for a specified time in payment for repairs, constitutes a waiver of his rights imder the lien law; he cannot claim right to possession under the agreement and also under the lien law.*^ §1326. Time for filing lien.— "Delivery" of car. After a car had been repaired, but before it was tested, the owner took and used it, returning it, however, for further repairs. There, was no "delivery" of the car, within the law relating to time for filing liens, until the delivery to the owner after completion of the last mentioned repairs.®^ 67 Gardner v. Le Fevre, 180 Mich. 219, eOMaxton Auto Co. v. Rudd, 176 N. 146 N. W. 653 (1914). C. 497, 97 S. E. 477 (1918). 68 Ford Motor Co. v. Freeman, — 61 Ward v. Huff, — N. J. L. — , 109 Tex. Civ. App. — , 168 S. W. 80 (1914). Atl. 287 (1920). 69 Griffith v. Reddick, — Cal. App. — , 62 j^ierce Arrow Sales Co. v. Irwin, 86 182 Pac. 984 (1919). Oieg, 683, 169 Pac, 129 (1917). THE GARAGEMAN AND REPAIRMAN 1195 §1327. Assignability of lien, A lien on an automobile for repairs may be assigned with the possession thereof as other valu- able rights may be assigned.®* So, where a garage keeper, who had an automobile in his pos- session on which he had a lien for repair charges, went out of busi- ness, and sold and assigned his account for repairs made on the automobile, togetjier with the lien thereon and possession thereof, the lien was upheld in favor' of the assignee.®* "An attorney's lien upon papers and other articles belonging to his client cannot be assigned, because it involves a relationship of trust and confidence which would be violated by the assign- ment to a third party; but in the case of an ordinary artisan's lien, where the debt is assigned and the chattel is transferred upon the same terms as those upon which the original lienor held it, the true owner is in no way prejudiced, and the assignee acquires the right to the lien." 86 The lien, being an incident of the debt, cannot be assigned with- out the debt or some portion thereof.®® A lien on a car does not pass with the sale of the garage by the lienholder. An assignment of the lien is necessary.®'' Where an owner stored his taxicabs in a garage, under an agree- ment that they were to be delievered to him on demand, the gar- ageman had no right to transfer their possession to another, by assignment to such other of a lien for unpaid charges, none of which had been incurred more than 32 days.®* § 1328. Lien for repairs to several cars under one contract. Under a contract whereby a repairman agreed to make needed re- pairs to all the cars used by a garageman, repairs made and ma- terials furnished for the several cars constituted but one trans- action, and it was not necessary that the items be separately stated to entitle the repairman to a lien.®' § 1329. Superiority of lien for repairs over lien of mortga- gee or conditional seller. As a rule, where a mortgagor in pos- session of a machine has needed repairs made thereon imder ex- 63 Triple Action Spring Co. v. Goyena, 66 white & Co. v. Winslow, 163 N. C. 93 Misc. 171, 1S6 N. Y. Supp. 1064 40, 79 S. E. 261. (1916); Goyena v. Berdoulay, 1S4 N. Y. 67 white v. Texas Motorcar & Supply Supp. 103 (191S). Co., — Tex. Civ. App. — , 203 S. W. 441 64 Gardner v. Le Fevre, 180 Mich. 219, (1918). 146 N. W. 6S3 (1914). 68 Koroleff v. Schildkraut, 179 N. Y. 66 Triple Action Sprmg Co. v. Goyena, Supp. 117 (1919). ' 93 Misc. 171, 1S6 N. Y. Supp. 1064 69 Weber Imp. & Auto, i Co. v. Pearson, (19161. 132 Ark. 101, 200 S. W. 273 (1917). 1196 LAW OF AUTOMOBILES press or implied authority from the mortgagee so to do, the repair- man has a lien on the machine superior to the lien of the mortgagee. This rule is fair and equitable, because the labor and material of the repairman have enhanced the value of the mortgagee's security, and to this extent only does his lien apply; that is, to the extent of the reasonable value of necessary repairs. The theory on which the rule is founded is very like the theory on which the lien of special assessments on real property ior local improvements made by a city is given priority over a mortgage lien on the property. The special assessment is justified only on the theory that the value of the land is increased at least to the extent of the amount of the assessment, and the mortgagee cannot be wronged by a charge against his security only to the extent that the value of his security has been increased. So, where A. sold an automobile to B., taking bank notes for the purchase price which constituted a lien on the machine, and B. was given possession of the machine, which was used by him for a long period of time with the knowledge and consent of A., and B. had C. make repairs on the automobile which were neces- sary to preserve it and keep it in proper condition for use, the making of which was known to A., who did not protest against the same, it was held that C. had a lien on the automobile for the rea- sonable value of the repairs made by him which was superior to the lien held by A. as security for the purchase notes.''" The court, in the case last cited, concluded, from the sole pos- session, control, and use of the automobile by B. by agreement with A., from the manner of its use and the necessity of repairing it to preserve it and keep it in running order and prevent its dete- rioration, and the making of the repairs with the knowledge of A., that there was an implied authority and permission from A., as mortgagee^ to B., as mortgagor, to have such repairs made. A similar case was one in which it appeared that a physician had executed a chattel mortgage on a buggy used by him in his prac- tice; that he had repairs made on the buggy in the shop of a car- riage company; that the person holding the mortgage knew that the physician used the buggy, and knew that he had left it in the shop for repairs. The court held that the carriage company had a lien on the buggy for the repairs made by it, superior to the lien of the mortgagee.''^ 70 Broom & Son v. Dale & Sons, 109 54 Neb. 417, 74 N. W. 966, 40 L. R. A. Miss. 52, 67 So. 659 (1915). 761. 71 Drummond Carriage Co. v. Mills, THE GARAGEMAN AND REPAIRMAN 1197 It was held that a mechanic who made repairs on a locomotive and tender had a lien which took precedence of that of the mort- gagee, where the property was permitted to remain in the pos- session and use of the mortgagor, and through such use it became necessary to repair it.'^ In Illinois the rule has been laid down, in an automobile case, that, "While a mortgagor cannot by contract create a lien in be- half of a mechanic so as to give ii priority over a previously recorded chattel mortgage, the mortgagee's authority for the crea- tion of such a lien may be implied where the property is to be retained and used by the mortgagor, and is of such a character as to involve the occasion for the making of ordinary repairs thereto as a reasonable incident to its reasonable and customary use." !" It has been held, however, that where the vendor of an automo- bile retaiped title to the machine as security for the payment by the vendee of the purchase price, or a part thereof, the lien of a repairman for repairs made on the machine at the instance of the vendee, the repairman having no notice of the interest of the vendor, was subordinate to the rights of the vendor, unless it be shown that it was the intention of the vendor that repairs be made. The repairman's lien in this case was statutory, and attached ordinarily even after surrender of possession. In this respect the court said: "We are of opinion that some- thing more is required than the fact that a vehicle, which may need repair in order to be continued in personal use by the vendee, is placed in the possession of the conditional vendee. The ven- dor in such case should not be considered as consenting in advance to the subordination to that which both parties patentjy intended to make superior — the title retained for the security of the pay- ment of the purchase money. The intent of the vendor to permit repairs to be made and a consequent lien to attach to his interest should have been manifested in the note contract, since upon a transfer of the note the transferee is vested with the rights of the conditional vendor. To announce a doctrine such as is contended for by the mechanic in this case would be to deprive a note which contains a reservation of title to personality of a no inconsiderable element of marketability. The transferee of such paper should not, we believe, take it subject to the risk of having his right em- 72 Watts V. Sweeney, 127 Ind. 116, 22 78 Rehm v. Viall, 185 111. App. 425 Am. St. Rep. 61S. (1914). 1198 LAW OF AUTOMOBILES barrassed or lessened by such act of the vendee maker, when the note contains nothing to put him on notice." ''* This view serves to fully protect the interests of the vendor with- out giving much consideration to the repairman, and the logic of the theory is at least questionable. The danger to the vendor is that the automobile will be sold, to satisfy the repairman's lien; otherwise it could interest him little whether his note was secureid by an automobile in need of repairs or one in good condition with a superior lien thereon for the reasonable value of the work and material that put it in that condition. The general rule is that possession of a chattel is evidence of ownership, and that one pur- chasing a chattel from a person iri rightful possession thereof takes a good title, unless he has niotice, by way of public records or otherwise, of a lien or claim against it. By the same token, when one in the rightful possession of an automobile takes it to a garage ' and orders repairs made thereon, the repairman should not be de- prived of his right to a lien by the fact that such person has not paid for the machine, a fact qf which the repairman had no notice or knowledge. The vendor can make himself safe by placing on record a mortgage or his contract of conditional sale; or he may retain possession of the car until it is paid for. It would be imprac- ticable for the repairman to investigate, whenever an automobile is brought to his shop, for repair, and make sure that the circum- stances are such that a lien will attach in his favor. As there is nothing of public record, the only source of information open to . him is unreliable. The plaintiff sold an automobile under a lease or conditional sale contract to one S., who agreed to pay therefor in installments; the title thereto meanwhile to remain in plaintiff until the price. was fully paid. S., having possession of the car under and by virture of the contract, left it at a motor sales company, which at his request made repairs thereon, for which it claimed a lien under a stat- ute, '''' which provided : "A person who makes, alters or repairs any article of personal property, at the request of the owner, or legal possessor of the property, has a lien on the same for his reasonable charges, for the balance due for such work done and materials furnished, and may retain possession of the same until the charges are paid." S. made default in the payment of the installments agreed to be paid, whereupon plaintiff, after making demand upon the motor 74 Shaw V. Webb, 131 Tenn. 173, 174 "Cal. Civ. Code, §30S1. S. W. 273 (1915). THE GARAGEMAN AND REPAIRMAN 1199 sales company for the delivery of the car and its refusal to deliver the same, commenced action to recover possession of the car. Be- fore the officer coiild execute the writ, the motor sales company sold the automobile to other parties from whom Condon and Davis, defendants in the second action, purchased it; whereupon the sec- ond suit was instituted. It was held that, as S. wfis in legal possession of the car, the motor sales company was entitled to a lien under a statute for the repairs, and that, accordingly, plaintiff was not entitled to prevail. Answering the contention that if the statute be thus construed) it is unconstitutional, the court said: "We perceive no merit in this contention. Plaintiff must be deemed to have known what rights he was conferring upon S. when he transferred possession of the automobile to him, and the transfer must be deemed to have been made in contemplation of the provisions of the statute giving to any person making repairs upon the car. at the request of S. a lien for the reasonable value of the work done and materials furnished in making such repairs."''*, The lien of a prior recorded chattel mortgage is superior to a lien for repairs, authorized by the owner, but which the mortgagee did not expressly or impliedly authorize.'''' If the conditional seller consents to having repairs made, the repairman's lieii is superior to his, although the conditional sale contract is a matter of public record.'" In Arkansas a repairman is entitled to a lien for repairs made at the, request of a conditional buyer in possession of the machine; the buyer being considered the agent of the conditional seller for the purpose of procuring repairs.''* In Texas a repairman has a lien on an automobile for repairs, made on order of the mortgagor in possession, superior to the lien of the recorded mortgage.*" One who attached an automobile to satisfy a judgment for per- sonal injuries, who had knowledge of a prior unrecorded chattel mortgage, was not a "purchaser for value" of the machine so as to take precedence over the rights of the mortgagee." § 1330. Same— Unrecorded chattel mortgage or conditional 76 Davenport v. Grundy Motor Sales 'SWeber Imp. & Auto. Co. v. Pear- Gc, 28 Cal. App. 409, 1S2 Pac. 932 son, 132 Ark. 101, 200 S. W. 273.(1917). (1915). 80 City National Bank v. Laughlin, — 77Walden Auto Co. v. Mixon, 196 Ala. Tex. Civ. App. — , 210 S. W. 617 (1919). 346, 71 So. 694 (1916). 81 Clark v. Ford, 179 Ky. 797, 201 S. TSEtchen v. Dennis & Son, — Kan. W. 344 (1918). — , 178 Pac. 408 (1919). ■ - 1.200 LAW OF AUTOMOBILES sale agreement. In some states a chattel mortgage or condi- tional sale agreement niust be recorded in order to be good against subsequent purchasers, mortgagees, pledges, and lienees.** It is sometimes provided by the terms of the conditional sale contract, that the contract retaining title in the seller shall not be good as against third persons unless recorded.** § 1331. Same— Car mortgaged in one state and repaired in another. An automobile purchased in Jackson county, Missouri, on which a chattel mortgage was duly recorded and in force in that county, was left at a garage in Kansas for repairs by another than the original purchaser. Held, that the garageman was entitled to a lien under the Kansas statute, and to retain possession of the automobile until his charges were paid, although the mortgage in Missouri was valid.** § 1332. Lien for constructing new body before delivery of car to conditional buyer. In Washington, the lien of one who , constructed a delivery body for a chassis, which had been used with a pleasure body, but sold for truck purposes under an agree- ment to have a delivery body put on in place of the pleasure body, was held to be superior to the rights of the conditional purchaser, who knew the seller could not do such work in his own shop.** § 1333. Lien for repairs ordered by person othfer than owner. A lien for repairs on an automobile does not attach unless the re- pairs were made at the request or with the consent of the owner. The consent of a hirer of an automobile is not sufficient to cause the lien to attach.**- Where a servant, acting within the scope of his employment, took his employer's automobile to a repair shop and ordered repairs to be made thereon, the repairman had a lien on such vehicle for the reasonable value of the repairs made by him in pursuance of such instructions.*'' Where the plaintiff in a replevin case obtained possession of the ^^ Kentucky: Jewell v. Cecil, 177 Ky. 88Winton v. Meister, 133 Md. 318, lOS ,822, 198 S. W. 199 (1917). Atl. 301 (1918).' Maryland: Winton v. IVJeister, 133 Ind. 8* Willys Overland Co. v. Evans, — 318, lOS Atl. 301 (1918). Kan. — , 180 Pac. 235 (1919). Missouri: Stewart v. Asbury, 199 Mo. 86 Barbour v. Hodge, 99 Wash. 578, App. 123, 201 S. W. 949 (1918). 170 Pac. 115 (1918). North Carolina: Freeman v. Croom, 86 Lloyd v. Kilpatrick, 71 Misc. 19, 172 N. C. 524, 90 S. E. 523 (1916). , 127 N. Y. Supp. 1096 (1911). Texas: Chambers v. Consolidated 87Milgrim v. Coon, 93 Misc. 78, 156 Garage Co., — Tex. Civ. App. — , 210 S. N. Y. Supp. 544 (1915). W. 565 (1919). THE GARAGEMAN AND REPAIRMAN 1201 automobile in controversy and had the same repaired, and the case was decided in favor of the defendant, the repairman's lien was not good as against the defendant." It is held that one who repairs an automobile upon request of the bailee thereof, has no lien on the car as against the owner. Hence, where an automobile was leased at a monthly rental, and the contract contained a covenant providing that if the hirer "at any time while this contract is in full force" shall return the car to the owner and shall have performed "all the covenants and agreements herein contained" he shall have the option of purchas- ing said car for a stqjulated price, and be credited thereon with the amount paid for the hire thereof, it was held that one who re- paired such car at the request of the hirer or lessee had no lien as against the owner; such contract being one of bailment." § 1334. Same— Estoppel of owner to assert rights against repairman. Where it appeared that the lessee of an automo- bile, with the knowledge of the owner, secured a license in his name as owner, and displayed the license number on the machine, it was held that the owner, by such methods having enabled the lessee to obtain credit for the repair of the machine, was not in a position to assert his title as against one who had been misled by his misconduct and want of conformity to the law.'" §1335. Repairman as "wheelwright." One who conducts a garage in which he repairs automobiles is a "wheelwright," within the meaniiig of a statue providing that, "Blacksmiths and wheel- wrights who perform work or labor for any person, if unpaid for the same, shall have an absolute lien on the product of their labor and upon' all wagons, carriages, farm implements and other articles repaired by them, for such work or labor and for all materials fur- nished by them a,nd used in such product or repairs." Such stat- ute gives him a lien on an automobile for repairs made thereon by him. The word "wheelwright" is defined as "a man whose occu- pation is to make or repair wheels and wheeled vehicles." ®^ § 1336. Validity of lien stattite making no provision for owner to be heard on disputed claim. A statute giving a lien to a repairman, and which prescribes the steps to be taken to en- SSNaylor v. Knapp, 92 N. J. L. 2S3, »l Weber Imp. & Auto Co. v. Pear- 104, Atl. 131 (1918). son, 132 Ark. 101, 200 S. W. 273 (1917) ; 89DeWitt V. Gardner, 28 Pa. Dist. Shelton v. Little Rock Auto Co., 103 920 (1919). Ark. 142, 146 S. W. 129 (1912). 90 Steele v. Latrobe Auto Co., 2S Pa. Dist. 1078 (1916). B. Autos. — 76 1202 LAW OF AUTOMOBILES force the lien by public sale, }s not invajid because no provision is made for the owner to be heard in case he disputes the amount of the lien, since the statute specifies the amount of the lien to be the amount due from the owner, and not the sum claimed by the repairman, who is liable as for conversion if he claims too much and enforces his claim.'^ § 1337. Discharge of lien. A tender of the amount of charges due for repairs discharges the repairman's lien.^^ § 1338. Proof of repairs made on automobile. Where the plaintiff sued to recover for labor and material furnished in repair- ing an automobile, he could show the services and material fut- nished and the value thereof by any competent evidence, although he alleged that they were "as set forth in plaintiff's book of origi- nal entries" attached to the statement, and at the trial the book was ruled out because not a book of original entries.®* Where at the time that plaintiff's automobile was damaged in a collision with the defendant's auto truck it was in need of repairs, and thereafter plaintiff had the repairs made that were necessary before the collision as well as those made necessary by -the colli^ sion, it was held that the testimony of the manager of the firm that made the repairs as to the expense of such as were made nec- essary by the collision could not be regarded as an estimate of the cost of such repairs before they were made, so as to render such testimony inadmissible.®® § 1339. Proof of ownership of repaired automobile. The defendant took to the plaintiff a damaged automobile for the purpose of having same repaired, and when sued for the value of the repairs contended that the machine was the property of a brewing company of which he was manager, and that said com- pany and not he was liable for the repairs. In support of his contention he testified that he so informed the plaintiff when the contract for the repairs was made, and he introduced certain mem- orandum slips and dunning letters which showed a credit on the account given to the brewing company instead of to himself. On the other hand, it was shown that the personality of the defendant was the outward visible sign of the brewing company's existence; that 92Dininny v. Reavis, 100 Misc. 316, Malinpwski, 57 Pa. Super. Ct. 118 16S N. Y. Supp. 97 (1917). (1914). 93 Rush V. Wagner, 184 App. Div. S02, 96 Reda v. Hammond Co., 187 111. 171 N. Y. Supp. 817 (1918). App. 182 (1914). 94 Wilkes-Barre Automobile Co. v. THE GARAGEMAN AND REPAIRMAN 1203 he bought the automobile, paid for it with his own money, took out in his own fiame the license as well as the insurance on the machine, and that he apparently, had the exclusive private enjoy- ment of it. It was held that the question of ownership was for the jury; and judgment in plaintiff's favor was affirmed.'^ § 1340. Liability of owner for repairs not ordered. If one takes his automobile to a garage to be repaired, and no agreement is made as to compensation, the law implies a promise upon the part of the owner of the car to pay what the repairs are reason- ably worth.''' But the law raises no such implied promise where the c>wner never requested the repairs to be made, or where he expressly informed the repairman that h? would not pay for any repairs.®* The plaintiff purchased an automobile from defendants, with a warranty that it was a "good car and would run all right." The car soon developed motor trouble, and plaintiff returned it several times to defendant's garage to have the trouble corrected. After several attempts to adjust it, it still worked badly, and complaint was again made to defendants, one of whom then requested plain- tiff to return the car to their garage and give him one more chance to adjust it, and promised if he could not do so he would giye him a new car or refund the money he paid for the car. The car was returned to the garage, where it remained for several days, and during this time a fire occurred in the garage and the car was damaged. Defendants at once advised plaintiff of the damage to his car, whereupon he called at the garage, and while he was there it was suggested by defendants that the repair expense would not be heavy to send it to the factory at Detroit to be repaired. Plain- tiff advised them that he would not pay for any repairs on the car; that he had bought a good car and had not yet gotten what he paid for. The car, however, was sent, with other cars, to the factory and repaired, g.nd when retiurped, plaintiff was notified that his car was in forking order and that he could come and get it. When he went after it, he was told that there was a repair bill against it for $203. Plaintiff refused to pay, possession was denied him, and he brought replevin and recovered the possession of the car; the judgment of the trial court being in his favor. 96 WUkes-Barre Automobile Co. V. 98 Helber v. Schaible, 183 Mich. 379, Malinowski, S7 Pa. Super. Ct. 118 ISO N. W. 14S (1914). (1914). 97 Helber v. Schaible, 183 Mich. 379, ISO N. W. 14S (1914). 1204 LAW OF AUTOMOBILES The trial court instructed the jury that, "Under the evidence in this case the plaintiff is not obliged to pay for any repairs to said machine, unless you find from the evidence that there was an agreement or understanding on his part to pay for same." The judgment was affirmed, the court holding that the instruction was proper, and that, "even if it be conceded that the car was in the garage for repairs before the fire, after the fire it was optional with plaintiff whether or not he would have his car repaired, a,nd, if defendants caused the car to be repaired at the factory in Detroit without any agreement upon plaintiff's part to pay for it, they cannot recover for it." ®® A husband who orders repairs for an automobile without divulg- ing the fact that the automobile belongs to his wife, is liable for such repairs.'' § 1341. Setting off cost of subsequent repairs against repair bill. In an action by a repairman to recover for repairs made on defendant's automobile, the latter cannot set off the cost to him of subsequent repairs to the car made by another repairman, but which were not made necessary by the plaintiff's negligence or in- jury to the car.^ § 1342. Contract to put car "in good running condition"— Performance of. Under a contract to put an automobile in "good running condition," putting it in "fair condition" was not a performance. The owner, under such agreement, would have the right to inspect the car after it was repaired, before accepting it.' 99Helber v. Schaible, 183 Mich. 379, 2 Irving Co. v. Acunto, 162 N. Y. ISO N. W.14S (1914). Supp. 919 (1917). 1 Bowman Auto Co. v. Stiner, 177 N. 3 Kehoe v. Newman, 169 N. Y. Supp. Y. Supp. 186 (1919). 71 (1918-). / CHAPTER XXXI SALES § 1343. When title passes in sale of car. § 1363. § 1344. When title to automobile or- dered by sample passes. § 1364. § 134S. Contract of sale signed by only one party. § 136S. § 1346. Implied acceptance of order. § 1347. Sale of automobile not owned. § 1366. § 1348. Estoppel of owner to assert title § 1367. to car sold — Exception. § 1348a. Sale of car by chauffeur with- § 1368. out owner's consent. § 1349. Failure to return car as accep- § 1369. tance. § 1370. § 1350. Order and acceptance of sale. § 1371. § 1351. Provision as to acceptance of or- der may be waived by seller — § 1372. Estoppel. § 1352. Conditional acceptance. § 1373. § 1353. Conditional sales. § 1354. Lien of conditional seller superior § 1374. to statutory lien of person in- jured by machine. § 1375. § 1355. Consignment to bank as sale to customer. § 1376. § 1356. Statute of frauds — Oral sale — Memorandum. § 1357. Old car as part payment — Time § 1377. of performance. § 1358. Repudiation of part of order by § 1378. buyer. § 1359. Validity of purchase by minor. §' 1379. § 1360. Disaffirmance of Durchase by mi- nor. § 1380. § 1361. What is sufficient "restoration" by minor. § 1381. § 1362. Ratification by pirent of pur- § 1382. chase by minor as agent. 1205 Distinction between sale and ex- ecutory contract of sale. Distinction betwgen sale and con- signment. Distinction between mortgage and pledge of automobile. Sale or lease. Statute making sale invalid unless car registered. Purchase by corporation or offi- cer. Sales in interstate commerce. Authority of salesman to sell. Automobile in possession of seller damaged after sale. Purchasing incumbered automo- bile. Statutory lien on car for injuries inflicted. Possession as evidence of owner- ship. Failure to deliver automobile on time. Remedy of seller or buyer when other refuses to carry out sale contract. Measure of damages when pur- chaser refuses to accept car. Offer of seller to perform after refusal to perform. Rights and remedies of condi- tional seller and buyer. Same — Unrecorded sale agree- ment. Retaking car by seller. Same — Right to tires and other replacements. 1206 LAW OF AUTOMOBILES § 1383. Conditional buyer may recover for damage, to car. § 1384. Fraudulent procurement of can- cellation of order for automo- bile. § 138S. Same-^Measure of damages. § 1386. Defense of failure or want of consideration. § 1387. Failure of seller to keep full line I of supplies as represented. § 1388. Express warranty. § 1389. Same — Illustrative cases. § 1390. Cut of automobile in catalog as warranty as to equipment. § 1391. "Seller's talk" not warranty.^ § 1392. Expression of opinion. § 1393. Guaranty for year as warranty of fitness. § 1394. Warranty as to material and workmanship* § 139S. "Well made of good material." § 1396. Guaranty to run certain number ' of miles. § 1397. Warranty made after sale. ' § 1398. Limited warranty. § 1399. Automobile warranted satisfac- tory to purchaser. § 1400. Warranted to give satisfaction in particular business. ^ 1401. Guaranty that automobile will give good service. ' § 1402. Authority of agent to warrant. §1403. Liability of agent for misrepre- sentations made on authority | of manufacturer. § 1404. Liability credit sales company for misrepresentations of com- pany selling car through it. § 140S. Evidence of failure of tractor to develop rated horse power. § 1406. Caveat emptor. § 1407. Implied warranty. § 1408. Same-vAs to second hand cars. § 1409. Warranty when sold for particu- lar use. § 1410. Automobile not reasonably fit for particular purpose as" amount- ing to nonperformance of con- tract. § 1411. Implied " warranty excluded by express warranty, when. § 1412. Same — ^Automobile sold for par- ticular purpose. § 1413. Bank through which sale effected as co-warrantor. § 1414. Waiver of breach of warranty.- §1415. Effect of written warranty or contract of sale. § 1416. Fraud may always be proved by parol. § 1417. Fraud — What amounts to, and its effect. § 1418. Same — Illustrations. § 1419. Remedy of one fraudulently in- duced to purchase automobile. § 1420. Remedy of one fraudulently in- duced to exchange automobile for mortgage. § 1421. Measure of damages for fraudu- lent procurement of exchange of automobile for land. § 1422. Remedy for breach of warranty. § 1423. Same — Paying sight draft before opportunity to inspect automo- bile. § 1424. Remedy for breach when sale de- pendfe on conditions precedent. § 142S. Return of automobile for breach of warranty. § 1426. Sufficiency of tender of automo- bile. § 1427. Rescission of contract must be in' reasonable time. § 1428. Same — Illustrative cases. § 1429. Parties defendant in breach of warranty action. § 1430. Notice of rejection required after first use — Demonstration as "first use." § 1431. Buyer exercising ownership over car as affecting right to rescind. SALES 1207 t 1432. Right to rescind for structural defect which seller guaranteed to repair, i 1433. Measure of damages for breach of warranty. i 1434. Measure of damages for failure to replace defective parts under guaranty. i 1435. On rescission of sale and refusal of seller to accept, right of buyer to recover storage and insurance charges. § 1436. Evidence of condition or value of automobile. § 1437. Proof of market value of auto- mobile by experts. § 1438. Right of purchaser to recover rebate, offered by company provided certain number of cars were sold. § 1439. Automobile exempt to head of family. § 1343. When title passes in sale of car. In case of a cash transaction, where it appears that neither party thereto intended that the title to the automobile should pass until the car was in- spected and accepted by the purchaser and the purchase money paid, title does not pass, in the absente of proof of a contrary in- tention, until the purchase money is paid.^ When title passes in the sale of an automobile, is a question of intention.* Although the fact that something remains to be done, as to de- termine quality, quantity, or price, affords a presumption that title is not intended to pass until its performance, the presumption is not conclusive. ® Title may pass on delivery of the machine although the price has not been agreed on.* Under an executory contract of sale of an automobile, title, to the machine vests in the purchaser where the seller has completed it, prepared it for delivery, and offered it to the purchaser, and has stored it for the purchaser's use, with intent that the title shall pass, and so that the purchaser can at any time have full and un- restricted use of it.^ 1 Halff Co. V. Jones, — Tex. Civ. App. — , 169 S. W. 906 (1914). ^Lanham v. Longmire, 100 Wash. 413, l7l Pac. 237 (1918). "This question as to the passing of title is fraught with difficulties, and not al- ways easy of solution. An examination of the multitude of cases bearing upon this subject, with their infinite variety of , facts, and at least apparent conflict of law, ofttimes tends to confuse rather than to enlighten the mind of the in- quirer. It is best, therefore, to consider always, in cases of this kind, the general principles of the law, and then apply them as best we may to the facts of the case in hand." Sherwood v. Walker, 66 Mich. 568, 33 N'. W. 919, 11 Am. St. Rep. 531. * Lanham v'. Longmire, 100 Wash. 413, 171 Pac, 237 (1918). / * Lanham v. Longmire, 100 Wash. 413, 171 Pac 237 (1918). B Bennett v. Potter, 16 Cal. App. 183, 116 Pac. 681 (1911). 1208 LAW OF AUTOMOBILES Where, at the time a warranty was made, there had been some correspondence between the parties relative to the purchase of an automobile, but, the automobile had not been delivered, and, in fact, had not been seen by the purchaser, and no payment had been made on it, and the statements constituting the warranty were made when the purchaser called at the seller's place of business to see the car, it was held that the contract of sale had not been completed when the warranty was given.® Where a purchaser turned in an old automobile as part of the purchase price of a new one, and asked the seller to hold the new one for him, there was a complete sale, regardless of whether the new car came into actual possession of the purchaser, or whether the balance of the purchase price was paid.'' § 1344. When title to automobile ordered by sample passes. One ordering from an agent an automobile, by sample or repre- sentations, of a designated make and equipped with certain ap- pliances, is entitled to inspect it before being compelled to accept it. Where the defendant ordered a certain kind of automobile, of a certain color, with certain equipment, and initials inscribed thereon, and during her absence from the city the cat arrived, and was delivered by plaintiff to the children of the defendant, who had not been authorized to act as agents for defendant, there was no delivery of the car. In this case an instruction that "tender of delivery at the residence of defendant, if made unconditionally, would be sufficient, whether she or anyone authorized by her was there to receive it or not," was held to be erroneous. The court said : "She had the undoubted right, the contract being executory, .to inspect the car and see if it met the contract specifications. She would not be compelled to accept the car without the right of in- spection being given her, or her duly constituted agent. The right of inspection carried with it a reasonable time in which to make such inspection, but under the charge of the court, the car could have been left at the residence of appellant, without notice to her, within an hour after its arrival, and she would become absolutely responsible for its purchase price. . . . The title of the car did not pass to appellant until she had inspected it." * 6 Underwood v. Coburn Motor Car 8 Lange v. Interstate Sales Co., — Tex. Co., 166 N. C. 458, 82 S. E. 8SS (1914). Civ. App. — , 166 S. W, 900 (1914), 7 Morrison & Co. v. Murff, — Tex. Civ. App.—, 212 S. W. 212 (1919). SALES 1209 Where three automobiles were to be shipped by the manufacturer C. O. D., bill of lading to be attached to dratft for purchase price, but in drawing the draft the manufacturer omitted from the same, by mistake, the price of one of the machines covered by the bill of lading, the manufacturer did not part with the title to said ma- chine. A sale of such automobile by the consignee amounted to conversion thereof.' § 1345. Contract of sale signed by only one party. A con- tract signed by only one of the parties is mutual and binding on both, if the other party, upon its delivery to him, assents to its terms and holds and acts upon it as a valid agreement. A person desirous of trading his automobile for another, ne- gotiated with an automobile firm and a written proposal was submitted to him in which he was to be allowed a certain amount for his machine. Such party on inspection of the papers made some changes and interlineations as to matters of minor conse- quence and the proposal was signed by him and by a salesman in the trade name of the firm with the understanding that because of the changes and interlineations the papers should be rewritten and returned to the purchaser for signature. The corrected copy was never delivered and the members of the firm refused to comply with the agreement, claiming they were not bound by the signature of the salesman. It was held that the members of the firm were bound by the proposal though they had not affixed their signature thereto, it appearing that they affirmatively expressed their assent thereto and had acted thereon in negotiating with a third person for the sale of the contemplated purchaser's car.^" § 1346. Implied acceptance of order. The acceptance of an order for an automobile is implied from the signature of the seller's authorized salesman on the order blank, containing all the terms of the sale, and showing the purchase price and deposit;^^ § 1347. Sale of automobile not owned. The sale of an auto- mobile by an agent who does not own it at the time is not invalid on that account. Technically considered, the transaction is not a bargain and sale but an executory agreemnt of sale. Under the general rule in such cases, even the nonexistence of the thing con- tracted for, at the time of ah executory contract of sale, does not 9 Finney v. Studebaker Corp., 196 Ala. H Moskowitz v. White Bros., 166 N. Y. 422, 72 So. S4 (1916). Supp. IS (1917). lOHoyt V. Schillo Motor Sales Co., 185 111. App. 628 (1914). 1210 LAW OF AUTOMOBILES invalidate. It becomes the duty of the vendor to produce or ac- quire it.^^ § 1348. Estoppel of owner to assert title to car sold-^-Ex- ception. As a general rule, one who stands by and witnesses the negotiations for the sale of his automobile by another to a third person, is estopped to assert title to the machine. This rule has been held to be subject to the qualification that he is not so estopped unless the buyer, by reason of his silence or failure to act during the negotiations, suffered substantial damage or altered his position for the worse.-'* § 1348a. Sale of car by chauffeur without consent of owner. A statute providing that, "Where goods are sold by a person who is not the owner thereof, and who does not sell them under the authority or with the consent of the owner, the buyer acquires no better title to the goods than the seller had, unless the owner of the goods is by his conduct precluded from denying the seller's authority to sell" does not apply to an automobile in possession of the owner's chauffeur. The same case holds that a statutory provision that, "Every factor or other agopt,, entrusted with the possession of any * * * custom house permit, * * * who shall also be entrusted with the possession of any merchandise for the purpose of sale, * * * shall be. deemed to be the true owner thereof, so far as to give validity, to any con- tract made by such agent with any other person," does not estop an owner, who left his car in charge of his chauffeur for the purpose of being shipped to Cuba, from claiming the car from one who • purchased it from the chauffeur, who exhibited a consular invoice; such invoice negativing the idea of title in the chauffeur.^* § 1349. Failure to return car as acceptance. Under an agreement to store an automobile for several months, and to purchase same at expiration of such time for $150, if found to be what was wanted, it was held that there was an acceptance and consequently a sale, where the bailee kept the machine for more than a year after the designated time, without calling upon the bailor to remove it, and advertised it with other property of his for sale.^* 18 Meyer v. Shapton, 178 Mich. 417, l^Canales v. Earl, 168 N. YJ Supp. 144 N. W. 887 (1914). ' 726 (1918). 18 Martin v. Brown, — Ala. — , 74 So. i^Ostman v. Lee, 91 Conn. 731, 101 241 (1917). Atl. 23 (1917). SALES 1211 § 1350. Order and acceptance as sale. An order for a motor- cycle and its acceptance do not constitute a sale, where the selection of the particular motor-cycle is left to the buyer. ^^ "Until a specific machine, with the attachments, is selected from others of the same description^^ and unconditionally appropriated to the fulfillment of the contract, the sale is not executed, and no property passes. There is not the concurring assent of the con- tracting parties to the sale of specified property. The order and its acceptance do not, by themselves constitute a complete sale. Unless a particularized motor-cycle is agreed on, to which the con- tract attaches, the parties only intend an executory agreement. But even in such case a selection and appropriation will not pass the property, if it is the intention of the seller notwithstanding to retain the ownership." ^"^ , § 1351. Provision as to acceptance of order may be waived by seller — Estoppel. A provision in a written order for an auto- mobile that it should not become bii;iding until countersigned by an officer of the selling company, is for the benefit of the seller and may be waived, and the seller, by his acts, may be estopped from denying that he accepted the order :^' § 1352. Conditional acceptance. The plaintiff, living in Port- age, Wis., ordered an automobile of defendant, a Chicago manu- facturer, stating "if for any reason I don't like the car, this bargain is nulled, and the money returned." In reply defendant stated that it would either deliver in Portage ^ and allow ten days for examination, or demonstrate the car in Chicago, and if it was not satisfactory his deposit therefor would be refunded. A demonstra- tion was had in Chicago, and plaintiff, being unfamiliar with the car and unable to run it, testified that after the demonstration and before paying for the car, he asked defendant's agent, its secretary, what assurance he had that the car was "all right," and the reply was that if it was not "all right," defendant would return the money. The price was then paid and one of defendant's employees was directed to drive the car for plaintiff to Portage. From the start something was wrong with the car, and one trouble or another developed at different points along the route. Before reaching the city limits it become necessary to take the car back to the factory for repairs. Different troubles developed and numerous stops and 16 Howell V. Home Nat. Bank, 19S 18 Albright v. Stegeman Motorcar Co., Via. 73, 70 So. 686 (191S). 168 Wis. SS7, 170 N. W. 951 (1919). IT Jones V. Brewer, 79 Ala. S4S. 1212 LAW OF AUTOMOBILES delays occurred. The car had to be pushed up slight grades, and one stop of three days occurred, after which, when another break took place, the car was left in a shed. It was held that the jury were justified in finding that defendant agreed to return the pur- chase price if the car was not "all right" or satisfactory; that the acceptance of it was conditional ; that it was not delivered in proper condition, and was not as it was represented; and that there was a breach of implied warranty. The court called attention to the fact that instructions relating to implied warranty were not objected to.^® § 1353. Conditional sales. Conditional sales of automobiles are recognized as valid in some, but not all, the. states.^" Title may still remain in the seller after the purchase price is paid, if there are other conditions of the contract of sale to be performed.*^ An instrument could not be treated as a mortgage merely be- cause it contained the following clause: "As soon as the said first party shall pay or cause to be paid all of the aforesaid notes as they become due, then and in that 'event title to the said Ford automo- bile car shall become hers, and the said party of the second part agrees that upon the payment as aforesaid of said notes to make to the said party of the first part a warranty title to the said Ford car." It was in all respects in form of a bill of sale reserving title.«2 § 1354. Lien of conditional seller superior to statutory lien of person injured by machine. There is a statutory provision in Tennessee as follows: "That ^henever any suit for damages is brought in any court for injuries to persons or property caused by the running of any automobile in wilful violation of the provisions of this act, there shall be a lien upon such automobile for the satis- faction of such recovery as the court may award whether, at the time of the injury, such automobile was driven by the owner thereof or by his chauffeur, agent, employee, servant, or any other person using the same by loan, hire, or otherwise." In the absence of a different intention declared in the statute, ISRoedei; v. Kenmore Mfg. Co., 181 setts was taken to Pennsylvania, the law III. App. 463 (1913). of Massachusetts followed and was con- 20 Fuller V. Webster, S Boyce (28 Del.) trolling in Pennsylvania. 538, 95 Atl. 335 (1915). 'According to 21 Ford Motor Co. v. Boone, 156 C. C. this case they are recognized in Delaware A. 621, 244 ^ed. 335 (1917). and Massachusetts, but not in Pennsyl- 22 Roddenberry v. Fouche, — Ga. App. vania. Where an automobile sold under — , 102 S. E. 869 (1920). contract of conditional sale in Massachu- ' SALES 1213 liens take precedence in order of time; the first in point of time being superior. "Where a statute creates a lien that lien as con- tradistinguisl^ed from a common-law lien, is held not to take pre- cedence of a prior contractual lien where the creating statute does not clearly show or declare an intention to cause the statutory lien to override the earlier one. This is true even where the statutory lien is one that arises for work done on, and to the betterment of, the property in question." So, the lien created by the statute mentioned does not take pre- cedence over the rights of a conditional vendor's rights in the auto- mobile fixed before the happening of the injury. Only the vendee's . interest is subject to the injured person's lien.^* § 1355. Consignment to bank as sale to customer. Where an automobile is shipped on the order of a customer, and the com- pany attaches the bill of lading, consigned to itself, after indorse- ment of the same, to its draft on the customer payable to a bank, and delivers same to the bank, there is no such delivery of the machine as is necessary to complete the sale and pass title to the customer.^* § 1356. Statute of frauds— Oral sale— Memorandum. The payment of $50 on the purchase price of an automobile is suffi- cient to take the transaction out of the statute of frauds, render- ing a written contract of sale unnecessary.*^* So, the signature of the party to be charged, or of his agent, to an order blank, con- 23 Parker-Harris Co. v. Tate, 135 Tenn. whose account it may have been pur- 509, 188 S. W. 54 (1916). chased, even when the shipment had 2* Howell V. Home Nat. Bank, 195 been made in the vessel of the drawee of Ala. 73, 70 So. 686 (1915). the drafts against the cargo, has been "By taking the carrier's receipt in his repeatedly decided, and that the infer- own name, and putting such indorsement ence was almost conclusive. In McCor- thereon, the plaintiff clearly manifested mick v. Joseph, 77 Ala. 236, it is said: an intention to preserve the title to the 'Here the bill of lading taken from the property — as has been said, ' is 'nearly railroad company by the shippers was conclusive evidence that he did not in- made out to their order; and this oper- tend to pass the property to the defend- ated, very clearly, to retain the title in ant.' I In the absence of countervailing themselves, by indicating an intention testimony, the jus disponendi is effec- that it should not pass to the consignee tually retained. In Dows v. Nat. Exch. without an assignment of this "document Bank, 91 U. S. 618, 23 L. ed. 214, it was of title," as it is often denominated.' The said that such is the legal effect of a bill same rule of construction has been as- of lading taken deliverable to the ship- serted in numerous cases." Jones v. per's own order, and that it is inconsis- Brewer, 79 Ala. 545. tent with an intention to pass the own- 25 Moskowitz v. White Bros., 166 N. Y. ership of the cargo to the person on Supp. IS (1917). 1214 LAW OF AUTOMOBILES taining all the terms of the said, and showing the price and deposit, is a sufficient writing to satisfy the statute of frauds.*® §1357. Old car as part payment— Time of performance. Where an owner of an automobile enters ipto a pontract with a dealer to exchange his used car with a cash payment for a new car, and nothing is said as to the time of performance, the con- tract must be performed on both sides concurrently; and, if the owner makes several tenders of performance, which are refused or evaded by the dealer, he is entitled to recover under the contract; and it is immaterial that he may have used the old car for a con- siderable mileage in the meantime.*'' § 1358. Repudiation of part of order by buyer. One who ordered two automobiles could not repudiate the order as to one and require performance as to the other.** § 1359. Validity of purchase by minor. The purchase of an automobile for pleasure by a minor, who was a grocery clerk, whose father was a janitor, and whose whole estate consisted of $200, which he paid as a first installment on the automobile, giving his ,nptes for the balance of $800, is not such a provident contract that the court will require him to return the automobile in good condi- tion in order to recover the; money paid on the machine, after re- luming it in a damaged condition to the seller and repudiating his contract.*' ' An automobile used by an infant for earning his living by carry- ing passengers for hire, is not a "necessary," although not used for pleasure or as a luxury.'" Supplies furnished an infant engaged in operating an automobile as a common carrier, were not "necessaries," for which he could be made to pay.'^ An infant cannot be held for fraud for misrepresenting his age in order to procure a motorcycle on credit.'* § 1360. Disaffirmance of purchase by minor. Where an in- 28 Moskowitz V. White Bros., 166 N. mobile. Wooldridge v. Lavoie, — JJ. H. Y. Supp. IS (1917). — , 104 Atl. 346 (1918). , 27Siebrecht v. Stewart, 68 Pa. Super. SOLein v. Centaur Motor Co., 194 111. Ct. S20 (1917). App. 509 (191S). 28 Mitchell v. Caviness, — la. —,170 31 La Rose v. Nichols, 91 N. J. L.\3S5, N. W. 746 (1919). 103 Atl. 390 (1918). 29 Klaus V. Thomson A. & B. Co., 32 Raymond v. General Motor-Cycle 131 Minn. 10, 1S4 N. W. 508 (1915)>. Co., 23b Mass. 54, 119 N. E. 359 (1918). Minor may rescind purchase of auto- SALES 1215 fant purchaser of a secondhand automobile disaffirmed the sale, and returned the machine in substantially the same condition it was in when purchased, the obligation on the sale contract and a note given for a balance of the purchase price was at an end, and his surety was discharged.'* §1361. What is sufficient "restoration" by minor. Upon disaffirmance of the purchase of an' automobile by an infant, it is his duty to restore the machine to the seller,' so as to put him as nearly as possible in statu quo. Where an infant purchaser, upon disaffirmance, delivered the car at the garage where it was when he purchased it, and where the seller kept his cars, and notified the seller of the fact, delivery by him to the seller for the purpose of restoration was sufficient.** § 1362. Ratification by parent of purchase by minor as agent. The plaintiff sued the defendant for the balance of the purchase price of an automobile. The defendant filed no plea of total or partial failure of consideration, but merely denied liability. The defendant wels represented in the alleged purchase by his son. The car was sold in Atlanta for $550, and was delivered to the defendant's son, who at that time signed his father's name to a check for $300 which he gave to the plaintiff, and drove the car to his father's home in Pickens county. The plaintiff subsequently cashed this check and received the money on it. The defendant testified that his son had no authority to buy the car for him or to sign his name to the check, and that when the car was brought to his home in Pickens county he (the defendant) repudiated the contract, and, as soon as the condition of the roads permitted, had his son to drive the car back to the plaintiff in Atlanta; that the plaintiff refused to rescind the trade, but told the defendant's son. ithat if he would store the car in a certain garage in Atlanta he (the plaintiff) would sell it for him. Accordingly the car was so stored, where it remained for some time, but the plaintiff failed to sell it. Subsequently the defendant paid the storage bill to the garage com- pany and removed the car to his home in Pickeus county, where he kept it for some length of time, and it was used occasionally by members of his family. The defendant finally, without any notice to the plaintiff, sold tiie car to another motor company in exchange for one of its cars. Held, the defendant by his conduct ratified 38 Stanhope v. Shambow, S4 Mont. 84 Stanhope v. Shambow, 54 Mont. 360, 170 Pac. 7S2 (1918). 360, 170 Pac. 752 (1918). 1216 LAW OF AUTOMOBILES the act of his son in the purchase of the car, and made himself Hable for the balance of the purchase price.'* § 1363. Distinction between sale and executory contract of sale. Where, under a contract of sale, the property in the goods is transferred from the seller to the buyer, the contract is called a sale; but where the transfer of the property in the goods is to take effect at a future time or subject to some condition thereafter to be fulfilled, the contract is called an agreement to sell. An agreement to sell becomes a sale when the time elapses or the con- ditions are fulfilled subject to which the property in the goods is to be transferred.*^ When the contract is executory, as it always is when a particu- lar article is ordered, without being seen, from one who undertakes it shall be of a given quality or description, and the thing sent as such is never completely accepted, the buyer is not bound to keep it, or pay for the article on any terms, though no fraud was in- tended by the vendor.*'" § 1364. Distinction between sale and consignment. A con- tract whereby one was given the exclusive right to sell the other party's automobiles in a specified territory, and was to pay the latter the list price of the cars less a stipulated discount as com- mission, constituted an agency, and not a consignment of the cars.** A contract under which automobiles were invoiced to the agent at a price to the purchaser fixed in advance by the manufacturing company, subject to a stated discount in favor of the agent; which designated the agent as "distributor;" which provided for payment of the cars by the agent when sold, remittance to be made to the company the same day cars were sold; that "When cars are shipped direct to the distributor's agents, S/D [by which sight draft is meant] will be drawn direct, and check mailed by the manufacturer on Monday of each week, covering commissions due on shipments for which payments have been received during the previous week," that the agent (distributor) would keep all cars insured in the name of the company; that if the distributor can- celed the contract he would take and pay for all cars on hand or in transit; that if the company canceled the contract it would take 86 Dillon V. Patterson, 22 Ga. App. 209, Tex. Civ. App. — , 166 S. W. 900 (1914), 95 S. E. 733 (1918). quoting from Fogel v. Brubaker, 122 Pa. 86Lange v. Interstate Sales Co., — St. 7. Tex. Civ. App. — , 166 S. W. 900 (1914), SSQverstreet v. Hancock, — Tex. Civ. quoting from Mechem on Sales, § 6. App. — , 177 S. W. 217 (1915). 81' Lange v. Interstate Sales Co., — SALES 1217 over any new cars on the distributor's show floor, at the invoice price, with carl9ad freight added, and there was no condition to the right of the company to take back the cars whenever it chose so to do, was held to be a contract of consignment and not of sale.'^ A contract purporting to consign a lot of rubber tires to the defendant, obligating the latter to store and hold such goods in its name and under its control, and ptomote the sale thereof; to keep the goods insured in the name of the plaintiff, the policies to be sent to the plaintiff; to report all sales on the first of each month, and settle for same on the tenth of each month; and fixing the price of such goods to defendant, which was subject to change according to market conditions, and requiring the defendant to give bond for the performance of the contract and for the payment of all in- debtedness accruing thereunder, was held to be a contract of con- signment, and not of sale, and that the transaction was in inter- state commerce, the parties being in different states.*" § 1365. Distinction between mortgage and pledge of auto- mobile. There is a plainly recognized difference between a mort- gage and a pledge. In case of the former possession is not neces- sarily given to the mortgagee, while in the latter possession in the pledgee is essential in all cases. It is doubtless for that reason that a contract of pledge is not required to be recorded. A firm engaged in the automobile business ordered an automobile from the maker, who shipped the same to a bank, and sent the bank the bill of lading with a draft attached, the understanding being that the firm was not to be given possession of the automo- bile until the draft was paid. Not having sufficient funds, the firm called on B. & Co. to supply the deficiency, which they did, taking a bill of sale for the car, making agreement that the auto- mobile firm might repurchase the car upon payment of a certain sum, and taking a note for the amount advanced, which note re- cited that the automobile and an insurance policy covering the same had been pledged as collateral security, as per bill of sale attached to the note. B. & Co. kept the car in the automobile firm's garage, where they kept other cars belonging to them. There- after, and while tjiis arrangement was in existence, the automobile firm was declared bankrupt, and the trustee in bankruptcy sought 39 Cole Motor Car Co. v. Hurst (C. C. signor." Cass v. Rochester, 174 Cal. A.), 228 Fed. 280 (191S). 3S8, 163 Pac. 212 (1917). "The word 'consignment' does not im- 40 Stein D. C. Tire Co. v. Fulton Co., ply a sale. The very term imports an — Tex., Civ. App. — , 1S9 S. W. 1013 agency, and that the title is in the con- (1913).^ B. Autos. — 77 1218 LAW OF AUTOMOBILES • to gacin possession of the car in question, on the ground that the bill of sale and note constituted only a mortgage, which did not entitle the holder to priority on account of his failure to record' the mort- gage as required by the state law. It was held, however, that the transaction constituted a pledge, not a mortgage, and that the' trustee could gain possession of the car only by paying the note. It was also held to be of no consequence that the car was kept in the bankrupt firm's garage." § 1366. Sale or lease. Under an agreement to sell an auto- mobile, followed by the execution of a lease of the machine, and notes by the lessee as rental, it being provided that the lessee could purchase the machine for $1 at the end of the lease period, the ' origina!l agreement to sell is superseded by the lease, which con- stitutes the culmination of the transaction.** § 1367. Statute making sale invalid unless car registered. A statute of Oregon requires that an automobile be registered with the secretary of state within ten days after sale thereof, and pto- vides that failure to do so renders the sate invalid. Such a stat- ute does not render the sale invalid ab initio; the effect being to attach to the sale a contingent condition subsequent, under which the sale may become abortive on failure to comply with the stat- ute. Where such a sale is rendered invalid by failure to observe the statute, the vendor may replevy the machine and recover the value of its use, but he cannot recover on a note given to evidence the purchase price.** § 1368. Purchase by corporation or officer. A corporation organized for the purpose of, and engaged in, buying and selling irrigated farm lands, has the power to purchase automobiles that are necessa^ry or useful in the conduct of its business, and to give its promissory notes in payment therefor.** If a municipal division of the state purchases an automobile with- out authority to do so, it may sue for and recover the price paid therefor; but it must tender back the automobile. Being without power to purchase the machine, it is not liable for the use of it, or for depreciation in its value during the time it had it, and may recover the full amount paid therefor.** «Darragh v. EUiotte (C. C. A.), 215 ** Western Inv. & L. Co. v. First Nat. Fed. 340 (1914). Bank, 23 Colo. App. 143, 128 Pac. 476 42 Hogan V. Anthony, 34 Cal. App. 24, (1912). 166 Pac. 861 (1917). 45 Miles Auto Co. v. Dorsey, 163 Ky. 43 Swank v. Moisan, 85 Oreg. 662, 166 692, 17^ S. W. 502 (1915). Paq. 962 (1917). % SALES 1219 The secretary of a corporation, which was engaged in selling real estate, and which for this purpose employed a number of sales- men, who was also one of its managers, had implied authority to purchase, in behalf of the corporation, an automobile, to be used in such business.*® The office manager of an abstract company had no implied authority to purchase an automobile for the firm, although one, was occasionally used in the firm's business.*' , § 1369. Sales in interstate commerce. The purchase of auto- mobiles in Wisconsin, by a corporation of another state, to be shipped out and sold only in states other than Wisconsin, consti- tuted a transaction in interstate commerce; it being immaterial that the title to the cars passed in Wisconsin, and that by permis- sion of the seller the cars might have been sold in Wisconsin.** § 1370. Authority of salesman to sell. A purchaser may as- sume that the agent of a dealer in automobiles has all the authority to act that the character of the service requires, and power to do all those acts naturally and ordinarily done by those following such emplo5mient. But it cannot be assumed that a salesman with authority to sell for cash has authority to barter.*® Nor is the possession and use by an agent of an automobile of a different make than the one he had been selling, sufficient to show authority in him to act as agent for the sale of such car.'" A selling agent, apparently authorized to transact his principal's business, can convey good title to a pdrchaser, although he failed to disclose that he was acting as agent.*^ One may assume that a person he finds during business hours in charge of a place of business where automobiles are sold has authority to sell them, unless he has notice or knowledge to the contrary.*^ 46 Meister & Sons Co. v. Wood & T. 82 Sherman v. Auto Bankers, 164 N. Co., 26 Cal. App. S84, 147 Pac. 981 Y. Supp. 698 (1917). In this case it was (191S). said: "Remembering that the transaction *7 Pemiscot A. & I. Co. v. Duncan, — in the instant case' was in the office of Mo. App. — , 194 S. W. 299 (1917). defendant during its business hours, with *8 Parker-Harris Co. v. Kissel Motor- no one but Marks present on all occa- car Co., 16S Wis. S18, 163 N. W. 141 sions, plaintiff had a right to assume that (1917). he was not a stranger and an interloper, 49 Holmes v. Tyner, — Tex. Civ. App. but that he had authority to act in the — , 179 S. W. 887 (191S). capacity in which he did. And as was 60 Pierce v. Fioretti, — Ark. — , 215 said in Cox v. Albany Brewing Co., 56 S. W. 646 (1919). Hun, at page 492, 10 N. Y. Supp. at page Bl Lister, etc., Co. v. Smith, — R. I. 214: — , 102 Atl. 514 (1918). "'It has been held that a jury may , 1220 LAW OF AUTOMOBILES When one freely contracts with an agent, knowing the agent's authority, he may not thereafter assert that he was misled into believing that the agent had greater authority.^' § 1371. Automobile in possession of seller damaged after sale. The defendant agreed to purchase an automobile from the plaintiff for $700, and at the time of signing a contract to this effect $10 was paid in cash, and the contract recited that the bal- ance was to be paid "when delivery of the car is tendered." There- after $490 was paid, leaving a balance of $200, for which suit was brought a few weeks later. After the total of $500 was paid, and while the car was still in the possession of plaintiff at its garage, a' demonstrator in Uie employ of plaintiff took defendant's brother, who had acted for defendant in the matter of purchasing the car, for a ride in the car, during which the car was badly damaged. A few days later defendant called at the garage to pay the ba:lance due on the car, and get possession of it, but when he was informed that he would have to take the car in its damaged condition, or pay for having it repaired,, he declined to accept the car. It appeared that, as a part of the trade, the plaintiff was to put a new spring and a new lamp on the car, and, perhaps, some other fixtures, and that none of these things had been done at the time of the acci- dent. There was no doubt but that there was a sale, and it was con- tended by the plaintiff that the car, at the time it was damaged, was the property of defendant, it having been sold and delivered to him before that time. The defense was that the title to the car had not passed to defendant, and was not to pass until it was delivered, and delivery was not to take place until the balance of $200 was paid, which sum, at the time of the accident, had not been paid, and on that account the plaintiff retained possession o? the car. It also appeared that at the time of the accident the automobile had never been out of the possession of the plaintiff; that it had been used by defendant or, his brother on two occasions before the accident, on each of which it was operated by and in the control of a demonstrator employed by the plaintiff; that it was being operated by and was in the control of this demonstrator at the time of the accident; that when the machine was being taken out of the presume the authority in such a case from on the part of the company or its diirec- an act openly done in the usual course of tors, or of express ratification. ' " business at the office of the company, 53 Tockstein v. Pacific K. K. Branch, without the evidence of actual knowledge 33 Cal. App. 262, 164 Pac. 906 (1917). SALES 1221 garage on the night of the accident, plaintiff's managfer told the demonstrator not to take it out, as it had not been paid for. The jury were instructed that if the car had not been delivered, prior to the accident, to the defendant or his agent, they should find in his favor. There was a verdict for defendant, which was sus- tained on appeal. The court in part said: "There might be a sale of personal property in which the title would pass from the seller to the buyer without delivery. There are also cases involving the sale of per- sonal property in which delivery is essential to pass the title from the seller to the buyer, but whether the title passes by the sale or by the delivery is to be determined by the facts of each particular transaction." On the question of delivery the court held, "That, in law, there is a delivery of property by a seller to a purchaser when the seller places the property at the disposal of the purchaser and relinquishes to the purchaser the control and right of control of, or dominion over, the property and the purchaser takes, or accepts, the con- trol and right of control, or dominion, over the property;" and that "acceptance need not be by words, but may be by act or acts of the purchaser." ** § 1372. Purchasing incumbered automobile. In many juris- dictions an incumbrance on an automobile is not effectual against purchasers without notice, or creditors, unless recorded in the county of the residence of the mortgagor, where the mortgagor re- tains possession.^* Where automobiles were sold by a manufacturer to a dealer, the former taking back a chattel mortgage thereon, and it was under- stood that the cars would be exposed for sale by the dealer in the regular course of his business, it was held that the mortgage was void* as to a purchaser in regular course of business, under a stat- ute providing that, "Every mortgage, deed of trust or other form of lien attempted to be giyen by the owner of any stock of goods, wares or merchandise daily exposed to sale, in parcels, in the , regular course of the business of such merchandise, and contem- plating a continuance of the possession of said goods and control of said business, by sale of said goods by said owner, shall be deemed fraudulent and void." *® B4 Kentucky Motor Car Co. v. Daren- 1S7 Ky. 524, 163 S. W. 457 (1914). kamp, 162 Ky. 219, 172 S. W. 524 (191S). 66 j. I. Case Thresh. Mach. Co. v. B6 Dixon V. Tyree, 92 Kan. 137, 139 Lipper, — Tex. Civ. App. — , 181 S. W. Pac. 1026 tl914); Burbank v. Bobbitt, 236 (1916). 1222 LAW OF AUTOMOBILES Where one agreed to purchase an automobile for another and permit him to pay for it out of his earnings in operating the same, the machine to belong to the former until paid for, and the latter took title in his own name, instead of the name of the other, as agr^, and then mortgaged the machine to a third person, it was held that the person so advancing the money could assert his ownership against the mortgage. It was also declared in this case that one in possession of property under a conditional sale con- tract; by attempting to sell or create a lien thereon, cannot impair the rights or interest of the owner.*'' § 1373. Statutory lien on car for injuries inflicted. Where a statute gives a lien on an automobile which by negligent opera- tion inflicts personal injury, and provides for attachment of the car, the same is notice to all the world, and everyone takes such car subject to such lien, unless he comes within the exceptions pravided in the statue. And under such statute, the machine may be attached and made liable to such lien although it was negli- gently operated by a borrower when the injury was done.** § 1374. Possession as evidence of ownership. Where one had possession of an automobile for the purpose of selling it, being instructed to sell it so as to net the owner $350, and he sold it for the sum of $23, it was held that the price for which it was sold was sufficient to put the buyer on notice as to the ownership of the car, and that mere possession of the seller was not sufficient to pass a good title to the buyer.*® § 1375. Failure to deliver automobile on time. If one fails to deliver automobiles within the time required by a contract of sale of such automobiles, he is liable in damages for the delay, unless such Ijreach of contract was waived by the purchaser.®" Thus, where one ordered motors and transmissions to be de- livered at a certain time and they were not delivered until later, it was held that the buyer could recover for damages caused by the delay in delivery.'^ A contract of sale of an automobile to be delivered "on or about out of first shipment of" the model, must be performed by the seller making delivery within a reasonable time.^^ ST Greene v. Carmichael, 24 C^I. App. 80 Jones v. United States, 96 U. S. 24, 27 (1914). 24 L. ed. 644. 68 Merchants Bank v. Brigman, 106 S. 61 Buick Motor Co. v. Reid Mfg. Co., C. 362, 91 S. E. 332 (1917). ISO Mich, 118, 113 N. W. 591. 69stultz V. Miltenburger, 176 Ind. S61, 6Z "/m our opinion, under the terms oj 96 N. E. S81 (1911). the contract, it should be said that the SALES 1223 Delivery of an automobile more than two months after Nov. 1, 1912, was not in compliance with an agreement to deliver it "on or near about" Nov. 1, 1912.®* An inquiry by the purchaser of an automobile concerning pos- sible delivery, made after the date set for delivery, constituted a waiver of right of delivery on or before the time agreed upoii." The acceptance of such goods after the time specified for their delivery is not a waiver of a claim for damages for the delay, un- less the acceptance is made under circumstances manifesting an intention to waive damages.*^ And the buyer has the right to require the seller to deliver the goods contracted for after, the time for delivery has passed, and by, exercising his rights and insisting on the delivery of the goods after such time, the buyer does not waive his rights to whatever dam- ages he may have suffered by the delay.®® § 1376. Remedy of seller or buyer when other refuses to carry out sale contract. Upon the "refusal of the buyer of an automobile to accept it from the seller, the latter has the choice of three remedies: First, the seller may, if the contract has been so far performed by him that the property is ready for delivery be- fore he has notice of the buyer's intention to decline acceptance, obligation of the vendors was to have gave notice of rescission there had been deMvery made of the car within a reason- an unreasonable delay on the part oi able time. What would amount to a the vendors in the delivery of the auto- reasonable time for shipment from the mobile. The court directly determined East and receipt in Los Angeles would that the delay was unreasonable, and, depend upon conditions within the upon the evidence shown, we think that knowledge of the vendors, and for that that conclusion was justified." Boland reason we think it was proper for the v. Smith, — Cal. App. — , 190 Pac. 82S court to receive testimony touching the (1920). representations and statements made by 63 Alamo Auto Co. v. Schmidt, — Tex. the vendors on the subject of delivery. Civ. App. — , 211 S. W. 804 (1919). While in the plaintiff's testimony conver- 6* Griggs v. Renault Selling Branch, sations were shown between the plaintiff 179 App. Div. 845, 167 N. Y. Supp. 3S5 and one of the vendors, which conversa- (1917). tions occurred subsequent to the making 66 Ramsey v. TuUy, 'l2 111. App. 463 ; of the contract, those conversations were Buick Motor Co. v. Reid Mfg. Co., ISO not relied upon by the trial judge as fix- Mich. 118, 113 N. W. S91; Spiers v. Hal- ing a, new and definite date upon which stead, 74 N. C. 620. the automobile was agreed to be deliv- Nor does the giving of a note for the ered, but only as showing the continuing purchase price necessarily operate as such conditions as to the nondelivery and the waiver. Industrial Works v. Mitchell, explanations made by the vendors in at- 114 Mich. 29, 72 N. W. 25. tempted excuse of the same, all of which 66 Buick Motor Co. v. Reid Mfg. Co., was competent as going to the Question 150 Mich. 118, ,113 N. W. 591.. ^s to whether at the time the plaintiff 1224 LAW OF AUTOMOBILES treat the machine as belonging to the buyer, hold it after tender, subject to the latter's order, and recover the full agreed price; second, the seller may sell the machine for the buyer's account as his agent, taking the requisite steps to protect the latter's interest and obtain the best price available, and then recover the differ- ence between the proceeds of the sale and the agreed price; third, the seller may treat the sa^le as ended by the buyer's default or refusal to accept and treat the machine as his, and recover the actual loss sustained, which is ordinarily the difference between the agreed price and the market price.®'' 'By pursuing one of these remedies the seller waives the others.®* If the seller chooses the first of these remedies, it is incumbent on him to tender to the buyer the type of automobile contracted for, and, upon refusal of the buyer to accept, it is further incum- bent on him to hold, not necessarily the particular automobile of the type for the use of the buyer, but at least an automobile of like kind, so as to be ready upon the payment of the purchase price to deliver same to the buyer. The seller must keep the machine in his own possession or in someone else's possession where it can be obtained for delivery^ as, for instance, in a storage warehouse. It is not sufficient that the seller has assiirance from the manu- facturer that automobiles of the type in question can be supplied within 30 days after order for them.®® Where one gave an order for an automobile to be obtained from the factory in Michigan and delivered at a place in Florida, and befpre the machine left the factory notified the agent to cancel the order, it was the agent's duty to keep the damages as small as he could, reasonably, and he could not proceed and have the car shipped to Florida, sell it there, and then recover from the person giving the order the difference between the price the latter agreed to pay and the amount actually received for it. "For aught that appears," said the court, "the prompt cancellation of the order at the time the agent was notified would have entailed but nominal loss to either party, and we have no proper basis on this record for allowing a substantial recovery." '''' If the purchaser repudiates his contract, no tender of the car 67 Weber M. C. Co. v. Roberts, — Mo. 69 Weber M. C. Co. v. Roberts, — Mo. App. — , 219 S.W. 994 (1920); Ridden App. — , 219 S. W. 994 (1920). V. Lynch, 133 N. Y. Supp. 468 (1912); ''0 Faulk v. Richardson, 63 Fla. 13S, Schuenemann v. WoUaeger Co., — Wis. S7 So. 666 (1912). ,— , 176 N. W. S9 (1920). 68 Schuenemann v. Wollaeger Co., — Wis. — , 176 N. W. S9 (1920). SALES 1225 is necessary to a suit broiight on account of such violation of con- tract.'^ Where the automobile is sold to enforce the vendor's lien for the purchase price, notice must be given the vendee of the time and place of the sale; otherwise its sale may amount to a con- version thereof.''^ Where the seller takes in payment of the automobile, paper siib- sequently found to be worthless, he can let the sale stand and de- pend upon his right to recover on the paper as a bona fide holder thereof, or he may^ disaffirm the sale and recover the automobile.''' The buyer cannot complain of an alleged breach of contract on the part of the seller occurring after the buyer informed the seller that he would not accept and pay for the automobile.''* § 1377. Measure of damages when purchaser refuses to ac- cept car. In the absence of special circumstances requiring a different rule, the damages recoverable by a vendor for refusal to take goods contracted for is the difference at the time and place of delivery between the contract price and the market price. But this rule is not an unbending one. The circumstances may require its modification in order to effectuate the cardinal purpose, "just c6mpensation for the loss incurred." And the loss must be such as may reasonable be supposed to have been in the contemplation of the parties at the time they made the contract. , A proper meas- ure is the difference between the contract price and what the car, ready for delivery, would have cost the agent.''^ Having chosen the first of the remedies mentioned in the last preceding section, the seller can recover, in addition to the pur- chase price, interest on the same from the time of the buyer's wrongful refusal to accept the machine, and whatever reasonable costs and expenses he necessarily incurred in taking care of the automobile while holding it for the use and benefit of the buyer.''® The measure of recovery where the title to the automobile has vested in the purchaser is the contract price agreed to be paid for the car.'''' 71 Torkomian v. Russell, 90 Conn. 481, 76 Torkomian v. Russell, 90 Conn. 481, 97 Atl. 760 (1916); American Auto Co. 97 Atl. 760 (1916). V. Perkins, 83 Conn. 520, 77 Atl. 9S4 76 W«ber M. C. Co. v. Roberts, — Mo. (1910). App. — , 219 S. W. 994 (1920). 72 Bennett v. Potter, 16 Cal. App. 183, See last preceding section. 116 Pac. 681 (1911). 77 Bennett v. Potter, 16 Cal. App. 183, 73 American Tr. & Sav. Bank v. Moore, 116 Pac. 681 (1911) ; Weber M. C. Co. v. 161 Mich. 436 (1910). Roberts, — Mo. App. — , 219 S. W. 994 74,Grace v. Studebaker Corp., 172 N. (1920). Y. Supp. 128 (1918). 1226 LAW OF AUTOMOBILES Where the plaintiff breached his contract to purchase an auto- mobile from defendant after having made a payment thereon, the plaintiff would properly be required to pay for his breach the dif- ference between the contract price and the market value of the car, plus such reasonable expenses as the defendant had been put to and which were fairly within the contemplation of the parties, and should receive back the amount of the payment made.'" § 1378. Offer of seller to perform after refusal to perform. If time is of the essence of the contract of purchase and sale of an automobile, the seller's offer to perform after having refused and failed to perform within the required time, or within a reasonable time, placed no obligation upon the purchaser to accept; but the latter could pursue his remedy by rescinding the contract and re- covering the value of what he had given the seller under the contract.''' § 1379. Rights and remedies of conditional seller and buyer. Ordinarily the seller of an automobile, in a conditional contract of sale which retains title in him until the purchase price is fully paid, has three remedies where the purchaser in possession of the car defaults< 'He may foreclose his lien, he may retake the car, or he may sue for the unpaid portion of the pfurchase price. If he sues for the purchase price, he thereby vests the title in the buyer. And by selecting one remedy he abandons the others.*" Under the terms of such a conditional sale the purchaser has no right to sell or incumber the machine so as to defeat the ven- dor's title.*^ But a conditional buyer, in possession, may mort- gage his interest in the car.'^ Where the seller under such a contract took possession of the car upon default of the purchaser, and neither of the parties con- sidered that he did so in order to declare a forfeiture of the buyer's rights in^ the car, and thereafter the seller brought suit on the notes given for the purchase price, his possesion became wrongful from the time of bringing the suit, and the buyer had the right to set off against the purchase price a proper sum for the wrongful deten- ts Sabas V. Gregory, 91 Conn. 26, 98 81 Partlow- Jenkins M. C. Co. v. Strat- Atl. 293 (1916). ton, — Ind. App. — , 124 N. E. 470 79 Mettler V. Vance, 30 Cal. App. 499, (1919). 158 Pac. 1044 (1916). 82 Auto Mortgage Co. v. Montigny, 80 Alexander v. Mobile Auto Co., — 168 N. Y. Supp. 670 (1918). Ala. — , 76 So. 944 (1917) ; Chase & Co. V. Kelly, 125 Minn. 317, 146 N. W. 1113 (1914). SALES 1227 tion by the seller of the car subsequent to the time of bringing suit.*' A conditional seller cannot have a lien for repairs on the ma- chine.'* If the conditional seller assigns his interest in the car without notifying the buyer, the latter is not in default of his payments if he mails the installments to the seller which reach him in time, although not received by the seller's assignee. And in an action by the assignee on account of alleged default in payments, he cannot set up defaults occ^jrring since the commencement of the action.'^ A statement by the seller that he was satisfied to have the car examined and that if the buyer was not satisfied he would refund the money, was held to be in the nature of a promise, not a repre- sentation of fact, and not a ground of recovery in an action for fraud.'® In an action to recover an automobile, or its value, sold under a conditional bill of sale providing for payment by installments, the proper measure of its value to the plaintiff is the balance due on the contract price." § 1380. Same— Unrecorded sale agreement. In some states, an unrecorded conditonal sale agreement is not good against sub- sequent buyers or mortgagees without notice." An unrecorded sales agreement, providing that title shall remain in the seller until the automobile is paid for, is not good,' in Texas, as against an innocent purchaser.'^ A conditional sales contract of an automobile, executed in a state where it was not required to be recorded, was held not good in a state where such instruments, to be binding against third per- sons, must be recorded.*" 88 Chase & Co. v. Kelly, 125 Minn. lied on them to his damage." McAyoy 317, 146 N. W. 1113 (1914). v. Maxwell, 1S8 N. Y. Supp. 844 (1916). 84 Alexander v. Mobile Auto Co., — 87winton Motor Carriage Co. v. Ala. -^, 76 So. 944 (1917). Blomberg, 84 Wash. 451, 147 Pac. 21 86 Rhoades v. Lyons, 34 Cal. App. 615, (1915). 168 Pac. 385 (1917). 88 Auto Mortgage Co. v.- Montigny, 86McAvoy V. Maxwell, 158 N. Y. 168 N. Y. Supp. 670 (1918). . Supp. 844 (1916). ' 89 Buchanan- Vaughan Auto Co. v. "In order to recover, plaintiff was Woosley, — Tex. Civ. App. — , 218 S. W. bound to establish false representations 554 (1919). as to matters of fact, that they were 90 Willys-Overland Co. v. Chapman, — known to be false, and that plaintiff re- Tex. Civ. App. — , 206 S. W. 978 (1918). 1228 LAW OF AUTOMOBILES § 1381. Retaking car by seller. The seller under a condi- tional sale contract providing that if at any time he deems himself insecure he shall have the right to retake the machine, cannot retake the machine except when he has good causp to believe him- self insecure.'^ It must appear that the conditional buyer has committed, or is about to commit, some act which would impair the security.'^ An automobile delivered by the seller upon express condition that the title should not pass until at least $100 was paid, may be recovered by the seller upon default of such payment and removal of the automobile from the county where sold without the con- sent of the seller.®' The conditional seller may replevin the car without making de- mand, upon breach by the purchaser of conditions of the contract, which breach, by the terms of the contract, confers upon the seller the right to retake the car.®* A threat by the conditional seller to replevin the car if the bal- ance of purchase price was not paid by a certain time, was held to constitute an election on his part to take back the car instead of suing for the amount due.'* The defendant sold an automobile to the plaintiff and took a chattel mortgage thereon to secure the payment of a part of the purchase price. In the order for the automobile the plaintiff stipu- lated that the title to and the right of possession of the automobile should remain in the defendant until the purchase price should be fully paid. The chattel mortgage did not provide for taking the automobile, if the defendant felt itself insecure. Immediately after the sale and delivery of the automobile, the defendant took it from the plaintiff without his consent. Held, that the taking was wrong- ful, and that the seller was liable in damages. The contract of sale was not rescinded by returning to the plaintiff the money, notes, and other papers given for the automobile, and the plaintiff was not estopped by retaining the money and papers, nor did he waive thereby his right of action, if the automobile was taken without his consent." 91 Hines v. Pacific Car Co., — Wash. 9* Evans v. Kloeppel, 72 Fla. 267, 73 — , 188 Pac. 29 (1920); Richardson v. So. 180 (1916). Great Western M. Co., — Wash. — , 187 96 Boas v. Knewing, 175 Cal. 226, 16S Pac. 333 (1920). Pac. 690 (1917). 92 Richardson v. Great Western M. 96 Sansone v. Studebaker Corp., — Co., —Wash. — , 187 Pac. 333 (1920). Kan. — , 187 Pac. 673 (1920). 9* Crawford v. Meadows, — Cal. App. — , 181 Pac. 845 (1919). SALES _^ , 1229 The plaintiff purchased an automobile, paying therefor $1,000 in cash and giving his note for $220, and as security for the pay- ment of the note the bill of sale reserved title in the defendant. Upon default in the payment of the note with interest, the total amount being $242, the defendant took the car without a formal declaration of forfeiture, repaired and repainted it, and sold it for $1,000. -The repairs and pamting cost $196. The defendant's manager had expressly promised to find some plan of disposing of the car so that plaintiff would get his money out of it. It was held that it would be unconscionable to enforce a forfeiture of the conditional bill of sale, and that the lower court properly found in plaintiff's favor and made both parties whole.''' The conditional seller of an automobile is not entitled to recover the machine when it has been forfeited under the terms of a stat- ute for unlawful use.'* If the buyer sells his interest in the machine in violation of the terms of the conditional sale contraqt, the seller may recover the machine from the last purchaser.'* § 1382. Same— Right to tires and other replacements. Where tlie seller of an automobile under a contract of conditional sale retakes the automobile upon default of the buyer to keep the terms of the contract, he is entitled to any tires or other replace- ments which the purchaser placed on the machirie while it was in his possession, provided the title to such parts passed to the pur- chaser when he acquired them. This is known as the doctrine of "accession," and has been de- scribed as follows: "The word 'accession' is used broadly in the language of the law to signify .the right which an owner of cor- poreal property, real or personal, has to any increase thereof from any cause, eidier natural or artificial. In this sense it is broad enough to include additions to the value of land by buildings, fences, etc., erected on it, a gradual deposit of soil by the action of water, value added to chattels by labor performed, the increase of animals, or any other mode by which additions to property are made. As a term of legal classification, however, accession is gen- 97 Breaks v. Spokane Auto Co., 93 99Haworth v. Jackson,, 91 Oreg. 272, Wash. 143, 160 Pac. 291 (1916). 178 Pac. 926. (1919). 98 White Auto Co. v. Collins, 136 Ark. 81, 206 S. W. 748, 2 A. L. R. 1594 (1918). 1230 LAW OF AUTOMOBILES erally employed to signify the acquisition of title to personal prop- erty by its incorporation into or union with other property." ^ Where, however, such equipment is furnished by a third person, in whom the title remains, they do not belong to the conditional seller upon retaking the car under a contract recognizing that such equipment is separable and not accessions.^ § 1383. Conditional buyer may recover for damage to car. The conditional buyer in possession may sue for injury to the car.' He may maintain auv action to recover for damage to the auto- mobile, even under a statute requiring actions to be brought in the name of the real party in interest. If the conditional seller testi- fies in favor of the buyer in such an action he thereby waives his right, if any, to recover on account of such damages to the ma- chine.* § 1384. Fraudulent procurement of cancellation of order for automobile. In an action to recover damages for the fraud- ulent procurement of the cancellation of defendant's order for an automobile, it appeared that after having signed an order for a new automobile the defendant called at plaintiff's place of biisi- nftss and stated to its president and manager that he would like to get out of taking the car, and cancel the contract, because he found himself financially unable to pay for it; that he did not have the money; that he was in some difficulties; that he did not want to cancel the order to let some other firm take advantage of it; that thereupon the manager agreed to and did cancel the order; that on the day before this order was cancelled the defendant ordered an automobile of a different make from another firm, and 1 Clarke v. Johnson, — Nev. — , 187 statutes relied on by defendant. The law Pac. 510 (1920), quoting from this 'seems to be well settled that the bailee work; Blackwood T. & V. Co. v. Auto of personal property may recover com- Storage Co., 133 Tenn. SIS, 182 S. W. pensation for any conversion of or any S76 (1916) ; 1 R. C. L. 117. injury to the article bailed while in his 2 Clarke v. Johnson, — Nev. — , 187 possession. Where a suit is brought by Pac. SIO (1920), citing this work. a bailee against a third person for loss * Carter v. Black & White Cab Co., or injury to the subject of the bailment, 102 Misc. 680, 169 N. Y. Supp. 441 the former's right to damages is not (1918). limited to his special interest in the prop- 4Stotts V. Puget Sound Tr. L. & P. erty, but the general current of author- Co., 94 Wash. 339, 162 Pac. S19 (1917). ity appears to hold that the bailee is "The right of the vendee, as against entitled to damages commensurate with third parties, may well be likened to the full value of the property taken or that of a bailee, and we see no reason the degree of injury sustained." Stotts why the same rules should not apply, v. Puget Sound Tr. L. & P. Co., 94 Wash, especially when we consider the several 339, 162 Pac. 519 (1917). SALES 1231 that on the day following the cancellation he paid on the car so pur- chased a larger sum than he would have been required to pay on the car ordered from plaintiff. It was held that this evidence was sufficient to support a verdict in plaintiff's favor. It was further held in this case that the action, being in tort for fraud and deceit, could be maintained without the cancellation of the order being first set aside in equity.* § 1385. Same— Measure of damages. The measure of dam- ages, in an action to recover on account of the fraudulent proture- ment by defendant of the cancellation of his order for a new auto- mobile, where it appeared that the plaintiff sold the car in ques- tion to another person a few days after cancelling said order, for the same price that defendant had agreed to pay, which was the standard price thereof, it was held that a recovery for loss of profits was erroneous; that the measure of damages was the dif- ference between the market price and the contract price; and that plaintiff was entitled to nominal damages only.® This measure of damages does not seem to be compensatory as a matter of fact, if the supply of automobiles which the plaintiff could sell was practically unlimited. The fact, under such condi- tions, that he sold the particular car which was intended to fill defendant's order is of no consequence; he would have supplied the wants of the latter customer out of the inexhaustible supply. He was entitled to the profits he would have made upon the sale of a car to the defendant,- and whether or not the profits from the sale of the car to another should be considered in mitigation of dam- ages depends upon facts not disclosed in the case mentioned. § 1386. Defense of want or failure of consideration. The de- fense of want of consideration, to recovery on notes given for the pfurchase price of an automobile, cannot avail unless there is both allegation and proof of damage to the car by its admitted use prior to the sale. Such defense is not available if the evidence shows that there was any consideration, no matter how small.'' Where the purchaser of an automobile inspected it personally before the purchase, made a cash payment, gave his promissory note for the remainder, and received the property, and about four months thereafter made a payment on the note, and in another month made another payment thereon, and some time after the 5 Chalmers Motor Co. v. Maibaum, ^Vreeland v. Murray, 62 Colo. 322,. 186 111. App. 147' (1914). 162 Pac. 148 (1917). 8 Chalmers Motor Co. v. Maibaum, 186 111. App. 147 (1914). 1232 LAW OF AUTOMOBILES maturity of the note, being pressed for payment of the balance due, wrote to the attorney of the holder of the note a letter in regard to it as follows: "Your letter to hand and noted. It is impossible for me to send you check for that amount now. Have got a judg- ment against the men that owe me, and just as soon as the sheriff can collect the money I will send to you. I think that will be sooner than you can make it out of me to sue me. You know it is hard to collect anything now. I know Mr. Taylor thinks I don't want to pay him, but I can't help it; I am doing all I can do. If he will wait until I can collect this money he shall have it"^ — the maker of the note, when sued thereon some months thereafter, could not suces'sfuUy set up the defense that there had been a total failure of consideration.* § 1387. Failure of seller to keep full line of supplies as represented. Where a dealer represented to one to whom he had sold an automobile that he kept a full line of parts and that his order, yhich had been received, therefor would have prompt atten- tion, and about a week later the buyer was notified that the order would be delayed on account of the dealer not having the parts ordered in stock, and the parts were shipped about three weeks later, it was held that the dealer was not liable because the buyer lost chances to sell the automobile.' § 1388. Express warranty. The parties to a contract of sale may make any agreement they choose and the same is binding, if not contrary to law or public policy. This rule extends to war- ranties of personal property, A vendor may sell his goods with any warranty he sees fit to make, and any substantial failure of the article to come up to the quality or character warranted con- stitutes a breach thereof and entitles the buyer to an action there- for.i" Thus, an automobile was purchased under a warranty for a period of one year, and soon after its delivery it got out of order. After repeated attempts to remedy the defects, all of which were unsuccessful, the purchaser sent it to a garage and notified the 8 Taylor v. Cone, 19 Ga. App. 454, Whenever a positive representation of 91 S. E. 910 (1917). a material fact is made, the party re- 8 Stanley v. Weber Imp. & Veh. Co., ceiving it is in general entitled to rely — Mo. App. — , 190 S. W. 372 (1916). and act upon it, and is not bound to 10 Seiberling v. Tatlpck, 13 Ind. App. verify it by an independent investigation. 345 ; Aultman-Taylor Mach. Co. v. Rid- Morris v. Fiat Motor Sales Co., 32 Cal. enour, 96 la. 638; Schoenberg v. Loker, App. 315, 162 Pac. 663 (1916). 88 Mo. App. 387. SALES 1233 seller that he had returned it under the terms of the agreenient. It was held that the purchaser could recover the price paid for the automobile.^^ There is no precise form of expression required to create an express warranty. It is not necessary, that the word "warrant" or "warranty" be used. Any affirmation of the quality or Condition of the automobile sold, not uttered as a matter of opinion or belief, made by the seller at the time of sale, for the purpose of assuring the buyer of the truth of the fact affirmed, and inducing him to make the purchase, if so received and relied on by the purchaser, is an express warranty.^'' Warranty is a matter of intention. A decisive test is whether the vendor assumes to assert a fact of which the buyer is ignorant, or merely states an opinion, or his judgment, upon a matter of which the vendor has no special knowledge, and on which the buyer may also be expected to have. an opinion and to exercise his judg- ment. In the former case there is a warranty; in the latter case there is not.^' 11 Beecroft v. Van Schaick, 104 N. Y. Supp. 4S8. 12 Morris v. Fiat Motor Sales Co., 32 Cal. App. 31S, 162 Pac. 663 (1916) ; Denver Suburban H. & W. Co. v. Fu- gate, 63 Colo. 423, 168 Pac. 33 (1917) ; White Automobile Co. v. Dorsey, 119 Md. 2S1, 86 Atl. 617 (1913); Frey v. Failes, 37 Okl. 297. In Luitweiler Pump Co. v. Vkiah Water Co., 16 Cal. App. 198, the court, at page 206, 116 Pac. 707, at page 710, said: "The rule, indeed, seems to be well settled that 'any distinct assertion or af&rmation as to the quality or charac- ter of the thing to be sold, made by the seller during the negotiations for the sale, which it may reasonably . be sup- posed was intended to induce the pur- chase, and was relied on by the pur- chaser, will be regarded as a warranty unless accompanied by an express state- ment that it is not intended as such,' (30 Am. & Eng. Ency. of Law, p. 136) , and it seems that the general tendency of the later authorities is to construe liberally in favor of the buyer language B. Antos. — 78 used by the seller in making affirma- tions respecting the quality of his goods, and to treat such affirmations as war- ranties when such an inference is at all reasonable." "A warranty is a statement or repre- sentation inade by the seller of goods contemporaneously with and as a part of the contract of sale, though collateral to the express object of it, having refer- ence to the character, quality, or title of the goods, and by which he promises that certain facts are or shall be as he rep- resents them. A warranty is 'express' when the seller makes an affirmation with respect to the article to be sold, pending the treaty of sale, upon -vyhich it is intended that the buyer shall rely in making the purchase." Hausken v. Hodson-F. Co., — Wash. — , 187 Pac. 319 (1920). An express warranty is an affirmation of fact inducing the sale. Glackin v. Bemiett, 226 Mass. 316, 115 N. E. 490' (1917). 13 International Harvester Co. v. Law- yer, — Okl. — , ISS Pac. 617 (1916). 1234 LAW OF AUTOMOBILES Any affirmation made at the time of the sale or exchange, as to the character or condition of the thing sold, will be treated as a warranty, if it is so intended, and if the other party acquired the property on the faith of such affirmation.^* There cannot be the incident of a warranty unless there is a completed sale and absolute delivery; but the completeness of the sale is not destroyed by the fact that a part of the contract was that the buyer might exchange the automobile in case it did not fulfil the warranties.'^^ From an express undertaking, the law will also imply whatever the parties may be reasonable supposed to have, meant, and what is essential to render the transaction fair and honest.''® A general warranty that a carriage is sound and in first class condition, extends to and includes every part of the carriage, in- cluding the top.^'' Where an automobile was warranted against ahy defects in manufacture, an agreement by the seller to overhaul the car with- out charge after a trip, was no part of the warranty, but a special agreement.^' A buyer may recover an account of a misrepresentation as to date of manufacture, although prior to purchasing the car he had it examined as to its condition and its batteries.-'® A misrepresentation by the seller concerning the capacity of a motor truck which resulted in no damage to the buyer, cannot con- stitute a ground for the rescission of the sale.^° Testimony that other owners of the same makes of automobiles had trouble with their cars, cannot be received to prove breach of express warranty in a given, instance; at least, without showing under what conditions such other cars were used.^^ Where an action is brought on certain express warranties, proof cannot be made of other and different warranties .^^ Persons who have had experience with automobiles of the kind in question, although not experts, may testify regarding the condi- tion of a car in an action by the purchaser against the seller on a 14 Morris v. Fiat Motor Sales Co., 32 iSMutin v. Anthony, — Cal. App. — , Cal. App. 31S, 162 Pac. 663 (1916). 171 Pac. 1082 (1918). 16 Levis V. Pope Motor Car Co., 202 20 Alamo Auto Sales Co. v. Herms, N. Y. 402, 9S N. E. SIS (1911), rev'g — Tex. Civ. App. — , 184 S. W. 740 129 App. Div. 937. (1916). 16 Mull V. Touchberry, — S. C. — , 21 White Automobile Co. v. Dorsey, 100 S. E. 152 (1919). 119 Md. 251, 86 Atl. 617 (1913). 17 Frey v. Failes, 37 Okl. 297. 22 White Automobile Co. v. Dorsey, 18 Warren v. Renault F. Selling Branch, 119 Md. 251, 86 Atl. 617 (1913). 195 111. App. 117 (1915). SALES 1235 warranty. The jury may adcept such testimony for what it is worth.^* Where second-hand automobiles were sold in one place to be delivered in another place, and were to be put in good running con- dition before being shipped, evidence of the condition of the auto- mobiles when received was admissible to show their condition when shipped; such condition being of such a nature as to show it did not arise from causes subsequent to shipment.^* If the contract of sale is invalid the warranties made in con- nection with the sale are also invalid.^^ Where the defendant had no direct connection with the sale, before the plaintiff can recover for breach of warranty he must show that the salesman was the defendant's agent clothed with authority to make the warranty relied upon.''® § 1389. Same— Illustrative cases. Arkansas; A seller of a second-hand automobile was bound by his statement that the car was in good condition and fit for the livery business, the purchaser having informed him that he knew nothing about automobiles.*'' California: An assertion that a motor truck will carry three tons is a warranty; the buyer relying thereon and having no oppor- tunity of testing its carrying capacity.** Positive representations that an automobile is a later model than it really is, the later model having improvements over the one falsely represented to be of that model, constitute fraud, if believed and relied upon by the purchaser, and justify a rescission of the sale.*® A positive representation that an automobile was a 1912 model, constituted an express warranty.*" Colorado: "It sufficiently appears in this answer that plaintiff himself, as well as by his agent, made, as a statement of fact, and not of opinion, a positive affirmation at the time, and as part of the contract of sale, that the automobile was in first-class condi- tion, that the batteries were all right, and represented to defend- ant that it was in good condition and suitable for the particular 23 E. M. F. Co. V. Davis, 146 Ky. 231, 27 Brown v. McGehee, — Ark. — , 207 142 S. W. 391 (1912). S. W. 37 (1918). 24 Kelly V. Times Square Auto Co., 170 28 Hackett v. Lewis, — Cal. App. — . Mo. App. 64, 156 S. W. 62 (1913). 173 Pac. Ill (1918). 25 Swank v. Moisan, 8S Oreg. 662, 166 29 Luckenbach v. Smith, 14 Cal. App. Pac. 962 (1917). 139, 111 Pac. 266 (1910). 26 Piper V. Oakland Motor Co., — 30 Morris v. Fiat Motor Sales Co., 32 Vt. — , 109 Atl. 911 (1920). Cal. App. 315, 162 Pac. 663 (1916). 1236 LAW OF AUTOMOBILES purpose for which he wanted it, of which plaintiff was advised, and that the thing purchased was not in that condition, which defendant afterwards discovered. It is entirely safe to say that there is pleaded what, in law, amounts to an express warranty and its breach." *^ Illinois:, False representations by the seller that the automobile has a certain capacity and is as good as a car of a certain make, and that it is impossible to tell where the tonneau is joined to the rest of the body, are material misrepresentations of fact and bind- ing upon the seller.^^ Kansas: Where one falsely represented to plaintiff that another was ready and anxious and financially able to take a certain tract of land at $1,600 cash, although worth more, thereby defrauding plaintiff into trading an automobile worth that sum for the land, such representation was one of an existing condition, and was not merely a promise or ppinioii.'* Maine: A representation made as an inducement in the sale of an> automobile, as to its age or the length of time it has been in use, is material as affecting its value; and if false, it is actionable.** A representation made in the sale of an automobile that it is in good rijiining order may be the expression of an opinion or it may be the statement of fact. If it is capable of being understood either as an expression of opinion or as a statement of fact, its character must be determined in accordance with the understanding of the parties. "If an automobile is represented to be in good running condition, when in fact there are hidden defects which prevent its proper operation, it is difficult to see why the representation may not be deemed to be a statement of fact, so far as those defects are concerned." *^ Maryland: A Uniform Sales Act provided as follows: "Any affirmation of fact or any promise by the seller relating to the goods is an express warranty if the natural tendency of such affirmation or promise is to induce the buyer to pfurchase the goods, and if the buyer ptirchase the goods relying thereon. No affirmation of the value of the goods, nor any statement purporting to be a state- si Mastin V. Bartholomew, 41 Colo. SSHinchey v. Starrett, 91 Kan, 181, 328, 92 Pac. 682, quoted approvingly in 137 Pac. 81 (1913). Denver Suburban H. & W. Co. v. Fu- 84 Ross v. Reynolds, 112 Me. 223, 91 gate, 63 Colo. 423, 168 Pac. 33 (1917). Atl. 952 (1914). 8* Checkley V. Joseph Lay Co., 171 111. 36 Rqss v. Reynolds, 112 Me. 223, 91 App. 2S2 (1912). Atl. 9S2 (1914). SALES 1237 ment of the seller's opinion only, shall be construed as a warranty." Held, in an action for breach of warranty of an automobile truck, that a statement by the seller that, with careful use, the truck would last four years was not a mere prediction as to the length of its service, but was a representation as to its capability of being operated for that period, and amounted to a warranty .^^ Minnesota: Representations that an electric automobile had been run not to exceed 200 miles, when in fact it had been run 1,600 miles; that it would run a distance of 50 miles on a single charge of its batteries when it would not run to exceed 30 miles on a charge; and that it was equipped with exide batteries, when it was not, and the purchaser relied upon such representations to his injury, as there was evidence to show, were of material facts, and rendered the seller hable in damages for the deceit.*'' Missouri: A contract for the sale of a motor car stated that the vendee agreed to purchase a car "as specified in a letter of ven- dor." The letter referred to contained a proposal to furnish a car according to plans and specifications attached, and provided:- "We hereby give you a guarantee that we wUl cover renewal of any part of mechanism on car which may prove to be defective during the first year." The specifications attached to the letter described in detail the construction of the car. A subsequent contract between the same parties for the sale of a motor-car provided that the car was "to be built in accordance with specifications heretofore agreed upon." It was held that the word "specifiactions" in the latter contract referred to the specifications proper under which the first car was built, and did not include the warranty. Consequently there was no warranty to renew defective parts in the second car.'* New York : Where, although the testimony was conflicting, there was evidence that the defendant, in selling an automobile, repre- sented that the car was a new one and in first class condition, and that, in fact, the car was not a new one and was far from being in first class condition, it was held that a verdict for only nominal damages was so inconsistent with the finding of facts in plaintiff's favor as to compel the conclusion that the verdict was against the evidence.*® 36 Rittenhouse-W. Auto Co. v. Kiss- C. R. Co., 172 Mo. App. 662, ISS S. W. ner, 129 Md. 102, 98 Atl. 361 (1916). 1111 (1913). 87 Jones V. Magoon, 119 Minn. 434, S^Cohn v. Tanner Motor Car Co., 138 N. W. 686 (1912). 163 App. Div. 883 (1914). 38 State Bank v. Cape Girardeau & 1238 LAW OF AUTOMOBILES North^ Carolina: Evidence that the plaintiff went to defendant's- place of business, where the latter showed him the car that plain- tiff subsequently bought; that defendant told him that the car was durable and reliable, first-class in workmanship and material, and well made; that if plaintiff bought, he (defendant) would guar- antee the car to be satisfactory in every respect; that it was par- ticularly adapted for the roads they had there; that one gallon of gasoline would run the car 15 miles; and that it was, a better car than one called the "Rambler," was held sufficient to establish a warranty.*" Oklahoma: Where the plaintiff knew nothing about automobiles, and was not informed as to the ability of the same to negotiate the roads in the vicinity in question, and had no judgment in the mat- ter to exercise, and defendant's agent was an expert, and was engaged in the business of demonstrating and selling the automo- biles he was trying to sell the plaintiff, and he stated to plaintiff that the automobiles would go over the roads in that vicinity, and would go anywhere a team of mules could be driven, a^d that a local physician, who was contemplating buying one, could use it in his practice instead of a team, it was held that such statements constituted a warranty.*^ Utah: A statement by a sales agent that the automobile in ques- tion would do whatever any other automobile of the same kind and make would do, was an express warranty.** §1390. Cut of automobile in catalog as warranty as to equipment. It has been held that where a contract for the sale of automobiles stipulated "fully equipped as per catalog," and a cut in the catalog purporting to be a cut of the type of car con- tracted for showed a particular equipment of tires and rims (six rims and six tires on each car), the cars tendered in performance of the contract were required to be similarly equipped, although the printed specifications for such cars in the catalog did not require such equipment; the cut being as much a part of the catalog as the specifications.** §1391. "Seller's talk" not warranty. The law recognizes the fact that men will naturally overstate the value and qualities 4* Underwood v. Coburn Motor Car *2 Summers v. Provo F. & M. Co., — Co., 166 N. C. 458, 82 S. E. 8SS (1914). Utah — , 178 Pac. 916 (1919). *1 International Harvester Co. v. Law- 48 Hemwall Auto Co. v. Michigan yer, — Okl. — , ISS Pac. 617 (1916). /Ave. Trust Co., 19S 111. App. 407 (191S). SALES 1239 of the articles they have to sell, and as long as the seller confines his talk to statements of opinion or expectation it does not amount to a warranty.** A mere puffing statement like those frequently made respecting the value of things offered for sale, are generally regarded as mere expressions of opinion, and of themselves not to constitute fraud .*^ Thus, the plaintiff purchased an automobile which had been used, he was told, as a demonstrating car, for about half the price of a new car of the same kind. He was told that the automobile had been run about five hundred miles, and was in first class con- dition and "all right." Plaintiff used the automobile about two months when the crank shaft broke, greatly damaging the engine. In an action by him to recover the purchase price it was held that there was no express warranty, all that was said was seller's talk, and there was no implied warranty on which recovery could be had for the breaking of the crank shaft after two months' use.*® In another case the testimony showed that the plaintiff had pur- chased a second-hand set of automobile tires which had been used in a hill-climbing contest and had been run about two hundred and fifty miles. This the plaintiff knew when he bought the tires. The defendant's salesman had told the plaintiff at the time of the sale that the tires were "as good as new." Two months later one of the tires burst. It was held that the statement that the tires were as good as new was, under the circumstances, merely an expression of opinion and not a statement of a present existing fact amounting to a warranty.*'' A statement by the seller of a used automobile, who was not an expert or a dealer or manufacturer of automobiles or tires, in refer- ence to the tires then on the machine, which were open to inspec- tion by the purchaser, that "Oh, pshaw, they are good for two thousand miles," was held to be a mere puffing statement, or state- ment of opinion, and not to amount to a warranty.** The plaintiff purchased an automobile which had been used by iilUinois: Allen v. Hart, 72 111. 104, 45 Woods v. Nicholas, 92 Kan. 2S8, 140 106. Pac. 862 (1914). Massachusetts: KJmball v. Bangs, 144 *8 Morley v. Consolidated Mfg. Co., Mass. 321. 196 Mass. 2S7, 81 N. E. 993, citing Wil- Michigan: Worth v. McConnell, 42 son v. Lawrence, 139 Mass. 318, 1 N. Mich. 473. _ E. 278. Missouri: Matlock v. Meyers, 64 Mo. *'' Walrren v. Walter Auto Automobile S31. ' Co. SO Misc. 60S, 99 N. Y. Supp. 396. New York: Duffany v. Ferguson, 66 48 Woods v. Nicholas, 92 Kan, 2S8, 140 N. Y. 482. Pac. 862 (1914). 1240 LAW OF AUTQMOBILES defendant for demonstration purposes and had been run about $1,500 miles, which facts were known to the plaintiff, and on ac- count thereof the agreed price was $lj800, which was $500 less than the price of the car new. The defendant stated that the car was "in first-class condition, as good as any new car," and that he "guaranteed the car to go 11 miles to a gallon of gasoline, on an average." It was held that these statements were mere expressions of opinion and did not amount to warranties. The court said that the fact that the price was fixed at over 21 per cent less than the price of a new car was of itself evidence that the car was to that extent of less value than a new car.*® A statement upon the sale of an automobile to a rural mail car- rier that the car would give swifter and better service than the horse the carrier was using, was held to be only an expression of opinion or belief on which the purchaser may use an independent judgment, and to be regarded as a mere commendation and not a warranty.*" The fpUowing instruction was upheld in a case involving the sale of an automobile: "You are instructed that when parties are nego- tiating a sale and purchase for property which there is an oppor- tunity for examining, a party has a right to exalt the value of his own property to the highest point the purchaser's credulity will bear. Such boastful assertions and exaggerated descriptions do not amount to fraudulent misrepresentation or deceit. In such case the parties are upon equal ground, and their own judgment must be their guide in coming to conclusions." *^ However, where the representation is positive and relates to a matter of fact, it constitutes a warranty.** § 1392. Expression of opinion. In an action involying the sale of an automobile, it was held that, "when one person states to another his opinion as to the value of any property merely as his 49 Smith V. Bolster, 70 Wash. 1, 125 "Where the vendee is wholly ignorant Pac. 1022 (1912). of the value of the property, and the SOFarris v. Alfred, 171 111. App. 172 vendor knows this, and also knows that (1912). the vendee is relying upon his (vendor's) 61 Biel v. Tolsma, 94 Wash. 104, 161 representation as to value, and such rep- Pac. 1047 (1916). resentation is not a mere expression of 62 Robinson v. Harvey, 82 111. 58. opinion, but is made as a statement of There are exceptions to the general rule fact, which statement the vendor knows that statements of a vendor as to the to be untrue, such a statement is a rep- value, utility, and future use of the prop- resenta:tion by which the vendor is erty he is selling may be put to are bound." Mei'chants' Nat. Bank v. Nees, mere matters of opitiion; for instance: 62 Ind. App. 290, 112 N. E. 904. SALES 1241 opinion, not as a fact that he knows to be true, then the person to whom such opinion is stated in this manner has no right to rely upon such opinion, but must exercise his own judgment." ^* § 1393. Guaranty for year as warranty of fitness. A guar- anty that an automobile will be free from defects for a year, is not alone an agreement to make necessary repairs to the machine during that time, but carries with it necessarily a contract of war- ranty that the automobile is at the time of the sale of sufficient workmanship and materials to run a year under ordinary and proper use without manifesting defects.", § 1394. Warranty as to material and workmanship. It has been held that a warranty covering defects in material and work- manship of an automobile did not include charges for tires, tubes, reliiiers, spark plugs, burning out carbon, adjusting front wheels, grinding valves, etc.®* In, a warranty against any defect in manufacture and workman- ship, the word "manufacture" has been held to refer to the process of converting the raw materials into finished parts for use in the automobile, and the word "workmanship" was held to refer to the character of the work done by workmen in the factory. In an action to recover for the breach of suc^i warranty it was error to exclude evidence that noise in the engine and other parts was due to improper fitting of the several parts. So, it could be proved that the tires were defective. But evidence of defective design and plan of construction was held to be incompetent; likewise as to evidence of an agreement on the part of the seller to overhaul the car.*® It might be thought that the foregoing definitions are too nar- row. Many of the so-called automobile factories are little more than assembling plants. Very little material reaches them in its raw state. But the fact that each one of the plants at which a particular part is made is a factory or manufacturing plant, does not change the character of the plant at which the parts are assembled and the automobile made. Such place is a manufactory, a place whef-e automobiles are manufactured. "Manufacture" is not confined to the making of the parts from materials coming into the plant in a raw and unshaped state, but also includes the putting of the parts together so that they form an- automobile — a thing 63Biel V. Tolsma, 94 Wash. 104, 161 65 Bowman Auto Co. v. Schultz, 17S Pac. 1047 (1916). N. Y. Supp. 72 (1919). 64 Miller v. Zander, 85 Misc. 499, 147 66 Warren v. Renault F. Selling Branch, N. Y. Supp. 479 (1914). 195 Dl. App. 117 (1915). 1242 LAW OF AUTOMOBILES which did not exist until the parts were put together. "Manu- facture" not only means the production of articles from raw mate- rials, but includes the placing of articles in a new combination in which they form something which they did not before. This is a meaning given to the business of assembling and placing autonio- bile parts into a finished product by the persons engaged in the business. It might be thought, then, that when a person engaged in that business warrants a machine against defects in manufac- ture, such warranty refers, not only to parts with defects, but parts put together in conformity with an improper design whereby, as a whole, the machine is defective from a mechanical viewpoint. A design, standing alone, is not a manufactured thing nor part of a process of manufacture. But when made and used in connection with the making of an automobile, it forms part of the process of manufacture of such machine. And even if it did not, the putting together of the parts in an imperfect way, or the putting together of parts improperly formed, due to a defective design,, constitutes defective manufacture, because the entire process of forming or producing the automobile is one of manufacture. If the design were so imperfect that the automobile could not be made to move of its own power, the warranty againsl defective manufacture would surely be breached. If, then, the design is only a little less defective, so that the automobilie can be operated only imperfectly, the warranty is likewise breached.' § 1395. "Well made of good material." An automobile war- ranted to be "well made of good material,"^ must be something more than a good looking machine constructed of good material; it must be a serviceable machine for the class of work for which it was intended. As illustrations: "A gristmill which will not grind; a reaper which will not cut grain ; a locomotive which will not move when proper power is applied— can hardly be said to have been constructed in a good and workmanlike manner." Failure of the automobile to meet the requirements of this warranty constitutes a non-performance of the contract.®'' "If a man sells to another peas, and sends him beans in their stead, that is non-performance, not breach of warranty." ** § 1396. Guaranty to run certain number of miles. A guar- anty of "the several parts of these chassis to be free from defective material or workmanship until each truck has been run a dis- 67 International Harvester Co. v. Bean, 68 Benjamin, Sales § 918. i 159 Ky. 842, 169 S. W. 549 (1914). SALES 1243 tance of 30,000 miles," was held to be a guaranty against any replacement of such parts being necessary by natural wear and tear until the chassis had been in operation that distance.^^ § 1397. Warranty made after sale. Statements relied on as a warranty must be made contemporaneously with and as a part of the contract of sale of the automobile; and a warranty, made after the contract of sale is complete, is inoperative, unless there is a new consideration to support it.*" § 1398. Limited warranty. If an automobile is sold under a contract containing a limited warranty, the buyer cannot insist upon any warranty other than that embraced in the contract. And if he seeks to ' recover on an express warranty he cannot depend upon proof of an implied warranty.*^ Where the terms of a manufacturer's written warranty of an automobile contained a stipulation that it was dependent upon the purchaser registering his name, address and date of purchase and model of car with the manufacturer, and it appeared that the pur- chaser had made no attempt to comply with such terms, he could not recover for breach of such warranty.®* § 1399. Automobile warranted satisfactory to purchaser. When an automobile is sold under an agreement that it will be satisfactory to the purchaser, it is for the purchaser to determine whether or not he is satisfied. And the seller has no cause of com- plaint if the dissatisfaction of the purchaser is unreasonable.®' In such a case the reasons of the purchaser for rejecting the machine cannot be inquired into.®* Thus, where it was shown that the plaintiff purchased an auto- mobile on the assurance that it should be "satisfactory" to her, it was held that she had a right to reject and return the automobile 69 Birmingham Motor Co. v. Nor- Massachusetts: Brown v. "Foster, 113 wood Tr. Co., — Ala. App. — , 80 So. Mass. 136, 18 Am. Rep. 463. 146 (1918). Michigan: Koehler v. Buhl, 94 Mich. 60 Underwood v. Coburn Motor Car 496. Co., 166 N. C. 4S8, 82 S. E. 8SS (1914). Minnesota: Frary v. American Rub- 61 United Motor A. Co. v. Paxson ber Co., 52 Minn. 264; Butler v. Winona Bros.,, 14 Ga. App. 172, 80 S. E. 704 Mill Co., 28 Minn. 205. (1914). Missouri: McCormick y. Finch, 100 62 Simmons v.' Ruggles, — Tex. Civ. Mo. App. 641, 75 S. W. 373; Blaine v. App. — , 176 S. W. 152 (1915). Knapp &, Co., 140 Mo. 241. SS Connecticut: Zaleski v. Clark, 44 Pennsylvania: Singerly v. Thayer, 108 Conn. 218. Pa. St. 291. Illinois: Reeves v. Chandler, 113 III. . 64 Reeves v. Chandler, 113 III. App. App. 167. 167. 1244 LAW OF AUTOMOBILES if it was not satisfactory to her, provided she acted in good faith; and that it was not sufficient to bind her that it should be satis- factory to a reasonable person for the puipose for which it was soId.«6 The cases where the parties provide that the promisor is to be satisfied, or to that effect, are of two classes; and whether a given case falls within the one or the other class depends upon the special circumstances of the particular case. In the one class the cases are generally such as involve the feel- ings, taste or sensibility of the promisor, and not those gross con- siderations of operative fitness or mechanical utility which are capable of being seen and appreciated by others. "But this is not always so. It sometimes happens that the right is fully re- served where it is the chief ground, if not the only one, that the party is determined to preserve an unqualified option, and is not willing to leave his freedom of choice exposed to any contention or subject to any contingency. He is resolved tp permit no right in any one else to judge for him or, to pass on the wisdom or unwis- dom, the justice or injustice, of his action." In this class of cases the law regards the parties as competent to contract in that man- ner, and if the facts are sufficient to show that they did so, their stipulation is the law in the case. The promisee is excluded from setting up any claim for remuneration, and is likewise debarred from questioning the grounds of decision on the part of the prom- isor, or the fitness or propriety of the decision itself.®^ 65 Walker v. Grout Bros. Auto. Co., ion or judgment of others. Goodrich 124 Mo. App. 628, 102 S. W. 25. v. Nortwick, 43 III. 445. A contract to render satisfactory sei'v- 66 Wood Reaping & Mowing Mach. ices means satisfactory to the employer Co. v. Smith, 50 Mich. 565. and that the employer, if dissatisfied. The following illustrate this class of might discharge the employee for any cases: reason which he might deem sufficient. Connecticut: Zaleski v. Clark, 44 Kendall v. West, 196 111. 221, affirming Conn. 218. 98 111. Aipp. 116. Massachusetts: Brown v. Foster, 113 Under an agreement that a reaper and Mass. 136, 18 Am. Rep. 463 ; McCarren binder should be satisfactory, the pur- v. McNulty, 7 Gray 139. chaser was held to have the right to Michigan: Gibson v. Cranage, 39 return the same if not satisfactory. See- Mich. 49. ley V. Welles, 120 Pa. St. 69. New York: Hart v. Hart, 22 Barb. Where a party purchased a fanning 606; Tyler v. Ames, 6 Lans. 280. mill with the understanding, that he Vermont: Rossiter v. Cooper, 23 Vt. might return it within thirty days if 522. it did not suit him, he was the sole England: Taylor v. Brewer, 1 M. & judge as to whether it suited. The S. 290. question did not depend upon the opin- SALES 1245 In the other class it is supposed that the promisor undertakes to act reasonably and fairly, and to found his determination on just and sensible grounds, and from thence springs a necessary impli- cation that his decision in point of correctness, and the adequacy of the grounds of such decision, are open considerations and subr ject to the judgment of judicial triers.^'' "An automobile is not a work of art, nor a machine about which there can be any very peculiar fancy or taste, but it is not a com- mon, gross thing, like a road-wagon or ox-cart. It is a complicated machine and cannot be safely run by an inexperienced person." The sale of an automobile under an agreement that it shall be sat- isfactory to the purchaser falls within the former class of cases as above stated.^* On the other hand, it has been held that the purchaser of an automobile, warranted to be satisfactory, must act in good faith and not capriciously.®' "Appellant, it seems expressly guaranteed that the car would give satisfaction. This being true, appellee's determination of the matter, if made in good faith, was conclusive as to whether or not the guaranty had been complied with. This is so because the sale of the automobile to him was but a sale on approval.'" Where it was agreed that the purchase price should be refunded if the vendee should decide that the machine was unsatisfactory, at any time within 15 days from delivery, the vendor to be given an opportunity to make the machine satisfactory before it was re- turned, the fact that, after the vendor tried to put the machine in satisfactory condition it was still unsatisfactory, and after the IS- day limit had expired, the vendor induced the vendee to pay the balance of the purchase price, in consideration of an oral prorriise to repay the purchase price pursuant to the agreement if the ma- chine was not made satisfactory, did not preclude the vendee from recovering the purchase money on the ground that the vendor had failed to make the machine satisfactory as per the agreement.''^ The manufacture of an automobile body according to Specifica- tions involves the personal taste of the purchaser, and the specifi- 67 Daggett V. Johnson, 49 Vt. 34S; 70 Halff Co. v. Jones, — Tex. Civ. Haftford Sorghum Mfg. Co. v. Brush, App. — , 169 S. W. 906 (1914). 43 Vt. 528. ''^ Dochtermann V. & E. Co. v. Fiss, 68 Walker v. Grout Bros. Auto. Co., D. & C. Co., ISS App. Div. 162, 140 N. 124 Mo. App. 628, 642, 102 S. W. 2S. Y. Supp. 72 (1913), appeal dismissed 208 69 Randal v. Mitchell M. C. Co., 263 N. Y. 577 (1913). Pa. St. 425, 106 Atl. 783 (1919). 1246 LAW OF AUTOMOBILES cations must be strictly followed. Recovery cannot be had for sub- stantial performance, as in the case of a building contract.''^ § 1400. Warranted to give satisfaction in particular busi- ness. One who bought an automobile for use in jitney service, 'upon the representation of the seller that "it was in condition to give satisfaction in that service, was entitled to rescind where he was unable to use it, on account of its condition, eight days out of 21 days during which he had possession of it.''' § 1401. Guaranty that automobile will give good service. A guaranty that an automobile "was a first class automobile and would give excellent service and do good work," implied that it was to be handled and driven as automobiles ordinarily are, and given the care and supplied with oil, gasoline, etc., such as are proper to the use and running of such machinery.''* § 1402. Authority of agent to warrant. An agent upon whom authority to sell automobiles has been conferred has implied authority from his principal to make such warranties in respect thereto as the law would imply if the sale were made directly by the principal, and, in addition, has implied authority to make in the name of the principal such warranty of the quality and con- dition of the car sold as is usually and customarily made, in like sales of similar property at that time and place. Accordingly, it has been held that an agent with authority to sell motor trucks at a specified price, had no implied authority to warrant that the tires would run 8,000 miles and carry a SO per cent excess load; it ap- pearing that such warranties were not usual and customary at that time and place.''^ Although an agent has been instructed by his employer not to warrant an automobile, the agent's warranty is good if he has apparent authority to warrant.''® Where the order for an automobile contained a stipulation that, "All cars, tires, and equipments sold by us are guaranteed by the makers, and we do not under any circumstances assume any further responsibility than to assist our customers to get the best adjusting possible under the terms of such guarantees," it was held 72 Cole V. Manville, 149 App. Div. 43, TB Nixon Min. Dr. Co. v. Burk, 132 133 N. Y. Supp. 574 (1912). Tenn. 481, 178 S. W. 1116 (191S). TS Fuller V. Cameron, — Tex. Civ. 'i'e Lewis v. Farmers' & M. Nat. Bank, App. — , 209 S. W. 711 (1919). — Tex. Civ., App. — , 204 S. W. 888 '^^ Conner v. Schnell, — Tex. Civ. App. (1918). — , 210 S. W. 753 (1919). SALES 1247 that the seller's agent did. not have apparent authority to warrant the car for the seller.'''' § 1403. Liability of agent for misrepresentations made on authority of manufacturer. One who acted merely as an agent in- the sale of an auto truck, who had never seen the truck, and who did no more than to represent the truck substantially as it was represented by the manufacturer's warranty printed on the back of the plaintiff's order, was not hable for breach of such rep- resentations.''^ § 1404. Liability credit sales company for misrepresenta- tions of company selling car through it. Plaintiffs desired to purchase an automobile on credit, but the company with which they were negotiating, refusing to sell on credit, had plaintiffs to draw up an application to defendant company, engaged in buying cars from dealers who had found purchasers and reselling to the purchasers on credit. Defendant accepted the application, and entrusted all papers to the first company for proper execution, and the deal was completed in this manner. Held, that the first company was defendant's agent for the sole purpose of seeing that the papers were properly executed, and that defendant was not liable for misrepresentation of the qualities of the car by the first company.'" § 1405. Evidence of failure of tractor to develop rated horse pow^er. A contract of sale was for a tractor of 16 horse power. The defendant (purchaser) testified that he could do a great deal more work in a day with eight mules than he could with the tractor ; that a ten horse power tractor developed a greater horse power than the 16 horse power tractor, and that on wet ground the wheels of the latter tractor would spin around and sink into the ground and stall the machine. 'Held, that the testimony was sufficient to warrant a finding that the tractor was not capable of developing the horse power called for by the contract. The testimony that more work could be done with 8 mules than with the tractor was held admissible, although the horse power referred to is a unit of measurement for energy in steam and gaso- line engines, as the fact was a circumstance to be considered in l"^ Crist V. Turner, 17S App. Div. 664, ''^ Umstead v. Auto Funding Co., — 161 N. Y. Supp. 8S6 (1916). Cal. App. — , 18S Pac. 1011 (1919). 78 McCoy V. Wichita Falls Motor Co., — Tex. Civ. App. ^, 207 S. W. 332 (1918). 1248 LAW OF AUTOMOBILES determining whether the tractor could develop the horse power at which it was rated.*" § 1406. Caveat emptor. It is a general rule that if an article is iSold for any and all purposes for which it is adapted, and not by a manufacturer or producer for a particular purpose, and is open to inspection by the buyer, the doctrine of caveat emptor applies.*^ The following instruction was approved in an automobile case: "You are instructed that the law iiriposes upon one purchasing per- sonal property that degree of caution and diligence in ascertaining the conditions of the property and all matters pertaining thereto which are visible or which an- ordinarily prudent man, in the exer- cise of ordinary prudence and caution would exercise under like circumstances would ascertain, and as to all such matters the law charges the purchaser with constructive notice of such facts only as /by the exercise of such caution and diligence he would probably have discovered." ** The rule of caveat emptor does not apply when there is an express warranty.*^ Nor' does it apply where there is a written warranty that the car is in first-class condition, although the pur- chaser had an opportunity to examine it.** If the seller is informed that the purchaser knows nothing about automobiles and must depend entirely upon the dealer in getting one suitable for his purposes, the purchaser has a right to rely upon the -representations of the seller as to the quality of the machine.*® § 1407. Implied warranty. In the absence of an express war- ranty on an automobile, there is an implied warranty that it is of merchantable quality and reasonably fit for the use for which it is intended.*^ But there is an implied warranty of no more than 80Heer Engine Co. v. Papan, — Arjc. (191S) ; B^ick Motor Co, v^ Reid Mfg. — , 218 S. W. 202 (192Q). Co., ISO' Mich 118, 122, 113 N. W. S91; 81 Woods V. Nicholas, 92 Kan. 2S8, 140 Haryey v. Buick Motor Co., — Mo. Pac. 862 (1914). App. — , 177 S. W. 774 (1915), citing this «2 Biel V. Tolsma, 94 Wash. 104, 161 work. Pac. 1047 (1916). Where non-skid tire chains are sold 83 Schneider v. Fairmon, 128 Ark., 425, by sample there is an implied warranty 194 S. W. 251 (1917). that they are reasonably fit for the 84Klock V. Newbury, 63 Wash. 153, purpose intended. ' Steering Wheel . Co. 114 Pac. 1032 (1911). V. Fee El. Car Co., 174 Mich. 512, 140 86 Tiffany v. Times Square Auto Co., N. W. 1016 (1913). 168 Mo. App. 729, 154 S. W. 865 A warranty is implied when the law (1913). derives it by implication or inference 86 Hart-Kraft M. Co. v. Indianapolis from the nature of the transaction, or M. C. Co., 183 Ind. 311, 109 N. E. 39 the relative situation or circumstances SALES 1249 that the machine shall be reasonably fit for the purpose for which it is sold; absolute perfection is not implied.*' On the sale of an automobile by a manufacture to a dealer there is usually implied a warranty that the machine is reasonably adapted to the purpose for which it is purchased.** The purchaser of an automobile from a dealer or manufacturer, in the absence of an understanding or knowledge to the contrary, may assume that it is new. Hence, it would appear that in such circumstances there is an implied warranty that it is new.** If one buys an automobile on sight after inspecting it and re- ceives the same car that he purchased, there is no such implied warranty.'" Where, however, one has a machine examined as to its condi- tion and the condition of its battefies, he may recover on account of a misrepresentation of the seller's agent as to the~date of its manufacture.®^ An automobile designed for general use is not impliedly war- ranted to be reasonably fit for a special or particular use.*^ Naturally there can be no implied warranty against an obvious defect, nor against one known to the purchaser.®* § 1408. Same— As to second-hand cars. As a general rule there is no implied warranty in the sale of second-hand machines.®* of the parties. And so, being a coUat- 90 Ford Motor Co. v. Osburn, 140 111. eral undertaking only to the contract of App. 633, 643. See also, Peoria Grape sale, a warranty of the same effect. Sugar Co. v. Turner, 175 111. 631; Seitz whether express or implied, will give rise v. Brewers' Refrigerating M. Co., 141 to the same liability. And it being a U. S. 510. part of the consideration of an exe- 91 Munn. v. Anthony, — Cal. App. — , cuted sale necessarily survives accept- 171;Pac. 1082 (1918). ance of the article.' An implied warranty ^ Fairbanks v. Baskett, 98 Mo. App. of fitness will arise if the article is pur- 53 ; Davis' Calyx Drill Co., v. Mallory, chased for a particular purpose of which 137 Fed. 332, 69 L. R. A. 973. the buyer informs the seller, the rule ap- 93 Berger v. Crites, 178 Mo. App. 218, plying especially if the seller is a dealer 165 S. W. 1163; Doyle v. Parish, 110 in the article, or the manufacturer there- Mo. App. 470. of." Hausken v. Hodson-F. Co., — ' ^Illinois: Ramming v. Caldwell, 43 Wash. — , 187 Pac. 319 (1920). 111. App. 175. SI' Harvey v. Buick Motor Co., — Michigan: Bayer v. Winton Motor Mo. App. — , 177 S. W. 774 (191S), Car Co., 194 Mich. 222, 160 N. y. 642 citing this work. (1916). 88 Hart-Kraft Motor Co. v. Indianap- Missouri: Norris v. Reinstedler, 90 olis Motor Car Co., 183 Ind. 311, 109 Mo. App. 626. N. E.'39 (1915). Texas: Joy v. National Exch. Bank, 89 Avery Co. v. Staples Merc. Co., 32 Tex. Civ. App. 398. —Tex. Civ. App. — , 183 S. W. 43 Washington: Fairbanks Steam Shovel (1916). Co. v. Holt, 79 Wash. 361. B. Autos. — 79 1250 LAW OF AUTOMOBILES But if a second-hand automobile is sold as iit for a special purpose known to the seller, there is an implied warranty that it is reason- ably suitable for that purpose.'^ And where it was represented that a truck had been used only a little for demonstration purposes, and $S0 was deducted from the price of $2,100 on that account, the purchaser could recover when the truck proved to be wholly useless.'® § 1409. Warranty when sold for particular use. Where a manufacturer or dealer contracts to supply an article which he manufacturers or produces or in which he deals, to be applied to a particular use, so that the buyer necessarily trusts to the judgment or skill of the manufacturer or dealer, there is an implied war- ranty that it shall be reasonably, fit for the purposes to which it is to'be applied.^ Where a purchaser stated to the seller that he knew nothing about autoniobiles, and would have to rely on the seller, and the latter, having been told the purpose for which the purchaser wanted the miichine, said that he had the car that was suited to the pur- pose, and that he guaranteed it to be in perfect condition for that purpose, there was an express warranty that the car would run, although it was a secondhand car.* Where motors were to be manufactured and delivered under a contract which stipulated the standard to which they were to con- form, and that they were for use in automobiles and were to be fit for the purpose for which they were furnished, the performance of such stipulations was a condition precedent to any obligation on the part of the purchaser to pay for the motors.' § 1410. Automobile not reasonably fit for particular pur- pose as amounting to nonperformance of contract. Where ah automobile company sells a machine upon representations that it is suitable for a certain use, and it is not, aside from the question of warranties, the purchaser may avoid the sale on the ground of nonperformance of contract by the company. A contract of sale provided that the company was to furnish the purchaser one auto-wagon, as shown on a certain page of the 96 Bouchet V. Oregon Motor Car Co., ware v. Victor Auto Mfg. Co., 152 Mo. 78 Oreg. 230, 152 Pac. 888 (1915). App.- 567, 134 S. W. 7 (1911); Berg v. 96 Avery Co. v. Staples Merc. Co., — Rapid Mot6r Vehicle Co., 78 N. J. L. Tex. Civ. App. — , 183 S. W. 43 (1916). 724, 75 Atl. 933 (1910). 1 International Harvester Co. v. For- zstudebaker Bros. Co. v. Anderson, ter, 160 Ky. 509, 169 S. W. 993 (1914); SO Utah 319, 167 Pac. 663 (1917). International Harvester Co. v. Bean, 159 * Staver Carriage Co. v. American fi Ky. 842, 169 S. W. 549 (1914); Boul- B. Mfg. Co., 188 111. App. 634 (1914). SALES 12S1 company's catalog. On that page appeared an illustration of the car, with statements recommending it for the uses for which the purchaser wanted a machine; and this was the car he purchased. The car proved to be practically worthless for such uses, and the court held that the failure of the company to furnish the vehicle described by it as being adapted to such uses, was not a breach of warranty, but was a nonperformance of the contract, and a de- fault of such character as to constitute ground for rescission of the contract of sale.* §1411. Implied warranty excluded by express warranty, when. Wbere the implied warranty of fitness is wholly independ- ent of the matter contemplated by the express warranty, both may staind. This rule is specially applicable to sales made by manufacturers to dealers where the express warranty relates only to some particular quality.'' The two may stand together when not inconsistent. To exclude an implied warranty, the express warranty must be of such a char- acter as to make it apparent that the expressed warranty contained all the obligations assumed by the warrantor.* A mere guaranty to replace defective parts for a stipulated period of time does not necessarily exclude an implied warranty.'' An express warranty that the automobile was first class in all respects and fully worth the value paid for it, excluded any implied warranty of quality.' Where a contract of sale provided that, "the cars are 1912 models, and are to stand sold as they a,re of this date in consid- eration of the special price," it was held that an implied warranty was negatived.^ § 1412. Same— Automobile sold for particular purpose. It has been held that an implied warranty may exist although the machine was sold under an express warranty, a,nd that, too, when the contract of warranty stipulated that it excluded all , implied warranties, where the automobile was sold and purchased for a particular use. It must be borne in mind that the warranty of fit- 4 International Harvester Co. v. Bean, 7 Hart-Kraft M. Co. v. Indianapojis 159 Ky. 842, 169 S. W. S49 (1914). M. C. Co., 183 Ind. 311, 109 N. E. 39 See ante, § 139^. (191S). 5 Hart-Kraft M. Co. v, Indianapolis 8 Mull v. Toucbberry, — S. C. — , 100 M. C. Co., 183 Ind. 311, 109 N. E. 39 S. E. 1S2 (1919). (IQIS) ' 9 Detroit Tr^st Co. v. Engel, 192 SBoulware v. Victor Auto Mfg. Co., Mich. 62, 1S8 N. W. 123 (1916). 152 Mo. App. S67, 134 S. W. 7. (1911). 1252 LAW OF AUTOMOBILES ness for a particular use, which is implied by law where the manu- facturer sells the machine for a purpose made known to him by the buyer thereof relying on the skill and judgment of the manufacturer in selecting the kind of machine adapted thereto, is a warranty which attaches itself to the contract of sale independent of any express representation by the manufacturer of the suitability of the machinery for such use. It attaches by implication of law as a direct result of the communication by the buyer to the manu- facturer of the nature of the intended use. While, if the parties to the contract of sale, in such circum- stances, expressly stipulate against all warranties implied by lay, none will be imposed by the court against their consent, still such stiptilation will not be giveii effect unless fairly made as a part of the contract of sale. "Such a stipulation,, relieving as it does the manufacturer from duties imposed by law, will be conclusively presumed to have been inserted in the contract of sale for the sole benefit of the manufacturer, the beneficiary of such relieving stipu- lation, and effect will not be given to such stipulation unless its inclusion in the contract was fairly procured.",''" In a case in which the court refused to give effect to a stipula- tion against implied warranties contained in a contract of sale, which also contained an express warranty, the court said: "This stipulation was contained in a printed form of order blank or con- tract used by the appellant company. The language of the stipula- tton is extremely technical — 'This express warranty excludes all implied warranties;' its meaning is clear to but few persons. The writing in which such stipulation appears directs appellant com- pany to furnish to appellee an auto-vehicle, a class of machinery concerning which appellee was indisputably ignorant; and the par- ticular style or pattern of auto-vehicle ordered was that selected and recommended by the company's agent; this is undenied. Ap- pellee testified that he explained to the company's agent the pur- poses for which he intended to use the auto-wagon ; . and it is appar- ent that had he understood the full import of the stipulation he would not have signed the order. Under these circumstances, the court will not say that the stipulation against implied warranties was fairly procured to be included in the contract of sale. To hold that it was so included would be to give life to the letter of the con- tract, and render inanimate the spirit thereof." ^^ 1" International Harvester Co. v. Bean, H International Harvester Co. v. Bean, 159 Ky. 842, 169 S. W. 549 (1914). 159 Ky. 842, 169 S. W. 549 (1914). SALES 12 S3 § 1413. Bank through which sale effected as co-warrantor. Where an automobile is shipped with sight draft for the amount of its purchase price attached to the bill of lading, and the whole assigned to a bank, which the purchaser, who ordered the car, pays, and with which it completes the transaction, the bank becomes a co-warrantor, with the manufacturer in respect of all warranties re- lating to the car.^* § 1414. Waiver of breach of warranty. An offer on the part of the purchaser to permit the seller to put the car in order, not accepted by the seller, does not affect the right of the purchaser to rescind the sale for breach of warranty. Nor does the fact that the purchaser had repairs made on the car which did not materially change its condition. ^^ The general rule is that the giving or renewal of a noie, paid for an automobile, with knowledge of a defective condition of the ma- chine, constitutes a waiver of such defects, or of any breach of warranty arising therefrom.^* But where the seller promised, as a consideration for a renewal, that he would make good his war- ranty, and would guarantee that the defects complained of would be completely remedied, it was held that the general rule was not applicable, and that the purchaser had not waived his rights under the warranty.^® The fact that the buyer, after having used the property for some time, pays the purchase money due, or executes his notes therefor, does not operate as a waiver of his right of action for a breach of warranty.^^ In those states in which a return of the machine is not per- mitted, the purchaser's only remedy being a suit for damages for the breach of warranty, any act by the purchaser, under an execu- tory contract of sale, that is inconsistent with the ownership of the machine by the seller, will amount to an acceptance, precluding his right to return the car.^' The payment of part of the purchase price of a second hand automobile, which the seller was to put in running condition, was not necessarily a'n acceptance of the machine.'^* 12 Mobile Auto Co. v. Sturges & Co., 16 International Harvester Co. v. Law- 107 Miss. 848, 66 So. ^205 (1914). yer, — OW. — , ISS Pac. 617 (1916). l»Klock V. Newbury, 63 Wash. 1S3, l^Wirth v. Fawkes, 109 Minn. 2S4, 114 Pac. 1032 (1911). 123 N. W. 661 (1909). 1* Adams v. Overland Auto Co., — 18 Lane v. McLay, 91 Conn. 185, 99 Tex. Civ. App. — , 202 S. W. 207 (19181. Atl. 498 (1916). 15 Lockett V. Rawlins, 13 Ga. App. S2, 78 S. E. 780 (1913). 1254 LAW OF AUTOMOBILES § 1415. Effect of written warranty or contract of sale. Where a written contract of warranty is complete, parol evidence is not admissible to show that there was a verbal agreement con- cerning some of the matters covered by the terms of the written contract.^^ ' Thus, an automobile was sold under a written contract as to its quality and fitness. The contract was plain and unambiguous, and there was no mistake, accident or fraud. It was held that evi- dence as to what the seller said relative to the automobile before and at the time the sale was made was not admissible to show that the contract was different from that expressed in the writing.*" So, where an automobile was purchased with a written warranty iSTockstein v. Pacific K. K. Branch, 33 Cal. App. 262, 164 Pac. 906 (1917) ; Hart-Kraft M. Co. v. Indianapolis M. C. Co., 183 Ind. 311, 109 N. E. 39 (191S); Studebaker Corp. v. Miller, 169 Ky. 90, 183 S. W. 2S6 (1916); Rafferty v: Butler, 133 Md. 430, lOS Atl. 530 (1919). "It is fundamental that, when a contract is reduced to writing, it is conclusively presumed that the written instrument expresses the entire contract between the parties, and that all prior and contemporaneous negotiations, in respect to the subject matter of the contract, are excluded." Ramming v. Caldwell, 43 111. App. 17S; DeWitt v. Berry, 143 U. S. 307, 3lS. Parol evidence is inadmissible to con- tradict or vary the terms of a written contract, which is complete, definite and certain in its terms, in the absence of accident, mistake or fraud. Alabama: Baker v. Cotney, ISO Ala. S06, 43 So. 786. Georgia: Smith v. Green, 128 Ga. 9(3, S7 S. E. 98. Illinois: Boylan v. Cameron, 126 111. App., 432; Levine v. Carroll, 121 111. App. 105. Iowa: Houts v. Sioux City Brass Wks., 134 la. 484, 110 N. W. 166. Louisiana: Jackson Brewing Co. v. Wagner, 117 La. 87S, 42 S. 356. Massachusetts: Smith v. Vose & Sons Piano Co., 194 Mass. 193, 80 N. E. 527. Michigan: Wallace V. Kelly, 148 Midh. 336, 111 N. W. 1049, 14 Detroit Leg. N. 230. Missouri: Rowland v. St. Louis & S. F. R. Co., 124 Mo. App. 605; 102 S W. 19; Laclede Const. Co. v. Moss Tie Co., 185 Mo. 25, 61, 84 S. W. 76. New Hampshire: Hill v. Hill, 74 N. H. 288, 67 Atl. 406. New York: McKee v. Owen, 104 N. Y. Supp. 373; Michels v. Studnitz, 103 N. Y. Supp. 817. Virginia: Trout v. Norfolk & W. R. Co., 107 Va. 576; 59 S. E. 394; Roanoke V. Blair, 107 Va. 639, 60 S. E. 75. "The instrument was complete in it- self, — it showed on its face that it de- noted a complete legal i obligation and contained all the conditions of the con- tract ; it gave the name of the buyer and of the seller, the make and kind of automobile, the price paid, the ac- knowledgment of payment, and the spe- cific warranty 'as to parts same with a new car.' In view of this it is unneces- sary to consider the testimony of the plaintiff, and what inferences, if any,, were to be drawn from it, showing his acceptance of the writing as a final and complete account of the agreement." Glackin v. Bennett, 226 Mass. 316, 115 N. E. 490 (1917). 20 Ford Motor Co. v. Osburn, 140 111. App. 633, 643. SALES 12SS that it was of 25 horsepower, the buyer could not thereafter main- tain an action for breach of an alleged oral warranty that the car would develop 35 horse power. In a case involving a contract of this kind the court in part said: "The contract between the parties was explicit, unambiguous, and complete upon its face. It pur- ports to express the full agreement of th^ parties. Plaintiff is not seeking to recover upon some matter as to which the contract is silent, but upon an alleged departure from the express terms of the contract itself. Where a written contract provides that a car sold is to be of 25 horse power, the law presumes that the parties intended and agreed that such should be the capacity of the car to be delivered, and, in the absence of fraud or deceit, the parties will be held to that agreement and no other." *^ If the written contract is complete and is silent as to warranty, no express warranty can be shown by parol .^* But if the whole contract was not reduced to writing, parol evidence is admissible to prove breach of warra.nty.^' Where a written conditional sale contract of an automobile con- tained no warranty, but stipulated that "this' contract contains all of the agreements between the parties," evidence was not admis- sible to prove an oral warranty of the car.** The defendant purchased a secondhand automobile under the following written agreement: "It is mutually understood that this automobile is guaranteed by the West Side Garage for a period stated below. One year. It is understood and agreed that there are no verbal understandings, promises or agreements made by any agent, salesman or employee pertaining to this order that are not clearly specified therein." It was held, in an action by the 21 Colt V. A. T. Demarest & Co., 159 be* shown by parol. But where a writ- App. Div. 394, 144 N. Y. Supp. 5S7 ing shows on its face that it includes (1913;. the whole agreement of the parties, 22 Bayer v. Winton Motor Car Co., and comprises all that is necessary 194 Mich. 222, 160 N. W. 642 (1916). to constitute a contract, it is presumed 2S Schneider v. Fairmon, 128 Ark. 425, that they have placed the terms of their 194 S. W. 251 (1917). bargain in this form to prevent mis- "When it is apparent that the writing understanding and dispute, intending it contains only a part of the agreement to be a' complete and final statement of and does not purport to set forth all its the whole transaction. And all their terms, or when it is a reasonable infer- stipulations relating to its subject mat- ence that it was not intended to be a ter are to be found within the written- full 'and final statement of the entire mstrument." Glackin v. Bennett,, 226 transaction, the existence of a separate Mass. 316, 115 N. E. 490 (1917). agreement, not inconsistent with its terms 24 winton Motor Carriage Co. v. and relating to some subject on which Blomberg, 84 Wash. 451,. 147 Pac. 21 the written instrument is silent, may (1915). V 1256 LAW OF AUTOMOBILES pla,intiffs to recover on a note given for the purchase price of said automobile, that evidence was not 'admissible to show that oral representations made by the plaintiffs respecting the age of the car and its fitness for use as an automobile, were false.*® Where, however, the written agreement is expressed in short and incomplete terms, parol, evidence is admissible to explain that which per se is unintelligil^le, such explanation not being inconsis- tent with the written terms. Where a contract of sale of an auto- mobile contained the words "as per cat.," after the word "guaran- tee," which was written on the margin after the sale, and the word "guarantee" was the only statement of warranty therein, it was cohipetent to show by oral evidence the nature of the guarantee.^® Where a written contract of sale of an automobile concluded: "Here follow with form of warranty," but the terms of the war- ranty were omitted, parol evidence was admissible to prove, the terms of the warranty.*'' The fact that an order for ^n automobile was in writing, or that a written order contained a warranty that the automobile would be in perfect order when shipped, did not preclude testimony of an oral^ warranty that the machine would run on sandy roads.*^ If the written contract of sale waives all agreements or promises not contained therein, the buyer cannot recover for false represen- tation as to the date of manufacture.*' The contract cannot be varied by the construction placed upon it by one of the parties.'" A contract required by the statute of frauds to be in writing cannot be varied or modified by a subsequent oral agreement.'^ Where a bill of sale contained a statement that a rebate proposi- tion did not apply to the sale of that particular car, such statement was controlling.'* 26 Jones V. Keefe, 159 Wis. S84, ISO 27 white Automobile Co. v. Dorsey, N. W. 9S4 (1915).- 119 Md. 251, 86 Atl. 617 (1913). 26 Craig V. Chicago Coach & C. Co., 28 Boulware v. Victor Auto Mfg. Co., 172 III. Aipp. 564 (1912). 152 Mo. App. 567, 134 S. W. 7 (1911). "When some particular subject is dealt 29 Munn v. Anthony, 36 Cal. App. with in the writing, it is presumed that 312, 171 Pac. 1082 (1918). the complete engagement on that sub- so Stanley v. Weber Imp. Se Veh. Co., ject is contained in the written con- — ■ Mo. App. • — , 190 S. W. 372 (1915). tract. When the plaintiff asked for a 31 Walker v. Overland Automobile Co., warranty one was inserted. By requir- — Mo. App. — , 191 S. W. 1061 (1917). ing a warranty, he is to be understood 32 Ford v. Ford Motor Co., 179 App. as excepting against all terms but such Div. 472, 165 N. Y. Supp. 1001, (1917). as are stipulated in the bargain." Glackin V. Bennett, 22.6 Mass. 316, 115 N. E. 490 (1917). . SALES 1257 The fact that ab order for an automobile was in writing and stipulated that it contained the entire agreenient between the parties, did not preclude proof of an agreement by the seller to keep the buyer protected % liability insurance for a specified time.'* A contract of sale of automobiles contained the following: "It is understood that no verbal or other agreement or promise not clearly specified in this order will be recognized. It is further understood and agreed that this paper, writing, and printing consti- tutes the entire agreement and understanding as between the parties hereto, and it is expressly understood and agreed that it may not be varied, changed, or modified by any verbal understanding or agreement or in any way except in writing by the parties hereto attached or indorsed hereon, and no agent or salesman has any right or authority to alter this agreement in any particular except by written authority from some officer of the Michigan Motorcar Company." Held, that parol evidence was not admissible to ex- plain the terms of the contract.^* An instrument, signed by both seller and buyer, which covered an order for a designated car, a list of the equipment included, the price agreed upon, the time and manner of payment, and providing for delivery at once, was a complete contract, not nierely a receipt, and the fact that it reserved a lien on the car did not subiject it to variation by parol evidence. Evidence as to a parol warranty was not admissible in view of such written contract.*^ § 1416. Fraud may always be proved by parol. Parol evi- dence is always admissible to prove fraud. Hence, the fact that the sale of an automobile! is evidenced by a written contract, which recites that all conditions and representations are embodied therein, will not prevent the purchaser from proving by parol evidence that the sale was induced by fraud.'® 33 Ford V. Stevens M. C. Co., — Mo. but there is no such sanctity about a App. — , 220 S. W. 980 (1920). writing that parties may not be per- 34 Detroit Trust Co. v. Engel, 192 mitted to go back of it and show that Mich. 62, 1S8 N. W. 123 (1916). there was such fraud practiced in the 36 Hebaird v. Cutler, — Vt. — , 99 Atl. procurement of the same as to vitiate 879 (1917). -the writing. By reason of various rep- 36 Tiffany v. Times Square Auto. Co., r^entations which appellee maintained 168 Mo. App. 729, 154 S. W. 86S (1913) ; were false, such, for instance, as that Hetrick v. Gerlinger M. C. Co., 84 Oreg. the truck was a new one, when, in truth, 133, 164 Pac. 379 (1917). it was an old secondhand, worthless pile "It is element/iry that, as a general of junk, they were induced to sign the rule, parol testimony is not admissible order containing the statements herein to vary the terms of a written contract; referred to, stating that this writing 1258' LAW OF AUTOMOBILES The defendant agreed to purchase an automobile from the plain- tiff's agent, and his contract contained the following provision: "The company is not responsible to the purchaser for any under- takings, promises, or warranties made by their representatives be- yond these expressed herein. The undersigned hereby acknowl- edges to have received a full, true, and correct copy of this order, and that no promises, representations, or agreements havfe been made not herein contained. No branch house, manager, salesman, expert or local dealer, unless authorized in writing by an officer of the company, has any authority to waive, alter, or enlarge this contract, or to make any new or substituted or different contract, representation, or warranty." It was held that he was not precluded thereby from showing the fraud of the agent in falsely stating to defendant that the latter's wife had ridden in the car, was well pleased with it, and desired that defendant purchase it, in defense of an action to enforce said contract. This, because it was permissible for defendant to show facts extrinsic of the contract which prevented the contract from ever taking effect as a binding obligation. A principal cannot gain immunity from the consequences of his fraud by the insertion in the contract of a provision such as is contained in the contract in ques- tion, nor can he in that manner .evade responsibility for the fraud of his agents which inured to his benefit.*'' § 1417. Fraud— What amounts to, and its effect. A seller's statement that a, car was new, when it was not, or that a contract, which he secured the buyer to sign was the same in terms as a prior contract between them, when it was not, but was more fav- orable to the seller, amounted to fraud.*' Representations that a car is new and of the current year's model, contained the whole agreement with ref- the other and withheld facts the other erence to warranties, etc. The Uw should know, or has misled him as to never countenanced a rule which would the facts upon which the agreement is deny a man the right to take advan- based, there is no such contract that tage of fraud which had been practiced the law will not permit the light of in- upon him. A contract was never drawn vestigation to be turned on it with a in language strong enough that fraud view of ascertaining whether it is en- in its procurement may not penetrate forceable." Avery Oo. v. Staples Merc, and destroy. The very basic idea of a Co., — Tex. Civ. App. — , 183 S. W. 43 contract is that the minds have met in (1916) an agreement upon the matters, the *'' J. I. Case Thresh. Mach. Co. v. subject-matter of the contract. It pre^ Webb, — Tex. Civ. App. — . 181 S. W. supposes that the parties understand 8S3 (1916). the elements entering into the agree- 38 Knight v. Bentel, — Cal. App. — , roent, and, if one party has deceived 179 Pac. 406 (1919). SALES 1259 if false and inducing a sale, are sufficient to avoid the sale on the ground of fraud.*' Slight damage to the machine occurring while in the possession of the purchaser will not affect his right to rescind the sale for fraud." , However, one is not liable for a misstatement of fact merely be- cause he could have ascertained its falsity by the use of reason- able care and observation.*^ In Kansas, false statements of fact, made by a seller to induce a sale and relied on by the purchaser, are actionable, without regard to whether or not the seller knew them to be false, or acted reck- lessly in making them, or intended to deceive.*^ One who sought to set aside sale of a roadster automobile rep- resented to be of the "latest type and model," on the ground that the representation was false, was not entitled to judgment on a showing that later, models of touring cars of the same make had been announced.*' ' A promise, made by an automobile salesman to a customer in good faith, to sell his car, and his subsequent failure to do so, did not constitute fraud.** A promise by the seller to the buyer of a jitney bus, that if the latter's business was not successful, the former would secure con- tracts for the profitable use of the car, which he failed to fulfil, did not constitute fraud; being a mere promise.*^ § 1418. Same— Instructions. The following instructions were approved: "Fraud is never jpresumed, but must be proved. The law pre- sumes that every person transacts business honestly and in good faith, and the burden of proving fraud is on the party who alleged fraud. In this case the burden of proving fraud is on the plain- tiffs) "Fraud is never to be imputed where the transaction may be fairly reconciled with honesty, and if the weight of evidence is in favor of that conclusion it should always be adopted. "You are instructed that when a party capable of taking care of 39 Conroy v. Coughlon Auto Co., 181 « Bates v. Little & K. Co., 106 Wash, la. 916, 16S N. W. 200 (1?17). 200, 179 Pac. 794 (1919)., ^ *0 Standard Motor Car Co. v. Mc- 44 Locomobile Co. v. Belasco, 32 Cal. Mahon, — Ala. — , 82 So. 188 (1919). App. 329, 162 Pac. 920 (1916). 41 Boyd V. Buick Auto Co., 182 la. 45 Fleming v. Gerlinger Motor Car 306, 16S N. W. 908 (1917). Co., 86 Oreg. 19S, 168 Pac. 289 (1917). 42 Bice V. Nelson, lOS Kan. 23, 180 Pac. 206 (1919). 1260 LAW OF AUTOMOBILES his own interests makes a bad or losing bargain, the law will not, assist him, unless deceit has been practiced, against which ordinary care could not protect him. '"You are instructed that every false affirmation does not amount to a fraud. If, by an ordinary degree of caution the party 'com- plaining could have ascertained the falsity of the representations complained of, then such party is not entitled to a verdict; and in this case, to entitle the parties to a verdict, you must believe from the evidence, not only that the representations complained of were made, but also that they were made under circumstances calcu- lated to deceive a person acting with reasonable and ordinary pru- dence and caution; and in determining this question the jury should consider all the circumstanc!es under which the. alleged representa- tions appear from the evidence to h^ve been made, and further under the circumstances, the representations were such as a per- son of common and ordinary prudence would or should have relied upon, or such as would be likely to mislead such a person." *® § 1419. Remedy of one fraudulently induced to purchase automobile. One i who has been induced by fraud to purchase an automobile may, upon discovery of fraud, rescind the con- tract and recover back the purchase price; or he may stand on the "contract and sue for . damages for the tort committed by the vendor in inducing the sale by fraud. To maintain his right to recover for the fraud, th^ purchaser must show: That false representations of material facts 'were made to him; that he believed them to be true; that his reliance on them was an act of ordinary prudence; and that they influenced him to purchase the car. If any of these elements is unsustained, his whole case fails. The rule of caveat emptor imposes on him, who had an oppor- tunity of inspecting the car before buying it, the duty of making a reasonable examination, and, as to those defects which would have been discoverable to one in his situation who observed rea- sonable care, he cannot complain of the false representations of soundness. Where a vendee, by neglect and indifference to his own interest, permits himself to be overreached, the law affords him no redress, because his own conduct is blameworthy. If he has the opportunity, he must investigate; if the car is before hini and its defects are apparent, he may not rely on the statement of *6Biel V. Tolsma, 94 Wash. 104, 161 Pac. 1047 (1916). SALES 1261 the vendor that the car is sound, but must look for himself. If he can read, he must read the contract of sale before its execution, and may not take the vendor's word as to its contents. In short, the buyer must make reasonable use of opportunity, ahd his fail- ure to do this leaves him remediless, no matter what the conduct of the vendor may have been. However, caveat emptor does not apply to hidden defects which are not open to discovery by a vendee who exercises reasonable care in the examination and testing of the car. As to such defects, he is entitled to rely upon representations of soundness made by the vendor, and the latter will not be heard to say that the buyer should not have believed him.*'' "The general rule seems to be well settled that where the parties deal fairly or at arm's length, the rule of caveat emptor applies^ but when fair dealing is departed from by the vendor making false statements of fact as of his own knowledge, the f9,lsity of which is not palpable to the purchaser, the purchaser has the undoubted right to rely implicitly upon such statements and the principle has no application, and in event the purchaser is entrapped there- by and afterwards calls upon the vendor in a court of justice to make compensation for his deceit, the law will not permit him to escape by urging the folly of' his dupe nor by admitting that he, the seller, was a knave and a scoundrel, and averring the defrauded party was negligent and careless in thus believing and trusting him." " The purchaser of a secondhand automobile properly relied upon the representation of the vendor that the machine had recently been rebuilt, and if the statement proved to be false he could re- cover damages therefor. But he cannot include therein damages on account of being- required to repaint the machine, because he could not have been deceived on this question, the fact that the car had not been recently painted being apparent; nor can he include ^'Morbrbse Inv. Co. v. Flick, 187 is irrevocable, and his remedy thereafter Mo. App. S28, 174 S. W. 189 (191S), is an action for' damages: ♦ * * It is "When a party has been induced to a settled rule of law that, where a party enter into a contract by fraud of the has an election to rescind a contract, he other party thereto he has two reme- must rescind it wholly or not at all. He dies: (1) To rescind arid be reimbursed cannot consider it void for one purpose for the money expended thereunder; or and in force for another." Walker v. (2) he may waive the right to rescind MacMillan, 62 Colo. 136, 160 Pac. 1062 and have an action for damages result- (1916). ing from the fraud. When, however, he *8 Morbrose Inv. Co. v. Flick, 187 Mo. elects to waive the fraud, such election App. 528, 174 S. W. 189 (1915). 1262 LAW OF AUTOMOBILES in his damages the cost of any repairs or defects which existed and were obvious at the time of the purchase. And if the obvious de- fects are of such a nature as to conclusively negative the represen- tation that the car had been rebuilt recently, and to show that the car had not, been taken apart and thoroughly restored to a per- fect condition of repair, as represented, the purchaser would be in the positon of a vendee who fails to make a reasonable use of his opportunity for examination and blindly trusts to an obvidus falsehood. In the case in question the court in part said: "But there is ample evidence to support the conclusion as one of fact that the defects open to discovery on a reasonable examination were those which would be remedied in 'tuning up' the car and were not con- tradictory of the representation that the machinery and other im- portant concealed parts had not been thoroughly overhauled and restored by repairs and replacements to their pristine condition. "For example, there was nothing^ in the -external appearance or in the trial of the car to indicate that the engine had not been thoroughly overhauled and rebuilt, and the purchaser was in the position, known to the, solicitor, of being compelled to rely upon the representation that it had been. The same may be said of the speedometer which appeared to 'be in first-class condition, but had not been rebuilt and was in a worn and defective condition." It is also held that the fact that there is a written contract of sale does not preclude the purchaser from showing such fraudulent representation, if the terms of the written instrument are not in- consistent with the representation.*' The purchaser of ,a secondhand automobile could riot recover for the alleged deceit of the seller in falsely representing the con- dition of the tires, when it appeared that the purchaser had ex- amined the tires before the sale; that at that time he commented upon the fact that the tires were badly worn; that he noticed that the rubber had worn off so that the canvas was in sight; that the seller was not a dealer in nor manufacturer of automobiles, and that he did not have ^.ny expert knowledge respecting the tires; and that information relating to the condition of the tires was available alike, to both parties.^" Where a dealer was fraudulently lead to believe by the seller that a third person would buy a certain automobile if he had 49 Morbrose Inv. Co. v. Flick, 187 Mo. 60 Woods v. Nicholas, 92 Kan. 258, App. S28, 174 S. W. 189 (191S). 140 Pac. 862 (1914). • SALES 1263 it in stocl^, and was thereby induced to purchase it, he was entitled to rescind the sale.^^ Where one has been fraudulently induced to purchase an auto- mobile, the damages claimed by him by reason of the fraud are matters of recoupment and not of counterclaim, in an action brought against him to recover on a note given for the purchase price. The defense, if well founded, should be allowed in ap action by the assignee of the demand evidenced by, the note, es- pecially when it appears that the, assignee purchased with knowledge of the facts on which the defense is predicated.^* The rule is that a defrauded party must disaffirm the fraudu- lent contract at the earliest practicable time after discovery of the fraud. If the buyer of an automobile retains it and continues to use it after discovering the fraud that induced its purchase, he waives the right to rescind the contract of sale.*"' But the mere fact that a purchaser accepts an automobile does not preclude him from recovering damages if it proves to be other than as rep- resented to be.** , It is held that one may have a contract of purchase rescinded for false material representations on which he relied and acted, although they were made in ignorance of their falsity, and the intent of the party making the representations to induce the con- tract is wholly immaterial; the question being whether the other party has been misled and injured by the false representations. ** But it is essential that one suing to recover for fraud practiced upon him by the seller of an automobile, should have believed that the false statements made by the seller were true; but this may be inferred from the fact that he relied upon them.*^ Fraud, in order to be the basis for the recovery of vdamages must have resulted in pecuniary injury to the party complaining; but this rule applies generally to only those cases where the injured party is seeking to recover damages from the wrongdoer as in- demnity against the injury which he haS sustained by reason of the fraud, and has no just application to a case where the fraud 61 Kanaman v. Hubbard, — Tex. Civ. 65 Halff Co. v. Jones, — Tex. Civ. App. — , 160 S. W. 304 (1913). App. — , 169 S. W. 906 (1914); Smith 62Morbrose Inv. Co. v. Flick, 187 v. Columbus Buggy Co., 40 Utali 580, Mo. App. S28, 174 S. W. 189 (191S).. 123 Pac. 580 (1912). 68 Houston Motor Car Co. v. Bra- 66 0heckley v. Joseph Lay , Co., 171 shear, — Tex. Civ. App. — , 158 S. W. 111. App. 252 (1912). 233 (1913). 64 Greissing v. Oakland Motor Co., 204 Mich. 116, 169 N. W. 842 (1918). 1264 LAW OF AUTOMOBILES is relied upon as, a defense to the enforcement of an executory con- tract. In cases such as this, if the false representations relate to a material. fact, the law implies that the defrauded party has suffered an injury sufficient to defeat a recovery. So, where an automobile company's agent falsely represented to defendant that the latter's wife had ridden in a certain car and was pleased with it and desired that defendant purchase it, it was held that the fraud so perpetrated could be set up by defend- ant as a defense to the enforcement of his executory contract to purchase the car. Judgment rendered for defendant on this ground was affirmed.*'' § 1420. Remedy of one fraudulently induced to exchange automobile for mortgage. Where one was fraudulently induced to exchange an automobile for a fourth mortgage on land, he could, upon discovering the fi:aud, foreclose under the terms of the mortgage, and then bring suit for damages for the fraud, in order to recover any deficit left after the foreclosure.** § 1421. Measure of damages for fraudulent procurement of exchange of automobile for land. Where one was fraudulently induced to trade an automobile for a tract of land, by the false representation that another was ready and anxious and financially able to take the land at $1,600 cash, the measure of his damages, after accounting for everything else of value iie received in the transaction, was the difference between the value of the land and the sum for which it was to be taken off his hands .*^ Where he was induced to exchange an automobile by false representations as to the value of the land, his measure of dam- ages was the difference between the contract price and the rea- sonable market value of the land.®" § 1422. Remedy for breach of warranty. Upon the breach of a warranty the purchaser, if the title to the automobile has passed to him, may bring an action to recover damages for such breach, or set up such breach to reduce, pro tanto, the amount of the recovery in a suit brought for the purchase price.®^ "J. I. Case Thresh. Mach. Co. v. 141 Pac. 173 (1914), modifying 91 Kan. Webb, — Tex. Civ. App. — , 181 S. W. 181, 137 Pac. 81. 8S3 (1916). „„ • • 68 Van Vliet Fletcher Auto Co. v. «» Walker v. MacMillan, 62 Colo. 136, Crowell, 171 la. 64, 149 N. W. 861 ^"^ ^^^- ^°" (^^'*)- (1914). 61 Illinois: Mears v. Nichols, 41 111. BSHinchey v. Starrett, 92 Kan. 661, 207, 89 Am. Dec. 381. SALES 1265 If the title has not passed to the purchaser, and the contract is still executory, he may rescind the contract and refuse to ac- cept the automobile, or if he has received it he may return it to the seller or notify him that it is held subject to his order.^*^ It is also held that upon a breach of warranty the buyer may return thp automobile within a reasonable time after discovering the breach, and recover the amount paid for the machine,®' or he may retain it and sue for the damages resulting from the breach of warranty.®* "The law is that if the automobile was worthless for the pur- poses for which it was known to the seller to have been intended, and the buyer, as soon as he discovered this fact, promptly notified the seller and tendered back the automobile, he was entitled to re- scind the contract and to recover back the purchase money paid for it." ®^ But he cannot pursue the remedy of rescission of the contract of sale and' for breach of warranty at the same time; the two being inconsistent.®® And when he is sued for the purchase price of the car he cannot join a defense based upon a rescission of. the eon- Jowa: Alpha Oheckrower Co. v. Bradley, 105 la. 537. Maryland: Queen City Glass Co. v. Pittsburg Clay Pot. Co., 97 Md. 429. Missouri: June v. Falkinburg, 89 Mo. Ai>p. 563. New York: Nash v. WeidenMd, 41 App. Div. 511; Miller v. Zander, 85 Misc. 499, 147 N. Y. Supp. 479 (1914). 62Mmiken v. Skillmgs, 89 Me. 180; Smith V. York Mfg. Co., 58 N. J. L. 242; Norton v. Dreyfuss, 106 N. Y. 90; Mobile Auto Co. v. Sturges & Co., 107 Miss. 848, 66 So. 205 (1914). Where the sale does not require the payment of the purchase price before delivery, the buyer may (1) reject the oar and enter suit for damages for breach of the contract, or (2) pay the price, take the car,, and recover the difference between its value in the con- dition received and the value of the car required by the contract. Mobile Auto Co. V. Sturges & Co., 107 Miss. 848, 66 So. 205 (1914). // there is no competent evidence to prove the warranty, no recovery can be had. Johnson v. Studebaker Corp., B. AutOB. — 80 160 Ky. 567, 169 S. W. 992 (1914). In some states, if the contract of sale. is executed, the purchaser's sole rem- edy for breach of, warranty is an ac- tion for damages. Rimmele v. Hueb- ner, 190 Mich. 247, 157 N. W. 10 (1916) ; Wirth V. Fawkes, 109 Minn. 254,' 123 N. W. 661 (1909) ; Isaacs v. Wanamaker, 71 Misc. 55, 127 N. Y. Supp. 346 (1911). 63 White Automobile Co. v. Dorsey, 119 Md. 251, 86 Atl. 617 (1913) ; Stude-^ baker Bros. Co. v. Anderson, 50 Utah 319, 167 Pac. 663 (1917). The same is true where the seller of a second hand car fails to put it in the condition agreed upon. Lane v. Mc- Lay, 91 Conn. 185, 99 Atl. 498 (1916). 64 International Motor Co. v. Oldfield, 134 Md. 207, 106 Atl. 611 (1919); White Automobile Co. v. Dorgey, 119 Md. 251, 86 Atl. 617 (1913) ; Studebaker Bros. Co. V. Anderson, 5& Utah 319, 167 Pac. 663 (1917). 66Halff Co. V. Jones, — Tex. Civ. App. — , 169 S. W, 906 (1914). 66 Sdmeider v. Fairmon, 128 Ark. 425, 194 S. W. 251 (1917). 1266 LAW OF AUTOMOBILES tract of sale with a counterclaim for damages on account of the breach of warranty, because such defenses are inconsistent.^''' The mere fact that a purchaser accepts an automobile, does not preclude him from maintaining an action for breach of warranty thereafter.®* If, by reason of a breach of warranty or under the terms of the contract of sale, the buyer has a right to return the automobile, and does so, and the seller accepts it, the sale is rescinded; and if the buyer has paid for the car, wholly or in part, he may recover such amount.®' The sale cannot be rescinded for breach of warranty when the automobile was admittedly in proper condition at the time it was purchased and was not materially out of repair when returned to the seller.'"' And if the buyer accepts a defective car with knowl- edge of the defect, and waives the same, he cannot afterwards re- scind on account of such defect.''^ Where the action is for damages oh account of fraud in the sale of an automobile, and it is shown that the machine was worth- less, it is unnecessary in order to recover that it be returned.''^ If, in breach of warranty, an automobile is defective, and the .seller authorizes the purchaser to have repairs and alterations made, promising that he will pay for them, the purchaser, after havirig the repairs made, may recover from the seller the cost thereof on the latter's promise to pay •the same, withojit relying wholly upon the warranty.''' Where rubber tires were warranted to run 3,500 miles and to not "blow out," recovery could be had for the breach of either or both of such provisions.''* , A rescission cannot be had where the automobile, while in the ppssession of the purchaser, has been damaged to such an extent that ,the parties cannot be placed statu quo?^ In such case, evi- dently, the remedy would be for damages for breach of the war- ranty. In an action to recover damages for the breach of warranty of 67 Miller v. Zander, 85 Misc. 499, '^ Avery Co. v. Staples Merc. Co., — 147 N. Y. Supp. 479 (1914). . Tex. Civ.App. — , 183 S. W. 43 (1916). 88 Mobile Auto Co. v. Sturges & Co., 78 Bakersfield & V. R. Co. v. Fair- 107 Miss. 848, 66 So. 20S (1914). banks, M. & Co., 20 Cal. App. 412, 129 89 Lane v. McLay, 91 Conn. 18S, 99 Pac. 610 (1912). Atl. 498 (1916). 74 Federal Rubber Co. v. King, 12 Ga. 70 Woods V. Mclvor, 74 Wash. 3S9, App. 261, 76 S. E. 1083 (1913)'. 133 Pac. ,590 (1913). 76 Burnley v. Shinn, 80 Wash. 240, 141 71 Ridden V. Lynch, 133 N. Y. Supp. Pac. 326 (1914). 468 (1912). SALES 1267 an automobile, it is necessary to prove the purchase of the auto- mobile, the warranty, a breach of the warranty, and damages.''^ If there is no evidence of the damage sustained by the breach of warranty, it is proper to give a peremptory instruction for the defendant." The burden of ptoof is on the buyer to show that the car is not as presented, or in the condition that it was agreed it should beJ" But it is not essential that he show specific defects in particular parts of the car.''® In an action to recover for the breach of a contract to deliver to the plaintiff (purchaser) an automobile in good cdndition, the repairs made on the car for 18 months following its delivery could not be shown on the question of its condition at delivery. Neither could it be shown that the car was of a make of little inherent value, or that it was not worth what it was valued at.*" Representations that an automobile was first class in all respects; that it was a 30 horse power car, and would develop as much or more power than any other 30 horse power car on the market; that if it could not be driven to a stated place on high gear, the sale would be off, such representations being relied on by the purchaser of the car, and it appearing that they were not true, and that the car was practically worthless for operation over the roads that the seller knew it was to be used on, and was defective, were suf- ficient to avoid the sale.*^ The plaintiff was engaged in the business of transporting pas- sengers, baggage, express, and mail between two towns, and negoti- ations between him and defendant's agent resulted in his agree- ing to piirchase an automobile for this work. He knew compara- tively nothing about automobiles, but he informed the agent fully as to the use for which he desired the machine, the character Of the roads and route to be traversed, and one of the defendant''s agents selected the particular type of machine which was supposed to be best adapted to that class of service. The automobile pur- chas.ed failed to perform the service for which plaintiff wanted it, and after endeavoring for some S or 6 weeks to make it do the work, he became convinced that it was worthless, and tendered it 76 Overall v. Chicago Motor Car Co., 79 Lane v. McLay, 91 Conn. 185, 99 183 111. App. 276 (1913). Atl. 498 (1916)'. ', ' ' 77 Overall v. Chicago Motor Car Co., 80 Stanley v. Weber Imp. & Veh. Co., 183 111. App. 276 (1913). — Mo. App. — , 190 S. W. 372 (1916). 78 Lane v. McLay, 91 Conn. 185, 99 81 Halff Co. v. Jones, — Tex. Civ. Atl. 498 (1916). App. — , 169 S. W. 906 (1914). 1268 LAW OF AUTOMOBILES back to the defendant, demanding a return of the consideration given for it. Held, that he was entitled to rescind the sale and recover the purchase price.'^ § 1423. Same— Paying sight draft before opportunity to inspect automobile. Where a manufacturer of automobiles sold a car to the plaintiff, who agreed to accept a draft therefor ac- companying the bill of lading, and the manufacturer drew a sight draft on the plaintiff and sold the draft and the automobile to a bank in the manufacturer's town, and that bank shipped the car to its order to the town in which plaintiff resided and forwarded the draft with the bill of lading attached to a bank in that town, and plaintiff paid the draft and receiving the bill of lading, after which he discovered that the automobile did not conform to the contract, and the bill of lading prohibited an inspection of the 'car before pay- ment of the draft, it was held that the plaintiff was entitled to recover back the purchase price from the bank in the manufactur- er's town, notwithstanding he might also have a cause- of action against the manufacturer for breach of contract.** § 1424. Remedy for breach when sale depends on conditions precedent. Where the sale of an automobile is made on certain conditions precedent, the conditional purchaser has the choice of three remedies in case of breach. First, to reject the car; second, to accept the car and bring a cross-action for breach of warranty when sued for the purchase price; or, third, without bringing cross- action after breach of warranty to use the breach by way of reduc- tion or recoupment in the action by the vendor for the price. Where there was evidence that the car was to have been put in a condition satisfactory to the conditional purchaser, and the latter testified that he rejected the car because it did not meet the contract specifications, it was held that the following instructions should have been given: "You are instructed that if F. agreed to put the automobile truck in a condition satisfactory to H., the con- tract of sale was not complete until it was put in such satisfactory condition and delivered to and accepted by H. in such condition. If it was not put in such condition and delivered to and accepted by H., then there was no sale, and your verdict should be in favor of H." "You are instructed that if you believe from the evidence that 82 International Harvester Co. v. Por- Bean, 159 Ky. 842, 169 S. W. S49 (1914). ter, 160 Ky. 509, 169 S. W. 993 (1914). 83 Munson v. DeTamble Motors Co., A similar holding on a similar state of 88 Conn. 415, 91 Atl. 531 (1914). facts in International Harvester Co. v. ' SALES 1269 the defendant, Finley, failed to put the auto truck in the condition as agreed to by him with the plaintiff, then the plaintiff had a right to rescind the contract, even though he took the machine into his possession to ascertain whether or not it fulfilled the war- ranties." "We think both of these instructions should have been given as presenting concretely the law applicable to appellant's defenses to the counterclaim, as the instruction given by the court, while containing a correct statement of the law, was not sufficiently spe- cific to present these issues." " § 1425. Return of automobile for breach of warranty. The purchaser of an automobile under an implied warranty has a rea- sonable time after receipt to inspect the same. If he finds any defects it is his duty to refuse to accept it, and he must notify the seller of the breach of warranty and return, or offer to return, the machine to him. A failure to do this will estop him from setting up any discoverable defects as a defense to the payment of the purchase price.*^ But a failure to inspect constitutes a waiver of only such defects as were discoverable by a reasonable inspection, and not latent defects. And the purchaser is not bound unless he had an oppor- tunity to inspect.** Thus, where one purchased motors under an implied warranty and did not have an opportunity to inspect the same, or did not discover defects on reasonable inspection, and the same were lost to him and useless in his business, the seller could not recover the purchase price from him.*'' Right to rescind is not waived by returning the car to the seller a number of times for adjustments and repair.** Ordinarily, upon the failure of an implied warranty the buyer must return the article to the seller, but where one bought motors 84 Haddon v. Finley, 12S Ark. 529, 169 In the absence of express warranty, S. W. 3S3 (1916). ^ the vendee, on receipt of the goods, ^^ Illinois: Baker v. TurnbuU, SI 111. must act promptly after an opporunity App. 226. is given to inspect, and reject them Kentucky : International Harvester within a reasonable time. Day Leather Co. V. Brown, 182 Ky. 43S, 206 S. W. Co. v. Michigan Leather Co., 141 Mich. 622 (1918). S33, 104 N. W. 797. Michigan: Williams v. Robb, 104 86 Buick Motor Co. v. Reid Mfg. Co., Mich. 242, 62 N. W. 3S2. ^ 150 Mich. 118, 113 N. W. 591. Missouri: Black River Lumber Co. 87 Buick Motor Co. v. Reid Mfg. Co., v. Warner, 93 Mo. 374, 6 S. W. 210. 150 Mich. 118, 113 N. W. 591. Oregon: Fleming v. Gerlinger Motor 88studebaker Bros. Co. v. Anderson, Car Co., 86 Oreg. 195, 168 Pac. 289 SO Utah 319, 167 Pac. 663 (1917). (1917). 1270 LAW OF AUTOMOBILES and transmissions, for use in automobiles, gave them a proper test and did not discover defects until they had been installed in auto- mobiles and sold to customers, he was not required to return them in order to recover damages from the seller for the defects." In rescinding the contract of sale the purchaser must return or offer to return everything of value which he received under the contract, upon condition that the seller do likewise, unless the other is unable or positively refuses to do so.'" The fact that the seller is unable (o return exactly what he received under the contracj; does not affect the right of the pur- chaser to rescind. So, where a used car had been traded as part of the purchase price of a new car, the fact that the seller sold the used car immediately, did not deprive the purchaser of the new car of the right to rescind. In such a case the seller must make good in damages the value of the used car, which he is unable to restore.'^ In Utah the machine must be returned in practically as good condition as when received, unless the changed condition is due to the breach of warranty.®^ A mere showing that the automobile had no market value is not sufficient excuse for failiire to return it for breach of warranty. To justify a failure to return on the ground that it had no value, it must be shown that it had no intrinsic value, as well as no market value.®' § 1426. Sufficiency of tender of automobile. The return of the automobile to the garage where it was delivered, and where the seller kept it at the time of the sale, and the delivery to the seller of a -written order for it, constituted a sufficient tender of the car, upon the purchaser rescinding the sale for breach of warranty. "When the article desired to be tendered is of such bulk and .weight that it cannot be taken into the bodily presence of the person to whom it is desired to tender it, it may be deposited in some public warehouse, or with some concern making it a business to store and keep such articles, and give the person to whom it is desired to be 89 Buick Motor Co. v. Reid Mfg. Co., 91 United Motor S. F. Co. v. Callander, ISO Mich. 118, 113 N. W. S91. See also, 30 Cal. App. 41, 1S7 Pac. S61 (1916). Stillwell & Bierce Mfg. Co. v. Phelps, 92 Summers v. Provo F. & M. Co., 130 U. S. S20, 9 Sup. Ct. 601, 32 L. ed. — Utah — , 178 Pac. 916 (1919). 103S; Fisk v. Tank, 12 Wis. 276, 78 Am. 9SFliint v. Newton, — Tex. Civ. App. Pfc. 737, — , 136 S. W. 820 (1911). 90 United Motor S. F. Co. v. Callan- der, 30 Cal. App. 41, 1S7 Pac. S61 (1916). SALES 1271 tendered a written order on the depository for its delivery. Of course the charges for storing or keeping the article, if any, must be paid up to the time the order of delivery is given, and for such reasonable time thereafter as may be necessary to remove the article.** The fact that the car is in a dismantled condition when ten- dered is of no consequence, where it was dismantled at the re- quest of the seller.'^ § 1427. Rescission of contract must be in reasonable time. Where the purchaser of an automobile has a right to rescind the contract of purchase, whether for breach of warranty or for fraud, it is incumbent upon him to exercise that right within a reason- able time.^ What is a reasonable time within which the offer to rescind may be made may depend upon a number of circumstances, and in 'each particular case the circumstances may be different.^ One matter to be considered is that it is the duty of the pur- chaser to make a reasonable and conscientious effort to make the machine do its work.* The question is usually, though not always, for the jury.* Where there is no conflict in the evidence as to the MKlock V. Newbury, 63 Wash. 1S3, 114 Pac. 1032 (1911). SSKlock V. Newbury, 63 Wash. 153, 114 Pac. 1032 (1911). 1 California: Knight v. Bentel, — Cal. App. — , 179 Pac. 406 (1919). Iowa: Mattauch v. Riddell Auto Co., 138 la. 22, lis N. W. 509. Kentucky: International Harvester Co. V. Bean, 159 Ky. 842, 169 S. W. 549 (1914). Massachusetts: Collins _ v. Skillings, 224 Mass. 275, 112 N. E. 938 (1916). Michigan: Bayer v. Winton Motor Car Co., 194 Mich. 222, 160 N. W. 642 (1916). Minnesota: Wirth v. Fawkes, 109 Minn. 254, 123 N. W. 661 (1909). New York: Miller v. Zander, 85 Misc. 499, 147 N. V. Supp. 479 (1914). Utah: Smith v. Columbus Buggy Co., 40 Utah 580, 123 Pac. 580 (1912). He need not rescind immediately upon discovery of fraud or defect, but must do so within a reasonable time. Smitli* V. Columbus Buggy Co., 40 Utah 580, 123 Pac. 580 (1912). . "To enable the plaintiff to recover back his purchase money, he must have notified the defendaijit within a reason- able time of his election to rescind, and must have returned, or have offered to return, the automobile to the defendant in substantially as good condition, as it was when transferred to him." Collins V. Skillings, 224 Mass. 275, 112 N. E. 938 (1916). 2 Conroy v. Coughlon Auto Co., 181 la. 916, 165 N. W. 200 (1917) ; Inter- national Harvester Co. v. Bean, 159 Ky. 842, 169 S. W. 549 (1914) ; Cunningham V. Wanamaker, 217 Pa. St. 497, 66 Atl. 747; Leaming v. Wise, 73 Pa. St. 173; Smith v. Columbus Buggy Co., 40 Utah 580, 123 Pac. 580 (1912). 8 International Harvester Co. v. Bean, 159 Ky.*842, 169 S. W. 549 (1914). 4 Lane v. McLay, 91 Conn. 185, 99 Atl. 498 (1916); Smith v. Columbus Buggy Co., 40 Utah 580, 123 Pac. 580 (1912). 1272 LAW OF AUTOMOBILES facts, and it appears that the time which has elapsed between a knowledge, on the part of the buyer, of the defects constituting the breach of warranty, and the time of the attempted rescission is so great that under no circumstances appearing in the evidence the jury would be warranted in holding the rescission to be within a reasonable time, the court may decide the question as matter of law, and deny plaintiff relief on the theory of rescission." By an undue delay in tendering the automobile to the seller and rescinding the sale, the contract would stand affirmed.® It is held, however, that failure of a purchaser to rescind within a reasonable time for frdud, and his inability to restore the statu quo, do not affect his right to sue for damages for the fraud.'' The time within which the right to rescind must be exercised commences to run at the time the fraud or defect is discovered. But ,the buyer must use reasonable diligence to ascertain the facts, especially if there is anything to put him on inquiry.* Where complaint regarding the condition of a car was promptly made by the purchaser to the seller, and thereafter the former held the car a reasonable time, during which the seller was at- tempting to regulate and repair it, it was held that the purchaser had not, as matter of law, waived his right to rescind the sale for breach of warranty.' Where an automobile truck was sold under a guaranty against defective workmanship and material for one year, failure to repudi- ate the sale immediately upon discovery that the truck was de- fective was not a waiver of the purchaser's right to do so, he having repudiated the sale within the year.^° A' buyer who stopped payment on a post dated check, which he had given so that he could stop payment in case he did not secure a clear title to the automobile, and returned the automo- bile to the seller, completely rescinded the sale.^^ Where the purchaser retained the car for a year, but com- plained of a defect that rendered it worthless, and during a large part of the time the seller was attempting to remedy the defect, 6 Mattauch v. Riddell Auto. Co., 138 9 Fulton Bank v. Mathers, 161 la. la. 22, lis N. W. 509; Bayer v. Winton 634, 143 N. W. 400 (1913). Motor Car Co., 194 Mich. 222, 160 N. 10 Avery Co. v. Staples Merc. Co.f — W. 642 (1916). Tex. Civ. App. — , 183 S. W. 43 (1916). 6 L'eaming v. Wise, 73 Pa. St. 173. H Alchlan v. MacDonald, — Cal, App. 7 Boyd V. Bulck Auto. Co., 182 la. — , 181 Pac. 77 (1919). 306, 165 N. W. 908 (1917). ' 8 Smith V. Columbus Buggy Co., 40 Utah 580, 123 Pac. 580 (1912). SALES 1273 the purchaser did not, as matter of law, waive his right to re- scind.^^. A statute requiring the purchaser to give the seller , notice pf breach of warranty within a reasonable time does not apply where the machine was returned to the seller a number of times for re- pairs; the seller being thus apprised of the trouble the buyer was having with the car.^* If the contract of sale specifies the time within which the car must be returned, it should be returned within the time stated; by acceptance of the car by the seller after such time and with- out complaint, the provision is waived.^* § 1428. Same— Illustrative cases. Alabama. One could not set aside the purchase of an automobile on the ground that he was sold a second-hand car for a new one, when he did not offer to return it, but paid the balance of the purchase price after such discovery.^* California. Delay of nearly a month in discovering that a car purchased as new wa^ an used car, it having been nevi^ly painted and the seller being a reputable firm, was not unreasonable.^® Iowa. Where a buyer did not discover the fraud practiced on him until nine months after acquiring the car, but made no use of the car thereafter, and tendered it back within a week and then brought suit, there was no unreasonable delay .■^''' Kentucky. Where ohe operating a transfer route on country roads purchased an automobile for use in that business, and com- menced its use on May 1 and did not notify the company of his intention to rescind the sale on account of breach of warranty until the following July 8, it was held that he acted within a 12 Case Thresh Mach. Co. v. Rachal, was new. He was about to become the — Tex. Civ. App. — , 194 S. W. 418 agent for the sale of this type of car, (1917). and the evidence shows that he made 13 Rittenhouse-W. Auto. Co. v. Kiss- efforts to carry out the objects of his ner, 129 Md. 102, 98 All. 361 .(1916). agency. Dealing with a reputable firm i*Ford v. Ford Motor Co., 179 App. and having no cause for distrusting its Div. 472, 165 N. Y. Supp. 1001 (1917). members, and being about to engage in IB Bonds V. Marsh, — Ala. App. — , business with them, he would naturally 79 So. 631 (1918). and might, we think, justifiably accept 16 "Lapse of time alone is not of itself their statements at face- value." United conclusive of laches. The circumstances Motor S. F. Co. v. Callander, 30 Cal. under which the car was received and App. 41, 1S7 Pac. S61 (1916). ' the conduct of the purchaser in using it l'' Conroy v. Coughlon Auto Co., 181 are of ;more consequence. Defendant re- la. 916, 16S N. W. 200 (1917). ceived the car under warranty that it 1274 LAW OF AUTOMOBILES reasonable time, it appearing that he gave the machine a fair and thorough test; that on two occasions, in response to his complaints, the company sent experts to examine and try to make the macffine serve the purpose for which it was purchased, but without avail; and that when he finally became convinced that it was worthless for his ; use, he notified the company that it was subject to its orders. In this respect the court sa.id: "It was a duty which appellee owed to the appellant company to try to make the machine do the work for which he purchased it, and unless he held it such a length of time as would indicate that he was satisfied with it, or that he was merely retaining it for the service he was deriving from, it, such holding was not unreason- able. The evidence shows that he did not use it 'every day of the time he retained it, for he was working on it and trying to get it into shape to serve his purposes; that he was in good faith giving it a fair trial and not merely keeping it for the use he was making of it, for it was a losing proposition from the beginning, the trouble, repairs and upkeep exceeding the profit derived from its use." ^* Maryland. Where a purchaser became aware of defects in his automobile a few days after it came into his possession, and he used it four months before it was fully paid for, and continued to use it about two months thereafter, it was held that he had forfeited his right to repudiate the sale and return the car.^' Massachusetts. Where the plaintiff retained an automobile for more than a month after knowing that it was not in running order, as warranted by the defendant, and during such time did not ten- der or offer to return the car, but merely stated his willingness or a proposal to return it, he forfeited his right to rescind the sale.^" Michigan. Where the purchaser kept a car two years after dis- covering its exact condition, treating it as his own, he could not then rescind the contract.*^ Oregon. A motor truck was purchased February 3, 191S, and suit for cancellation of the contract of sale was brought on March 20, 191S. In the few weeks intervening between these dates the plaintiffs twice returned the truck to the defendant on the defend- ant's promises to repair it, and whatever delay took place in the repudiation of the contract was induced by the defendant's prom- 18 International Harvester Co. v. Bean, 20 Collins v. Skillings, 224 Mass. 27S, 1S9 Ky. 842, 169 S. W 549 (1914). 112 N. E. 938 (1916). 19 White Automobile Co. v. Dorsey, 21 Bayer v. Winton Motor Car Co., 119 Md. 251, 86 Atl. 617 (1913). 194 Mich. 222, 160 N. W. 642 (1916). SALES 1275 ises to repair the truck and to make it good. Plaintiffs complained continually that the car was unsatisfactory and when finally ap- prised of the history of the truck they promptly disaffirmed and brought this suit. It was held that plaintiffs acted with sufficient promptness.^* Pennsylvania. Plaintiff purchased two automobiles from de- fendant; after they were delivered and paid for he found they were unsatisfactory, and reported the same to the defendant, who or- dered them sent back, so they tould be made satisfactory. They was sent back and subsequently a test was made, which plaintiff declared to be unsatisfactory, and he demanded a return of his money which was refused. The automobiles were left in the hands of defendant, and thereupon plaintiff wrote a, letter to defendant in which he stated he had left with him the automobiles to sell for . plaintiff's account and risk for not less than the sum stated and plaintiff further assumed all risks in case of loss or damage to the automobiles by fire. Several months afterward he again wrote defendant several letters telling him to sell the vehicles for the best price that could be got. for them, and as quickly as possible. Subsequently defendant notified plaintiff that he had an offer for liie automobiles which was about one-third the price plaintiff had paid for them. No response was made to this letter, and the vehicles continued to remain in defendant's possession until tfiree years after the original sale, when suit was brought to recover the purchase money. Plaintiff was denied recovery.*' South Dakota. Where a machine was sold under a contract providing that if it could not be made to work well it should be returned immediately, a delay of 40 days with knowledge of the defects of the machine barred the purchaser's right to return the machine.** Texas. Where the buyer of a motor truck used the sanie 6 or 7 22 Hetrick v. Gerlinger M. C. Co., 84 parties substantially live up to and ful- Oreg. 133, 164 Pac. 379 (1917). fil their agreements wiyi relation to 28 Cunningham v. Wanamaker, 217 Pa. such contracts. Ihis contract specifi- St. 497, 66 Atl. 748. cally provides thatjf the engine could 24Purcell V. International Harvester not be made to work well, the purchaser Co., 37 S. D. S17, 159 N. W. 47 (1916). shall immediately reti^rn it to the agent "Where the purchaser has the machin- from whom it was purchased, and the ery and the purchase price both in his failure to so return the engine as above hands, the company that manufactured si^ecified shall operate as an acceptance it, having sold it on time, has nothing to of it and fulfillment of said warranty." protect it but the fulfillment of the con- Purcell v. International Harvester Co., tract. Good faith requires that both 37 S. D. 517, 159 N. W. 47 (1916). 1276 LAW OF AUfOMOBILES months, and negligently damaged it, he could not rescind the sale • on the ground of fraud.'^^ By keeping and using the car for six weeks after knowing that its defects could not or would not be cured by the seller, the buyer was held to have waived his right to rescind the sale.*^ § 1429. Parties defendant in breach of warranty action. Where dealers pretended to act as agents of the manufacturer in the sale of a truck, but in reality they were the true vendors, they were the proper parties defendant in an action for breach of warranty. Nor was the manufacturer bound by a contract to re- place defective parts, to which it was not a party .^''' § 1430. Notice of rejection required after first use— Demon- stration as "first use." A contract of sale of a tractor provided that, if within six days from its firpt use the tractor should fail to fulfil the virarranty, the purchaser should notify the seller by registered letter and by telegram. When the tractor arrived the seller's demonstration agent took it to the buyer's farm and worked with him six days in testing it. The buyer on the next day noti- fied the seller in the required manner, that the tractor did not develop the horse power provided , for in the contract and that he would not accept it. Held, that this was a sufficient compliance with regard to notice, as. the period of demonstration constituted the "first use" of the tractor, and as the notice was given the next day after the demonstration was finished, it was necessarily within the six days.^' § 1431. Buyer exercising ownership over car as affecting right to rescind. Where the car was in custody of the sheriff, the act of the purchaser in removing certain parts to be used as evidence at the trial did not amount to an exercise of ownership over the car by him so as to preclude his right to rescind; the car being in no way damaged thereby, and the piirchaser not being prevented thereby from delivering the car to the seller.*' § 1432. Right to rescind for structural defect which seller guaranteed to jepair. Under a contract of sale providing that the seller "shall keep said car in repair for the term of one year 26 Alamo Auto Sales Co. v. Herms, — ner, 129 Md. 102, 98 Atl. 361 (1916). Tex. Civ. App. — , 184 S. W. 740 (1916). 28 Heer Engine Co. v. Papan, — Ark. 26 Houston Motor Car Co. v. Bra- — , 218 S. W. 202 (1920). shear, — Tex. Civ. App. — , 1S8 S. W. 29 United Motor S. F. Co. v. Callan- 233 (1913). der, 30 Cal. App. 41, 157 Pac. S61 27 Rittenhouse-W. Auto Co. v. Kiss- (1916). SALES 1277 from this date on account of any imperfection in the construction of said car at the time of delivery to said purchaser," the purchaser could not rescind the sale on account of a structural defect in the pump shaft; the contract, as quoted, giving the seller a reason- able opportunity to make good the defect. "It would seem in- credible that either party contemplated that the purchaser might use a car 364 days, and run it perhaps 10,000 miles, then rescind and turn the car back upon the seller, upon discovery at that time that when the car was delivered there was a structural imperfec- tion. Concealment of such a defect might easily lead to fraud." The court also attached importance to the fact that the clause in questioned commenced with the words, it is "understood and agreed between both parties." "The only way," said the court, "in which both parties could act would be for the buyer to give notice of the defects and the seller to repair. In other words, the defend- ant could not keep his part of the contract, unless the plaintiff was required to give notice, on his part, of the defects claimed." *" § 1433. Measure of damages for breach of warranty. Where the purchaser retains an automobile, the measure of damages for breach of warranty is the difference between its value if it had been as warranted and its actual value.'^ 30 Berman v. Langley, — Me. — , 109 ence between the purchase price and Atl. 393 (1920). the actual value at the time of pur- 81 California: Munn v. Anthony, 36 chase. Bedford v. Hoi-Tan Co., 143 Cal. App. 312, 171 Pac. 1082 (1918). App. Div. 372, 128 N. Y. Supp. S78 Illinois: Overall v. Chicago Motor (1911) ; Ceylona Co. v. Selden T. S. Co., Car Co., 183 111. App. 276 (1913). — Ga. App. — , 97 S. E. 882 (1919). Kentucky: Riglesberger v. Katter- The measure of damages for breach of John, 180 Ky. 139, 201 S. W. 459 (1918) ; contract to deliver an automobile in Studebaker Corp. v. Miller, 169 Ky. 90, good condition "is the difference in the 183 S. W. 2S6 (1916). value of the car as delivered to plain- Maryland: International Motor Co. tiff and what it would have been had v. Oldfield, 134 Md. 207, 106 Atl. 611 it been in first-class shape, not to ex- (1919) ; Rittenhcmse-W. Auto Co. v. Kiss- ceed the reasonable cost of putting it in ner, 129 Md. 102, 98 Atl. 361 (1916) ; first-class shape, together with loss of White Automobile Co. v. Dorsey, 119 the use of the car, if any. If the dam- Md. 251, 86 Atl. 617 (1913). age equals or exceeds the amount due Mississippi: Mobile Auto Co. v. Stur- on the mortgage notes, the finding should ges & Co., 107 Miss. 848, 66 So. 205 be for plaintiffs; but, if less, then the (1914). jury should find defendant's interest in New York: Isaacs v. Wanamaker, the property to be the amount due on 189 N. Y. 122, 81 N. E. 763; Miller v. the notes less such damage." Stanley v. Zander, 85 Misc. 499, 147 N. Y. Supp. Weber Imp. & Veh. Co., — Mo. App. 479 (1914). — , 190 S. W. 372 (1916). The measure of damages is the differ- 1278 LAW OF AUTOMOBILES Consequently, there can be no recovery of damages for breach of warranty of an automobile in the absence of evidence tending to show either its market or reasonable value.*^ And the burden is on the purchaser to show the difference between the value of the car had it been as warranted and its actual value.'* The price paid for the machine is strong prima facie evidence of its value if it had been as warranted.** The measure of damages for breach of warranty is the differ- ence between the puirchase price of the car and its market value on the day of its purchase.'* Upon breach of warranty of an axitdmobile, and tender of the car on that account by the tsuyer to the seller, the buyer is entitled to recover the entire consideration paid for the car; and this regard- less of the fact that the seller may have divided his commission on the sale with a third person who assisted in effecting the sale.'® The purchaser is also entitled to recover as special damages any extra expense in having repiairs done on the automobile, which he was induced to have done at the instance and request of the seller, in an effort to riiake the car come up to the warranty.*'' But the purchaser, ^retaining the machine, cannot recover, in ad- ditioft to the measure stated, for, money expended and time lost by him in attempting to make the car operate as it should. The car in such case being his, to allow such items in addition to the differ- ence in its actual value and its value had it been as warranted, would be to allow double damages to that extent." The fact that the buyer, who accepts the car, takes a second- hand car in part payment in disposing of the same, does not affect the rule as to measure of damages. The value of the car ordered is known, and it is only necessary to determine the value of the car that was delivered^ at the time of delivery — the difference be- 82 Burnley v,. Shinn, 80 Wash. 240, 141 "In the absence of special circum^ Pac. 326 (1914). stances, the measure of damages for 33 Rittenhouse-W. Auto Co. v. Kiss- breach of, warranty, as to tte quality or ner, 129 Md. 102, 98 Atl. 361 (1916). capacity of machinery sold, is the dif- 34 White Automobile Co. v. Dorsey, ference between the contract price and 119 Md. 2S1, 86 Atl. 617 (1913). the actual value, with such special dam- 36 Cook V. Robinson, 19 Ga. App. 207, ages which were in contemplation of the 91 S. E. 427 (1917). parties." Underwood v. Coburn Motor 86Halff Co. V. Jones, — Tex. Civ. Car Co., 166 N. C. 458, 82 S. E. 8SS App. — , 169 S. W. 906 (1914). (1914). 87 Howe Machine Co. v. Reber, 66 38 Studebaker Corp. v. Miller, 169 Ky. Ind. 498'; Underwood v. Coburn Motor 90, 183 S. W. 256 (1916). Car ^Co., 166 N. C. 458, 82 S. E. 855 (1914). SALES 1279 ing the measure of damages — and it is inconsequential what is done with the car thereafter; except its future disposition may be shown as bearing on its value at the time of delivery.*^ The general rule is that it is the duty of a party iiijured by a ireach of contract to make a reasonable effort to avoid damages therefrom; and such damages as might by reasonable diligence on his part have been avoided are not to be regarded as the natural and probable result of the act of the wrongdoer. Where the defendant agreed to sell plaintiff an automobile and receive as part payment therefor an automobile of the plaintiff at $300, and defendant called for and took the latter machine from the alley in the rear of plaintiff's residence, and an hour or two later telephoned the plaintiff that it would not. accept the machine unless plaintiff agreed that it should be taken at $200, which the plaintiff declined, and defendant returned the machine the same day to the place in the alley from which it was taken, where it remained all winter and then disappeared, the defendant, when sued for a breach of its contract, was held to be entitled to an in- struction embodying the rule of law above stated.*" If, however, the article is sold for a certain specific purpose, and the seller knows it, and warrants it to be of a particular quality and to be suitable for the purposes for which it is sold, if, it is not as warranted, and articles of the kind and quality contracted for can- not be then purchased in the open market, the value of the article for such special purpose is the basis of estimating damages. If the special purpose for which the article is to be used is a resale, or the production of some other article to be sold — ^as where motors are sold to a manufacturer of automobiles to be placed in such ma- chines, — then the profits that would ha,ve been made thereby are proper elements of damage in case of a breach of the warranty; provided it be established by the evidence to a reasonable cer- tainty that the same would have been sold as conternplated and how much profit would have been realized from the transaction.*^ § 1434. Measure of damages for failure to replace defective parts under guaranty. The measure of damages for breach of guaranty to supply without charge any part of an automobile that is shown to be defective, is the cost of supplying such defective parts plus the loss or damage shown to be the natural and proximate 39 Mobile Auto Co. v. Sturges & Co., *l Staver Carriage Co. v. American & 107 Miss. 848, 66 So. 205 (1914). B. Mfg. Co., 188 111. App, 634 (1914). 40 Nelson v. Buick Motor Co., 183 111. App. 323 (1913). 1280 LAW OF AUTOMOBILES result of the breach. The purchaser cannot return the car because it "failed utterly to fulfil the purpose for which it was sold," and recover under such guaranty the difference between the actual value of the car at the. time of the alleged breach and what the value of the car would have been if it had been made to run properly, plus the expenses incurred by plaintiff on account of defendant's failure to replace any defective parts, as this is an attempt to broaden a particular and limited guaranty into a general warranty of the fit- ness of the car.*^ § 1435. On rescission of sale and refusal of seller to accept, right of buyer to recover storage and insurance charges. This is an action brought by the plaintiff, a purchaser, having rescinded a contract for the purchase and sale of an automobile, having offered to return the automobile to the seller, who refused, to accept it, having instituted an action for the recovery of the pur- chase price and recovered judgment, and having collected the amount of the judgment. The amount sought to be recovered in this action is the amount expended by the plaintiff for the storage of the. automobile and for premiums of insurance protecting the same against the perils of fire and theft. The answer consists of a general denial and an allegation that the proceedings and judg- ment in the» New York Supreme Court, in which judgment was entered, and the satisfaction of said judgment, is a bar to a recov- ery in this action. The defendant offered no evidence at the trial. Held, that the plaintiff was entitled to recover, "In the present case the plaintiff tendered the automobile to the defendant, who refused to receive it, and the plaintiff thereupon, having no garage of her own, stored -the automobile in a garage, and insured it against the perils of theft and fire, and notified the de- fendant of such action, and that the defendant would be held liable for the expense incurred. In so doing the plaintiff sought to make the defendant's loss as light as possible, consistent with the exer- cise of due care and the proper regard for the right of the defend- ant in the automobile. Under the circumstances it would seem that the defendant is chargeable with the amount expended for storage and insurance." *' *2Rossbach v. Tincher Motor Car 'Where the buyer is entitled to re- Co., 178 III. App. SS9 (1913). scind the sale and elects to do so, if the 43 Gant V. Cutting-Larson Co., 110 seller refuses to accept an offer of the Misc. 484., 181 N. Y. Supp. 581 (1919). buyer to return the goods, the buyer "The Personal Property Law (Laws shall thereafter be deemed to hold the 1909, c. 4S [Consol. Laws, c. 41] § ISO, goods as bailee for the seller, but sub- subd. S) provides: ject to a lien to secure the repayment SALES 1281 § 1436. Evidence of condition or value of automolnle. A witness properly qualified may give an opinion as to the value of an automobile at the time and place of its delivery to the pur- chaser.** The plaintiff in an action to recover for the breach of warranty in the sale of an automobile body, testifying that he knew the cost of such bodies, what they sold for on the market, that he had been familiar with them for 10 years, and had examined and priced nearly every make in the city of its delivery, is a competent wit- ness to testify as to the value of the body.*^ Experts who had examined a truck, for breach of warranty of which plaintiff was suing, were properly allowed to describe the mechanism of the truck, and to state as their opinion that it was imperfect in its motor and transmission system which accounted for the frequent breakage and early wearing out of the parts.*^ In an action for breach of a warranty that the car was guar- anteed against any defect in manufacture or workmanship, evi- dence that the car was defective in design and plan of construc- tion, and that the life of an ordinary car was at least two years, was incompetent.*'' §1437. Proof of market value of automobile by experts. Automobile experts engaged in the automobile business in one city, and familiar with automobile values there and in that sec- tion of the country, but having no specific knowledge of market conditions in another city, the value of an automobile in which place was in issue, were properly allowed to testify regarding such values. In view of the easy means of communication and transpor- tation between the two cities, the court said that, "it seems fair to believe that the opinion of these experts was of some value, and the reception of this testimony was within the discretion of the court." ** of any portion of the price which has ** Overall v. Chicago Motor Car Co., been paid, and with the remedies for the 183 111. App. 276 (1913). enforcement , of such lien allowed to an 46 Overall v. Chicago Motor Car Co., unpaid seller by section 134.'" 183 111. App. 276 (1913), "The statute therefore, seems to be 46 Rittenhouse-W .Auto Co. v. Kiss- contrary to the principle, if such there be ner, 129 Md. 102, 98 Atl. 361 (1916). as claimed by the defendant, that one 47 Warren v. Renault F. Selling Branch, cannot make himself the creditor of an- 195 111. App. 117 (1915). other without the consent of the lat- 48 Schall v. Northland Motor Car Co., ter." Gant v. Cutting-Larson Co., 110 123 Minn. 214, 143 N. W. 357 (1913). Misc. 484, 181 N. Y. Supp. 581 (1919). See ante, § 985. B. Autos. — 81 1282 LAW OF AUTOMOBILES § 1438. Right of purchaser to recover rebate offered by company provided certain number of cars were sold. The plaintiff purchased an automobile under a contract of sale recit- ing that it contained the whole agreement and that it could not be changed by any other understanding. The defendant, maker of said car, issued a circular to the public during the same fiscal year (1914-1915), which recited: "N6w, with the single provision that we 'sell 300,000 cars, we propose to give to all retail buyers of Fords, between August 1, 1914, and August 1, 1915, between twelve and eighteen millions of dollars, to be distributed at the end of the selling year August 1, 1915." Held, that plaintiff was entitled to recover the proportionate amount ($50) of said sum due him as a purchaser of a car that year. The court said: "The number of cars was sold,- and, under the plan of distribution, each purchaser was entitled to $50 as his share of the profits of the business. This profit-sharing plan did not relate to the contract of sale, as the contract was complete in itself, and related only to the sale of the car and the price to be paid, which agreement has been fully executed. The $50 was not intended as a reduction of the price of the car, but as part of an advertisingv scheme by which each custon^er during the time be- came an active ba,rker, interested in the sale of Fords during the year. It related to an entirely different matter than the sale of a car, namely, to the distribution of the profits in which the defend- ant agreed that the public interested in Fords should share. The terms of exclusion in the contract of sale relate only to term^ which qualify or change the writing itself; but the contract was made with special reference to the profit-making plan, which was known to both parties, and did not reduce the price, of the car, or change the terms of sale, but was a publicity scheme, adopted by the defendant to give it assistance in selling its cars. The profit- sharing plan related to an entirely different subject than the sale of this particular car. The defendant undoubtedly had the active assistance of more than 300,000 purchasers in making its profits for the year; it should now treat them in good faith and divide the profits with them as agreed. The plan was not a mere gratuity, but was a request to the public, which, when acted upOn, binds the company." *® § 1439. Automobile exempt to head of family. An automo- bile is exempt under a statute exempting to every family "one car- 49 Ford V. Ford Motor Co., 181 App. Div. 28, 168 N. Y. Supp. 176 (1917). , SALES - 1283 riage or buggy;" it falling within the meaning of the term "car- riage." »" So, an execution debtor, entitled to exemptions to the amount of $300, may claim an automobile of that or less value, which he owns, as exempt.*^ It may be exempt as a necessary implement used for the pur- pose of carrying on the business of the owner .^® But it is not in- cluded within a statute exempting ' tools or implements of trade.** An automobile owned by the head of a family, it has been held, may be claimed by him as exempt from execution under a statute providing that he may hold exempt "a team, consisting of not more than two horses or mules, or two yoke of cattle, and the wagon or other vehicle, with the proper harness or tackle, by the use of which he habitually earns his living." ;. It was contended in this respect that by the term "other vehi- cle," as used in the statute, the Legislature intended a vehicle of like character, as a wagon drawn by horses, mules, or cattle, with the use of harness or other tackle. This under the rule of ejusdem generis. In holding against, such contention the court argued as follows: "It has been decided that a mule is a horse under the exemption laws. And why not? If a teamster should prefer a team of mules to horses and should use them to earn a living for himself and his family, it ought to be exempt. In that case the mules would serve the same purpose as horses. Our statute does refer to mules, but we are now speaking of a statute which refers to horses only. It has been held by this court that a bicycle is a vehicle and exempt. Appellee concedes that, if that decision is adhered to, he can see no reason why an auto is not a vehicle and exempt. We think the ruling in that case is correct. Under the statute making a carriage exempt, it has been ruled that an auto- mobile is a carriage. If an automobile is a carriage and exempt under such a statute, we can see no reason why it is not exempt as a vehicle, under the Iowa statute, which exempts a vehicle (to a proper person within the statute) . This might not be so under a penal statute, which is ordinarily strictly jconstrued." ** BO Patten v. Sturgeon, 214 Fed. 6S, 130 52 wickham v. Traders State Bank, 95 C. C. A. SOS (1914) ; Hammond v. Pick- Kan. 6S7, 149 Pac. 433, 96 Kan. 3S0, ett, — Tex. Civ. App^. — , 1S8 S. W. 174 ISO Pac. 513 (1915). (1913) ; 'Peevehouse v. Smith, — Tex, 63 Eastern Mfg. Co. v. Thomas, 82 Civ. App. — , 152 S. W. 1196 (1913); S. C. 509, 64 S. E. 401 (1909>. Parker v. Swept, — Tex. Civ. App. — , B4 Lames v. Armstrong, 162 la. 327, 127 S. W. 881 (1910). 144 N. W. 1, 49 L. R. A. (N. S.) 691 BlWunderly v. Leopold, S3 Pa. §uper. (1913). Ct. 31 (1913). 1284 - LAW OF AUTOMOBILES Under a statute exempting "one dray or truck by the use of which a drayman, truckman," etc., "habitually earns, his living," an automobile is not exempt to a drayman unless he proves that he habitually earned his living by its use.^^ Under a statute declaring that there "shall be exempt from execution, seizure, or attachment, in the hands of every male citi- zen of the age of 18 years and upwards, and every female who is the head of a family" (here follow certain articles and provisions which need not be mentioned), "two horses, or two mules, one horse and mule, or one horse or mule, and one yoke of oxen; one ox-cart, yoke, ring, staple, and log chain; one two, or one one horse wagon (not to exceed $75 in value), and harness; one man's saddle; one woman's saddle; two riding bridles," it was held that an automobile was not exempt/® Under a statute providing for the exemption of "one cart or wagon, one dray or truck, one coupe, one hack or carriage, by the use of which a cartman, drayman, hackman, or other laborer habitually earns his living," it was held that a taxicab was not exempt to a hackman who owned the same and habitually used it to earn his living; a "taxicab" not falling within the terms of the statute.*'' It has been held that an automobile kept for general use is not exempt from taxation under a statute exempting "provisions neces- sary for the use and consumption of the owner and his family for 66 Re Schumm, 232 Fed. 414 (191S). and. their families as might be necessary. 66 Prater v. Riechman, 135 Tenn. 48S, An automobile, on the other hand, is an 187 S. W. 30S (1916). invention not in use wiien the exemption "The public policy underlying our ex- statute was passed, and so of course is emptlon statutes for heads of families is not mentioned therein, and was not that a creditor should be restrained from within the intent of the Legislature. The having satisfaction of his debt out of automobile is the product of a civiliza- certain kinds of property which are nee- tion advanted much beyond the date of essary to the maintenance of the families our exemption legislation; and it is, as of improvident or unfortunate debtors. a means of transportation, a different The schedule of exempt articles under class of vehicle altogether from those section 3794, Sh. Code, many of which named in the statute. It was invented are not mentioned above, embraces such to meet the needs of a different class of as were, at the time of the legislation, in citizenship from that intended to be pro- common use among the class of debtors tected by the exemption statutes. It is for whose protection the statute was en- a vehicle whose owner is usually well able acted. The animals and vehicles named to pay his debts, and, whether willing or in the schedule are such as were usually . not so to do, should be thereto corn- owned by such debtors and used by them pelled." Prater v. Riechman^ 135 Tenn. in the work necessary to be done to sup- 485, 187 S. W. 305 (1916). port their families, and to accomplish 67 Re Wilder (D. C.) 221 Fed. 476 such limited transportation of themselves (1915). SALES ^ 1285 the year, farming utensils/ the workiiig tools of mechanics, or manufacturers, constantly employed in their business, the 'imple- ments of a person's trade, or profession, stock on hand of a manu- facturer or tradesman, household furniture other than plate, . . . goods, wares, and merchandise imported." ^* An automobile is not included within a statue exempting vehicles which may be drawn by "one or two' horses." ^® 6* Newark Public Schools v. Wright, 69 Crown Laundry & C. Co. v. Cam- 4 Boyce C27 Del.) 279, 88 Atl. 462 eron, — Cal.' App. — , 179 Pac. 52S (1913). (1919). CHAPTER XXXII THE AGENT AND MANUFACTURER § 1440. Meaning of "agency." § 1441. Meaning of "dealer?' § 1442. Proof of agency. § 1443. Agent's lien on consigned cars. § 1444. Service on agent as service on manufacturer. § 1445. Exclusive agency contract not in restraint of trade or competi- tion. § r446. Fixing resale price not contrary to public policy. § 1447. Agency for automobiles as in- cluding taxicabs. • § 1448. Mutuality of agency contract. § 1449. Indefinteness of contract as to description of automobiles. § 14S0. Ratification of agent's acts. § 145 1. Proof of employee's authority to make agency contract for com- pany. § 1452. "Best energies" of agent. § 1453. Discharge of salesman for mis- conduct. § 1454. "Current catalogs." § 1455. Waiver of terms of agency con- tract. § 1456. Waiver by agent of right to can- cel contract for breach. § 1457. Threatened cancellation by man- ufacturer — Duty of agent. § 1458. Mutual abandonment or rescis- sion of contract. § 1459. Notice essential to cancellation. § 1460. Recovery of deposit upon cancel- lation or breach of contract. § 1461. Forfeiture of deposit for breach of contract after termination of contract. 1286 § 1462. Right of manufacturer to cancel contract requiring satisfactory performance. § 1463. Right to set off one breach against another. § 1464. Accepting agency for other cars as breach of contract of agency. ' § 1465. Right to abandon contract of agency gives right to cancel order. § 1466. Dissolution of partnership acting as agent. § 1467. Ordering automobiles. § 1468. Refusal to deliver cars after ac- ceptance of order under con- tract limiting liability. * § 1469. Stipulation that manufacturer need not honor order for cars. § 1470. Agent's commission. § 1471. Same — Car sold by manufacturer outside of agent's territory to resident thereof. § 1472. Same — Salesman in one depart- ment securing buyer for auto- mobile in a different depart- ment. § 1473. Breach of contract by agent to purchase automobile. § 1474. Same — ^Measure of damages. § 1475. Same — -Where seller has a limited supply of cars. § 1476. Measure of damages for breach of agency contract~by the man- ufacturer. § 1477. Same — Loss of profits. § 1478. Same — Sale by manufacturer in agent's territory. § 1479, Liability of manufacturer for fraud of agent. THE AGENT AND MANUFACTURER 1287 § 1440. Meaning of "agency." Generally, an "agency," with- in the meaning of the automobile trade, consists in giving to the agent the right to purchase from the manufacturer machines at a discount from the Hst price, and to retail them to customers within specified territory at the full list price. In other words no com- mission, as such, is paid to an agent on the sale of an automo- bile, but he has the exclusive right to certain territory and pur- chases on his own account at a discoimt from the retail or list price.^ "The term 'agent' is used in various senses. In law it has a well-defined meaning. But it is frequently used in connection with an arrangement which does not in law amount to an agency at all, where the essence of the arrangement is a bailment or a sale, for instance. Such use of the term is not unusual in cases where one has the exclusive right to sell a specified article in certain territory, though no agency in fact exists." ^ Where an automobile manufacturer gave to a dealer the exclu- sive right of sale of its cars in a prescribed territory, and in adver- tising matter sent by the company to him and in numerous letters written to him by officers of the company, he was described as the "agent" and the "western distributor" of the company's cars, and other terms were used ^nd transactions conducted peculiar to such relationship, and orders for cars were written on blanks furnished by the company, and in the instance in question the order blank purported to be an "agent's order" taken by him as agent, it was held that the relation of principal and agent existed between the 1 Fredricksen v. Locomobile Co., 78 HI N. W. 845; Joslyn v. Cadillac Auto- Neb. 77S, 111 N. W. 84S; Studebaker mobile Co., 177 Fed. 863, 101 C. C. A. Corp V. Hanson, 24 Wyo. 222, 157 Pac. 77; Wheaton v. Cadillac Automdble Co., 582. (1916), citing this work. 143 Mich. 21, 106 N. W. 399; Federal "It is said that an 'agency,' within the Rubber Co. v. King, 12 Ga. App. 261, meaning of the automobile trade, consists 76 S. E. 1083 ; Willcox & Gibbs Sewing in giving to the agent the right to pur- Mach. Co. v. Ewing, 141 U. S. 627, 12 chase from the manufacturer machines at Sup. Ct. 94, 35 L. ed. 882." Studebaker a discount from the list price, and to re- Corp. v. Hanson, 24 Wyo. 222, 157 Pac. tail them to customers within specified 582 (1916). territory at the full list price. "// the owner of goods deliver them to " 'In other words, no commission, as another with the understanding that such, is paid to an agent on the sale of there is to be no sale> until the'happen- an automobile, but he has the exclusive ing of a certain condition, this is bail- right to certain territory and purchases ment." Federal Rubber Co. v. King, 12 on his own account at a discount from Ga. App. 261, 76 S. E. 1083 (1913). the retail or list price.' Berry on Law of 2 piper v. Oakland Motor Co., — Vt. Automobiles, §231; Fredricksen v. Lo- — , 109 Atl. 911 (1920). comobUe Co. of America, 78 Neb. 775, 1288 LAW OF AUTOMOBILES company and the dealer. It was also held in this case that evi- dence of a custom among motor car manufacturers of using such terms as "agent" and "commission" in a sense opposite to their legal and generally understood meaning, was properly excluded. "To allow such palpable distortions of common terms to change an agency relationship into one of vendor and vendee and thereby to relieve an apparent principal from the responsibilities and lia- bilities of such status would be violative of the plainest princi- ples of the doctrine of custom, and would open the door to the perpetration of frauds and impositions upon the public." ^ Where a manufacturer sells automobiles under a contract giv- ing the consignee exclusive right of sale in a specified territory, and delivers them only on payment of draft attached to the bill of lading, the relation thus, created is that of vendor and purchaser, — and not that of principal and agent.* An agency is not created by a contract, although entitled "Agency Agreement," which purports to grant' an exclusive right to sell the manufacturer's automobiles in a specified territory for a certain time, where it prohibits the "agent" from making contracts or s^les in the manufacturer's name or behalf, or for its account and re- quires him to pay cash for cars on delivery, and the manufacturer can collect from the "agent's" customers only on request and is required to immediately turn over the difference between the total amount collected and the price made to the "agent".* § 1441. Meaning of "dealer." . A Massachusetts statute pro- vides that, " 'Dealer' shall include every person who is engaged in the business of buying, selling or exchanging motor vehicles, on commission or otherwise, and every person who lets for hire two or more motor vehicles." ^ A statute imposing a tax "upon every dealer" in automobiles, means that the tax is to be collected from every person who buys and sells automobiles for himself and on^his own account. But if a , violation of such statute is a misdemeanor, it may be that all who participate in such violation are guilty as principals.''' SRemick v. Brooke, — Mo. App, — , 6 Gould v. Elder, 219 Mass. 396, 107 190 S. W. 641 (1916), N. E. 59 (1914) ; Mass. St. 1909, c. 534, * Banker Bros. Co. v. Pennsylvania, § 4. 222 U. S. 210, 32 Sup. Ct. 38, 56 L. ed. 7 Moore v. State, 148 Ga. 457, 97 S. 168 (1911).- E. 76 (1918). 6 Bendix v. Staver Carriage Co., 174 111, App. 589 (1912). THE AGENT AND MANUFACTURER 1289 § 1442. Proof of agency. If the contract of agency is reduced to writing, the written instrument is the best evidence. The state- ment of a witness that he was acting as agent, for a manufacturer, when that fact is in issue, is a mere conclusion. But the witness may state the facts and circumstances concerning the various trans- actions between him and the alleged principal, leaving the court and the jury to determine, under the facts disclosed, whether or not he was such agent.* Agency may be inferred from the fact that circulars and letter heads of the defendant described one as his agent.' § 1443. Agent's lien on consigned cars. Agents or factors are sometimes given a statutory lien on goods consigned to them by the principal for advances made or for expenses' which, under their agreement, should ultimately be defrayed by the principal. Where an automobile was consigned to an agent for the purpose of sale, he to remit the amount of the sale price to the consignor when sold, he was a factor, and entitled to a lien on the machine for advances made, upon termination of the relation by the con- signor for failure of the agent to sell.^" § 1444. Service on agent as service on manufacture. A statute provided as follows: "When a corporation, company or in- dividual has, for the transaction of any business, an office or agency in any county other than that in which the principal resides, service may be made on any agent or clerk employed in such office or agency, in all actions growing out of or connected with the business of that office or agency." tinder the terms of a contract between one B. and a manufacturer of automobiles the former represented the latter in all matters pertaining to the sale of its cars within the territory in question. It was held that B. was conducting an "agency," and that service could be had on him to secure jurisdic- tion of the manufacturing company, in an action against the com- pany for breach of warranty of an automobile sold by B. In part the court said: "There is no necessary antagonism be- ^tween the relation of purchaser and seller and' that of principal and agent. An agent may buy from his principal, and yet main- tain in other respects the relation of an agent. In this case, al- though the dealer agreed to purchase, he did so for the puirpose of a resale. He was not a purchasing customer in the ordinary sense. 8 Ford Motor Co. v. Livesay, — Okla. 10 Cass v. Rochester, 174 Cal. 3S8, 163 — , 160 Pac. 901 (1916). ~ Pac. 212 (1917). STheisen v. Detroit Taxi. & Tr. Co., 200 Mich. 136, 166 N. W. 901 (1918). 1290 LAW OF AUTOMOBILES The ultimate customer for the vehicle was to be found by the deal- er. The dealer was not even purchasing at wholesale in the ordi- nary sense. He was ndt in the market buying automobiles in quantities where he could buy the best. The foregoing contract contains 21 specifications. Comparatively few of them deal with the relation of purchaser and seller. If no other relation than that of purchaser and seller was contemplated; then many of the provisions of the contract are not only unnecessary, but are im- pertinent. The dealer binds himself therein to certain conduct in the handling of the product of the manufacturer even after its pur- chase. He undertook to furnish a place for the exhibition of the product of the manufacturer. He receives its literature and dis- tributes its advertising. He delivers its printed warranties to his retail customers. He is entitled to the benefit of the advertising of the manufacturer, and the manufacturer is entitled to the bene- fit of his diligence in pushing sales to the end that the business of the manufacturer as well as that of .the dealer may be increased. All these matters are fairly within the contemplation of the con- tract. For the given territory the manufacturer binds itself to confine its product exclusively to this dealer and to come in touch with the retail customer through him alone. "Construing this contract in the light of ordinary practical sense, B. was the 'dealer' of the Great Western Automobile Company, and was its sole representative in the specified territory to all retail purchasing customers. We think, therefore, that he and his place of business constituted an agency of the principal defendant within the meaning of our statute above quoted." ^^ § 1445. Exclusive agency contract not in restraint of trade or competition. An agency contract which confined the right of the agent to sell automobiles to a designated territory, and gave him the exclusive right to sell the make of automobiles in question in that territory, and in which the manufacturer agreed to sell to no one else within-said territory, was held not to be in restraint of competition or trade. Said the court: "True, he was given the privilege of selling in certain counties, and no others, and he was' restricted from selling the cars of other motor car companies in the same counties; but this method is an ordinary instrumentality by which manufacturers and others display and dispose of their goods and commodities, and make sure of payment, if they can. It is not restrictive of trade in any sense. Insurance companies, HPugh V. Bothne Co., 178 la. 601, 159 N. W. 1030 (1916). THE AGENT AND MANUFACTURER 1291 and many other occupations and trades, parcel out their territory to different agents, and make Similar arrangements. That it could not defeat competition is obvious to the court. There are a multi- tude of other companies from whom purchasers can readily obtain motor cars, varying in little, if anything, from the perfectibility of the car made by the plaintiff company. It is common knowledge that most, if not all, of such motor companies avail themselves of similar arrangements. The public, indeed, finds it no small task to avoid the competition and solicitations of the agents or con- signees of such companies. Periodicals of every description por- tray, advertise, and enlarge upon the variety and superiority of their excellencies. There surely, then, "has been no restraint of this trade. Was it not, then, easily possible that in the flourishing counties of the Lone Star state enumerated in the contract, not- withstanding the same, any one might have purchased a Ford, a Cadillac, a Pierce-Arrow, a Packard, a Chalmers, a Hudson, or any other of the multitudinous machines which are being constantly manufactured and offered for sale at widely varying prices? Where, then, is the restraint of trade in this transaction?" ^^ Such a contract is valid, although it restricts the territorial sale rights of the agent as to machines in his possession after the termi- nation of the agency contract.^* § 1446. Fixing resale price not contrary to public policy. It has been held that an agency contract wherein the manufacturer fixed the price at which the agent should resell the automobiles purchased from such manufacturer, is not contrary to public policy.^* So, a stipulation in an agency contract that title of cars sold or consigned, to the agent should remain in the manufacturer until the cars were sold, at a stipulated price, was held valid ; the manu- facturer not having exclusive control of an article for which there is no substantial substitute, but controUing only one of many simi- lar devices procurable in the open market.^^ §1447. Agency for automobiles as including taxicabs. Where, at the time that an automobile manufacturer entered into a contract- giving an agent the exclusive sales right in a designated 12 Cole Motor Car Co. v. Hurst (C. C. 13 Coleman v. Ford Motor Co., 195 A.), 228 Fed. 280 (1915). Mo. App. 554, 193 S. W. 866 (1917). Such a contract is not in violation of 1* Wiiitney v. Biggs, 92 Misc. 424, 156 a statute against trusts and monopolies. N. Y. Supp. 1107 (1915). Nickels v. Prewitt Auto Co., — Tex. IB Ford Motor Co. v. Boone, 156 C. C. Civ. App. — , 149 S. W. 1094 (1912). A. 621, 244 Fed.33S (1917). 1292 , LAW OF AUTOMOBILES territory for its, "automobiles," it had made plans and experiments with a view to the manufacture .and sale of taxicabs, although it hqd not at that time actually manufactured any taxicabs, it was held that the word "automobile," as used in the contract included taxicabs; that it was so intended by the parties to the contract; and that the sale by the manufacturer of taxicabs within the terri- tory of such agent was a breach of the contract.''® § 1448. Mutuality of agency contract. A contract between a manufacturer and an agent, relating to the future sale and delivery of automobiles, which confers on either party the arbitrary right of cancellation prior to delivery, is lacking in mutuality, and can- not be enforced as a contract fbr the sale of a definite number of cars stipulated therein. The provision that such contract may be terminated "for just cause" adds nothing to its binding force, as such "stipulation furnishes no means to ascertain what may have been the particular cause or causes thereby intended by the parties." An agency contract was not lacking in mutuality because of a provision that if by reason of fire, strikes, or other cause, the de- fendant should be "unable to make deliveries, as per specifications" the manufacturer should return the agent's deposit and should not be held liable for commissions or damages, since the clause did not entitle the manufacturer to act arbitrarily, but referred to cases where by act of God or otherwise delivery was beyond his power.'* A contract is not void because it gives the manufacturer the right of cancellation upon 15 days' notice, and to return the agent's deposits; nor because it gives the manufacturer the right to change the prices at which the machines are to be sold, subject to market variations; such changes not affecting the agent's commission.'® Where the contract requires the agent to do certain things, among others to buy a -certain number of cars, and does not obligate the manufacturer to do anything, and provides that he may cancel the contract and return the deposit at any time, it is void, while entirely executory, for want of mutuality.^" 16 Wier V. Americaii Locomotive Co., 20Velie>M. C. Co. v. Kopmeier M. C. 21S Mass. 303, 102 N. E. 481 (1913). Co., 194 Fed. 324, 114 C. C. A. 284 17 Oakland Motor Car Co. v. Indiana (1912)'; Goodyear v. Koehler S. G. Co., Auto Co., 201, Fed. 499 (1912). 1S9 App. Div. 116, 143 N. Y. Supp. 1046 18 Wood V. Glens Falls Auto Co., 174 (1913). App. Div. 830, 161 N. Y. Supp. 808 "A phrase in the contract reciting that (1916) ; Meade v. Poppenberg, .167 App. the parties have paid "$1.00 each to the Div. 411, 153 N. Y. Supp. 182 (1915). other," imports no consideration. Velie 19 Thomas v. Anthony, 30 Cal. App. M. C. Co. v. Kopmeier M. C. Co., 194 217, 1S7 Pac. 823 (1916). Fed. 324, 114 C. C. A. 284 (1912). THE AGENT AND MANUFACTURER 1293 Especially is this true where the contract provides that the manu- facturer shall not be liable in case of its failure to deliver for any cause whatsoever.*^ Where the contract provides that the manufacturer will sell and the agent buy, without specifying any number, and an order is given, the contract becomes binding as to that order.** § 1449. Indefiniteness of contract as to description of auto- mobiles. A contract providing for the future sale and delivery of a certain number of automobiles, without specifying the styles, of cars, of which the manufacturer makes a number, has been held to be unenforceable, because it provides no means to identify cars to be named, in any order, either for the tender of performance on the part of the manufacturer or for enforcement at law of any un- performed portions thereof.*' Where the contract contemplates purchase for resale and that cars shall be specified only when the agent should ascertain the tjTJe and style of car his customer desired, it does not bind the agent to specify, at all events, cars to be delivered.** § 1450. Ratification of agent's acts. One who voluntarily accepts the proceeds of an act done by one assuming, though with- out authority, to be his agent, ratifies the act, and takes it as his own with all its burdens, as well as all its benefits. He may not take the benefits and reject the burdens, but he must either accept them or reject them as a whole.** Where an automobile company continues to deal with a pros- pective purchaser regarding the sale of a machine on terms ar- ranged by the company's agent without repudiating the agent's authority to make the sale upon such terms, although it had ample 21 Goodyear v. Koehler S. G. Co., 159 perfect a valid sale) Accordingly, as to App. Div. 116, 143 N. Y. Supp. 1046 the number of cars for which no order or (1913). I specification was given by the buyer, 22 Buick Motor Co. v. Thompson, 13S there was no valid sale. The recital as Ga. 282, 75 S. E. 354 (1912). to an order for six cars in the first para- 23 Oakland Motor Car Co. v. Indiana graph of the contract was equally as in- Auto Co., 201 Fed. 499 (1912). definite, and was insufficient as an order 24 Overland S. M. C. Co. v. Hill Bros., for any particular car." Overland S. M. 145 Ga. 785, 89 S. E. 833 (1916). C. Co. v. Hill Bros., 145 Ga. 785, 89 S. "Relatively to the identity of cars to E. 833 (1916). be sold, the writing left the contract 25 Washington v. Colvin, -^ CM. — , open, and it required specification of cars 155 Pac. 251, citing Mechem, Agency, by the buyer to bring the minds of the § 148. parties together on that point (and to 1294 LAW OF AUTOMOBILES opportunity to do so, it will be taken \.o have ratified the agent's acts.28 § 1451. Proof of employee's authority to make agency con- tract for company. Where there was evidence that the defend- ant automobile manufacturer, in reply: to a letter from the plain- tiffs seeking to make a contract for the sale of defendant's* auto- mobiles in a certain territory, wrote plaintiffs that "our Mr. H." would call within the next week or ten days to see them about the matter; that H. called within the time mentioned and made the desired contract with plaintiffs; that, as admitted by defendant, H. was at that time in defendant's employment, it was held that a finding that H. had authority to execute the contract in behalf of defendant was justified.^'' If the limitation of an agent's authority to appoint agents is not explained to one appointed, and the manufacturer takes the benefits accruing from the agency, it cannot thereafter deny the _ apparent aujJiority of the appointing agent.^* §1452. "Best energies" of agent. The words "best ener- gies," within the meaning of a contract appointing an agent for the sale of automobiles, and requiring him to "devote his best energies to the sale" of the machines in question, mean such efforts as in the exercise of a sound judgment would be likely to produce the most profitable results to the ma,nufacturer, in view of the nature of the business and the extent of territory over which it was to be conducted. They do not require exclusive attention.^* § 1453. Discharge of salesman for misconduct. Where one who was employed for a definite period of tinie to assist in the sale of automobiles, and to' give his whole time and energy to the busi- ness, and to use his best efforts to make sales, made arrangements to go into the same business for himself, and attempted to secure from the manufacturer the agency for the cars his employer was selling, it was held that he was guilty of a breach of duty towards his employer, warranting his discharge before the expiration of his contract term.'" 26Ilgenfritz v. Missouri Pac. R. Co., Div. 472, 16S N. Y. Supp. 1001 (1917). 169 Mo. App. 652, 155 S. W. 854 (1913). 29 Randall v. Peerless Motor Car Co., 27 Studebaker Corp. v. Dodds & 212 Mass. 352, 99 N. E. 221, (1912). Runge, 161 Ky. 542, 171 S. W. 167 30 Bilz v. Powell, 50 Colo. 482, 117 (1914). Pac. 344 (1911). 28 Ford V. Ford Motor Co., 179 App. THE AGENT AND MANUFACTURER 1295 §1454. "Current catalogs." Within the meaning of an agency contract, the term "current catalogs" meant such catalogs as should from time to time be issued, and not merely those in existence at the time the contract was signed. ^^ § 1455. Waiver of terms of agency contract. Defendant was a manufacturer of automobiles. On October 28, 1908, defendant and plaintiff, French, entered into a written contract under seal, by which plaintiff was constituted defendant's sole agent for the sale of automobiles of defendant's manufacture in the city of Philadelphia and its vicinity during the continuance of the contract. Defendant agreed to sell to plaintiff IS designated cars, to supply, by further sales to plaintiff, the requirements of the trade within the terri- tory mentioned, and to refer to plaintiff all inquiries for cars originating from sources within plaintiff's territory. A deposit of $50 per car for each of the IS cars mentioned in the contract was to be made at the signing of the contra^ct, and $50 was to be deposited for each car thereafter ordered by plaintiff, before the shipment thereof and ithe balance of the purchase price of each car was to be paid by plaintiff "as and when such car is shipped" by the defendant, "with sight draft attached to bill of lading therefor." It was further agreed that cars should be sold by plaintiff only at prices to be fixed by defendant, that for breach of any of the condi- tions of the contract, on the part of plaintiff, all of plaintiff's de- posits on account of the purchase price of cars should be forfeited, and the contract should be abrogated. The contract was to con- tinue in force until September, 1909, but it was expressly stipulated that the plaintiff should have the option of "renewal of this con- tract for a further period of one year, provided that twenty-five or more cars be purchased with the usual deposit on the same." The evidence showed that the stipulation of the contract provid- ing that cars should be shipped on plaintiff's individual order, and that a sight draft attached to the bill of lading should be paid by plaintiff, were disregarded by both parties. Instead, cars ordered by plaintiff were consigned to S. E. Bkiley, the president of defend- ant company, at Philadelphia; Mr. Bailey was charged with the price thereof by defendant, and paid for them from time to time with his own money; Mr. Bailey retained title to the cars until he was paid the pxirchase price by plaintiff. There was evidence that, not only was this the course of dealing from the time of the execution of the contract in 1908, but that it had been the course SI Imperial Motorcar Co. v. Skinner, — Ala. App. — , 78 So. 641 (1918). 1296 LAW OF AUTOMOBILES of dealing between the parties under a former contract, made in 1907, which expired about the time of the execution of the contract of 1908. On July 12, 1908, plaintiff wrote to defendant, inclosing a certi- fied check for $1,200, as a deposit under the stipulations of the contract, and notified defendant that he desired a renewal thereof. His check was returned in a letter in which the president of plaintiff company refused a renewal of the agency, and charged plaintiff with violations of the contract of 1908, declaring that plaintiff had thus forfeited his right to a renewal of the contract. It appeared that plaintiff had not paid the deposits on the cars consigned under the contract, or any sight drafts. As to the effect of the failure of the parties to follow the course of dealings prescribed by the contract, the court charged the jury as follows: "As to the plaintiff's failure to pay the $750 directly to the company, and his failure to pay the sight drafts, you will remember that these are' the very matters that the testimony indi- cates were suspended and waived by the action of these parties in agreeing to a different course of dealing and to a different manner of transacting their business. If you find from the evidence that it was agreed between Mr. French (the plaintiff) and Mr. Bailey, with the consent of the company, that, instead of paying the de- posit, the cars should be charged to Mr. Bailey, then this failure does not affect the matter, and the failure to make the payments as stipfulated for is no defense. But if, on the other hand, you should find that that stipulation of the contract, or the whole contract, including it, had been abandoned by the parties, and that they had substituted something else, then Mr. French would not have the right of renewal." There was judgment on a verdict in favor of plaintiff for $15,150, which was affirmed on appeal, the court holding that the instruction given was a model of clearness and accuracy.'* § 1456. Waiver by agent of right to cancel contract for breach. Where, under a contract to sell automobiles in a desig- nated territory, which contract was obtained under a promise by defendant to put on the market new and improved machines, which was not done, but plaintiff continued business relations with the defendant, recognizing the existence of the contract and giving no sign or intimation of a purpose to make such failure a ground for rescinding the contract, even though such failure was a legal justi- 82 French v. Pullman Motor Car Co., 242 Pa. St. 136, 88 Atl. 876 (1913). THE AGENT AND MANUFACTURER 1297 fication for refusing to receive and pay for automobiles ordered of the existing style and pattern, it was decided that the plaintiff by his action had waived his right.'* § 1457. Threatened cancellation by manufacturer— Duty of agent. Where the agent refused to consent to a cancellation of the contract, and notified the manufacturer to that effect; all he was required to do was to hold himself in readiness to perform if the manufacturer changed his position.** § 1458. Mutual abandonment or rescission of contract. Where the agent insists upon performance of his contract by the manufacturer, who refuses to perform, there cannot be said to be a mutual abandonment of the contract. Nor does the fact thait the agent cashes the manufacturer's check, given him as a return of deposits made under such contract, necessarily indicate an aban- donment of the contract by the agent.'* The cancellation of a contract by the parties will have the effect which it is stipulated in the contract that it shall have, although the contract is canceled for some specific purpose, i. e., for the pur- pose of effecting an assignment of the contract.*^ If the parties mutually rescind the contract, a clause therein pro- viding for 10 days notice of cancellation has no application.*'' § 1459. Notice essential to cancellation. Although a con- tract provides that it may be annulled at any time, reasonable notice is required to effect a cancellation thereof. A manufacturer who defaults in the delivery of cars under such a contract, when no notice of cancellation has been given, is liable in damages there- for.** § 1460. Recovery of deposit upon cancellation or breach of contract. Where one orders an automobile and pays part of the purchase price in advance of delivery, he cannot without good cause refuse to consummate the deal and demand a return of his money. And it makes no difference that the purchaser is buying under a dontract of agency with the seller. Such agent stands in 33 Cedar Rapids Auto & Supply Co. v. 36 Studebaker Corp. v. Wilson, 1S9 C. Jeffrey & Co., 139 la. 7, 116 N. W. 1054. C. A. 457, 247 Fed. 403 (1918). 34Bendix v. Staver Carriage Co., 194 STWetherby v. Mark, 97 Wash. 463, 111. App. 310 (1915). ' 166 Pac. 1143 (1917). 35 Goodman v. Haynes Automobile 38 wiison v. Studebaker Corp. (D. C), Co., 205 Fed. 3S2, 123 C. C. A. 480 240 Fed. 801 (1917). (1913). B. Autos.— 82 1298 LAW OF AUTOMOBILES the relation of a purchaser who has paid a part of the purchase price in advance and he cannot refuse to carry out the contract without just cause.^^ Where, however, a contract of agency was canceled by the manu- facturer on account of failure of the agent to give shipping direc- tions for two cars^the agent having agreed to purchase three cars and only one having been delivered, — the agent was entitled to re- cover a deposit made with the manufacturer to be applied on the purchase price of the, cars in question; and the manufacturer could not defeat such right, wholly or in part, by charging full price for the first car, where the contract gave no such right and stipulated that the agent was entitled to a deduction from such price as his commission.*" Where it is provided in the contract that the manufacturer may retain the deposit upon breach of contract by the agent, the latter cannot recover the deposit after breach of contract by him, pro- vided the provision, in the circumstances, is not unlawful as pro- viding for a penalty instead of liquidated damages.*^ Where an agent deposited $1:50 for the "right of exclusive sale" of certain motor cars, under a contract which made it a condition precedent to the return of such deposit that the agent sell* four cars, the agent had no right of action for the recovery of the deposit until he had performed such condition, or could show some legal excuse for nonperformance.*^ Where a sum of money has been deposited with the manufacturer by the agent, a portion of which was to be applied to each install- ment of machines ordered, and the part of the contract relating to the first installmeht was treated as void, by mutual consent of the parties, the agent was entitled to recover the amount that was to have applied to that installment.*'. A deposit made by the agent with the manufacturer for the pur- chase of automobiles may be recovered by the agent upon refusal 89 Overland S. M. C. Co. v. Hill Bros., Div. 446, 118 N. Y. Supp. 178 (1909), 145 Ga. 785, 89 S. E. 833 (1916) ; Cedar aff'd 199 N. Y. 595 (1910). Rapids Auto. &' Supply Co. v. Jeffrey & *l Gile v. Interstate M. C. Co., 27 N. Co., 139 la. 7, 116 N. W. 1054. D. 108, 145 N. W. 732, L. R. A. 191SB Agent is entitled to return of deposit 109 (1914) made to guarantee faithful performance, 42 Smith v. Roddenbery Hdw. Co., — when contract terminates without his Ga. App. — , 100 S. E. 718 (1919). fault. Clark v. Gerlinger Motorcar Co., *8 Murphy v. Moon Motor Car Co., 100 Wash. 1, 170 Pac. 142 (1918). 147 App. Div. 91, 131 N. Y. Supp. 873 40Drake v. White S. M. Co., 133 App. • (1911). THE AGENT AND MANUFACTURER 1299 of the manufacturer to perform the contract; all previous pur- chases having been paid for in full.** § 1461. Forfeiture of deposit for breach of contract after termination of contract. Where the terms of a contract, which provided that the agent should not sell outside of a specified terri- tory, were secured by a deposit, such deposit may be forfeited by the agent selling outside his territory even after the contract has been terminated by the manufacturer; such provision expressly applying to the cars in the agent's possesion at the termination of the contract.** § 1462. Right of manufacture to cancel contract requiring satisfactory performance. Where a contract of agency involved personal efficiency, energy, initiative, business experience and abil- ity to formulate methods and make them successful, on the part of the agent, and required the work of- the agent to be satisfactory to the manufacturer, the manufacturer could cancel the same when- ever he was in good faith actually dissatisfied with the work of the agent. It has been held that such an agency is "in the nature of employment to render services involving something more than the operative fitness or mechanical utility of a tangible thing." In this case it was also held for the jury to decide whether the manufacturer acted in good faith or used this provision of the con- tract as a mere subterfuge; there being evidence bringing into ques- tion his good faith.*® § 1463. Right to set off one breach against another. In an action by an agent against a manufacturer to recover for the breach of a contract, the latter may, by way of set-off, take advantage of the agent's breach of a similar contract the year before.*'' § 1464. Accepting agency for other cars as breach of con- tract of agency. Naturally an agent cannot agree to sell the cars of one manufacturer under a contract of exclusive agency for a given territory and during tJie term of such contract accept the agency for a competing line of cars. He is not permitted to put himself in a position antagonistic to the interests of the manu- facturer he has agreed to-represent. The mere act of signing a contract of agency which creates legal obligations inconsistent I 4* Harvell v. Haynes Auto Co., 177 46 Isbell v. Anderson Carriage Co., 170 N. C. 29, 98 S. E. 377 (1919). Mich. 304, 136 N. W. 457 (1912). 45 Coleman v. Fofd Motor Co., 19S 47 WHson v. Studebaker Corp. (D. C.) , Mo. App. 554, 193 S. W..866 (1917). 240 Fed. 801 (1917). 1300 LAW OF AUTOMOBILES with tho^e assumed under a pre-existing contract is itself alone justification for the termination of the former contract by the manufacturer. It is not a question whether the principal has suf- fered actual injury. The law is contravened by the signing of the contract creating the temptation for wrongdoing, and it is not necessary that the opportunity should have been embraced.** But under a contract in which one is appointed the manu- facturer's "exclusive agent for the sale of" its motor cars in a stated territory, he is not prohibited from accepting the agency f6r the sale in the same territory, during the period covered by said contract, of automobiles of other manufacturers which do not cotn- pete with those described in the contract with the first manufac- turer. This is true although he agreed in the first contract to "de- vote his best energies to the sale of" the first manufacturer's cars. "Competing cars," as the words are used in such a contract, are defined as those so similar in cost, design, size, power, carry- ing capacity, and other characteristics as fairly may leave ordinary and reasonable customers in such doubt in making a choice be- tween them as to permit the skill of a salesman to become the determining factor.*' § 1465. Right to abandon contract of agency gives right to cancel order. Where the main purpose of a contract is to estab- lish a selling agency for the principal's automobiles, an order and acceptance for automobiles in connection therewith is incidental to the main purpose, and, on the principal becoming entitled to abandon the contract of agency, he is also entitled to cancel the order.^" A right in the agent to cancel &e contract at any time relates to both the agency and to an order in the contract for cars.^^ § 1466. Dissolution of partnership acting as agent. The dissolution of a partnersliip which holds a contract of agency for the sale of automobiles will generally have the effect of termi- nating the contract.^* Thus, in one case, the defendant contracted with a partnership composed of the plaintiff and one Stewart where- by the partnership was to act as selling agent for the defendant. *8 Randall v. Peerless Motor Car Co., Bl White Co. v. American M. C. Co., 212 Mass. 352, 99 N. E. 221 (1912). 11 Ga. App. 28S, 75 S. E. 345 (1912). 49 Randall v. Peerless Motor Car Co.; B2 Hartford Fire Ins. Co. v. Wilcox, 212 Mass. 3S2, 99 N. E. 221 (1912). 57 111. 180; Johnson v. Wilcox, 25 Ind. BOWheaton v. Cadillac Automobile 182; Sample v. Lamb, 2 La. 275. Co., 143 Mich. 21, 106 N. W. 399. THE AGENT AND MANUFACTURER 1301 Defendant knew only Stewart and relied upon him to transact the business. The partnership placed an order for fifty automobiles with defendant apid^ defendant accepted the order. Before the automobiles were delivered Stewart withdrew from the partnership which was thereby dissolved. , It was held that the defendant was entitled to abandon the contract.^* § 1467. Ordering automobiles; Where an order for an auto- mobile is given the order should state the style desired, otherwise, if the dealer or manufacturer sells different styles, the order cannot be enforced even though accepted.^* Usually in ordering automobiles the seller requires a deposit to be made; and this rule is generally enforced even as to agents. And where an agreement between a manufacturer and a selling agent requires that a deposit of twenty-five dollars be made with each order, it will probably be construed to mean a deposit of twenty-five dollars on each automobile ordered, and not merely twenty-five dollars with each order for machines regardless of the number order ed.^^ Where the seller is not bound to deliver automobiles until the buyer indicates the type of car and the color of body desired, the latter cannot hold the seller for a breach of contract to sell until he has specified the type and color of the cars wanted.^^ An order was held sufficient where the manufacturer made no objection thereto, and there was an uncertainty at the time as to the kind of automobiles the manufacturer intended putting on the market and the agent offered to do whatever the manufacturer might require to comply with his contract.^'' Where an order for an automobile has been given by an agent and accepted by the manufacturer, under a contract allowing the agent a deduction from the list price as his commission, the man- ufacturer cannot thereafter, because it becomes dissatisfied with the amount of business being done by the agent, refuse to fill the order except at list price, and protect itself by a clause in the contract which provides that the manufacturer does not agree to ship the agent any of its products, and that all orders are accepted 63 Wheaton v. Cadillac Automobile 66 Murphy v. Moon Motor Car Co., Co., 143 Mich. 21, 106 N. W. 399. 147 App. Piv. 91, 131 N. Y. Supp. 873 64 Wheaton v. Cadillac Automobile (1911). Co., 143 Mich. 21, 106 N. W, 399. ^'^ Bendix v. Staver Carriage Co., 194 65 Cedar Rapids Auto. & Supply Cp. 111. App. 310 (1915). V. Jeffrey & Co., 139 la. 7, 116 N. W. 10S4. ' 1302 LAW OF AUTOMOBILES by it with the express understanding that prices are subjeet to change. The agent in such a case is entitled to his commission.®* An order given in pursuance of any agency contract is subject to the terms of such contract.*' § 1468. Refusal to deliver cars after acceptance- of order under contract limiting liability. The contract between the manufacturing company and the dealer recited that the latter esti- mated that he would take delivery of not less than 36 automobiles between the date of the contract and September 30, 1913, and furthermore that he would purchase a specified number of auto- mobiles during each of the months covered by the contract. There was an express agreement therein that "failure on the part of the dealer-licensee to purchase the number of Ford automobiles in any one month, as above specified, gives the manufacturer-licensor the right and privilege to cancel this license agreement, such right or privilege, however, being the limit of liability for such failure on the part of the dealer-licensee"; and there was a further provision that "failure on the part of the manufacturer-licensor to supply the dealer-licensee with the number of Ford automobiles in any one month, as above specified, gives the dealer-licensee the right and privilege to cancel this license agreement, such right ,or privilege, however, being the limit of liability for such failure on the part of the manufacturer — licensor! All orders for automobiles which the dealer-licensee may place with the manufacturer-licensor shall be transmitted upon order blanks furnished by the manufacturer- licensor for that purpose, the manufacturer-licensor expressly re- serving the right to accept said orders on such terms and conditions as it may elect, when not inconsistent with anything else herein contained, and when so accepted and acknowledged are subject to any delays occurring in the manufacture or delivery of its product from any cause whatsoever." During the life of the contract the dealer ordered 7 automobiles, and the order was accepted by the manufacturer; and he ordered also from the manufacturer's man- ager in Atlanta, Ga., a certain roadster, and the manager accepted this order and agreed to fill it at a time subsequent to the expira- tion of the contract between the dealer and the manufacturer. The manufacturer declined to ship any of the seven automobiles. Held, while, under the contract, the dealer had the right and privilege to cancel the agreement with the manufacturer on failure of the manufacturer to supply him with the number of automobiles in 68 Dildine v. Ford Motor Co., 1S9 Mo. 69 Kilker v. Ford Motor Co., 39 S. D. App. 410, 140 S. W. 627 (1911). 293, 164 N. W. 57 (1917). THE AGENT AND MANUFACTURER 1303 any one month as specified in the contract, and this right or privi- lege would fix the limit of liability for such failure on the part of the manufacturer, and while the manufacturer reserved in the con- tract the right to accept orders for automobiles on such terms and conditions as it might elect, when not inconsistent with the remaining provisions of the contract, and such orders, when so ac- cepted, were subjetit to delays occurring in the manufacture or de- livery of its product from any cause whatsoever, yet where the manufacturer during the existence of the contract did in fact ac- cept orders for automobiles ordered thereunder and agreed to ship them, a subsequent failure and refusal to ship them in compliance with the agreement cf^eated a liability on the part of the manu- facturer to the dealer for the amount of loss thereby occasioned to the latter. It was the privilege of the manufacturer to decline orders altogether from the dealer, and in such case the limit of liability was fixed by the contract as being the right thereby con- ferred upon the dealer to cancel the agreement; but after the ac- ceptance of orders, regardless of whether previous breaches of the contract had been made by the dealer or not, such acceptances would constitute a waiver on the part of the manufacturer to com- plain of such breaches, so far as the orders accepted might be concerned, and would create an obligation to comply with the terms of the orders. There was no evidence tending to show that the filling of the orders accepted and acknowledged by the manu- facturer was delayed from any cause arising in the manufacture of the machines, but the evidence disclosed a refusal to ship, and thus showed a clear breach of the contract created by the accept- ance of the orders. If the manufacturer saw fit to waive the right to cancel and agreed to fill such orders, the dealer would be bound to receive the automobiles ordered by him, and the manufacturer would be liable for damages on failure to carry out its contract.^" § 1469. Stipulation that manufacturer need not honor order for cars. It has been held to be proper for the parties to contract that the manufacturer shall not be liable for failure to honor an order or requisition for cars by the agent. So held under a con- tract containing the following clause: "Requisitions by second party for consignments of Ford autompbiles shall be made upon requisition blanks furnished by first party, and will receive first 60 Ford Motor Co. v. Johnson, 18 Ga. , App. 36S, 89 S. E. 430 (1916). 1304 LAW OF AUTOMOBILES party's careful and good faith attention, but first party does not agree to fill any requisitions, but expressly reserves the right to refuse any requisitions; and all such requisitions, even when ac- cepted by first party, shall be subject to delays occurring from any cause whatsoever in the manufacture and delivery of its product^ no legal liability to fill such requisitions being incurred und^r any circumstances." ®^ , § 1470. Agent's commission. If an agent is employed to ef- fect sales of automobiles, he is entitled to the agreed commission when he is the procuring cause of a sale. If he suggests the name of a possible purchaser to the manufacturer and the latter sells to such person, he is entitled to the commission .^^ An agent may be said to be the procuring cause of a sale if a purchaser is induced to apply to the owner of the automobile througli the instrumentality of the agent, or through means em- ployed by the agent, or if the sale is effected through the efforts of the agent, or through information derived from him.^^ Thus, where an agent, who was authorized to make sales for an automobile company, practically effected a sale of a machine, but the prospective purchaser eventually visited the factory and bought from another agent of the same company, the first agent was entitled to the usual commission for such sale.®* The agent is entitled to comhiission on a sale made, although the title to the automobile did not pass to the purchaser until after the manufacturer had canceled the contract of agency.®* Ordinarily an agent is entitled to commission on sales made by the manufacturer in ^the agent's territory.®® He is entitled to , 61 Kilker v. Ford Motor Co., 39 S. D. 63 Henry v. Stewart, 85 111. App. 170, 293, 164 N. W. SI (1917). aff'd 18S 111. 448. 62 Eastern M. S. Corp. v. Apperspn-L. 64 Fredricksen v. Locomobile Co., 78 M. Co., 117 Va. 49S, 8S S. E. 479 (191S). Neb. 77S, 111 N. W. 84$. Where an agent has been the procuring 66 Eastern ^M. S. Corp. v. Apperson- cause of the sale of an automobile, he is L. M. Co., '117 Va. 49S, 8S S. E. 4,79 entitled to compensation therefor. (1915). Illinois: Singer & Talcott Stone Co. v. ^^ California: Wilson v. Sturgis, 71 Hutchinson, 83 111. App. 668, aff'd 184 Cal. 226. 111. 169. Illinois: Hafner v. Herron, 165 111. 242. Iowa: Staufer v. Bell, 99 la. 545. Michigan: Douville v. Comstock, 110 Massachusetts: Chapin v. Bridges, 116 Mich. 693. Mass. 105. Missouri: Timberman v. Craddock, 70 Missouri: Fisher & Co. R. E. Co. v. Mo. 638. Stead Realty Co., 159 Mo. 562, 566. Rhode Island: Peckham v. Ashhurst, New York: Whitehead v. Halsey, 3 18 R. I. 376. Misc. 378. THE AGENT AND MANUFACTURER 1305 commission on such a sale under a stipulation in his contract that the manufacturer should reimbGrse him "to the extent of com- missions and discounts" on all cars sold by the manufacturer in the prescribed territory.®'' , If the dealer has the right, under the contract of employment, to reject offers, although meeting in every particular the salesman's proposition to the prospective purchaser, the salesman is not en- titled to commission when the employer rejects the sale.®* § 1471. Same— Oar sold by manufacturer outside of agent's territory to resident thereof. It has been held that, in the absence of any trade usage to the contrary, and of anything in the contract between the parties showing a contrary intention, an agent to whom a manufacturer has given the exclusive right of sale of its make of automobiles within a given territory is not entitled to commission on a sale made by the manufacturer out- side of such territory to a resident thereof.®® § 1472. Same— Salesman in one department securing buyer for automobile in a different department. Where an automo- bile company maintained a department for the sale of commercial cars, and one for the sale of pleasure vehicles, the two departments being entirely separately maintained, and the manager of the com- mercial department employed a salesman to sell commercial auto- mobiles on commission, and the salesman produced a customer who bought a pleasure car, it was held that he was not entitled to a commission.''" This action was brought to recover under the sales- man's contract of employment. It seems possible that if it had been for the reasonable value of his services, which were accepted by the defendant, he might have been entitled to recover. § 1473. Breach of contract by agent to purchase automo- biles. Where a contract between a manufacturer and an agent, required the agent to purchase a certain number of automobiles within a stated time, and to give directions and instructions for shipping, the agent's failure to give such directions for shipping to the manufacturer, who was constantly demanding them of the agent, and who actually filled all orders sent by the agent, consti- 67 Bendix v. Staver Carriage Co., 194 (1914) ; Haynes Automobile Co. v. III. App. 310 (1915). Woodill Auto Co., 163 Cal. 102, 124 Pac. 68 Still V. Fayette M. Corp., 180 N. Y. 717, 40 L. R. A. (N. S.) '971 (1912). Supp. 829 (1920). Post, §'1478. 69 Parry v. American Motors Califor- 70 Dahlman v. White Co., 132 N. Y. nia Co., 2S Cal. App. 706, 145 Pac. 165 Supp. 771 (1912). 1306 LAW OF AUTOMOBILES tuted a breach of the contract by the agent, and it was not neces- sary for the manufacturer to make physicaL tender of the cars.''^ § 1474. Same— Measure of damages. The measure of dam- ages in favor of a manufacturer of automobiles for the breach by an agent of a contract to purchase a certain number of cars, is the profits lost by reason of the breach; that is, the difference between the price agreed to be paid for the cars not taken and the cost to the manufacturer of furnishing them. This rule would also be applicable where a person other than a manufacturer con- tracts to furnish the cars.''^ § 1475. Same— Where seller has a limited supply of cars. Ih case the agent breaches his contract to purchase a stipulated number of cars within a certain time, and the other party to the contract, from whom the agent was to buy, is himself an agent with only a limited supply of cars at his command, the latter must show the breach of the contract, and also damages by a failure on his part to dispose of the available supply of machines. If, in spite of the breach of contract by his agent, he disposed of all avail- able cars without loss of profit due to the breach, evidently he is not damaged. In other words, he must show the damages actually flowing to him from the breach.''^ § 1476. Measure of damages for breach of agency contract by the manufacturer. The general rule for ascertainment of the damages recoverable for failure to deliver personal property under' a contract for the sale and delivery thereof is the difference be- tween the contract price and the market value of the commodity at the time and place of delivery. If the property is such as to have a ready market and to be readUy procurable in that mar- ket, and thius the opportunity is presented the vendee of buying the very article in the open market, to be used for the purpose of filling his contract of sale, the markpt price of that article is satis- factory evidence of its market value. In such a case the differ- ence between the market price and the contract price is the only loss which the purchaser has sustained by reason of, the failure of the vendor to deliver the property. But he cannot neglect to buy when he has the opportunity in the market, and then charge the vendor with the entire difference between the contract price ''i Poppenberg v. Owen & Co., 84 Misc. 72 Poppenberg v. Owen & Co., 84 Misc. 126, 146 N. Y. Supp. 478 (1914); 126, 146 N. Y. Supp. 478 (1914). Thompson v. Hamilton M. Co., 170 Cal. 78 Tedford Auto Co. v. Horn, 113 Ark. 737, ISl Pac. 122 (1915). 310, 168 S. W. 133v(1914). THE AGENT AND MANUFACTURER 1307 and the price at which under his contract he has resold the goods to another. ^ Where goods have been ordered for the purpose of resale, and there is no market in which the buyer can readily obtain them, the following rules have been established by the decisions: "If at the time of the sale the existence of a subcontract is made known to the seller, the buyer, on the seller's default in delivering the goods, has two courses open to him: (i) He may elect to fulfil his sub- contract, and for that purpose go into the market and purchase the best substitute obtainable, charging the seller with the dif- ference between the contract price of the goods and the price of the goods substituted. (2) He may elect to abandon his contract, and in that case he may recover as damages against the seller, his loss of profits on the subsale, and any penalties he may be liable to pay, for breach of his subcontract. In every case the buyer, to en- title him to recover the full amount of damages, must have acted throughout as a reasonable man of business, and done all in his power to mitigate his loss." ''* The- measure of the agents' damages is the amount of commis- sions he would have earned, less expenses; he cannot recover for money spent in advertising.''^ Although a certain make of automobiles, being the product of a particular factory and having their own peculiarities, may not be vdthin the class of commodities which have a well recognized market price, other than the list price published by the manu- facturer, it is nevertheless incumbent upon the vendee, upon the breach of contract for the sale of cars by the maker, to do what he can to minimize his damages, and if he can procure the cars elsewhere, and in that manner lessen or prevent any damage? to himself, he is required to do so. i Where, under a contract giving an agent the exclusive right to sell a certain make of cars in a specified territory, and in whicb the maker agreed to sell cars to the agent at a certain per cent off the list price, the agent to secure orders for the cars before order- ing same from the maker, failure on the part of the maker to furnish the cars as agreed whereby the agent lost commissions on a number of sales, rendered the maker liable in damages to the extent of such loss. But where, when the maker became unable to supply the cars in conformity with the contract, he made ar- ''iRiess V. Myers, 57 Pa. Super. Ct. ''6 Holton v. Monarch Motor Car Co., 243 (1914), citing 2 Benj. on Sales, 202 Mich. 271, 168 N. W. 539 (1918). § 1327. 1308 LAW QF AUTOMOBILES rangements with a third person to furnish them on exactly the same terms, and notified the Agent to this effect, and the latter did not avail himself of the opportunity,, he was not damaged by the failure of the maker to sell him the cars according to the terms of the contract, and he could not recover therefor.''® The measure of damages for the breach by a manufacturer of a contract to sell automobiles to an agent, has been held to be an amount equal to the net profits the agent would have made on the sale of cars during the period covered by the contract, if he had continued in business at that place. In an actipn in which the plaintiff, French, sought to recover damages against an, automobile manufacturer for breach of con- tract to sell and deliver to him automobiles, whereby he was caused to lose commissions on the sale of same, the following instruction on the measure of damages, given by the trial court, was approved on appeal: "The commissions on the cars to which Mr. French was en- titled are fixed by the contract, and they are easily calculated.. After you have ascertained the number of cars, if any, on .which he was refused a delivery, you may. ascertain the amount of the commissions. But that would not be the measure of damages. His net profits, after deducting all. the expenses of carrying on the office — cost of enlployees, cost of advertising, cost of keeping the cars in the repair shop and garage, and the cost of everything incidental to the busintess — ^would be the measure of damages. It would, only be Mr. French's net profits, after deducting all those matters. That, could be considered as some measure of the profits which he might have made; but there are other things than those to be considered. Mr. Longstreth testified that the year 1910 was a very poor year in the automobile trade, and that he lost money. We have his testimony that the business was very slack in 1910, and there is no assurance that the plaintiff's business success would have gone on without interruption. Many things might have interfered by which the profits would have been affected; such as the cost of employees, the general costs of the business, etc. You cannot tell what a man's profits are going to be in any year. Mr. Longstreth testified to the number of cars that he sold. The Longstreth Company received 62 cars from the Pull- man Motor Car Compmiy and they were the agents wKb succeeded Mr. French. They got 62 cars, 4 of which remained 76 Riess V. Myefs, 57 Pa. Super Ct. 243 (1914). THE AGENT AND MANUFACTURER 1309 unsold at the end of the year. They therefore sold 58 cars, but you will recollect that they had si very much larger selling force than the plaintiff had. You could hardly determine how large a number Mr. French could have sold with his force. We call your attention to these uncertainties. In approaching the question of damages, if you conclude to award damages to the plaintiff, you must consider all these matters. If you consider the plaintiff entitled to damages, you will award him such a sum as the evidence will fairly justify you in allowing him as his net profits, if he had continued in business at that place, down to the time when the new contract would have expired." ''"' In an action for damages brought by a firm of agents against an automobile manufacturer for breach of a contract for the exclusive agency for the latter's automobiles in 'a specified territory, there was evidence that by the terms of the contract six automobiles were to be delivered to the plaintiffs at a certain date; that they were to get the cars at a stipulated price, and were to sell them at prices fixed by the defendant, which were shown, and which were the market prices at which such machines were then selling at that place ; and that plaintiffs could have sold the machines at those prices. It was held that, these facts being established, the meas- ure of daniages was the difference between the contract price agreed to be paid by plaintiffs to the defendant for the automobiles, and the reasonable market value of same at the time they were to be delivered to plaintiffs.'* It seems that the agent cannot recover substantial damages for the breach of his contract of agency by the manufacturer if he (the agent) was in such a situation finangially that he could not comply with the terms of the contract requiring advance payments to be made in the first part of the period covered by the contract.''' 77 French v. Pullman Motor Car Co., without the knowledge of the principal, 242 Pa. St. 136, 88 Ail. 876 (1913). in another agent's territory. Such con- It is quite common for automobile tract does not give the agent exclusive manufacturers to contract with agents right to sell such automobiles in the des- granting .each ' one a designated territory cribed territory, nor does the principal in which he is allowed to sell the princi- agree to protect the agent against such pal's automobiles; the principal agreeing sales. Cedar Rapids Auto. & Supply Co. to refer to the agent all inquiries re- v. Jeffrey & Co., 139 la. 7, \lb:ti. W. ceived from prospective purchasers in the 1054. designated territory. It has been held 78 studebaker Corp. v. Dodds & Runge, not to constitute a breach of such a con- 161 Ky. 542, 171 S. W. 167 (1914). tract where an agent of the same prin- 79 Randall v. Peerless Motor Car Co., cipal working under a similar contract, ex- 212 Mass. 352, 99 N. E. 221 (1912) . cetit as to territory, sold two automobiles, 13.10 LAW OF AUTOMOBILES In an action by an agent to recover damages for the breach of, a contract of exclusive agency for the sale of the manufacturer's' automobiles in a given territory, and- in which the defense was that the manufacturer had repudiated the contract because the agent had accepted the agency in the same territory for a competing car, it was held that the profits made by the agent in selling the second car could not be considered in mitigation of damages, because if the car was a competing car the manufacturer was not liable for its repudiation of the contract, and if it was a non-competing car the agent might properly have sold both cars during the same period in the same territory.*" § 1477. Same— Loss of profits. It is not necessary that dam- ages in order to be recoverable shall be calculable with mathe- matical accuracy. There may be elements which can be deter- mined only by approximation, and which may be in some degree contingent or matter of opinion; and yet the damages as a whole may be measured by a standard as definite as that by which, in the nature of things, courts and juries must be guided in reaching results in many instances. Loss of prospective profits may be recovered by an agent for the breach of a contract by the manufacturer when such loss appears to have been within the contemplation of the parties as a prob- able result of a breach, to have been its natural, primary and probable consequence, and when it is susceptible of proof by evi- dence reasonably certain, and not resting chiefly on speculation, conjecture or surmise. Where, in an action by an agent to recover damages for the breach of a, contract of exclusive agency for the sale of automobiles, it appeared that as a part of such contract the agent ordered 25 automobiles, and was to receive a certain dis- count on the sa!le of all cars and parts, and the manufacturer breached the contract in the first month, the contract being for a year, it was held that the inference was warranted that a loss of profits was likely to follow a breach of the contract.*^ In the same case it further appeared .that the agent was to pay practically all the expenses of the agency, and there was evidence that the business of selling automobiles, although then new, was not absolutely uncertain; that the agent (the plaintiff) was inti- mately acquainted with that branch of the trade; that he was an expert mechanic and had a large number of subagents working or 80 Randall v. Peerless Motor Car Co., 81 Randall v. Peerless Motor Car Co., 212 Mass. 352, 99 N. E. 221 (1921). 212 Mass. 352, 99 N. E. 221 (1912). THE AGENT AND MANUFACTURER 1311 ready to work in soliciting orders; that the defendant's automo- bile had acquired a reputation as a representative car; that during the year covered by the contract the defendant sold 37, cars; and there was evidence of the number of another non-competing car sold by plaintiff during the year covered by his contract ^nd after the defendant repudiated the contract, and of sales by other per- sons of competing cars, and the expense to plaintiff of conducting his business, it was held that the amount of prospective profits was capable of reasonable ascertainment.*^ On May 12, 1914, the defendant entered into a contract with the plaintiff, under which the latter was made local agent for the sale of Hudson automobiles in York county, Pennsylvania, until July 1, 1914. On June 29, 1914, another contract to the same effect was entered into, for a term expiring June 30, 1915. Therein the de- fendant agreed to sell and the plaintiff to purchase 45 cars, during the year, to be shipped, from time to time, with sight drafts at- tached to the bills of lading. Under the first contract four cars were purchased and paid for by the plaintiff, one of which was retained for purposes of demonstration, and the others sold. He purchased and paid for two cars under the second contract, but had not sold either of them up to August 20, 1914. On that .day, the defendant notified' the plaintiff this contract was canceled; whereupon the latter instituted suit thereon and recovered a ver- dict, upon which judgment was entered. In affirming judgment the court said: "While, as a matter of fact, it is highly problematical whether the plaintiff would have made any profit out of the contract sued upon, had it not been wrongfully canceled by the defendant, as the jury on sufficient evidence found it was, yet, since he had the business of his agency organized with an experienced and theretofore successful motor salesman on his staff, we cannot say the case was so devoid of evi- dence that the issue of probable gain could have been ruled against the plaintiff as a matter of law." '* Where, however, the business of the agency has not become profitable, prospective profits are usually regarded as too remote to form an element of damages.** § 1478, Same— Sale by manufacturer in agent's territory. WJiere an agent is entitled to a specified commission on the list 82 Randall v. Peerless Motor Car Co., 84isbell v. Anderson Carriage Co., IVO 212 Mass. 352, 99 N. E. 221 (1912). Mich. 304, 136 N W. 4S7 (1912). 83 Keller V. Gomery-S. M. C. Co., 253 Pa. St. 507, 98 Atl. 690 (1916). 1312 LAW OF AUTOMOBILES price of automobiles, he is entitled to that commission on all sales made by the manufacturer in his territory in violation of the agency contract; ** and it is not necessary for him to show that he could have made the sales if the manufacturer had riot, and the manu- facturer cannot set up as a ^defense the inability of the agent to make such sales. ^^ This is true although the manufacturer -sold the ,cars below the list price.*'' Where a contract of exclusive agency for the sale of automobiles is violated by the manufacturer selling a car in such agent's terri- tory, and the contract does not provide iot the payment of com- riiissions but contemplates that the agent's profits shall be the dif- ference between the purchase price and the selling price of the cars, and there is no evidence of a trade custom or usage which entered into the contract regarding commissions to the agent, it is incumbent upon the agent in order to recover more than nominal damages to prove actual damages; and in order to show actual damages he must show that the sale in question could have been made by him if it had not been made by the manufacturer.*' A contract between a manufacturer of automobiles and an agent making the latter the "exclusive agent" of the former for the sale of its cars in a certain territory, is equivalent to a contract giving the agent "exclusive sale" right, and a sale to a customer in such territory by the manufacturer directly or through an agent in an- other territory constitutes a violation of the contract.*® Even where the manufacturer reserves the right to make sales in the agent's territory, there is an implied obligation on his part not to interfere with any pending negotiations of the agent.®" § 1479. Liability of manufacturer for fraud of agent. An automobile manufacturer is liable for the act of its agent in falsely 86 Schiffman V. Peerless Motor Car Co., Virginia: Eastern M. S. Corp, v. Ap- 13 Cal. App. 600, 110 Pac. 460 (1910); person-L. M. Co., 117 Va. 49S, 8S S. E. Cofield V. Jenkins Motor Co., 89 S. C. 479 (1915),. 419, 71 S. E. 969 (1911). ST Wier v. American Locomotive Co., 86 Calif orna: Schiffman v. Peerless Mo- 2lS Mass. 303, 102 N. E. 481 (1913). tor Car Co., 13 Cal. App. 600, 110 Pac. 88 lUsiey v. Peerless Motor Car Co., 460 (1910). 177 III. App. 459 (1913). Kansas: Sparks v. Reliable Daton Mo- SSlHsley v. Peerless Motor Car Co., tor Car Co., 85 Kan. 29, 116 Pac. 363 177 111. App. 459 (1913). (1911). 9* American Locomotive Co. v. Har- Massachusetts: Wier v. American Lo- ris, 152 C. C. A. 222, 239 Fed. 234 comotive Co., 215 Mass. 303, 102 N. E. , (1916). 481 (1913). Texas: Overstreet v. Hancock, -;- Tex. Civ. App. — , 177 S. W. 217 (1915). THE AGENT AND MANUFACTURER 1313 representing and selling a second-hand car for a new one; the transaction being within the real or apparent scope of the agent's authority.®^ 91 Renick v. Brooke, — Mo. App. — , 190 S. W. 641 (1916). See §1440, on what constitutes one an agent. CHAPTER XXXIII LIABILITY OF MANUFACTURER FOR INJURIES CAUSED BY DEFECTIVE AUTOMOBILES ' 1480. General rules. ' 1481. Automobile as imminently dan- gerous. t 1482. Care required of manufacturer. i 1483. Knowledge or notice of defect by manufacturer.. § 1484. Concealment of defect by manu- facturer. / § 1485. Knowledge of defect by pur- chaser. § 1480. General rules. The general rule is that the manu- facturer of an article cannot be held liable for injury to any person who cannot be brought within the scope of contractual relation, and the class of cases in which the maker is held liable to such persons is quite limited.^ There are, however, well defined excep- tions to the rule. The exceptions are these: When the maker is negligent in the manufacture and sale of an article intrinsically or inherently da^ngerous to health, limb or life; and when the maker sells an article for general use, which he knows to be imminently dangerous and unsafe, and conceals from the purchaser defects in its con- struction, from which injury might reasonably be expected to hap- pen to thope using it. Under the first class fall articles, such as poisons or dangerous drugs, that are labeled as containing innocent or harmless in- gredients; .and in this class of cases it is not essential to a re- covery by the injured person against the maker that knowledge of his mistake or negligence should be brought home to him. His liability rests upon the broader ground that persons dealing in articles intrinsically and inherently dangerous must use a high de- gree of care in putting them on the market for the protection of the health and lives of those who may naturally and reasonably be expected to use them. In the other class of cases where the article is not inherently or intrinsically dangerous to health or life, a third person seeking 1 Ford Motor Co. v. Livesay, — Okl. — , 160 Pac. 901 (1916). 1314 LIABILITY OF MANUFACTURER FOR DEFECT 1315 to hold the maker liable for injuries suffered by him in the use of the article, must show that the maker knew that it was unsafe and dangerous, and either concealed the defects, or represented that it was sound and safe. But even when this is shown, the maker will not be liable, if it appears that the purchaser had knowl- edge of, the defects at and before the time the third person was injured in using it.^ "There must be knowledge of a danger, not merely possible, but probable. It is possible to use almost anything in a way that will make it dangerous if defective. That is not enough to charge the manufacturer with a duty independent of his contract. Whether a given thing is dangerous may be sometimes a question for the court and sometimes a question for the jury. There must also be knowledge that in the usual course of events the danger will be shared by others than the buyer. Such knowledge may often be inferred from the nature of the transaction. But it is possible that even knowledge of the danger and of the use will not always be enough. The proximity or remoteness of the relation is a factor to be considered. We are dealing now with the liability of the manufacturer of the finished product, who puts it on the "market to be used without inspection by his customers. If he is negligent, where danger is to be foreseen, a liability will follow." ' One who manufactures and sells an article not ordinarily of a dangerous character, which is calculated for use by others than the vendee, may be liable to a person not the vendee, who uses it in the usual course of business, for injuries due to defects which render the use of the article dangerous to life or limb.* 2 Olds Motor Wks. v. Shaffer, 145 Ky. The court stated the conditions neces- 616, 140 S. W. 1047, 37 L. R. A. (N. S.) sary to a recovery in the case, as fol- S60, Ann. Cas. 1913 B 689, 3 N. C. C. A. lows: That the^ board was so defective 79 (1911). as to be dangerous to life and limb; *MacPherson v. Buick Motor Co., 217 that defendant knew of the defect when N. Y. 382, 111 N. E. lOSO, L. R. A. it sold the machine, or at least ought to 1915 F 696 (1916). have known of it; that the defect was the *Krahn v. Owens Co., 12S Minn. 33, proximate cause of the injury; that the 145 N. W. 626. defect was concealed to such an extent The defendant, manufacturer of bean that ordinary observation on the part and pea threshers, sold an outfit to a of plaintiff would not discover it; that firm who engaged to thresh for plaintiff, the board was intended for^ the purpose a farmer. Plaintiff, after cleaning up for which it was being used, and that about the machine, got on top of the plaintiff was one of the class of persons separator to throw the remnants into by whom it was contemplated the ar- the feeder. While so engaged a board tide would be used. Judgment for the broke and his foot caught in the cylin- plaintiff was affirmed. Krahn v. Owens der, resulting in the injury complained of. Co., 125 Minn. 33, 145 N. W. 626. 1316 LAW OF AUTOMOBILES Where a person other than the purchaser of an automobile is injured on account of some defect in, the car hability df the manu- facturer, if there is any Hability, is put upon the ground that the manufacturer of liie machine intended for general use, owes what may be called a public duty to every person lawfully using the car to so construct it that it will not be unsafe and dangerous. To this end the manufacturer is required to use ordinary care, and for a violation of such duty proximately resulting in injury to a user of the car, he is liable.* The rule has also been laid down that a manufacturer of an automobile is not liable to third persons for injuries caused by a defect in the machine, except in case of wilful injury or fraud.* It was further held in the case last cited that a representation in the manufacturer's prospectus that it manufactured the wheels it used (a defective wheel having caused the injury), when in fact it purchased them, could not be availed of by a person not in con- tractual relation with the manufacturer. On subsequent appeal of this case the court reversed its former opinion, and held that the manufacturer is under duty to a subse- quent purchaser to use reasonable care in inspecting and testing, the wheels of its automobiles. "We cannot believe," said the court, ' "that the liability of a manufjtcturer of automobiles has any analogy to the liability of a manufacturer of table^ chairs, pictures or mir- rors hung on walls. The analogy is rather that of a manufacturer of unwholesome food or of a poisonous drug. It is every bit as dangerous to put upon the market an automobile with rotten spokes as it is to send out to the trade rotten foodstuffs." ' It h£is also been stated that a manufacturer who sends out an automobile containing defective material or negligently assembled parts, is liable to the purchaser for injuries caused thereby, whether such injuries be to the person or property, and although the ma- chine was purchased through an agent of the manufacturer to whom it had been sold.' "If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then B Olds Motor Wks. v. Shaffer, 145 Ky. 7 Johnson v. Cadfflac M. C. Co., 261 616, 140 S. W. 1047, 37 L. R. A. (N. S.) Fed. 878, 8 A. L. R. 1023 (1919). S60, Ann. Cas. 1913B 689, 3 N. C. C. A. 8 Quackenbush v. Ford Motor Co., 167 ^9 (I'll); App. Div. 433, 153 N. Y. Supp. 131 6 Cadillac Motor Car Co. v. Johnson, (1915). 221 Fed. 801, 137 C. C. A. 279, L. R. A. 191SE 287 (1915), rev'g 197 Fed. 485, 194 Fed. 497. LIABILITY OF MANUFACTURER FOR DEFECT 1317 a thing of danger. Its nature gives warning of the consequences to be expected. If to tl^e element of danger there is added knowl- edge that the thing will be used by persons other than the pur- chaser, and used without new tests, then, irrespective of contiract, the manufacturer of this thing of danger is under a duty to make it carefully." ^ For want of privity of contract between the manufacturer of an automobile and a guest who was riding with the ownei: of the machine, such guest cannot recover, on the theory of contractual relation, from the manufacturer for a personal injury due to a defect in the construction of the machine, in that the rear seat was not properly attached to the body, by reason of which defect the occupant was thrown to the ground and injured, while the machine was being run uphill at a reasonable rate of speed.^' In an action against the manufacturer of a pea and bean thresher for injuries to the plaintiff, who was not the purchaser of the ma- chine, incurred when a board on top' of the thresher, on which he was standing, broke, permitting his foot to come in contact with revolving knives, the court stated that the conditions necessary to a recovery were: It must appear that the board was so defective as to be dangerous to life or limb; that the defendant knew of the defect when it sold the machine, or ought to have known it; that the breach of duty of the defendant was the proximate cause of the accident; that the defect was concealed to such an extent that ordinary observSition on the part of the plaintiff would riot discover it; that the board was intended for the purp'ose for which it was being used ; that the plaintiff was one of a class of persons by whom defendant contemplated the board would be used.^^ § 1481. Automobile as imminently dangerous. An automo- bile is a machine that is "ixiuninently dangerous," within the mean- ing of that phrase as here used. That phrase is used in this re- spect in a very broad sense. It does not mean that the machine is inherently dangerous at all times, as is the case with dynamite and such substances, but that, if defective, it is very likely to cause injury when put to the uses for which it was made. Many articles are very simple and safe in their use and construction, and under no conditions could they be regarded as dangerous in their use. SMacPherson v. Buick Motor Co., 217 S60, Ann. Cas. 1913B 689, 3 N. C. C. A. N. Y. 382, L. R. A. 1916F 696, 111 N. E. 79(19'11). lOSO (1916). 11 Krahn v. Owens Co., 125 Minn. -33, 10 Olds Motor Wks. v. Shaffer, 14S Ky. 14S N. W. 626. 616, 140 S. W. 1047, 37 L. R. A. (N. S.) 1318 LAW OF, AUTOMOBILES On the other hand, there are a great many things in common use that are dangerous, unless they are safely and properly made.^* A broom with a defective handle would probably come within the former class, while in the latter class fall threshing machines,^* folding beds,^* buggies,^^ farm wagons,^® and step ladders.^'' "Beyond all question, the nature of an automobile gives warn- ing of probable danger if its construction is defective. This auto- mobile was designed to go SO miles an hour. Unless its wheels were sound and strong, injury was almost certain. It was as much a thing of danger as a defective engine for a railroad. The de- fendant knew the danger. It knew also that the car would be used by persons other than the buyer. This was apparent from its size; there were seats for three persons. It was apparent also from the fact that the buyer was a dealer in cars, who bought to resell. The maker of this car supplied it for the use of purchasers from the dealer. The dealer was indeed the one person of whom it might be said with some approach to certainty that by him the caf would not be used. Yet the defendant would have us say that he was the one person whom it was under a legal duty to protect. The law does not lead us to so inconsequent a conclusion. Prece- dents drawn from the days of travel by stagecoach do not fit the conditions of travel today. The principle that the danger must be imminent does not change, but the tilings subject to the prin- ciple do change. They are whatever the needs of life in a de- veloping civilization require them to be." ^* ' §1482. Care required of manufacturer. The cases concern-, ing the question of due care on the part of a manufacturer of auto- mobiles, as owed by it to persons other than those to whcrm it sells directly, are not in exact harmony, but the well considered case of MacPherson y. Buick Motor Co.^' is recommended as following the more rational principle. Isolds Motor Wks. v. Shaffer, US Ky. 16 Kuelling v. Roderick Lean Mfg. Co., 616, 140 S. W. 1047, 37 L. R. A. (N. S.) 183 N. Y. 78, 75 N. E. 1098, 2 L. R. A. 560, Ann. Cas. 1913B 689, 3 N. C. C. A. (N. S.) 303, 111 Am. St. Rep. 691. '9(1911). " Schubert V. Clark Co., 49 Minn. 331, ISHeizer v. Kingsland & D. Mfg. Co., 51 N. W. 103, IS L. R. A. 818, 32 Am. 110 Mo. 60S, 19 S. W. 630, IS L. R. A. St. Rep. SS9. 821, 33 Am. St. Rep. 482. 18 MacPherSon v. Buick Motor Co., "Lewis V. Terry, HI Cal. 39, 43 Pac. 217 N. Y. 382, 111 N. E. 1050, L. R. A. 398, 31 L. R. A. 220, 52 Am. St. Rep. 14S. 1916F 696 (1916). 15 Woodward v. Miller, 119 Ga. 618, 19 217 N. Y. 382, 111 N. E. 1050, L. 46 S. E. 847, 64 L. R. A. 932, 100 Am. R. A. 1916F 696 (1916), aff'g 160 App. St. Rep. 188. Div. 55 (1914). LIABILITY OF MANUFACTURER FOR DEFECT 1319 The plaintiff contended, and the jury so found, that he and two others were riding in his automobile, on a good road, at a speed of about 8 miles an hour, when the spokes in the left rear wheel broke and the wheel collapsed, the automobile went intp a ditch and the plaintiff was thrown out and injured. The plaintiff had bought the automobile from a dealer, who had bought it from defendant, the manufacturer, who purchased the wheel from a reputable manu- facturer of wheels, whose factory was situated about 100 yards from defendant's factory. When received by the defendant the wheel was ironed and was primed with one coat of paint. Defend- ant made no examination of the wheel when received, except to see that it ran true and that it had not been marred in shipment. It appeared that the quality of the wood in a spoke may be deter- mined by its appearance, its grain and its weight; that the end of a spoke shows the grain better than the polished surface; that the quality of the wood in a wheel can be judged better before than after it is ironed and painted ; that the priming coat upon the wheel covered the gcain and made it more difficult to determine the qual- ity of the wood by the eye; that wheels are primed by the manu- facturer to keep out moisture, but whether wheels shall be fur- nished to automobile manufacturers with the priming coat, or oiled, or in their natural state, is left to the determination of the latter. The defendant had no wood expert, and never examined the wheels when in the course of manufacture, or made any examination as to the safety of the wheel before it was put on the car, but ran the car several miles on a trial test before it was sold, turning sharp curves and giving it severe usage. It had never known a wheel to col- lapse on account of the poor quality of the wood from which it was , made. Its attention had never been called to the necessity of mak- ing any examination to determine whether the wheds bought by it were safe or not; it assuming that they were safe. The trial court instructed the jury in substance, that the defend- ant was not liable unless an automobile equipped with a weak wheel was, to the defendant's knowledge, a dangerous machine, in which case the defendant owed the plaintiff the duty to inspect the wheel' and see that it was reasonably safe for the uses intended; that if the machine in the condition in which it was put upon the market by the defendant was in itself inherently dangerous, and if the de- fendant knew that a weak wheel would make it inherently danger- ous, then the defendant was chargeable with knowledge of the de- fects to the extent that they could be discovered by reasonable inspection and testing. , 1320 LAW OF AUTOMOBILES It was held that under the circumstances the defendant owed a duty to all purchasers of its automobiles to make a reasonable inspection and test to ascertain whether the wheels purchased and put in use by it were reasonably fit for the purposes for which it used them, and if it failed to exercise care in that respect it was responsible for any defect which would have been discovered by suth reasonable inspection and test. Accordingly, judgment for plaintiff was affirmed. The court in part said: "Notwithstanding the fact that the wheel was purchased of a reputable manufacturer, the defendant still deemed it necessary to examine it and test it to see that it would run true and that it was not marred in shipment, otherwise the auto- mobile would not be salable. It made no inspection or test as to the safety of the wheel, or to discover any defects which might make it dangerous in acti^al use. . . . The evidence indicates quite clearly that many other automobile manufacturers, prior to 1909, exercised no greater care as to wheels bought by them than the defendant exercised with reference to its wheels, and that no accident had resulted therefrom. This evidence indicated, not that the defendant was careful, but that the manufacturer had been very lucky." The court also declared that if there was no way of determining the quality of wood in a wheel after a coat of paint had been applied to it, and the irons put on, it must be negligence to purchase a wheel in such a forward state of construction.*" "We think the defendant was not absolved from a duty of in- spection because it bought the wheels from a reputable manu- facturer. It was not merely a dealer in automobiles. It was a manufacturer of automobiles. It was responsible for the finished product. It was not at liberty to put the finished product on the market without subjecting the component parts to ordinary and simple tests." ^^ In an action to recover from a manufacturer of automobiles for injuries caused by the breaking of a defective wheel, it was held that the defendant should have been allowed, on the question of due care, to show the practice of automobile nlanufacturers and of the trade as to the examination of wheels; and to show what in- quiries it' made as to the company from which it purchased its wheels before contracting for wheels, what answers it received, what reputation that company had as a manufacturer, that its 20 MacPherson v. Buick Motor Co., 21 MacPherson v. Buick Motor Co., 160 App. Div. SS (1914), aff'd 217 N. Y. 217 N. Y. 382, HI N. E. lOSO, L. R. A. 382, 111 N. E. lOSO, L. R. A. 1916F 696 1916F 696 (1916). ' (1916). LIABILITY OF MANUFACTURER FOR DEFECT 1321 wheels were as high priced, if not higher priced, than any in the market, and that no accident connected with the wood in the wheels had ever been heard of .^^ § 1483. Knowledge or notice of defeat by manufacturer. It is not necessary that direct notice be brought home to the manu- facturer. A requirement to show direct notice would defeat in almost every instance the rule of law charging the ipaker with lia- bility, as it is seldom that evidence could be obtained tending to show that the maker had actual notice of the defect complained of. The maker will not be allowed to shield himself from responsi- bility upon the theory that he did not have notice of the defect in the article, when the evidence shows that it was so plain that notice of it could not have escaped his attention.^* ' The fact that the manufacturer of an automobile had no actual knowledge that the rear seat, known as a rumble seat, was not properly attached to the body of the car, so that it fell off, throw- ing to the ground an occupant who was riding with the owner, when the car was being driven uphill at a reasonable rate of speed, does not relieve him from liability for injuries so sustained by such occupant, since the defect, being apparent, constituted notice.^* § 1484. Concealment of defect by manufacturer. The word "concealment," as used in this respect, expresses the idea that the seller has deceived the purchaser by hiding or keeping from him a defect in the article. It is the fact that the defect is concealed, and not the means or method by which the deception is practiced, that is the material thing tq be considered. '^^ And when the maker is chargeable with liability for a defect in a machine, he is guilty of concealing it if he represents to the purchaser that the machine is safe and sound. ^^ Representations by the manufacturer of an automobile that the seats were secure, when, as a matter of fact, the rear seat was, not 22 Cadillac Motor Car Co. v. Johnson, 2* Olds Motor Wks. v. Shaffer, 14S Ky. 221 Fed. 801, 137 C. C. A. 279, L. R. A. 616, 140 S. W. 1047, 37 L. R. A. (N. S.) 191SE 287 (1915), rev'g 197 Fed. 485, 560, Ann. Cas. 1913B 689, 3 N. C. C. A. 194 Fed. 497. On subsequent appeal the 79 (1911). Circuit C6urt of Appeals reversed its 26 Olds Motor Wks. v. Shaffer, ^145 Ky.' former decision in this case. Johnson v. 616, 140 S. W. 1047, 37 L. R. A. (N. S.) Cadillac M. C. Co., 261 Fed. 878, 8 A. 560, Ann. Cas. 1913B 689,' 3 N. C. C. A. L. R. 1023 (1919). 79 (1911). 23 Olds Motor Wks. v. Shaffer, 145 Ky. 26 Olds Motor Wks. v. Shaffer, 145 Ky. 616, 140 S. W. 1047, 37 L. R. A. (N. S.) 616, 140 S. W. 1047, 37 L. R. A. (N. S.) 560, Ann. Cas. 1913B 689, 3 N. C. C. A. 560, Ann. Cas. 1913B 689, 3 N. C. C, A, 79 (1911). 79 (1911). 1322 LAW OF AUTOMOBILES properly attached to the body of the car, is such a concealment, though the defect was not hidden, as to entitle one to recover who, while riding with the purchaser of the car, was thrown to the ground by Uie detachment of the seat when the machine was being driven uphill at a reasonable rate of speed .^'' § 1485. Knowledge of defect by purchaser. If the purchaser of an article knows that it is unsafe or dangerous, and with knowl- edge of this fact invites or permits a third person to use it, and the third person is injured, the latter cannot maintain an action for tort against the maker. The reason for this rule is that the action against the maker proceeds on the theory, and is founded on the fact, that in selling the article he practiced fraud and de- ceit in concealing the defects that made its use dangerous. When it is shown or admitted that no deceit was practiced the founda- tion of the action is gone. Another reason is that the maker's wrongful act in such a case is^ not the proxiniate cause of the injury, when it is shown that there was the intervention of a new agent — the purchaser-^who with knowledge of the danger used and per- mitted others to use the article. It is evident that the deceit of the manufacturer could not be considered as the efficient cause of an injury to a third person when such deceit has been rendered ineffica- cious by actual knowledge of the purchaser of the defects.** Very slight evidence of care on the part of a purchaser of an automobile to discover any defects in the construction of the machine, will render inapplicable, in the case of an injury to the occupant of a rear seat who is thrown to the ground by the falling of such seat due to defective attachment to the body of the car, the rule that a third person who is injured by a defective or dan- gerous article, piirchased by another who knows of the condition of the ariicle, cannot recover of the maker for personal injuries caused thereby.*' 27 Olds Motor Wks. v. Shaffer, 14S Ky. S60, Ann. Cas. 1913B 689, 3 N. C. C. A. 616, 140 S. W. 1047, 37 L. R. A. (N. S.) 79 (1911). S60, Ann. Cas. 1913B 689, 3 N. C. C. A. 2» Olds Motor Wks. v. Shaffer, 145 Ky. 79 (1911). 616, 140 S. W. 1047, 37 L. R. A. (N. S.) 28 Olds Motor Wks. v. Shaffer, 145 Ky. 560, Ann. Cas. 1913B 689, 3 N C C A 616, 140 S. W. 1047, 37 L. R. A. (N. S.) 79 (1911). CHAPTER XXXIV THE AUTOMOBILE IN PUBLIC SERVICE GENERALLY § 1486. Regulation of automobiles in public service. § 1487. Same — By municipalities. § 1488. Power of municipalities to oper- ate bus line. § 1489. Automobiles operated in inter- state commerce. § 1490. Control of by Public Utilities Commission. § 1491. Automobiles for hire as forming class for regulation. § 1492. License to operate for hire is mere privilege — Revocation. § 1493. Regulation of public hacks and hack stands. § 1494. Same — Discretion in officer as to whom permits shall be given. § 149S. Sight-seeing car as public. hack. § 1496. "Hackney coach" defined. §1497. Automobile as public hack. § 1498. "Plying for hire." § 1499. Obstructing streets. § ISOO. Rights of owner of property abutting hack stand. § ISOl. Municipality through which auto- mobile is operated may re- quire license. §' 1S02. Public automobile as common carrier. § 1S03. Motorist transporting others to and from work for hire not common carrier. § 1S04. Duty to carry according to con- tract. 1323 ISOS. 1S06. 1S07. 1S08, 1S09, IS 10. ISll. 1S12. 1513. 1514. Obligations in carrying • bag- gage. Liability of sight-seeing auto- mobile operator to passengers. Injury to passenger by skidding automobile. Injury to passenger in collision., Injury to passenger by bus back- ing down hill. Chauffeur is servant of the owner. Carriers for hire eluded. -Undertaker in- §1515. § 1516. § 1517 § 1518. § 1519. § 1520. § 1521. § 1522. JITNEYS "Jitney" defined. Jitney is common carrier. Duty of operator to passengers — Degree of care. Injury to passenger — ^Prima facie case. Regulation generally. Same-^Jitneys operating under license previously issued. Power of municipal corporations to regulate. Jitneys as forming a class for legislation. Same — As distinct from other vehicles operated for hire. Operating in violation of law — All persons assisting are guilty. Street railway company enjoin- ing illegal operation of jitney. 1324 LAW OF AUTOMOBILES § 1523. Requiring operator to state in application for license that he is owner of jitney. ^ § 1S24. Excluding jitneys from certain zones. § 1S2S. Forbidding taking on or letting off passengers near street rail- way: § 1S26. Requiring certificate from public utility commission and a license. § 1S27. Jitney operated "through" town without license. § 1528. License graduated according to capacity of, vehicle. § 1529. Prohibitive tax for operating on certain streets. § 1530. License or occupation fee not a tax. § 1531. License tax of five per cent of income. § 1532. May require indemnity bond. § 1533. Who may recover against bond. §' 1534. Priority of claims against bond. § 1535. Prorating amount of bond among several judgments arising out of same accident — Laches. § 1536. Successive recoveries against same bond. § 1537. Liability of surety directly to in- jured person. § 1538. Filing bond for more than re- quired amount— Liability of sureties. § 1539. Liability of surety when bond issued for person other than owner and operator on misrep- resentations. § 1540. Liability of surety when jitney operated by person other than owner on commission basis. § 1541. Liability ,of surety when jitney rented by owner to another. § 1542. Liability of surety when jitney operated by person to wh(>m owner attempted illegally to sell it. § 1543. Territorial ejitent of liability un- der bond. §1544. Failure of insured to give notice to insurer as affecting rights of injured person. § 1545. Liability of surety company as compared with gratuitous sureties. I § 1546. "Operated in service of common carrier" — 'Driving to repair shop. § 1547. "Taxicab" defined. § 1548. Is "public conveyance" within accident insurance policy. § 1549. Taxicab is public utility. § ISSO. Taxicab company is common car- rier. § 1551. Duty to protect passengers from injury by employees. , § 1552. When relation of carrier and passenger terminates. § 1553. Effect of refusal of passenger to pay fare. GENERALLY § 1486. Regulation of automobiles iri public service. A stat- ute making it unlawful to engage in the business of transporting pas- ' sengers for hire in motor vehicles in the public highways of any city of the first class, without first obtaining a permit from the secretary of state so to do, for which a fee was exacted, and re- quiring every such person to keep on file with the secretary of state THE AUTOMOBILE IN PUBLIC SERVICE 1325 a penal bond in the sum of $2,500, conditioned for the faithful compliance by the principal with the provisions of the statute, and to pay all damages sustained by persons injured by reason of the negligence or unlawful aet of the principal, his agents or employees, in the conduct of such business, was held to be a lawful exercise of the police power of the state.^ The business of renting or hiring driverless autombiles to the public, contemplates a public use of the streets, and may be li- censed as such.^ In the state of New York it is required by statute that consent of the local authorities and a certificate from the Public Service Commission certifying to the public convenience and necessity there- of, must be obtained in order to operate within a city, a bus line; a stage route; a motor vehicle line or route; a vehicle in connection with a bus line, a stage route, a motor vehicle line or route; a vehicle carrying passengers at a rate of fare of 15 cents or less for each passenger within the limits of the city; a vehicle carrying passengers in competition with another common carrier which is required by law to obtain the consent of the local authorities of said city to operate over the streets thereof.* A statute regulating automobile carriers for hire, which requires an indemnity bond with a surety company as surety therein is not invalid or unreasonable because it makes no provision for any other kind of a bond.* Nor is it invalid because it exempts from its provisions carriers of the United States mail; and it does not de- prive the persons and companies, coming within its provisions, of property without due process of law. "The act relates to a subjebt within the undoubted powers of the Legislature to regulate; it applies to all persons in the same situa- tion; it imposes no conditions which cannot be met; and is made enforceable in the mode usual in like matters, that is, by proceed- ings in the courts after notice and hearing. It may be true that the act is burdensome, and will prevent many* from engaging in this form of traffic who would otherwise engage therein. But this, is true of all regulation, and to argue that this act is void for this reason is to atgue that any form of regulation is void. These, 1 state ex rel. v. Howell, 8S Wash. 3 Public Service Com'n v. Hurtgan, 294, 147 Pac. 11S9 (191S). 154 N. Y. Supp. 897 (191S). Ordinance of San Antonio upheld. * State v, Seattle Taxicab & Tr. Co., Craddock v. San Antonio, — Tex. Civ. 90 Wash. 416, 156 Pac. 837 (1916); App. _, 198 S. W. 634 (1917). ■ State v. Collins, 93 Wash. 614, 161 Pac. • 2 San Antonio v. Besteiro, — Tex. Civ. 467 (1916). App. — , 209 S. W. 472 (1919). 1326 LAW OF AUTOMOBILES moreover, are not questions for the consideration of the courts. With the courts the question is one of power, not one of policy. The courts cannot overthrow statutes enacted by competent authority merely because in the opinion of the judges they could or should have been made less rigorous." * § 1487. Same— By municipalities. A municipal corporation may enact ordinances governing the conduct of operators of con- veyances for hire in their relations with the public.® Thus, an ordinance which required drivers of vehicles for hire, including operators of automobiles, to carry anyone who should apply to them unless engaged, when they should display, a sign "engaged," was held valid. In that case it was said: "There is nothing unrea- sonable in requiring the driver of an omnibus, permitted by the city's license to run his vehicle on the public streets, to carry all persons applying to him for passage and legally tendering the fare, as common carriers are required to do, and a notification to intend- ing passengers that the vehicle is already in actual use." '' A city may, by prdinance, prohibit the drivers of taxicabs, auto- mobiles, etc., for hire, while practicing their respective callings, to solicit customers, go upon, or permit their vehicles to stand upon, any except designated streets, or to go farther than a certain dis- tance from the curb upon certain sidewalks. Or upon any wharf or in any railroad station when passengers are using the same, etc.* The word "soliciting," as used in such ordinance, was defined as follows: "To ask for or to seek to obtain the right and privilege of passengers to transfer such passengers or their baggage for hire by actual persuasion or persistent entteaty." ' Charter power "to license porters, cartmen, and the owners or drivers of hackney coaches, cabs or carriages, and to regulate their fees and prescribe their duties," carries authority to license the owners or drivers of coaches, cabs, and carriages that ply for hire in the city streets, and to regulate such business, including the use of automobiles therein.^" An ordinance passed under such grant of power, regulating and providing for the licensing of owners or drivers of cabs and car- riages, operated for hire, is applicable to the owners or drivers of 6 State V. Seattle Taxicab & Tr. Co., 8 Seattle Taxicab & Tr. Co. v. Seattle, 90 Wash. 416, 156 Pac. 837 (1916). 86 Wash. S94, ISO Pac. 1134 (191S). 6 Burgess v. Brockton, — Mass. — , » Seattle Taxicab & Tr. Co. v. Seattle, 126 N. E. 456 (1920). 86 Wash. 594, 150 Pac. 1134 (1915)., 'Fonsler v. Atlantic City, 70 N. J. 10 State v. Jarvis, 89 Vt. 239, 95 Atl.. L. 125, 127, 56 Atl. 119. 541 (1915). THE AUTOMOBILE IN PUBLIC SERVICE 1327 automobiles so used, although enacted before automobiles came into use. The fact that horses are mentioned in one section of the ordinance is of no consequence." An ordinance imposing an annual license fee on all vehicles, ap- plies to vehicles used in a transfer business in which the owner accepts business only between points within and points without the city, and never between two points within the city.^* Power to regulate motor vehicles used "within their limits" for public hire, does not include the regulation of such vehicles carry- ing passengers only to and from points without the municipalities, but only the regulation of those plying between points within their limits.^* § 1488. Power of municipality to operate bus line. Munici- palities are without authority, unless it is expressly conferred by the Legislature, to operate railroads or bus lines or public utilities of any kind. "The defendant claims that such power is given by the Home Rule Act. No claim is made that such right exists under any other statute. The Home Rule Act plainly does not give any specific authority to the city to become a common carrier. While the lan- guage of that act is somewhat broad, it has been construed by the courts contrary to the defendant's contention. Instead of virtually repealing all provisions of existing law relating to cities, and giving them full and free power, as defendant in effect contends, the courts have held that the Home Rule Act has no such effect, and gives no such unlimited powers. Existing limitations upon the powers of municipalities, existing either under special or general laws, still continue, notwithstanding the provisions of the Home Rule Act." ^* § 1489. Automobiles operated in interstate commerce. A motorist carrying passengers for hire from a hotel in Albany, N. Y., to a hotel in Pittsfield, Mass., and return, accepting them only for the entire trip, was. engaged exclusively in interstate commerce, and was not subject to an ordinance of the latter city regulating carry- 11 state V. Jarvis, 89 Vt. 239, 9S Atl. 181 N. Y. Supp. 208 (1920), citing Dil- 541 (191S). Ion on Municipal Corporations (Sth ed.) 12 Carterville v. BIystone, 160 Mo. § 1237; Matter of Water Commission- App. 191, 141 S. W. 701. ers of White Plains, 176 N. Y. 239, 2S1, 13 Argenta v. Keath, 130 Ark. 334, 197 68 N. E. 348 ; Queens County Water S. W. 686 (1917). Co. v. Monroe, 83 App. Div. IDS, 82 N. 14 Brooklyn City R. Co. v. Whalen, Y. Supp. 610. 1328 LAW OF AUTOMOBILES ing of passengers for hire from place to place within the city.^* § 1490. Control of by Public Utilities Commission. A license from the Secretary of State, and from a town, to tarry passengei-s for hire, are no protection to one operating in violation of the terms of a public utilities statute.'^® Bus lines maintained and operated by private individuals or cor- porations come within the pirovisions of the Transportation Cor- porations Law and the Public Service Commissions Law already mentioned. They cannot be operated without obtaining the certifi- cate of public convenience and necessity and complying with the other requirements.^'' A statute providing that, "Said commission shall have the power to establish rates of charges for the transportation of passengers and freight by railroads and other transportation companies, and no railroad or other transportation company shall charge or demand or collect or receive a greater or less or different compensation for such transportation of passengers or freight, or for any service in connection therewith, between the points named in any tariff of rates, established by said commission, than the rates, fares and charges which are specified in such tariff," vested said commission with power to regulate common carriers by motor truck or bus, on the public highways.^* § 1491. Automobiles for hire as forming class for regula- tion. A license tax in excess of that imposed upon automobiles kepft and used for private purposes may be imposed upon those kept for hire or for which a charge in any form is made. This is a reasonable classification based upon real and substantial dif- ferences in conditions, and is amply justified.^' A statute regulating all automobile carriers for hire is not in- valid, on the ground of class legislation, because it exempts street 15 Com. V. O'Neil, 233 Mass. S3S, 124 432, 1S4 N. Y. Supp. 897 ; Public Service N. E. 482 (1919). . Commission v. Fox, 96 Misc. 283, 160 An automobile may be so used as to N. Y. Supp. S9; Pub. Serv. Comm. v. become a common carrier in interstate Mt. Vernon Taxicab Co., 101 Misc. 497,' commerce. United States v. Simpson, 168 N. Y. Supp. 83 ; Niagara Gorge Rail- 2S7 Fed. 860 (1919). road Co. v. Gaiser, 109 Misc. 38, 178 N. 16 Public Utilities Com'n v. Garviloch, Y. Supp. 1S6. — Utah — , 181 Pac. 272 (1919). 18 Western Ass'n v. Railroad Com'n, 17 Brooklyn City R. Co. v. Whalen, 181 173 Cal. 802, -162 Pac. 391, 1 A. L. R. N. Y. Supp. 208 (1920), citing Public 14SS, P. U. R. 1917C 178 (1917). Service Commission v. Booth, 170 App. 19 Montgomery v. Orpheum, Taxi Co., Div. 590, 156 N. Y. Supp. 140; Public — Ala. — , 82 So. 117 (1919); Jackson Service Commission v. Hurtgan, 91 Misc. v. Neff, 64 Fla. 326, 60 So. 350 (1912). THE AUTOMOBILE IN PUBLIC SERVICE 1329 cars from its provisions. In a case involving this question the court said: "But the appellant's principal contention is that the classification here made is not based upon any just difference be- tween the character of the carrier made subject to the regulation of the statute and those exempt from its provisions. A reference to the first section of the act -{vill show that the regulation is made applicable to any person, firm, or corporation engaged in carry- ing passengers for hire along any public street, road, or highway in cities of the first class of the state in any .motor propelled vehicle, other than street cars and vehicles carrying the United States mail. It will be observed, also, by a reference to the second section, that the act does little, if any, more than require the operation of such vehicles to provide for a solvent fund out of which persons injured by the negligent operation of the vehicles may recover for the injuries suffered from their negligent opera- tion. The question then is: Is there any just ground for this distinction? In our opinion the question must be answered af- firmatively. ^ A street car company, as is well known, must oper- ate its carriers upon fixed tracks. The carriers also must be large and heavy, requiring, whether steam, gasoline, or electrically pro- pelled, powerful although delicate and costly machinery. Such a company, therefore, before it can begin operations at all, must expend large sums of money in the procurement of visible and tangible property, which can be made subject to its obligations. Experience has taught them, moreover, that however careful it may be in the selection of its necessary employees, or however rigid may be its rules governing their conduct, accidents will happen either to its passengers or to persons using the streets upon which it operates, for which it must respond in damages. Losses of this character it recognizes, and makes the same preparation to meet as it does to meet other fixed charges upon its revenues. It is not so with the other motor propelled vehicles as we now know them. They require no fixed tracks which must be put in at the expense of the operator, as they run upon highways constructed and kept an order by the public. No considerable amount need be invested in visible or tangible property before operations are begun. Indeed, the vehicle itself may represent the entire capital of its opierator, and this may be destroyed or rendered valueless in the very accident which would give rise to a liability. But without attempting to point out other differences, it is plain that the one from the necessities of the case must have a visible fund from which persons negligently injured by its operation may re- B. Autos. — 84 "" 1330 LAW OF AUTOMOBILES coup their losses, while the other need not have such a fund, and this difference we think justifies legislation requiring a bond of in- demnity from the one not required of the other." *" § 1492. License to operate for hire is mere privilege— Re- vocation. A license granted under power to regulate the opef- ation of automobiles for hire is a mere privilege or permission and in no sense a contract or property .^^ Hence, a statute which provided for revocation of license \yith- o'ur notice or hearing was held to be valid; one accepting a license thereunder taking it subject to the terms of the statute .^^ "Where the rights of a licensee are wholly dependent upon the terms of a statute or ordinance, and there is provision for revoca- tion of the license but no requirement for notice or hearing either expressly or by fair implication, then his rights to the license may be cut off by revocatioi;i without notice or hearing. The rights of a licensee can rise no higher than the terras of the statute or ordinance by which he becomes holder of the license. * * * The petitioners have no absolute right to conduct the business of trans- porting passengers over the' public ways. The circumstance that in- vestments have been made in reliance upon the continuance of the licenses affords the petitioners no superior standing. They are no better off than those who have paid a healvy license fee in the hope of continuance of the privilege, and who are held to take their chances in that particular." ^' § 1493. Regulation of public hacks and hack stands. Hack- men have no property rights in the streets of a city superior to the police power.^* The designation of hack stands and the reg- ulation of the use and occupation of the streets oi a city therefor is a proper exercise of the police power, and the legislature is the sole judge of the reasonableness of the method adopted.*^ Power to establish reasonable rates of license tax on all hacks and other vehicles used in carrying persons or property for hire, authorizes the imposition of a licerise tax on vehicles used in carry- ing passengers for hire, including motor vehicles licensed by the state.2« 20 state V. Seattle Taxicab & Tr. Co., 24Swann v. Baltimore, 132 Md. 256, 90 Wash. 416, 1S6 Pac. 837 (1916). To 103 Atl. 441 (1918). same effect, State v. Collins, 93 Wash. 25 Swann v. Baltimore, 132 Md. 256, 614, 161 Pac. 467 (1916). 103 Atl. 441 (1918). 21 Burgess v. Brockton, — Mass. — , 26Applewold Borough v. Dosch, 239 126 N. E. 456 (1920). Pa. St. 479,. 86 Atl. 1070, Ann. Cas. *2Com. V. Kinsley, 133 Mass. 578. 1914D 481 (1913). , 28 Burgess v. Brockton, — Mass. — , 126 N. E. 456 (1920). THE AUTOMOBILE IN PUBLIC SERVICE 1331 A public hack ordinance, which abolished special hack stands and certain public hack stands, and authorized the mayor to desig- nate as public hack stands space along the curb adjacent to prop- erty used as public parks, public buildings, railroad stations, steam- ship and ferry landings, hotels, restaurants, theaters, and the centei of streets in certain circumstances, and which empowered the mayor to designate the number of hacks allowed at such places, and which prescribed the maximum rate of fares for public hacks, motor vehicles, etc., and which provided for the inspection of ve- hicles, was held to violate neither the federal nor the state consti- tution. It was held that the court could not say that a clearance of IS feet on either side of the center, of a hotel entrance did not con- serve the rights of the owner.^'' An ordinance providing for the establishment of public hack stands, and the regulation of hacks and hackmen, was held not to be illegally discriminatory because of any of the following reasons: It affected only those engaged in the transportation of passen- gers who solicited business upon the streets; It required taximeters only on motor driven vehicles designed to carry not more than four persons; Fixed lower rates for motor driven than for horse-drawn ve- hicles; Required fixed graduated payments for license fees. It was further held that the ordinance was not unreasonable be- cause: It required expensive meters; Imposed unreasonable penalties for incorrect meters; Required that no solicitation of passengers be made except by the driver of a public hack, when sitting on the box of his vehicle; Prohibited anyone riding on the seat with the driver.^* An ordinance providing that, "Any vehicle that has a taximeter affixed and uses the streets and avenues of the city for the pur- poses of carrying passengers for hire shall be deemed a public hack and licensed under this ordinance," was held to be valid and constitutional, although it applied to hacks employed in a private business and operated solely from private property, and which did not engage on the streets in a public hacking business.^' 27 Yellow Taxicab Co. v. Gaynor, 82 Misc. 94, 143 N. Y. Supp. 279 (1913), Misc. 94, 143 N. Y. Supp. 279 (1913), aff'd 1S9 App. Div. 893 (1913). aff'd 159 App". Div. 893 (19J3). Z9Mason-S., Tr. Co. v. Mitchel, 89 28 Yellow Taxicab Co. v. Gaynor, 82 Misc. 230, 153 N. Y. Supp. 461 (1915). 1332 LAW OF AUTOMOBILES * An ordinance providing for the licensing of hackney-coaches, cabs, and other vehicles used for the public conveyance of passen- gers, was held to be applicable to motor vehicles so used, although enacted prior to their advent.*" Where a company owning and operating a union railroad station granted an automobile cab company the exclusive use of a certain space in its building and on its grounds for the purpose of sub- serving the interests of railroad passengers, and the cab company serves, not only railroad passengers, but members of the public generally from such stand, such place is a "public stand" within the meaning of a statute imposing a license tax upon every vehicle subject to call by the public, and containing a provision specifically relating to owners of "public stands." '^ The contention that a municipality is without power to regu- late the rates of public hackmen because a hackman might con- tract to carry a passenger into another state, and thus engage in interstate commerce, the power to regulate which rests solely in Congress, was held to be without merit; as such a question has nothing to do with the regulation of local rates.®^ § 1494. Same— Discretion in officer as to whom permits shall be given. An ordinance providing that no taxicab or for- hire automobile shall be permitted to stand on streets without a permit from the- department of public, safety, designating, the loca- tion at which such vehicle shall be permitted to stand, was held to be unconstitutional, in that it leave's the question as to whom permits shall be issued to the unregulated discretion of the de- partment of public safety, "A city through its council is vested with control over its streets and, save for the purpose of public passage and travel thereon, may prohibit their use altogether as places of business; but regulations for their use must apply uni- formly to all persons of the same class." ** §1495. Sight-seeing car as public hack. Under, a definition that a public hack is a vehicle plying for hire for which public patronage is solicited on the streets, a sight-seeing car, soliciting public patronage, is a public hack.** 30 State V, Dunklee, 76 N. H. 439, 84 38 New Orleans v. Badie, 146 La. SSO, Atl. 40, Ann. Cas. 1913B 754 (1912). 83 So. 826 (1920). 31 District of Columbia v. Flckling, 33 34 People v. May, 98 Misc. S61, 164 App. D, C. 371 (1909). N. Y. Supp. 717 (4917). 32 Yellow Taxicab Co. v. Gaynor, 82 Misc. 94, 143 N. Y. Supp. 2^9 (1913), aff'd 159 App. Div. 893 (1913). THE AUTOMOBILE IN PUBLIC SERVICE 1333 §1496. "Hackney coach" defined. The word "hackney," used as an adjective, means, let out for hire; devpted to common use; as hackney coaches. Hackney carriages are carriages plying for hire in the streets.^^ It is not essential, in order to bring automobiles used for hire within this definition, that they stand upon the street when not engaged; nor that the operator solicit business on the streets. While hackney carriages may commonly be let for hire at stands on the streets, they are no less such if kept on private grounds or in a garage.*® § 1497. Automobile as public hack. Whether or not an auto- mobile is a public hack, within the terms of an ordinance provid- ing that no public hack shall ply for hire unless duly licensed, de- pends upon whether or not it is used for the purposes of a public hack. "A taxicab, not a pubMc hack, can doubtless lawfully be called for an ascertained patron or hirer to a given place and may proceed to such place and stop there, although such place be a public hack stand, and remain there subject to the orders of such person so engaging it, provided that no unreasonable use be made by such taxicab of such public stand and provided that such taxi- cab is not subject to hire by any person other than such ascer- tained person or hirer from the time that it is called until the time when it returns to the garage in which it is kept; and for the pur- pose of securing customers taxicab companies may, by agreement, keep representatives in hotels, public restaurants and other places, but such representatives cannot be permitted to evade the ordi- nance in question by summoning taxicabs, not public hacks, from such garages to such places ostensibly for ascertained patrons or hirers, but in reality without such, but with a view to having them hired by any one from the public streets." *'' § 1498. "Plying for hire." Within the meaning of an ordi- nance providing that no public hack shall ply for hire unless duly licensed, "the conjunction of a given purpose with given conduct appropriate to effectuate it constitutes 'a plying for hire;' namely the conjunction of the purpose to accept whenever the cab is vacant and unengaged persons who may offer themselves as passengers for hire coupled with conduct which evidences this purpose — as, for example, the placing of such cab on a public street where it is 36 State V. Jarvis, 89 Vt. 239, 95 Atl. 37 People v. Milne, 86 Misc. 417, 149 S41 (1915). ' N. Y. Supp. 283 (1914). 36 State v. Jarvis, 89 Vt. 239, 95 Atl. 541 (1915). 1334 LAW OF AUTOMOBILES accessible to those who may wish to hire it and the solicitation of passengers for hire by the one operating it, by word, act, or by the exhibition of appropriate signs or devices." One may ply for hire without being hired; and where an operator kept the flag of his taxicab in ari upright position with the word "vacant" disclosed to the public, he solicited passengers through the medium of such sign as truly as if he had called out aloud. It was an assertion by conduct that the vehicle was for public hire, and in conjunction with the movement of the vehicle constituted a plying for hire.*' §1499. Obstructing streets. If a taxicab company unrea- sonably and unlawfully obstructs a public street, it commits a pub- lic nuisance; but the mere fact that it carries on its business with- out a license, or in excess of its license, in violation of an ordi- nance, does not necessarily mean that it is guilty of a public nui- sance. Where a public hackman is not peculiarly injured thereby, he cannot maintain a suit in equity to abate an alleged nuisance on the charge that the defendant, his competitor, >is doing business without a license, or in excess of his license.*' A hack stand is an incident to the use of adjoining premises for hotel pxirposes, but the maintenance of a sight seeing automobile is not an incident to the use of a part of the hotel building for a, store.*" § 1500. Rights of owner of property abutting hack stand. Public hack stands may be established in front of hotels without the consent of the owners or lessees of such property, without in- fringing any constitutional right of such owners or lessees, or of any hackman to whom any such owner or lessee has attempted to con- fer any right to stand in the street." Owners of property abutting on public streets cannot confer upon hackmen any rights inconsistent with the power of the city to regulate the busiriess of hackmen or to regulate the use of the streets.*^ § 1501. Municipality through which automobile is operated may require license. A company operating automobiles for hire 38 People V. Milne, 86 Misc. 417, 149 *l Yellow Taxicab Co. v. Gaynor, 82 N. Y. Supp. 283 (1914). Misc. 94, 143 N. Y. Supp. 279 (1913), S^Hefferon v. New York Taxicab Co., aff'd 159 App. Div. 893 (1913). 146 App. Div. 311, 130 N. Y. Supp. 710 « Yellow Taxicab Co. v. Gaynor, 82 (1911). Misc. 94, 143 N. Y. Supp. 279 (1913), 40United States Rest. Co. v. Schulte, aff'd 159 App. Div. 893 (1913). 67 Misc. 633, 124 N. Y. Supp. ;83S (1910). THE AUTOMOBILE IN PUBLIC SERVICE 1335 between and through a numJaer of towns, may be required to take out a license in a town through which its vehicles operate, although it is licensed in the town where it has its principal place of business. If it fails ' to comply with an ordinance requiring such license, the town may proceed against one of its drivers.*' § 1502. Public automobile as common carrier. One engaged in the automobile rent business, who owns and operates a motor vehicle for hire, either at a charge of so much a trip or so much an hour, who has a fixed stand or place where his car is available to prospective customers during many hours of the day and night, and who transports passengers from place to place, is a common carrier, although he has no fixed schedule of charges, does not operate over definite routes, does not on all occasions load his car to its full capacity, and reserves the right to refuse to transport passengers whether his automobile is engaged or not.** 43 0pdyke v. Anniston, — Ala. App. — , 78 So. 634 (1918). 44 Gushing v. White, 101 Wash. 172, 172 Pac. 229 (1918). In Bank of Orange v. Brown (3 Wend. 161), Chief Justice Savage said: "Every person who undertakes to carry, for a compensation, the goods of all persons indifferently, is, as to the liability im- posed, to be considered a common car- rier. The distinction between a common carrier and a private or special carrier IS, that the former holds himself out in common, that is, to all persons who choose to employ him, as ready to carry for hire; while the latter agrees, in some special case, with some private indi- vidual, to carry for hire. In Parmelee v. Lowitz, 74 111. 116, 24 Am. Rep. 276, the proprietor of a line of omnibuses and baggage wagons, en- ' gaged in carrying for hire, passengers and baggage for all persons choosing to hire, from, to, and between depots, hotels, and different parts of the city of Chicago, was held to be a common carrier. The doctrine of this case is expressly re- affirmed in the case of Hinchliffe v. Wenig Teaming Co., 274 111. 417, 113 N. E. 707. In McGregor v. Gill, 114 Tenn. S21, 86 S. W. 318, 108 Am. St. Rep. 919, where it was held that a livery stable keeper who had hired a team and con- veyance to a customer for a special oc- casion was not a common carrier, the dis- tinction between the two classes is aptly stated in this language: "The present case bears no likeness to that of Law- rence v. Hudson 12 Heisk. (Tenn.) 671, relied on as authority by the plaintiff in error. In that case the defendant was the owner of a line of omnibuses running from Nashville to Edgefield, holding himself out to the public as ready and willing to carry for hire all persons who offered themselves as passengers. This owner was, upon all the authori- ties, a common carrier, and was properly held to the full limit imposed upon one so engaged." "A private carrier is one who agrees, by special agreement or contract, to transport persons or property from one place to another, either gratuitously or for hire; one who undertakes for tile transportation in a particular instance only, not making it a vocation, nor hold- ing himself out to the public ready to act for all who desire his services. Com- mon carriers, however, hold themselves out to carry for all persons indiscrimi- nately.'' Moore, Carriers, sec. 4. "To bring a person within the descrip- tion oj a common carrier he must exer- 1336 LAW OF AUTOMOBILES § 1503. Motorist transporting others to and from work for hire is not common carrier. A motorist who, in driving to and from work, made a practice of carrying five others for an agreed compensation, but who carried no one else, was not a common carrier, and was not required to secure a permit from the Pubhc Service Commission for that purpose, under a statute relating only to common carriers.*^ § 1504, Duty to carry according to contract. Where one en- gaged in the business of a common carrier by automobiles contracts to carry a passenger to a certain place, and on the way the auto- mobile breaks down, it is his duty to use due diligence to supply another car, and if, after waiting a reasonable length of time for him to do so, and no other car is furnished, the passenger walks' back to the place from which he started, this does not constitute a waiver on thp passenger's part of his right to be transported.*® § 1505. Obligations in carrying baggage. It is generally held that truckmen, wagoners, cartmen, and others who undertake to carry goods for hire for the public generally and as a common employment in a city, or from one town or place to another, are common carriers. As such they are, practically, insurers of bag- gage carried by them until the destination of its journey has been reached, when their responsibility as carriers ends. When such a carrier undertakes to transport baggage from the hirer's home or hotel or other place to a specified station or place and the hirer is not there at the appointed time to receive the same, the carrier's responsibility as carrier ends, but he continues under the less oner- ous duty then of exercising ordinary care for its safety until it is called for, or disposed of in some legal way. "His responsibility does not wholly end or terminate with the performance of his contract of carriage. He still remains under duty to exercise some degree of care for the safety of the property." *'' cise it as a public employment; he must and not as a casual occupation, and for undertake to carry goods for persons all people indifferently, to convey goods generally, and he must hold himself out and deliver them at a place appointed, as ready to engage in the transportation for hire, as a business, and with or with- of goods for hire, as a business, not as out a special agreement as to price." 2 a casual occupation pro hac vice. A com- Kent's Commentaries, 598. mon carrief has therefore been defined *B Towers v. Wildason — Md. — , 109 to be one who undertakes for hire or Atl. 471 (1920). reward to transport the goods of such 46Taxicab Co. v. Grant, 3 Ala. App. as choose to employ him, from place to 393, 57 So. 141 (1911). place." Story on Bailments, § 495. « Brown Shoe Co. v. Hardin, 77 W. "Common carriers undertake generally, Va. 611, 87 S. E. 1014 (1916). THE AUTOMOBILE IN PUBLIC SERVICE 1337 § 1506. Liability of sight-seeing automobile operator to pas- sengers. One operating a sight-seeing automobile, making regular trips from given points over regular routes, and for which trips he has on sale tickets at a fixed price, is bound to exercise toward his passengers the highest degree of care consistent with the proper transaction of the business. ' This duty he owes, whether or not he is technically a common carrier. The court in this case stated that this business much more resembles a public than a private carriage of passengers. It was held that reasonable care in the circum- stances for the safety of the passengers should be defined as the highest degree of care consistent with the proper transaction of the business.** In such cases there is a duty to make some provision for the safety of the property which usually consists of stor- age, although railroad companies and other common carriers are not engaged in the business of storage. The law recognizes the necessity of limited stor- age or custody for mere safety, as u, necessary incident of the business of carriage. It cannot justly close its eyes to the numerous minor casualties, mishaps, and misadventures which may prevent appearance and demand at the place of destination. Moreover, it as- sumes that the parties impliedly contem- plated some provision for their conse- quences as part of the contract. Ordi- narily the owner is punctual in his ap- pearance, production of his check, and claim of his property, and it does not occur to either 'party to make express provision for . what is not likely to, but may occur, but the law does not assume their ignorance of such possi- bilities nor their intention to make no provision for them. On the contrary, knowledge thereof, and also the inten- tion to make some provision for the safety of the property in such an event, are assumed. ,Nor does even negligent failure to make a prompt appearance and claim justify abandonment. The carrier's remedy for such delays, whether due to accident or negligence, is a rea- sonable charge for storage. Here, as in very many other cases, the law, con- forming itself to rules of conduct gov- erning the dealings and relations of pru- dent and fair men, makes allowance for inadvertence, mistakes, and even, wil- ful failures to comply with strict duty, and proportions the penalty to the of- fense, in the absence of an agreement inflicting a definite forfeiture of right. Though the defendant's business was more limited than that of a railroad company or other carrier over long distances, the same general principle must be applicable to him. On the fail- ure of the owner of baggage to call for it at its destination, his abandonment of it would have been equally as unrea- sonable and unjustifiable as that of any other carrier. Brown Shoe Co. v. Har- din, 77 W. Va. 611, 87 S. E. 1014 (1916), "// a passenger does not call jar his baggage on ■ arrival, the company can- not leave -it uncared for, or abandon it. Its strict responsibility as a carrier will cease after a reasonable time has elapsed to enable the owner to claim it, and a modified liability, like that of ware- ' houseman, will supervene. . . . The neglect of the owner to call for the baggage "within a reaspnble time changes the character of the liability, but does not terminate it." Matteson v. Rail- road Co., 76 N. Y. 381; Burnell v. Railroad Co., 45 N. Y. 184, 6 Am. Rep. 61; Fairfax v. Railroad Co., 67 N. Y. 11; Schouler's Bail, and Carriers (3d ed.), § 694; Hutchinson, Carriers, 1291. *8 Hmds V. Steere, 209 Mass. 442, 93 N. E. 844, 1 N. C. C. A. 134 (1911). 1338 LAW OF AUTOMOBILES § 1507. Injury to passenger by skidding automobile. One who was injured while a passenger in a public motor omnibus brought suit to recover therefor, alleging, first, negligence in the operation of the vehicle whereby it was driven against an electric light standard, and, second, negligence in placing on the highway a dangerous vehicle which was liable to become, and did in fact Tae- come, uncontrollable owing to the slippery condition of the road, and which on that account, constituted a nuisance. The trial court permitted the case to go to the jury only on the second ground. The injury occurred when the omnibus skidded against the standard. There was a verdict for plaintiff, which the trial judge set aside and entered judgment for defendant. In the course of his judgment the judge stated that it was not suggested at the trial that the defendant company used an imperfectly constructed or wrongly designed vehicle, or that the company had omitted to use any known con- trivance or take any proper precaution to prevent skidding. The accident occurred while the omnibus was traveling about S miles an hour, and was due to the greasy condition of the road. As there was no question of any defect in this particular vehicle, and as the question considered by the jury was whether, iri view of the fact that motor omnibuses and other motor propelled vehicles have a tend- ency to skid on slippery roads, it was negligence on the part of defendant, which had knowledge of this tendency to skid, to place in service a vehicle likely to become uncontrollable in slippery con- ditions of the road, it was found that there was no evidence of negligence, having regard to the fact that motor omnibuses had been run in the streets for years. *^ § 1508. Injury to passenger in collision. Where the chauf- feur of defendant's motorbus saw a truck, with which he collided, emerging from an alley 45 feet away, and he could have stopped the bus in a few feet, the question of his negligence in failing to slacken speed or give warning signal was for the jury, in an action by a passenger in the bus injured in the collision.^" § 1509. Injury to passenger by bus backing down hill. In an action by the plaintiff to recover for injuries repeived while a passenger in a motor bus, an allegation that while ascending a hill the automobile went backwards and turned on its side, injuring 49 Wing V. London General Omnibus BO Farrell v. Boggs & Buhl, 263 Pa. Co., 101 L. T. 411, (1909) 2 K. B. 6S2 St. 221, 106 Atl. 198 (1019). (1909), rev'g 100 L.T. 301. . THE AUTOMOBILE IN PUBLIC SERVICE 1339 the plaintiff, was held to be sufficiently definite and certain/^ § 1510. Chauffeur is servant of the owner. A person who hires a taxicab and gives the driver directions as to the place to which, he wishes to be conveyed, but exercises no other control over the conduct of the driver, is not responsible for his acts or negligence,*^ unless he in some Way participates in or sanctions such negligence.** It is not sufficient to show such participation or sanction that the hirer at one time told the chauffeur to "be careful." " These rules apply even when the automobile and chauffeur are hired from the garage for a considerable period of time.** "The identification of the passenger with the negligent driver or the owner, or the carrier, as the case m£ty be, without his co-oper- ation or encouragement, is 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 manag- ing it, is his servant; neither of them is the servant of the passenger, and his asserted identity with them is contradicted by the general experience of the world." *^ Where plaintiff engaged a taxicab to take her to a certain hospital, informing the chauffeur, in response to his inquiry, that the hospital was out H. street on B. avenue, did not amount to a direction to him to drive on H. street on the return trip.*'' The plaintiff and one W. hired an automobile and driver from the defendant for a country trip. Plaintiff sat in the rear seat with some ladies, and W. sat in the front seat with the driver. W. directed the driver where to go, and what road to take, and cautioned him not to make fast time. There was evidence that at some time during 51 Seeing Denver Co. v. Morgan, — Wisconsin: Hannon v. Van Dycke Colo. — , 18S Pac. 339 (1919). Co., 154 Wis. 454, 143 N. W. 150. (1913). 62 California: Hathaway v. Coleman, 53 Hannon v. Van Dycke Co., 154 Wis. — Cal. App. — , 169 Pac. 414 (1917). 454, 143 N. W. 150 (1913). Maine: Mobbs v. Hurley, 117 Me. B4 Hannon v. Van Dycke Co., 154 Wis. ' 449, 104 Atl. 815 (1918). 454, 143 N. W. 150 (1913).- Minnesota: Meyers v. Tri-State Auto. 56McNamara v. Leipzig, 227 N. Y. Co., 121 Minn. 68, 140 N. W. 184, 44 L. 291, 125 N. E. 244 (1919). R. A. (N. S.) 113 (1913). 66 Donnelly v. Philadelphia & R. R. New York: McNamara v. Leipzig, 227 Co., 53 Pa. Super. Ct. 78 (1913), quoting N. Y. 291, 125 N. E. 244 (1919) ; Sinica from Bunting v. Hogsett, 139 Pa. St. V. New York R. Co., 190 App. Div. 727, 363. 180 N. Y. Supp. 377 (1920). 67 Hathaway v. Coleman, — Cal. App. Pennsylvania: Donnelly v. Philadelphia — , 169 Pac. 414 (1917). & R. R. Co., 53 Pa. Super. Ct. 78 (1913). 1340 LAW OF AUTOMOBILES the trip the driver was warned not to go so near the edge of the road. Further than that no one of the party exercised any control over the driver. At a time on the return trip when the automobile was moving at a moderate rate of speed, on a hard, smooth^ dry road, wide enough for two automobiles to pass each other, the day Iseing bright and hot, and the r^achinery of the car in good order, the driver permitted the car to roll over an embankment on the left side of the road, which resulted in the injury complained of. There was /evidence that he had been driving carelessly at times. The driver testified: It was a "sort of a period of dizziness, which I don't suppose I would ever realize to find out what it was if Mr. W. hadn't called my attention to it, but I don't remember anything out- side of the last. I remember I was looking ahead at the road, and from that time on until the accident occurred it was blank to me. I don't know how far. It might have been 30 feet. It might have been 5 feet." He admitted that he had been all right immediately before and that he was all right immediately after the occurrence. The defendant was a dealer and did not ordinarily let its vehicles for hire. It was h^ld that the driver did not become the servant of the plaintiff, but was the servant of defendant, who was liable for his negligence; that the evidence sufficient proved negligence on the part of the driver, and that the' plaintiff was entitled to recover.^* Where one furnishes an employee with an automobile and sends ' him out on the public highways to solicit and carry passengers for hire, paying him a salary and a cornmission on the gross earnings, he is liable for injuries caused by the negligent operation of the , automobile by such employee in the line of such business. ^^ If, however, a hired vehicle is used for a purpose different from that agreed in the contract, -the driver is not then the agent or servant of the owner, but he is then acting for the hirer.^" A passenger is not liable to third persqns caused by the negli- gence of the chauffeur.®^ ' § 1511. Carriers for hire— Undertaker included. An ordi- nate providing for licensing any person who may carry any person or persons to or from any poiht within the city for hire, applies to an undertaker using his automobile in carrying for hire families, of B8 Meyers v. Tri-State Auto Co., 121 60 pritz v. Hochspeier Co., 287 111. Minn. 68, 140 N/ W. 184, 44 L. R. A. ^574, 123 N. E. SI (1919). (N. S.) 113 (1913). SlHobbs v. Hurley, 117 Me. 449, 104 BSRudd V. Fox, 112 Minn. 477, 128 Atl. 815 (1918). N. W. 67S (1910). THE AUTOMOBILE IN PUBLIC SERVICE 1341 deceased persons to- and from the cemetery while conducting funerals.®^ ' JITNEYS §1512. "Jitney" defined. "The 'jitney' may be defined to be a self-propelled vehicle, other than a street car, traversing the public streets between certain definite points or termini, and as a common carrier conveying passengers at a five-cent or some small fare, between such termini and intermediate points, and so held out, advertised, or annojunced." ®' "The chief characteristics pf jitney service consist in carrying passengers for hire along certain streets for a certain distance for a fare approximately the ordinary street car fare and an additional fare for another fixed distance or any part of the same." ** An ordinance of the city of Reno, Nev., defines jitney bus as follows: "A 'jitney bus' shall mean and include any self-propelled motor vehicle other than a street car, employed in the business of carrying passengers for hire over fixed routes, or between certain definite points, within the city of Reno." ^^ § 1513. Jitney is common carrier. A person engaged in the operation of a jitney bus is a common carrier .®® 62 Spokane v. Knight, 101 Wash. 6S6, Washington: McDorman v. Dunn,, 172 Pac. 823 (1918). 101 Wash. 120, 172' Pac. 244 (1918); 63 Memphis v. State ex rel., 133 Tenn. Gushing v. White, 101 Wash. 172, 172 83, 179 S. W. 631, L. R. A. 1916B 1151 Pac. 229 (1918), citing this work; Singer (1915). V. Martin, 96 Wash. 231, 164 Pac. 1105 64 Philadelphia Jitney Ass'n v. Blank- (1917); State v. Collins, 93 Wash. 614, enburg, 24 Pa. Dist. 1000 (1915). 161 Pac. 467 (1916). 66 Ex parte Counts, 39 Nev. 61, 153 Federal: Lutz v. New Orleans (D. Pac. 93 (1915). C), 235 Fed. 978 (1916). ^^ Kansas: Dresser v. Wichita, 96 "The term 'common carrier' is not of Kan. 820, 153 Pac. 1194 (1916). statutory origin. Its meaning is to be Maryland: Smith v. State, 130 Md. found in the history of the law of the 482, 100 Atl. 778 (1917). early days when, means of travel and New Jersey: Karnitsky v. Machanic, communication were slow and uncertain — N. J. L. — , 109 Atl. 303 (1920); and innkeepers and . carriers were re- Schott v. Weiss, 92 N. J. L. 494, 105 Atl. strained from the robbery and ofttimes 192 (1918). murder of those to whom they offered New York: Anderson v. Fidelity & their hospitality or service, only by the Cas. Co., 228 N. Y. 475, 127 N. E. 584 imposition of heavy penalties and respon- (1920). sibility for the safekeeping of their pat- Tennessee: Memphis v. State ex rel., rons' goods and persons. With the de- 133 Tenn. 83, 179 S. W. 631, L. R. A. velopment in traveling facilities from 1916B 1151 (1915). the post horse to the chaise, the stage 1342 LAW OF AUTOMOBILES , "In the first place, 'jitney' busses, as defined both in the statute and the ordinance, are common carriers doing an intrastate business upon the streets of, defendant city, and, as such, are subject to such reasonable regulation and control as the proper governing bodies may determine, and this control involves the right to license or tax the same."®'' A statute of Tennessee defines as a common carrier any person or corporation operating for hire "any public conveyance propelled by steam, gasoline, electricity or other power" for purposes of trans- portation "similar to that ordinarily afforded by street railways (but not operated upon fixed tracks) by indiscriminately accepting and discharging" passengers "along the way and course of opera- tion." The*statute declares the business of such common carriers to be a privilege; and its validity has been sustained.®' A statute giving jurisdiction over common carriers to a state Public Service Commission, and providing that "the term 'common \carrier' includes any and all common carriers whether corporations or persons engaged for profit in the conveyance of passengers or " property or both between points within the Commonwealth," was held to give the Public Service Commission jurisdiction over persons operating jitney bus service entirely within the limits of one munic- ipality.®' § 1514. Duty of operator to passengers— Degree of care. The care required of a jitney operator for the safety of his passen- gers is the same that is required of common carriers of passengers generally.'''' , It is the duty of the operator of a jitney bus, in exercising care for the safety of his passengers, to use the highest degree of care coach and to the modern railroad train aeroplane, presenting as it does new or steamboat, the term 'common car- dangers unknown to the average man ;-ier' has been applied to each new de- which can only be decreased by a high velopment catering to the public gen- degree of care upon the part of those erally, and the strict rules of the old in control of the mechanism which oper- law have been relaxed but little, for ates them." Anderson v. Fidelity & Cas. with the development came new dan- Co., 228 N. Y. 475, 127 N. E. S84 gers of a mechanical sort inherent to (1920). swiftly-movingi machines. To-day, as is. fiT Huston v. Des Momes, 176 la. 4SS, practically conceded by counsel for both 156 N. W. 883 (1916). parties in the instant case, the term 68 >folen v. Riechman (D. C), 225 'common carrier' should be applied to Fed. 812 (1915). the 'jitney bus,' and to-morrow, in a 69 Scranton R. Co. v. Fiorucci, 66 Pa. proper case, it may well be that it may Super. Ct. 475 (1917). be applied to that most recent device foi- 70 Schott v. Weiss, 92 N. J. L. 494 eliminating the -fetters of distance, the 105 Atl. 192 (1918). THE AUTOMOBILE IN PUBLIC SERVICE 1343 compatible with the practical operation of the jitney at the time and place in question.''^ As a common carrier, he owes to his passengers the duty "of exercising the highest degree of care compatible with the practical operation of the car. That duty would not be met as a matter of law by a mere observance of the law of the road. His negligence, if any, as between him and his passenger, is to be measured by his duty as a common carrier, not by his duty to other users of the highway." ''^ § 1515. Injury to passenger— Prima facie case. Plaintiff was a passenger at night on a jitney bus operating between two towns. He signaled the operator to stop at the next corner for him to alight, and he was in the act of rising from his seat, pre- paratory to leaving the bus, when the front wheel struck a large stone in the road. The impact caused the plaintiff to be thrown out the door of the bus between the bus and a telegraph pole, and to sustain serious injuries. It was held that these facts were sufficient to sustain a verdict for the plaintiff.''* § 1516. Regulation generally. The regulation of jitney busses has been upheld without exception as a proper exercise of the police power ; and the right to impose a reasonable license fee follows as an incident of this power.''* '1 McDorman v. Dunn, 101 Wash. 120, Ex parte Sullivan, — Tex. Cr. App. — , 172 Pac. 244 (1918). 178 S. W. S37 (1915). 72 Singer v. Martin, 96 Wash. 231, 164 Washington: State v. Seattle Taxicab Pac. lies (1917). & Tr. Co., 90 Wash. 416, 156 Pac. 837 73Schott V. Weiss, 92 N. J. L. 494, (1916); State v. Collins, 93 Wash. 614, 105 Atl. 192 (1918). 161 Pac. 467 (1916). "^^ California: Ex parte Cardinal, 170 Federal: Nolen v. Riechman (D. C), Cal. 519, ISO Pac. 348, L. R. R. 191SF 225 Fed. 812 (1915). 850 (1915). The route may be prescribed as, a regu- Georgia: Hazkton v. Atlanta, 144 latory measure. Ex parte Dickey, 76 Ga. 775, 87 S. E. 1043 (1916) ; Savannah W. Va. 576, 85 S. E. 781, L. R. A. V. Morehead, 144 Ga. 783, 87 S. E. 1046 1915F 840 (1915). (1916) ; Hazleton v. Atlanta, 147 Ga. 207, Such provisions are not violative of 93 S. E. 202 (1917). the uniform taxation clause of the con- Louisiana: New Orleans v. LeBlanc, stitution. Hazleton v. Atlanta, 144 Ga. 139 La. 113, 71 So. 248 (1916). 775, 87 S. E. 1043 (1916). New Jersey: West v. Asbury Park, 89 "The regulation of such vehicles and N. J. L. 402, 99 Atl. 190 (1916). traffic comes under the police power, Pennsylvania: Philadelphia Jitney and it is generally recognized that such Ass'n V. Blankenburg, 24 Pa. Dist. 1000 regulations are a proper exercise of that (191S). power. The jitney bus business, trans- Texas: Greene v. San Antonio, — porting people for hire, for a uniform Tex. Civ. App. — , 178 S. W. 6 (1915) ; five-cent farei in low-priced or second- 1344 LAW OF AUTOMOBILES "It is a matter of common knowledge on the part of those familiar for sight-seeing purposes, or to motor- propelled vehicles used exclusively as hotel busses, or to any motor-propelled vehicle which is rented from a fixed stand in the street, or from a private or public garage, arid the destination of which is under the direction of the passenger or passengers transported there- in. The term 'driver' is hereby defined as a. person driving a 'motor bus.' The term 'motor bus' is further ordained to include machines or cars called 'jitneys' or 'jitney busses.' "Sec. 3. It shall be unlawful for any person, firm or corporation, either as owner, lessee, or possessor in any right, to engage in the business of operating a motor bus without first obtaining a hcense therefor from the city clerk and complying with the following require- ments: "(1) The payment of a license fee for each motor bus, which license is hereby ordained as follows: First. For each motor bus having a seating capac- ity of four persons or less including driver, ip7S.OO. Second. For each' motor bus having a seating capacity of more than four and less than eight per- sons, including driver, $100.00. Third. For each motor bus having a seating capacity of more than seven and less than ten persons, including driver, $175.00 Fourth. For each motor bus having a seating capacity of more than ten persons, including driver, $150.00. This license is fixed for a period of one year, no license to be issued for a period of less than six months. "(2) Said clerk shall not issue such hand automobiles, over definite routes in cities or towns, is of but recent origin, but the' regulation of the busi- ness followed hard upon its develop- ment by acts of the Legislature in some instances and by ordinances of the mu- nicipalities, in which they operated, in others. The question of such regulation has been passed upon by the courts of the states of California, West Virginia, Tennessee, Texas, and Louisiana all holding that the business was in effect a common carrier of passengers for hire and necessarily subject to regulation by the state ^nd its authorized agencies." Willis V. Ft. Smith, 121 Ark. 606, 182 S. W. 275 (1916). The provisiops of the ordinances en- acted in many large cities in which the "jitney" suddenly became the sub- ject of legislative regulation are, in the main, very similar. Up to the present time, their validity has been sustained without a single exception. The fol- lowing is a copy of the jitney ordi- nance passed by the legislative body of Atlanta, Ga.: "Section 1. It shall be unlawful for any person, firm or corporation, either as principal, agent, or employee, to use, occupy, or operate upon any of the streets or public places of the city of Atlanta any motor bus, or to act as driver or chauffeur thereof, without complying with the provisions of this ordinance applying to such ownership, operation, or to the position of driver or chauffeur thereof, or any of the regu- lations herein ordained. "Sec. 2. - That a 'motor bus,' as the term is used in this ordinance, is hereby defined to be any motor-propelled ve- hicle operated over the streets and pub- lic places of the city, for the purpose of carrying passengers for hire, which receives and discharges passengers along the route traversed by said ve- hicle. This definition does not apply to any street or interurban railway, or motor-propelled vehicles used exclusively license until the applicant shall file with the clerk statement in writing, giving the- number of busses proposed to be operated, the seating capacity of each, name of applicant, and his or her ad- dress or place of business. The state- ment shall furthermore describe the bus or busses to be used, and shall also, give the rnake of each car, factory number, motor number, and number of passen- THE AUTOMOBILE IN PUBLIC SERVICE 1345 with conditions in our large cities that the comparatively recent gers each bus is capable of carrying. "(3) The applicant, before receiving said license, shall file a written statement clearly setting forth the route upon which the bus or busses are to be operated and the terminal points of such routes. How- ever, the licensee may change these routes at any time by filing a statement to that effect with the mayor and general council before making the change. "(4) If the applicant be a corpora- tion, it shall, before receiving the li- cense, file with the clerk a certified copy of its charter, accompanied with the statement showing the amount of capi- tal actually paid into the corporation, and the names and places of residence of all the officers thereof. | "(S) Such applicant shall likewise file with the city clerk, and from time to time as changes are made, a list stating the name, age, and residence of such driver employed by said applicant, or as soon as employed by said licensee. "Sec. 4. It shall be unlawful for any person to act as driver, under this ordi- nance, of any motor bus, without com- plying with the following requirements: "(a) Each person, firm, or corpora- tion operating any such automobile or automobile bus shall, before the same is placed in operation, file with the city clerk an indemnity bond in, the sum of five thousand dollars, for the operation of each automobile or vehicle; and it shall be the duty of the /clerk to present such bond to the mayor and general council for approval, and the same shall be approved by that body before it shall be lawful to operate such vehicle in conducting the business herein de- fined. And the applicant shall maintain the bond at the amount specified during the whole time of operation; and such bond shall be conditioned to the effect that in the event of any person or property being injured or damaged by the operation of any such vehicle, for which the owner may be liable under the laws of Georgia, the person so in- B. Autos. — 83 jured in his person or property shall have a right of action under such bond, ind the bond shall not be void upon first recovery, but may be sued under from time to time until the full penalty thereof may be exhausted. "(b) Filing with the clerk a certi- ficate from the thief of police or assist- ant chief that such person is, in the opinion of said officer, qualified to op- erate a motor bus, and of good char- acter for sobriety and good conduct. "(c) No certificate shall be received by the clerk or issued by either of said officers unless such person is 18 years of age, but same may be issued to a person of each sex. "(d) The clerk shall issue to the ap- plicant a metal badge, which shall be worn by the driver in a conspicuous manner on his coat and be seen at all times, with the serial number and date properly fiUed in, the badge having on it the following words, 'Licensed Driver No. , Atlanta, Ga. 19^—.' This badge to be worn by the driver at all times while driving a motor bus, and it shall be unlawful for him to operate a motor bus without wearing the badge, or without having given and had approved the bond referred to. "Sec. S. It shall be unlawful for any driver procuring a badge and card, as above described, to give, lend, or in any manner undertake to transfer the same to another person; and it shall be un- lawful for any other person to wear suc^ badge issued as herein required, as author- ity for the person to act as a driver for any motor bus. "Sec. 6. The holder of a license for the operation of a motor bus may sub- stitute one motor bus for another, pro- vided such substitution shall not con- tinue for a longer time than seven days consecutively. If such substitution con- tinues for a longer period, a written statement to this effect shall be filed with the clerk of council, and the clerk shall 1346 LAW OF AUTOMOBILES introduction of this class of vehicle, commonly known as the 'jitney,' enter upon each license the facts of such substitution. ' "Sec. 7. No license shall be issued to any person, firm, ^ or corporation who selects a route with a terminus at the intersection of Whitehall and Alabama streets, or at what is known as Five Points, but said busses or routes there- after may operate across said intersec- tions with the terminus at some point other than said intersections. This pro- vision is made because of the conges- tion of' travel at the intersections re- ferred to. ,1 "Sec. 8. The mayor and general coun- cil reserve the right to cancel the license of any licensee at any time for a vio- lation by such licensee of the provisions of this ordinance or other ordinance of the city, whenever the safety of the traveling public may demand same. "Sec. 9. No motor bus shall use any portion of the streets as a stand or as a place of business, but are permitted to stop upon any of the streets or pub- lic places of the city only at the inter- section of a cross-street, on the near side ^and right-hand side of the street on which the bus is being operated for the purpose of receiving and discharg- ing, passengers: Provided no more time be consumed than is necessary for this purpose; and provided the bus shall stand in such position as not to inter- fere with pedestrians crossing the street or with passengers boarding or alighting from street-cars. No motor bus shall stop to take on or let off passengers except at the curb. "Sec. 10. It shall be unlawful for the owner, operator, or driver, by the use of loud words or other means which may annoy pedestrians or tend to create disorder, to solicit or attempt to induce any person or persons to ride in such motor bus. "Sec. 11. It shall be unlawful for any person to ride lipon the hood, fendeT, running board or outside the body of any motor bus. "Sec. 12. Every motor bus operated under this ordinance must be well built, kept in good repair and in clean and sanitary condition, and capable of safely and comfortably transporting the pas- sengers thereof, and shall at all times be subject to the inspection of the chtef mechanic of the municipal garage; and it shall be unlawful to operate such motor when the same has been disapproved by such mechanic. "Sec. 13. It shall be unlawful for the driver of a motor bus to charge oir demand a greater fare than five cents for each passenger, or make any charge for the transportation of hand baggage of such passenger, unless same is of size sufficient to occupy space which otherwise might be occupied by a pas- senger, or would inconvenience other pas- sengers using the bus or tend to make the operation thereof unsafe. "Sec. 14. The driver of any motor bus shall carefully preserve any article left in the bus by a passenger. If not called for by the owner in 24 hours, each' article shall thereupon be turned over to the chief of police for safe- keeping and identification by owner. When the owner calls for same either in the hands of the driver or licensee or chief of police, and proves his own- ership, same shall be promptly deliv- ered to him. "Sec. IS. No motor bus shall be used unless provided with a sign attached to the side or rear of the car setting out the route thereof, the termini, and fare charged. The letters and figures shall be I>ainted in white on a black background and shall not be less than 2^ inches in height, with a stroke of not less than % inch in width. Underneath the forego- ing shall be set forth the name of the person or corporation operating the bus. No other signs or advertising shall be carried on the outside of the bus. This does not prohibit reasonable decora- tion by banners or otherwise, provided same do not interfere with passing ve- THE AUTOMIBILE IN PUBTLIC SERVICE 1347 for the carriage of passengers on the public streets, for a charge hides or tend to frighten animals driven along the route of the bus. There shall be no sign, letters, or figures upon the windshield, and no obstruction of any kind carried upon the bus which in any way obstructs the vision of the driver or tends to . limit his view of the street along which the car is being operated. "Sec. 16. If the driver of any car has been convicted, in either the state or the recorder's court, of a violation of any criminal law of the state or city, his right to further operate a car or act as driver thereof ipso facto ceases and determines; and it shall be unlawful for him thereafter to offer as a driver or undertake to act as a driver of any motor bus, unless the chief of police, after investigation of the facts in the particular case, shall certify to the clerk of council that such convic- tion does not affect the character of the driver. Thereupon the driver may be again entered by the clerk upon the records of his office as a duly licensed driver. The chief of ' police may like- wise report to council any facts which may come to his attention affecting the proficiency, sobriety, or character of any driver, and the mayor and general council may, in their discretion, revoke the license and permit Of the driver, and thereafter such driver shall not be qualified to drive a motor bus, and it shall be unlawful for him to do so, until such time as the action of the mayor and general council, canceling his license, may be repealed. "Sec. 17. The license issued to any owner for the operation of one or more motor busses is subject to repeal and cancellation, as herein provided; and such license shall authorize the owner and his driver only to operate and drive a motor bus and not undertake any other business, and if any other business is undertaken by such owner or driver, siich as operating a taxicab or hack, or transfer of baggage, the license fee charged by the city to each of said several businesses must be paid before same is undertaken. "Sec. 18. All licenses, certificates, and permits issued under this ordinance shall be subject to the right, on the part of the mayor and general council, from time to time, to make or adopt any ordinances, resolutions, and regulations further controlling, regulating, and gov- erning the operation of motor busses or prescribing additional terms, conditions, license fees, and provisions of other kinds and character affecting such business or the operation thereof. "Sec. 19. Any person, firm, corpora- tion, or driver violating any provision of this ordinance, or any section thereof, or any portion of any section, where a complete offense is named, shall, on/ con- viction in the recorder's court, be pun- ished by a fine not exceeding $200.00, or imprisoned for not exceeding thirty days, or sentenced to work upon the public works of the city for a term not exceeding thirty days, or sentenced to work the public works (streets?) of the city, for a term not exceeding thirty days, one, two, or all of these punishments to be inflicted in the discretion of the re- corder. "Sec. 20. The clerk shall collect from the owner $1.00 for .each seal or tag furnished as required by this ordinance. The clerk shall collect from each driver SO cents for each badge furnished under the ordinance. "(Sec. 21). Motor busses, as operated under this ordinance, shall be equipped on the inside with lights which shall furnish illumination at nights for con- venience of passengers. "Sec. 22. That all ordinances or parts of ordinances in conflict with this or- dinance are hereby repealed." The foregoing ordinance wes held to be valid in Hazleton v. Atlanta, 144 Ga. 775, 87 S. E. 1043 (1916)< 1348 LAW OF AUTOMOBILES closely approximating that made on street cars, in view of the almost phenomenal growth of the institution, has made clearly ap- parent the necessity of some special regulations in order to reason- ably provide for the comfort and safety of the public." ""^ The right of a citizen to travel upon the highway and transport his property thereOn, in the ordinary course of life and business, differs radically and obviously from that of one who makes the highway his place of business and uses it for private gain, in the running of a stage coach or omnibus. The former is the usual and ordinary right of a citizen, a right common to all, while the latter is special, unusual, and extraordinary. As to the former, the extent of the legislative power is that of regulation; but as to the latter, its power is broader. The right may be wholly denied, or it may be permitted to some and denied to others, because of its extraordinary nature.''* While individuals as members of the public have the right to use the public highways for the, purpose of travel, they have no right, aside from express grant, naturally, or from any other source, to carry on their business in the highways. The highways, for the purpose of travel, belong to the public, and an individual can ac- quire the right to carry on a business in the highways only from the public. The right of the public in the highways being only for the public purpose of travel, it, alone, can grant a use of the highways only for the purpose of travel, or to facilitate travel, or for a pur- pose incident to the use of the highways for travel. The use of the highways for a pairpose not coming within this description could be authorized only by a grant of permission from both th^ public and the owners of the fee of the land so used. The public alone could not authorize a use of the highways not con- templated by the dedication thereof for public use; and the individ- ual owners of the fee could not, alone, authorize a use that would interfere with the public use for the purpose of travel. It follows that the business of transporting passengers . in the highways for hire is not a btisiness that an individual may engage 'B Ex parte Cardinal, 170 Cal. S19, ISO with a motor vehicle for the conveyance Pac. 348, L. R. A. 191SF 8S0 (1915). of hk family or his friends, no inherent TSHadfield v. Lundin, 98 Wash. 6S7, right exists to devote his vehicle to the 168 Pac. S16 (1917) ; Ex parte Dickey, public use of carrying passengers for 76 W. Va. S76, 85 S. E. 781, L. R. A. hire and appropriate to himself the use 1915F 840 (1915) ; McQuiUin, Mun. of all the streets for purposes of profit. Corp. § 1620. Dresser v. Wichita, 96 Kan. 820, 153 Whatever natural right a citizen may Pac. 1194 (1916) ; Huston v. Des Moines, have to travelrse the streets of his city 176 la. 455, 156 N. W. 883 (1916). THE AUTOMOBILE IN PUBLIC SERVICE 1349 in as a matter of right, and that such business may be regulated and controlled in the interest of the public welfare to the extent of amounting to a practical prohibition." One can be authorized to operate a jitney in city streets only by law, and not by color of authority.'" No treaty right is violated by such regulatory measures, because the rights of property protected by treaty are such as are capable of sale or transfer, and not such as are purely personal.''* The opeiration of jitneys may be prohibited unless the owner secures a license, and in his application for a license the owner may be required to give a description of his car ; to state its seating capacity, and the name, age, and residence of the person to be in immediate charge thereof as driver, and that the driver has attained the age of 18 years; to give the termini between which the jitney is to be operated, and to file a schedule showing the times of depart- ure from the termini. He may be required to display on his jitnfey bus the number of his city license, although a state license is also displayed. The municipality may prohibit the overloading of jit- neys, and may forbid them to draw trailers. It may require them to be brought to a full stop before crossing a railroad of any kind ; and m.ay require that the body of the vehicle be lighted after dark. The city may penalize the owner for any infraction of regulatory ordi- nances applicable to the operation of such vehicle.*" The owner may be required to specify the termini between which he intends to operate, and to operate only over such route, and to pay an additional fee for the privilege of changing the route so established, or of seating capacity.*^ Jitney busses may be required to be submitted to inspection once a week, and prohibited to operate without a certificate of approval concerning their fitness.*^ The ordinance may properly provide that upon the jitney operator being found guilty of the violation of aijy of its terms, Or of any other law or ordinance relating to traffic and the use of the streets, it shall be the duty of the judge of the court wherein a plea of guilty or conviction is had, to determine whether or not the of- 77 Le Blaiic v. New Orleans, 138 La. 79 Lutz v. New Orleans (D. C.) 235 243, 70 So. 212 (191S), 139 La. 113, 71 Fed. 978 (1916). So. 248 (1916); Hadfield v. Lundin, 98 80 Huston v. Des Moines, 176 la. 455, Wash. 657, 168 Pac. 516 (1917); Lutz 156 N. W. 883 (1916). V. New Orleans (D. C), 235 Fed. 978 81 Booth v. Dallas, — Tex. Civ. App. (1916). -, 179 S. W. 301 (1915). 78 Memphis St. R. Co. v. Rapid Transit 82 Booth v. Dallas, — Tex. Civ. App. Co., 138 Tenn. 594, 198 S. W. 890 (1917). — , 179 S. W. 301 (1915). 1350 LAW OF AUTOMOBILES fense involved is of such gravity that the license under which such person is operating should in the interest of public safety be re- voked; and in case he finds in the affirmative, to make his recom- mendation to the city council, and that the city council shall take such action thereon as it shall deem fit. While this provision does not vest in the court the power to revoke the license, such power may be vested in the courts to be exercised as a part of the punish- ment for a violation of the ordinance.*' Regulations providing that the jitney shall be operated over a designated route, and no other, on a fixed schedule, without repeti- tion in whole or in part of the scheduled trips; that it must be operated every day for at least 13 hours of each day; that it must not accept or discharge passengers in the congested portion of the city at points other than near the middle of the blocks ; that it must not carry in excess of its seating capacity; that it must maintain a light in the tonneau of the car during certain hours if the top of the car be up; and that it must carry signs and plates designating its route, its time schedule, with other matters, were upheld as valid.** A jitney operator is not exempt from the application of a statute requiring a permit to be secured, merely because he has contracted with a municipality to transport passengers in connection with a ferry operated by the city. The municipality itself could not trans- port passengers in violation of law.** 8S Huston V. Des Moines, 176 la. 455, other regulations objectied to. The re- 156 N. W. 883 (1916). quirement that he operate for a fixed 8* Allen V. Bellingham, 95 Wash. 12, number of hours is to provide an ade- 163 Pac. 18 (1917). quale service; the requirement that he/ "It is not ordinarily unduly oppressive receive and discharge passengers in the on a carrier of passengers to require him middle of the block in the business see- to operate his carrier on a fixed schedule tions is to mitigate traffic congestion; and over a fixed route, and certainly it is tlie requirement that he must hot carry conducive to the public interests. Per- beyond the seating capacity of his carrier sons desiring to patronize them are en- tends to promote the comfort and safety titled to know when they will appear, of his passengers; the requirement that the direction they will go, the amount he maintain a light in the tonneau dur- of the fare that will be charged, and the ing the hours of darkness is intended to termination of the route. Indeed, regu- prevent crime; and the requirement that lations of this sort are adopted by most he carry signs showing his route and common carriers whenever possible as time schedule is for the convenience of a matter of policy. Doubtless the opera- his patrons. Clearly these are within the tor of a single vehicle fii^ds it more operative powers of the city and tend to profitable to operate it where and when beneficial ends." Allen v. Bellingham, he pleases, but observation and experi- 95 Wash. 12, 163 Pac. 18 (1917). ence have shown that by so doing he 85 state v. Collins, 93 Wash. 614, 161 becomes a public menace without corre- Pac. 467 (1916). spending public benefit. So with the THE AUTOMOBILE-IN PUBLIC SERVICE 1351 The fact that the persons operating jitneys will suffer financial loss by the enforcement of a regulatory ordinance, does not tend to affect the validity of the ordinance.*^ The motives of the municipal legislative body cannot be inquired into, and such an ordinance cannot be declared invalid as being passed in the interest of a street railway company.*'' An ordinance requiring persons owning or operating automobiles or other vehicles for hire "within the limits of the city," was held not to apply to those carrying passengers between a point in the city and a point outside the city.** § 1517. Same— Jitneys operating under license previously issued. The fact that a jitne^ bus is licensed to operate within a city does not exempt it from regulations relating to such vehicles, be- coming effective during the continuance of the license. Licenses from the state or a municipality are ordinarily to be considered, not as contracts, but as temporary permits to do what otherwise would be unlawful, and are not property in any legal or constitutional sense. The Legislature cannot barter away, by contract or license, the police power of the state, the exercise of which is for the welfare of the public.*' One who was licensed by the city of Rochester, N. Y., "to carry on the business of public vehicle" within the city, contended that regulations enacted by the Legislature applicable to such vehicles (jitneys), and which became effective during the life of his said license, could not become effective as to him during tJie continuance of his license. In holding the contrary to be true, the court said: "We do not understand that the power of the Legislature to declare all jitney busses common carriers, and to require that they shall not operate without the certificate of the Public Service Comr mission as, to convenience and necessity, is seriously questioned in this case. The contention is tljat the terms of the act indicate that it has no application to busses already operating under city license, and that it does not interfere with the existing contracts or vested rights. But we have seen that there are no existing contracts or vested rights under such a license, and that its effect is merely to permit the business to be carried on. From the fact that between January 1 and May 22, 1915, 737 licenses for jitneys or similar 86 Auto Transit Co. v. Ft. Worth, — 88 McDonald v. Paragould, 120 Ark. Tex. Civ>App.—, 182 S. W. 68S (1916). 226, 179 S. W. 335 '(191S). 87 Huston V. Des Moines, 176 la. 45S, 89 Public Service Com'n v. Booth, 170 1S6 N. W. 883 (1916) ; Auto Transit Co. App. Div. S90, 156 N. Y. Supp. 140 V. Ft. Worth, — Tex. Civ. App. — , 182 (1915). S. W. 685 (1916). 1352 LAW OF AUTOMOBILES busses were granted in the city of Rochester, we may infer that it is a traffic of sudden, and rapid growth, and that somewhat similar conditions exist throughout the state. These jitneys operate upon any part of the street, and are not confined to a fixed^ track and, it is evident that, when they are seeking fares in competition with the street cars and other busses, some regulation is necessary to protect the passengers and the pubhc from careless driving and im- proper operation. It is evident that the Legislature, in passing the statute in question, had in view the protection of the public from the dangers incident to the traffic, and also the fact that these busses, carrying passengers for a small fare, come directly in competition with the street cars, which can only, be operated under a certificate of convenience and necessity and the reasonable regulations of the Public Service Commission. "There is no difficulty in determining that the Legislature, within the police power, had the right to make this law. If the enactment of the statute was necessary, it was also necessary that it should have force af once, and as to all busses of this class. The mere fact that a bus had received a license from the city before the enactment of the statute made it no less dangerous to the public than one which had no such license. There is no good reason why the statute should apply to the unlicensed bus any more than to one having a licensed . "A law enacted for the safety and protection of the public should be so construed that the public may have the benefit of its full en- forcement wherever its interests are threatened. The language of the statute seems to leave no doubt that it applies to all busses of the kind, no matter whether they were under a previous license or not. The expression in the twenty-fifth section of the Transportation Corporations Law, 'Any person or any corporation who owns or operates a stage route, bus line or motor vehicle line or route . . . shall be deemed to be included within the meaning of the term "common carrier," ' etc., evidently refers to every stage route or line, and the expression in the twenty-sixth section that no bus line shall operate, except upon the conditions mentioned therein, clearly applies to every bus.. We see that not only the language of the law, but the very purpose for which it was enacted, compels the construction that it is intended to apply to all such busses operated in cities, withbut regard to yvhether they had or had not received a prior city license." ^" 90 Public Service Com'n v. Booth, 170 App. Div. S90, 1S6 N. Y. Supp. 140 (1915). THE AUTOMOBILE IN PUBLIC SERVICE 1353 "The right to exercise the police power is a continuing one, and may be exercised so as to meet the ever-changing conditions and necessities of the public. Those who make investments for the purpose of using the public streets of a city for private busi- ness, under a license for that purpose, do so, and hold said prop- erty and the right to use it, subject to such othef and different bur- dens as the Legislature may reasonably impose, for the safety, convenience, or welfare of the public." ^^ A city may require that a city license number be displayed on each jitney although a state license is also required to be so dis- played.*^ So, jitneys operating under licenses issued under a prior ordi- nance may be subjected to the provisions of a more onerous ordi- nance, which makes provisions for issuing licenses thereunder to take the place of the unexpired terms of the old licenses.®* The petitioner owned and operated a jitney bus in the city of Reno, Nevada, and had been issued a license under a, statute entitled, "An act regulating automobiles or motor vehicles on public roads, highways, parks or parkways, streets and avenues, within the state of Nevada; providing a license for the operation thereof and prescribing penalties for its violation; designating the manner of handling the receipts therefrom and the purpose for which it may be expended and in what manner." Section 14 of this act declared that the local authorities of cities and towns might regulate the speed of motor vehicles within the limits of such cities and towns; and, by section IS, that "this act shall in no wise affect any statute now existent or that may hereafter be enacted providing for a license on automobiles for hire." In holding against petitioner's contention, that the city could not impose an additional tax on his vehicle, the court said: "It is clear from the whole scope and purpose of the act that it was not intended to deal with automobiles for hire as distinct from automobiles generally. The Legislature will be prpsumed to know that wjien it passed the act, it could not limit the power of subse- quent legislatures to enact a law imposing an additional license on automobiles used for hire. It is presumed, also, that the Legisla- ture knew that there was no existing genefal statute imposing a license on automobiles used for hire. While the word 'statute'- is SlNolen V. Riechm^n (D. C), 225 »3 Auto Transit Co. v. Ft. Worth, •- Fed. 812 (191S). TeX. Civ. App. — 182 S. W. 68S (1916). 92 Huston V. Des Moines, 176 la. 4SS, 156 N. W. 883 (1916). 1354 LAW OF AUTOMOBILES generally used to refer to acts passed by a Legislature, the word is not always used with such a strict limitation. Applying, how- ever, the strict definition of the word 'statute' to the section in question, nevertheless, we think the section will not warrant so narrow a construction as to place any limitations upon the power of the city council of the city of Reno to impose a license upon autoriiobiles used for- hire- and coming within the definitipn of a 'jitney bus' as defined in the ordinance. The city charter of the city of Reno is a statute and this statute empowers the city council of the city of Reno to impose a license upon 'vehicles used for hire.' An automobile is a vehicle, and if it is used for hire, statu- tory power exists in the city council to impose a license thereon. The construction we have placed on section 15 makes it unneces- sary to consider the contention made in reference to section 14." ®* § 1518. Power of municipal corporations to regulate. Where a city has full control over its streets it may prohibit the prosecu- tion of private business therein, and may regulate the business car- ried on by jitney busses, and exact indemnity bonds from the oper- ators of such busses.®* The fact that statutes have been enacted regulating the opera- tion of jitneys, does not render invalid municipal ordinances re- lating to the same subject which are not inconsistent with the pro- visions of the statutes.®® It has been held that such ordinances may be enacted under a general grant of police po^er.®'' Under a general grant of police power, and of power of con- trol over streets, an ordinance regulating jitney busses, requiring a special license for their operation, and a bond to indemnify per- sons injured thereby, was upheld as valid.®* Under a grant of authority to license and regulate, in addition to certain enumerated businesses and occupations, "all other busi- nesses or occupations whatever, which in the opinion of the board of commissioners shall be the proper subject of police regulation," and "to regulate the use of automobiles, motor cars, motor-cycles, 94 Ex parte Counts, 39 Nev. 61, 153 Cummins v. Jones, 79 Oreg. 276, ISS Pac. Pac. 93 (1915). 171 (1916).' 96 Greene v. San Antonio, — Tex. Civ. 96 AHen v. Bellingham, 95 Wash. 12, App. — ; 178 S. W. 6 (1915); Memphis 163 Pac. 18 (1917). V. State ex rel., 133 Tenn. 83, 179 S. 97 Auto Transit Co. v. Ft. Worth, — W. 631, L. R. A. 1916B 1151 (1915). Tex. Civ. App. — , 182 S. W. 685 (1916). A municipality has the power to pro- 98 Ex parte Sullivan, — Tex. Cr. App. hibit the owners of jitney busses from — , 178 S. W. 537 (1915). carrying on their business in its streets. THE AUTOMOBILE IN PUBLIC SERVICE 135S or any other motor vehicles/' and to regulate the use of its streets, a municipality was held to be empowered to impose an annual license fee of $75 on every motor bus operated on the city streets for hire.®' Under power to "regulate, inspect and license all occupations when necessary or proper for the good order, public health, public safety or general regulation of the city, and charge license and in- spection fees therefor, and such fees shall not be construed as occupation taxes," a city was authorized to license automobiles operated for hire, and to require a license fee therefor.^ Authority of a city to enact an ordinance imposing a license tax on jitney busses, regulating the operation thereof, requiring a lia- bility bond to be given by the owner, and making it a misde- meanor to violate any of its terms, is included in the charter power "to fix, impose, and collect; a license tax on and regulate hacks, hackney coaches, cabs, omnibuses, express wagons, drays, job wagons, and all other vehicles used for hire." It was held that the fact that motor vehicles were unknown at the time of the granting of such charter power was of no consequence, and that such vehicles were ejusdem generis with those enumerated in the charter. In part the court said : "The reasoning that a motor vehicle, because not in existence at the time of the passage of the act, ought not to be considered as of the same general character as hacks, cabs, and omnibuses because of a difference simply in the motive power, does not appeal strongly to us. It is a matter of public and general knowledge that these motor vehicles have very largely displaced hacks, cabs, and omnibuses propelled by horses, and that there is little or no distinction between the two classes of vehicles, other than in the motive power used. There is no distinction whatever in the purpose of use." ^ A grant of power to a municipal corporation to grant, refuse, and revoke licenses to the owners of vehicles kept for hire therein, and to subject them to such regulations as the interest and con- venience of the inhabitants thereof, in the opinion of the munici- pal authorities, may require, delegates full legislative power over such vehicles. Under such grant, the city may prescribe the routes and hours of service of jitneys, and require indemnity bonds from their operat6rs.® 99 Booth V. Pallas, — Tex. Civ. App. 2 Ex parte Counts, 39 Nev. 61, 153 — , 179 S. W. 301 (191S). Pac. 93 (191S). 1 Ex parte Parr, — Tex. Cr. App. — , » Ex parte Dickey, 76 W. Va. 576, 85 200 S W 404 (1918). S. E. 781, L. R. A. 191SF 840;(1915). 1356 LAW OF AUTOMOBILES Power to "license, regulate, and , inspect all trades, professions, occupations, callings, and business carried on in said city," in- cludes authority to regulate and license jitney busses.* A municipal corporation was granted power to regulate "every description of carriages which may be kept for hire." A subse- quent , statute provided that municipal corporations shall not have power to restrict the use or speed of motor vehicles, except as pro- vided in the act, and further : "That nothing in this act contained shall bg construed to affect the power of municipal corporations to make and enforce ordi- nances, rules and regulations aff&ting motor vehicles which are used within their limit for public hire." It was held that the municipahty was authorized to regulate the Operation pf jitney busses, having been granted, in this respect, full power possessed by 'the state.* If an ordinance regulating jitney busses is passed in virtue of express legislative power and substantially follows the powers granted, a court i^will sustain it regardless qf its opinion as to its reasonableness. , If passed in view of incidental or implied power granted by the Legislature, courts will review the question of rea- sonableness, and, if in excess of powers granted, may declare it invalid. But the unreasonable character of the ordinance must plainly appear.® Where a statute prohibits the operation of jitneys in any city or town except under a license or permit from said city or town, issuing under an ordinance passed in conformity with said statute, jitneys cannot' lawfully, be operated on the streets of a city or town until an ordinance has been passed, providing for licenses or permits, and such licenses or permits have been secured.'' Where jitneys are operated on liie public streets unlawfully, -that is, without right, they constitute a nuisance, which may be en- joined by a private individual who can show special damage re- sulting to. him therefrom.* A statute providing that no municipahty shall make any ordi- nance respecting the speed of automobiles, or respecting their regu- lation, use, or equipment, i;endered invalid an ordinance attempting 4 Greene v. San Antonio, — Tex. Civ. 7 Memphis St. R. Co. v. Rapid Tr. Co., App. — , 178 S. W. 6 (191S). 133 Tenn. 99, 179 S. W. 63S (191S). 6 Willis V. Ft. Smith, 121 Ark. 606, 182 « Memphis St. R. Co. v. Rapid Tr. Co., S. W. 27S (1916). 133 Tenn. 99, 179 S. W. 635 (1915). 6 Huston V. Des Moines, 176 la. 455, 156 N. W. 883 (1916), citing McQuillin, Mun. Corp. § 724. THE AUTOMOBILE IN PUBLIC SERVICE 1357 to license automobiles and their drivers carrying passengers for fares of 20 cents or less, and in some respects regulating the use thereof, the number of passengers to be carried, etc.® ' The charter of defendant city .authorizes the council to regu- late, clean, and keep in repair the streets and highways, to regulate the speed and running of motor, electric, or other cars through the city (subdivision 11), and to license and regulate all carriages and vehicles used for the transportation of passengers and goods and chattels of any kind, and the owners and drivers of vehicles and means of transportation, and to impose license fees for revenue, and to make and establish such other ordinances as they may deem necessary to carry into effect the powers and duties conferred on them and as they may deem proper for the good government, order, protection of persons and property, preservation of the public health, and prosperity of the city. A statute requires the owner of aii auto bus to obtain the consent of the board having control of public streets for the operation of the auto bus and the use df the streets. It enacts that no such consent shall become ef- fective and no such operation shall be permitted until the owner has filed with the chief fiscal officer of the city an insurance policy of a company duly licensed to transact business in the sum of $5,000 insuring against loss from liability imposed by law up- on the owner of the auto bus for bodily injury or death as the result of accident occurring by reason of the ownership, mainte- nance, or use of the auto bus on the streets. The statute also re- quires that the owner shall execute a power of attorney to the fiscal officer of the city to acknowledge service of process. Section 3 requires the payment to the city of 5 per cent of the gross re- \ ceipts as a monthly franchise tax for revenue for the use of the city. It was held that an ordinance following the statute and pro- viding that the board of commissioners of the city may determine the reasonable seating capacity of an auto bus, the routes, hours of service, and terminal points, and making it unlawful to omit to operate an auto bus over the designated route during the hours prescribed in the consent of the city; to omit to display a sign to in- dicate that the consent has been granted; to operate an auto bus without displaying a sign showing the tertjiinal and route, and the amount of fare when it exceeds five cents; to operate an auto bus with passengers riding outside the body of the bus, or with a 9 state V. Scheidler, 91 Conn. 234, 99 Atl. 492 (1916). , 1358 LAW OF AUTOMOBILES greater number of passengers than the auta bus is entitled to carry; to drive rapidly past an auto bus, trolley car, or vehicle to obtain a passenger; to race with any other vehicle; to refuse to carry pas- sengers unless the auto bus is loaded to its capacity; to permit an auto bus to stand in a street outside of the stand provided for a longer time than is necessary to take on or discharge passengers; to receive or discharge passengers except at the curb, or the regu- larly provided stand, and'except at the nearest side of street inter- sections and on the right-hand, side of the street; to place a sign on the windshield or where it might obsctire the view of the driver, was a valid exercise of the city's power.^" • § 1519. Jitneys as forming a class for legislation. Mathe- matical or logical exactness, in every aspect, in a division for clas- sification is not always possible, and is not required for validity. The best that can be done is to keep within the clearly reasonable and practicable. That is accomplished where there are such gen- eral characteristics of the members of the class as to reasonably call for special legislative treatment. That may be true, generally, and yet some such characteristics sometimes may be found to exist outside the boundaries of the class. ^^ The classification of motor vehicles for hire may properly be based upon the amount of fare charged by the operators of such vehicles.^^ It has uniformly been held that jitneys properly form a distinct class for the purpose of legislation.^* "Here is a new class of common carriers, clearly pointed out and defined in, the law, differing in material respects from other 1' West V. Asbury Park, 8Q N. J. L. Massachusetts: Com. v. Theberge, 231 402, 99 Atl. 190 (1916). Mass. 386, 121 N. E. 30 (1918). 11 Memphis v. State ex rel., 133 Tenn. New Jersey: West v. Asbury Park, 89 83, 179 S. W. 631^ L. R. A. 1916B USl N. J. L. 402, 99 Atl. 190 (1916). (191S). Texas: Ex parte Sullivan, — Tex. Cr. 12 Ex parte Cardinal, 170 Cal. 519, App. — , 178 S. W. S37 (1915); Greene 150 Pac. 348,, L.' R. A. 191SF 850 (1915) ; v. San Antonip, — Tex. Civ. App. — , Ex parte Dickey, 76 W. Va. 576, 85 S. 178 S. W. 6 (1915); Ex parte Parr, — E. 781, L. R. A. 1915F 840 (1915). Tex. Cr. App. — , 200 S. W. 404 (1918). 18 Georgia: Hazleton v. Atlanta, 144 Virgin^: Ex parte Dickey, 76 W. Ga. 775, 87 S. E. 1043 (1916) ; Hazleton Va. 576, 85 S. E. 781, L. R. A. 191SF v. Atlanta, 147 Ga. 207, 93 S. E. 202 840 (1915). (1917). Washington: State v. Collins, 93 Iowa: Houston v. Des Moines, 176 Wash. 614, 161 Pac. 467 (1916). la. 455, 156 N. W. 883 (1916). Federal: Lutz v. New Orleans (D. Louisiana: New Orleans v. LeBlanc, C), 235 Fed. 978 (1916). 139 ta. 113, 71 So. 248 (1916). THE AUTOMOBILE IN PUBLIC SERVICE 1359 common carriers. ... It may well have been that the Legisla- ture had in mind, when it enacted the statute in question, that those engaging in the business which the act sought to regulate operated vehicles susceptible of becoming dangerous to the public by the manner of their operation. . . . Furthermore, a substantial dis- tinction between the property of the owner of a street railway and that of the owner of a 'jitney' should not escape attention. The former consists of a fixed plant, including rolling stock, which is operative only along tracks provided for the purpose, while that of the latter is fugitive in character, since it is operative through its own power upon any portion of the surface of an ordinary high- way. It results that the street railway property is in its nature an indemnity against the consequences of negligence, and so is at least an equivalent for the bond of indemnity which is here regis- tered by the owner of the jitney." ^* "As affecting street traffic- and congestion thereof there are in operation 500 motor busses as against 100 rent cars. The motor bus has no fixed stand, but is continually in motion upon a fixed route upon the streets of the city, soliciting and halting to accept business at any place where the passenger is found, and upon some of the fixed routes there are as many as 100 busses. As related to the same question, rent cars do not transact their traffic- in such manner, but are located either at garages or stands upon certain streets between hours fixed by ordinance, whence they are called by the public when their services are needed. . . . Appellants being then in a class entirely dissimilar from that of those who operate rent cars, it is immaterial that the regulations are dis- similar." ^* "If we are correct in concluding from the facts submitted that the operation of the 'jitney' on the crowded streets of a city is a business peculiarly dangerous to the public using the streets, then the fulfillment of the duty of care on the part of the operators is more important than the performance of such duty in the case of one only occasionally or infrequently driving a car over said streets. The danger is more imminent and frequent, and might be said to be continuous. Therefore, in the exercise of its police powers, a city may require of the 'jitpey' operators a further guaranty than it does of others that he will avoid acts of negligence, and that, in case of an accident, certainly more likely to occur than in the l*Nolen.v. Riechman (D. C), 22S 15 Booth v. Dallas, — Tex. Civ. App. Fed. 812 (191S). -, 179 S. W. 301 (1915). 1360 LAW, OF AUTOMOBILES case of operators of other motor vehicles mentionedj he will be in a position to respond for the damage inflicted." ^^ "That the acts does single out 'jitney' busses and motor vehicles operating upon city streets upon a plan similar to that followed by street railways is cle.ar, and it is also patent that neither street railways nor taxicabs are included. But it does cover all 'jitney' busses and all motor vehicles operating und€r the plan mentioned, and, if the classification is not arbitrary and unjust, it is not vul- nerable to any constitutional objection. . . . "It is manifest that there is a great difference between 'jitney' and motor busses and street railways. The latter operate on fixed tracks, have regular routes and schedules, are operated under fran- chises which usually Safeguard the rigKt of the city and the pub- lic. They are compelled to pay taxes and for paving, have large investments; and their property is liable for judgments for personal injuries, which judgments are prior liens even to mortgages. Not so with 'jitney' busses. Taxicabs do not operate over fixed routes or upon any schedules. They are more like the ordinary busses or carriages which make short occasional runs upon special orders, charge large fees, are not numerous, do not ordinarily complete with street cars, in that they are not confined to any special routes, are not required to make any particular routes, and are generally owned and operated by reasonable companies. They differ essen- tially from street cars, and do not serve the general public as do 'jitneys.' On account of larger fees their runs are less frequent, are not confined to fixed routes, and do not congest the traffic as do 'jitneys,' which are especially authorized to operate on streets which aire occupied by street cars. The taxi driver, whenever pos- sible, ^voids these streets, and gets out of the congested districts as soon as practicable. Such differences are sufficient to justify the classification found in the act in question." ^'^ § 1520. Same— As distinct from other vehicles operated for hire. Legislation concerning jitneys is not invalid because not also applicable to street cars. Street cars, moving on fixed tracks, are less liable to cause injury. The substantial nature of street cars, the fixity, permanency, and great cost of the track and roadbed upon which they run, afford an anchored indemnity in respect of liability for negligence.^' 16 Auto Transit Co. v. Ft. Worth, — 18 West v. Asbury Park, 89 N. J. L. Tex., Civ. App. — 182 S. W. 685 (1916). 402, 99 Atl. 190 (1916); Memphis v. "Huston V. Des Moines, 176 la. 4SS, State ex rel., 133 Tenn. 83, 179 S. W. 631, 156 N. W. 883 (1916). L. R. A. 1916B llSl (1915); State v. THE AUTOMOBILE IN PUBLIC SERVICE 1361 Jitneys operating over particular routes properly form a class distinct from service cars operating without any defined routes, for the purpose of legislation." Legislation affecting the operation of jitneys is not unreasonable because it does not also apply to taxicabs. The jitney holds itself out to accommodate persons who purpose traveling along a distinct route chosen by the operator. Operators of taxicabs have not the temptation or necessity of choosing the most traveled streets, since those less traveled afford them better opportunities to serve the object their owners have in view. "It may be that a larger in- vestment is ordinarily required to enter the taxicab business than the other, and that the conveyances would be less in number on this account, as well as because of the greater fare charged." *" An ordinance licensing and regulating jitney busses is not void because railroad cars, street cars, and automobiles used exclusively • as sight-seeing cars, hotel busses, and taxicabs are exempted from its operation. "This question has been presented to the courts in several states, and in every case to which our attention heis been called it has been held that the 'jitney' bus represents a new class of common carriers, and the fact that a different kind of regula- tion is applied to it does not render such legislation unlawfully dis- criminatory or invalid." ^^ In one case it was held that municipal regulations affecting alone the operation of jitneys was not discriminatory class legis- lation, as against the contention that jitneys are not more danger- ous than taxicabs, or other motor vehicles used and kept for hire, and that they should no more be required to give bond than such vehicles and street cars operated upon the streets.''^ The fact that a fee of $10 is imposed for the operation of a jitney bus, while the license fee for taxicabs and other rent cars is only $3, and there is no license fee required for the operation of Seattle Taxicab & Tr. Co., 90 Wash. 416, tiffs of their constitutional rights." Lutz 156 Pac. 837 (1916); State v. Collins, 93 v. New Orleans (D. C), 23 S Fed. 978 Wash. 614, 161 Pac. 467 (1916); Lutz (1916). V. New Orleans (D. C.) , 235 Fed. 978 19 Ex parte Parr, — Tex. Cr. App. — , (1916). 200 S.W. 404 (1918). "While it may be easier for the street 20 West v. Asbury Park, 89 N. J. L. cars to comply with the ordinance than 402, 99 Atl. 190 (1916) ; Memphis v. for plaintiffs to do so, and by a mathe- State ex rel., 133 Tenn. 83, 179 S. W. matical- calculation it may be shown that 631, L. R. A. 1916B 1151 (1915). the security required is more for each 21 Thieike v. Albee, 79 Oreg. 48, 153 passenger carried in the case of the Pac. 793 (1915). jitneys', these facts would not make the 22 Willis v. Ft. Smith, 121 Ark. 606, provision so unequal as to deprive plain- 182 S. W. 275 (1916). B. Ai»tos. — 86 1362 LAW OF AUTOMOBILES street cars, and that a surety bond is required for, the operation of a jitney bus, while none is required for taxicabs or other rent cars or for street cars, do^ not render the ordinance imposing such regulations obnoxious to a constitutional provision that, "All free- men, when they form a social compact, have equal rights, and no man, or set of men, is entitled to exclusive separate public emolu- ments, or privileges, but in consideration of public services." ** In the case last cited the court in part said: "We can readily understand that greater danger may be caused to the public by the operation of numerous motor busses continuously throughout the day, over and along crowded streets filled with congested traffic, and without limitation as to the street or streets, or parts thereof, over which they may operate, than from the operation of taxicabs and other rent cars, which are required to occupy a fixed place or stand when not in operation, and which, when transporting passengers, do not ordinarily run over the streets on which the heavest traffic exists, or from the operation of a street railway j,long a fixed track and on steel rails." There is such a difference between the character and use of automobiles operated for private purposes and those operated as jitney busses, that legislation concerning the latter as a class, and ' as distinguished from automobiles in private use, is not objection- able.^* There being a plain distinction between the business carried on by jitney busses and that done by street cars, auto stages, sight- seeing automobiles, taxicabs, and horse stages, legislation regu- lating the former and not applying to any of the latter is valid.^^ A statute regulating jitney busses which charge fifteen cents or less; that permits a bond to be required for their operation for the safety of both passengers and the public; and imposing a tax on such vehiclefe, while such regulations and tax are not imposed upon other vehicles operated for hire, is not discriminatory, as between such busses and those charging a higher rate, in the sense of being unconstitutional. In upholding the statute in question the court said: "Many circumstances exist which place the jitney in a different class from the motor vehicle which carries passengers by the hour, or from one fixed place to another. The jitney, by reason of its low fare 23 Auto Transit Co. v. Ft. Worth, — 2B Allen v. Bellingham, 95 Wash. 12, Tex. Civ. App. — , 182 S. W. 68S (1916). 163 Pac. 18 (1917). 24 Memphis v. State ex rel., 133 Tenn. 83, 179' S. W. 631, L. R. A. 1916B llSl ' (1915). THE AUTOMOBILE IN PUBLIC SERVICE 1363 and the manner of its operation, comes in direct competition with the street cars which are common carriers and require a certificate of convenience and necessity. The jitney, by moving rapidly from place to place upon either side of the street, in picking up passen- gers in competition with the street cars or other jitneys, presents a menace to its passengers and the people upon the street which is greater that! that from the ordinary cab or vehicle; and other rea- sons may have seemed to the Legislature to require that these busses be ptit in a class by themselves. We cannot say that the classification is unreasonable; upon the contrary, it seems reason- able." ^s An ordinance was upheld as a valid police regulation which re- lated only to "public utility vehicles," which it defined as fol- lows: "Any auto car, auto bus, jitney, omnibus, automobile, taxicab, or other vehicles propelled, operated, driven or drawn by any motive power whatever (including vehicles drawn by horses or other animals), which is run or operated on the streets of Oregon City to or from a point within or without Oregon City, or between particular points in Oregon City, or to a particular point in Oregon City, to or from a particular point outside of Oregon City, or over any particular route or routes for the purpose of af- fording a means of local transportation of passengers or persons for hire or fares as may offer themselves for transportation along the way or course or route on which it is used or operated or may be running: ' Provided, that railroad cars, street railway cars and hotel busses and also automobiles and taxicabs used exclusively as sight-seeing cars, and also carriages, automobiles and taxicabs which do not operate or run over a particular route or to or from a particular point or between particular points (or) not used foi- hire or fares, shall hot be considered public utility vehicles within the meaning thereof." ^'^ A statute regulating jitneys is not invalid because it exempts carriers of United States mail from its provisions.^* § 1521. Operating in violation' of law— All persons assist- ing are guilty. When jitneys are operated in violation of a law requiring the owner to secure a permit before operating them, not only is the owner or principal guilty, but all agents and servants 26 Public Service Com'n v. Booth, 170 28 State v. Collins, 93 Wash, 614, 161 App. Div. S90, 156 N. Y. Supp. 140 Pac. 467 (1916). (191S). 27 Cummins v. Jones, 79 Oreg. 276, ISS Pac. 171 (1916). 1364 -LAW OF AUTOMOBILES who assist and abet in the operation of the jitneys are equally guilty of a violation of the law. "No person committing or aiding or abetting in the commission of an unlawful act can shield himself from punishment by showing that he acted under the direction of or as the agent or servant of another." ^' § 1522. Street railway company enjoining illegal operation of jitney. A street railway company having the right to carry passengers for hire in a city's streets, may sue tp enjoin the un- lawful operation of a jitney bus in the streets, carrying passengers in competition with the railway company.*" §1523. Requiring operator to state in application for li- cense that he is owner of jitney. An ordinance requiring the operator of a jitney to state in his application to the city for a license that he is the owner of the vehicle proposed to be operated, was declared to be unreasonable and Void.*^ § 1524. Excluding jitneys from certain zones. An ordinance excluding jitneys from certain zones has been upheld; the use by them of the streets not being a vested right, but the exercise of a mere license revocable at the will of the licensor.*^ § 1525. Forbidding taking on or letting oR passengers near street railway. Under its general welfare powers a city adopted an ordinance containing the following: "It shall be unlawful for any .jitney bus opej'ator or owner to take on or discharge pas- sengers upon or along, or within seven hundred feet of any street, avenue or highway in the city Miami, which is now or may here- after be traversed by street car tracks over which stjreet car service is maintained. Provided, however, that passengers taken on at points more than seven hundred feet distance from street car tracks may be discharged at any point and provided further that passen- gers boarding any jitney bus within less than seven hundred feet of any street car tracks shall not be discharged at any point nearer than seven hundred feet of any street car tracks." Held, that the quoted provision of the ordinance forbids the use of jitneys by tjie public in certain streets or sections of the city without any basis therefor in matters affecting public safety, health, morals, 29 state V. Collins, 93 Wash. 614, 161 SI Parrish v. Richmond, 119 Va. 180, Pac. 467 (1916). ,. 89 S. E. 102 (1916). SOPuget Sound Tr., L. & P. Co. v. 32 Gill v. Dallas, — Tex. Civ. App. — , Grassmeyer, 102 Wash. 482, 173 Pac. 209 S. W. 209 (1919). 504 (1918). THE AUTOMOBILE IN PUBLIC SERVICE 1365 or welfare; and that it is therefore arbitrary and unreasonable and consequently invalid.^* § 1526. Requiring certificate from public utility commis- sion and a license. An ordinance licensing and regulating jitney busses is not invalid because it requires every person desiring to operate such a bus to secure a certificate from the commissioner of public utilities, and prescribing what it shall contain, before a license will be issued by the city officials to operate the same; appeal being provided against unjust action on the part of the com- missioner.** §1527. Jitney operated "through" town without license. A jitney owner, operating between two cities through a town which, with authority, had enacted an ordinance prohibiting the operation of such business "through" the town unless licensed, as provided in the ordinance, was held to violate such ordinance by operating through the town without having secured a license, although neither of the cities between which he operated had ac- cepted the terms of a statute authorizing cities and 'towns to license such business.*® § 1528. License graduated according to capacity of vehicle. An ordinance regulating jitney busses, requiring the owner thereof to give an indemnity bond, and imposing a quarterly license tax of $15 for a bus of a capacity not exceeding five passengers, $20 for a bus with a capacity of more than five and less than ten pas- sengers, and $30 where the capacity of the bus exceeds ten pas- sengers, was held not to conflict with the provision of the city charter requiring that all licenses should be graduated according to the amount of business done.*^ § 1529. Prohibitive tax for operating on certain streets. An ordinance imposing a license tax on jitneys of $25 to $35, according to their capacity, and providing that before the owners thereof shall be permitted to solicit or receive passengers on or along the paved portions of certain designated streets, they shall pay an additional license of $300 to $400, according to the capacity S3 Curry v. Osborne, — Fla. — , 79 86 Ex parte Counts, 39 Nev. 61, 153 So. 293 (1918). Pac. 93 (191S). 34 Thielke v. Albee, 79 Oreg. 48, 153 To same effect, Hazleton v. Atlanta, Pac. 793 (1915). 144 Ga. 775,, 87 S. E. 1043 (1916); 147 38 Com. V. Theberge, 231 Mass. 386, Ga. 207, 93 S. E. 202 (1917). 121 N. E. 30 "(1918). 1366 LAW OF AUTOMOBILES of the vehicle, was upheld as a valid regulation. The ordinance was intended to be practically prohibitive in so far as the specially designated streets were concerned. In respect to the benefit incidentally derived from such ordinance by the local street railway company, the court said: "It is not only suggested, and to some extent proved, as shown by the record, but it is well known, that the street car system in the city of Wichita is one long established; that the company is required to pay taxes, to keep up and ihairitain its tracks, and to submit to such reasonable regulations as may be prescribed for its opera- tion. Its maintenance and continuance involve, not only the in- vestment and profit or loss upon a large sum of money, but to a great extent the convenience and necessity of the city and its in- habitants. Jitneys and similar vehicles run, not upon tracks laid at their owners' expense, but upon the public streets, with no bur- den of providing depots or waiting stations, or outlay, except the mere cost of vehicles and their operation. . . .That the effect of section 4 is incidentally or necessarily to benefit the street rail- way company is not the last word to be said. It is of .interest quite vital to the municipality that a street car system, not only exist there, but that it be able to subsist and furnish proper and needed service. It is not a misuse of power so to legislate that this result can be accomplished merely because it involves an ad- vantage to the utility in qu^tion as well as to the municipality. . . . Beyond question, ,the city could vacate one or more of the streets over which he might desire to operate. It cannot only re- quire him to pay a license tax, but it may regulate the manner of his^ carrying on his enterprise. Why may it not classify motor vehicles by themselves and refuse to permit them to crowd con- gested portions of the business streets where patrons of another class of vehicles — street cars — must alight and take passage? Sup- pose, indeed, a company or corporation owning motor vehicles had the facilities and the desire to occupy all the streets to the utter destruction of the street car business. Would the city have nothing tg say? Is the municipality a mere automaton, helpless in the presence of ci-owding and conflicting enterprises and scrambles for business which involve the comfort, the convenience, and the safety of the traveling public? Not so." *'' § 1530. License or occupation fee not a tax. Authority to regulate and license the operation of jitney' busses as an 87 Dresser v. Wichita, 96 Kan. 820, 1S3 Pac. 1194 (1916). THE AUTOMOBILE IN PUBLIC SERVICE 1367 exercise of the police power does not include the power to tax; but the mere fact that license fees may result in producing revenue which may be paid into the city's treasury for the use of a special or the general fund does not of itself deprive the assessment of the character of a police regulation. The fee will not be held excessive unless it is manifestly something more than a fee for regulation, and in fixing upon the fee it is proper and reasonable to take into account, not the expense merely of direct regulation, but all the incidental consequences that may be likely to subject the public to cost in consequence of the business licensed.** The following graduated fees for the operation of jitney busses were upheld as valid charges for police regulation: For each motor bus seating 5 or less, including driver, $15 per year, or $1.25 per month; for those seating more than 5 and less than 8 $20 per year, or $1.60 per month; for those seating more than 7 and less than 16, $25 per year; Jor each seating 15 and less than 30, $30 per year; and for those seating 30 or over, $35 per year.*® An ordinance requiring the payment of $5 a year for each pas- senger seat capacity, and $4 a year for each driver's permit, as an "occupation license or tax," imposes what it purports to im- pose, and is not violative of a provision prohibiting municipalities from imposing on the operation of motor vehicles any license other than "an occupation license or tax." Nor is such ordinance discriminatory because it does not impose like taxes on other motor vehicles, and, being an occupation tax, it does not violate the uniform tax rule.*" § 1531. License tax of five per cent of income. An ordinance requiring that jitiiey operators pay monthly to the city five per cent of their gross incomes has been upheld. Among other facts stated in its opinion, the court said: "The fact that the owner of an auto bus is conducting a business in the public streets by picking up passengers at any point, and not merely using the streets for pas- sage from terminus to terminus, and the use of a specifically con- structed way provided at public expense, form a reasonable basis for the imposition of a special tax." *^ 38 Huston V. Des Moines, 176 la. 4S5, 40 Allen v. Bellingham, 9S Wash. 12, 1S6 N. W. 883 (1916). 163 Pac. 18 (1917). 39 Huston V. Des Moines, 176 la. 4SS, *1 West v. Asbury Park, &9 N. J. L. 1S6 N. W. 883 (1916). 402, 99 All. 190 (1916). 1368 LAW OF AUTOMOBILES § 1532. May require indemnity bond. It is a legal requirement that the operators of jitney busses shall file with some desig- nated official a bond to guarantee the payment of valid claims for injuries to person or property.*^ Such a requirement is not complied with by a bond indpmnifjdng the jitney owner, and assigned by him to the state for the benefit for persons injured.*' A requirement that such bond be signed by a surety company is valid.** "Confessedly, steam and street railway companies, and owners and operators of omnibuses, are not required to give bond for *^ Iowa: Huston v. Des Moines, 176 la. 4SS, 156 N. W. 883 (1916). Massachusetts: Com. v. Slocum, 230 Mass. 180, 119 N. E. 687 (1918); Com. V. Theberge, 231 Mass. 386, 121 N. E. 30 (1918). New Jersey: West v. Asbury Park, 89 N. J. L. 402, 99 Atl. 190 (1916) ; Gillard V. Manufacturers' Cas. Ins. Co., 92 N. J. L. 141, 146, 104 Atl. 707 (1918). Tennessee: Memphis v. State ex rel., 133 Tenn. 83, 179 S. W. 631, L. R. A. 1916B llSl (191S). Texas; Auto Transit Co. vl Ft. Worth, — Tey. Civ. App. — , 182 S. W. 68S (1916); Greene V. San Antonio, — Tex. Civ. App. — . 178 S. W. 6 (1915); Ex parte Sullivan, — Tex. Cr. App. — , 178 S. W. S37 (1915); Ex parte Parr, — Tex. Cr. App. — , 200 S. W. 404 (1918). Washington: State v. Seattle Taxicab & Tr. Co., 90 Wash. 416, 156 Pac: 837 (1916) ; Puget Sound Tr., L. & P. Co. v. Grassmeyer, 102 Wash. 482, 173 Pac. 504 (1918); State v. Collins, 93 Wash. 614,' 161 Pac. 467 (1916). West Virginia: Ex parte Dickey, 76 W. Va. 576, 85 S. E. 781, L. R. A. 1915F 840 (1915). Federal: Lutz v. New Orleans (D. C.) , 235 Fed. 978 (1916) ; Nolen v. Riech- man (D. C), 225 FSd. 812 (1915). The fact that the operators will suffer a loss, Nolen v. Riechman (D. C), 225 Fed. 812 (1915) ; or will have to abandon their business on account of the bond, does not affect the validity of the require- ment.^ Auto Transit Co. v. Ft. Worth, — Tex. Civ. App. — , 182 S. W. 685 (1916). Requirement that bond be that of a surety company held valid. Ex parte Cardinal, 170 Cal. 519, 150 Pac. 348, L. R. A. 1915F 850 (1915). ISHadfield v. Lundin, 98 Wash. 657, 168 Pac. 516 (1917). 44 "Does the requirement that the bond be signed by a surety company violate plaintiff's liberty of contract? Assuredly not. It is shown that a number of surety companies are authorized to do business in the state. It is not shown they exact exorbitant fees, or that the plaintiffs could procure personal surety on a bet- ter basis or at all. The only reason plain- tiffs cannot procure the surety bonds in compliance with the ordinance is because they cannot deposit cash or collateral equal to the amount of the bond. Per- sonal surety might make the same re- quirement. In any event the contrary is neither alleged nor proved. Considering the greater desirability of corporate surety in any case, a, superiority sometimes rec- ognized by the law itself (see Bankrupt Act [Act July 1, 1898, v.. 541, § 50, 30 Stat. 558 (Comp. St. 1913, §9634)] bonds of trustees and referees) , it can hardly be said that the provision that the bond must be signed by a surety company is more onerous than would be a require- ment of personal surety of equal respon- sibility." Lutz V. New Orleans (D. C), 235 Fed. 978 (1916). THE AUTOMOBILE IN PUBLIC SERVICE 1369 protection to those negligently injured by them, such as is pro- vided for in the act under consideration; but it is of common knowl- edge that statutory requirements, both federal and state, relating to and regulating common carriers, materially differ. While the services they all render are those of common carriers, yet the serv- ices are so different in detail that it would be wholly imprac- ticable to write a statute applicable to them all, and serve, at the same time, the convenience and safety of the public." *^ The power to require a bond from jitney operators for the pay- ment of judgments is incident to the power to regulate the opera- tion of jitneys.*^ Generally these bonds are in the amount of $S,QOO; which has- been held not to be unreasonable.*'' A bond in the sum of $2,000, has likewise been held to be reasonable in amount.** So, a bond in the amount of $10,000 was held properly required.*® The requirement of a bond for the payment of judgments does not in any sense impose a liability upon jitney operators where none existed before; and the power of a municipal corporation to re- quire such a bond cannot be questioned on the theory that the municipality thereby creates a new civil liability. The requiring of such bond for the payment of judgments for damages resulting from the negligent operation of the jitneys for the benefit of those injured thereby does not create a liability where none existed under the law, nor was it intended to do so, but only to secure the payment of damages for such injuries from operatives of instrumentalities that were so dangerous' as to require the pre- scribed regulation and appeared to the city council so irresponsible as to make necessary the restriction for the security required. The requiring of the execution of bonds by the operators of such con- *6NoIen V. Riechman (D. C), 22S Little Rock v. Reinman, 107 Ark. 174. Fed. 812 (191S). « Hazleton v. Atlanta, 144 Ga. 77S, 46Wmis V. Ft. Smith, 121 Ark. 606, 87 S. E. 1043 (1916); Hazleton v. At- 182 S. W. 27S (1916) ; Lutz v. New Or- lanta, 147 Ga. 207, 93 S. E. 202 (1917) ; leans (D. C), 23S Fed. 978 (1916). Lutz v. New Orleans (D. C), 235 Fed. "The state, in the exercise of its police 978 (1916). power, has given to the city the power *8 Huston v. Des Moines, 176 la. 455, to regulate certain callings, pursuits, 156 N. W. 883 (1916). trades, and business as specified in said 49 Ex parte Cardinal, 170 Cal. 519, ISO section of the statutes. The power to Pac. 348, L. R. A. 191SF 850 (1915). regulate gives authority to impose re- Requirement of $10,000 bond is not strictions and restraints upon the trade unreasonable on its face. Ex parte Parr, or business regulated. 'Regulate' means — Tex. Cr. App. — , 200 S. W. 404 'to direct by rule or restriction; to sub- (1918). ject to governing principles or laws.' " 1370 LAW OF AUTOMOBILES veyances has been held a vaUd exercise of the police power and within the authority of the state and its governmental agencies, municipal corporations.^" The city of New Orleans enacted an ordinance prohibiting the carrying on of the business of transporting passengers for hire, un- less the person conducting the same file with a designated public official an indemnity bond in the sum of $5,000 for each vehicle so employed, payable to the city of New Orleans, and shall con- tain stipulation that, in the event any person or persons who may sustain damages to his or their person or property as the result of the fault of the person, firm, association of persons or corporation conducting said business, or of his or their agents, servants, or employees, he or they shall have his or their right of action on said indemnity bond as fully and to the same extent as if said bond was made and executed directly in favor of the claimant for such damages. The said indemnity bond or bonds shall be submitted and shall first be approved by the commission council. The amount of said bond (to wit, ,$S,000 for each vehicle operated as aforesaid) shall always be maintained at that figure, and shall not be void upon first recovery, but shall be actionable against from time to time until the full amount thereof is exhausted and, in the event that the amount thereof shall have been reduced by pay- ment for damages under the terms of said bond and these provi- sions, the person, firm, association of persons or corporation con- ducting the business of carriers of passengers aforesaid shall fur- nish an additional bond for the amount so paid, so that, at all times, a bond or bonds of indemnity for the entire sum of five thousand dollars shall be carried on each and every vehicle used, employed and operated in the business aforesaid. The petitioners sought to enjoin the enforcement of the ordi- nance, alleging that they were engaged in the business of carry- ing passengers for fares in "jitneys" through the streets of New Orleans; that the ordinance was intended to apply to them; that the ordinance was unconstitutional, and imposed oppressive, dis- criminatory, and confiscatory conditions, with which they were unable to comply; that they were therefore unable to conduct their business under it; that requiring such bond was an unwar- ranted interference with petitioners' constitutional right to engage in legitimate business and to use and enjoy ■ their property. In upholding the validity of the ordinance and denying the injunc- 60 Willis' V. Ft. Smith, 121 Ark. 606, 182 S. W. 275 (1916). THE AUTOMOBILE IN PUBLIC SERVICE Wl tion, the court said: "The streets of the cities and towns in Louisiana being among the things that are 'public' and 'for the common use/ no individual can have a property right in such use for the purposes of his private business, unless, speaking gen- erally, that business being in the nature of, a public service or con- venience, such as would authorjze the grant, the right has been granted by the state, which alone has the power to inake or author- ize it, or, by the particular city or town, acting under the author- ity of the state, and in such case the right can be exercised only in accordance with the conditions of the grant; that is to say, an individual seeking, but not possessing, a right of that kind, may accept the grant, with the conditions imposed by the offer, in which case he becomes bound by the conditions, or he may refuse to accept the conditions, in which case there is no grant, and with- out the grant so offered, or some other, from the authority compe- tent to make it, he can never acquire the right to make use of a street as his place of business. What he may do, if anything, in the way of litigation, to compel the municipality or the state to make him a grant that will be satisfactory to him, is apart from this immediate inquiry. So far as the city of New Orleans is con- cerned, the lawmakers have specified, in its charter, the kinds' of business for the purposes of which the use of the streets may be granted and the method and conditions by and upon which the grants may be made, and plaintiffs do not allege that the business in which they are engaged is included among those so specified, or that the right which they assert was granted in the manner and upon the conditions so prescribed, or in any other manner or upon any other conditions. To the contrary, their allegations are that, without any grant, they have the right to the use of the streets for the transaction of their business, and that the city has interfered with its exercise by adopting an ordinance regulating 'the use of the streets for that purpose, and imposing conditions which are arbi- trary and unreasonable and with which they are unable to com- ply, that the ordinance carries a penalty, for the enforcement of which they are prosecuted and threatened with prosecution in the recorders' courts, and that they are thus prevented from carrying on their business; and the relief that they ask is that the city be perpetually enjoined from enforcing its ordinance, which means that the court shall confer upon them, or recognize in them, the right, which neither the state nor the city has conferred or recog- nized, to make use of the streets as their place of business, free of the conditions imposed by the city, or any other conditions save 1372 LAW OF AUTOMOBILES those (presumably) to which all persons are subjected who con- duct their businesses on private property and make only that inci- dental and ordinary use of the streets required in such cases. But the allegation of 'right' so made is merely the statement of an erron- eous conclusion of law; for neither the Constitution nor the law confer such right, but, on the other hand, vest the power to rdgu- late the use of the streets for the common benefit in the electors of New Orleans and the public officers chosen by them, and, if that power were not so vested somewhere, every one would have the same right that plaintiffs assert, since the use of the streets, whatever may be the method, is common to all, and, the power of the sovereign being ignored, every one would be entitled to make such use as those who are the stronger might permit, and the mass of the inha;bitants might find it difficult and dangerous to obtain that use for which alone their property is expropri- ated in order that streets may be constructed, and their money expended in order that they may be maintained and beautified. It is not denied, however, that the power to administer the Streets for the benefit of the public is in the state, or that the state may delegate the ^ower to its municipalities, respectively, or that it has delegated it, in terms both comprehensive and specific, to the city of New Orleans; and, as the existence and exercise of the right here asserted by plaintiffs would be irreconcilable with the exist- ence and exercise of the power so delegated, we are of opinion that the right does not exist, and that plaintiff's allege no such invasion of a property right and disclose no such interest in the operation of the ordinance here in question as to give them a standing in court for the purposes of this suit." *^ The fact that a jitney operator is licensed under a city ordinance to operate in the streets, does not justify him in operating without bond as required by statute.^^ § 1533. Who may reover against bond. A bond for the pay- ment of damages sustained by "any person" through the negligent operation of a motor vehicle operated for hire, is for the benefit of pedestrians and persons riding in other vehicles, as well as for 61 Le Blanc v. New Orleans, 138 La. BSPuget Sound Tr., L. & P. Co. v. 243, 70 So. 212 (1915), 139 La. 113, 71 Grassmeyer, 102 Wash. 482, 173 Pac, So. 248 (1916). 504 (1918). To same effect, Hadfield v. Lundin, 98 Wash. 657, 168 Pac. 516 (1917) ; Lutz v. New Orleans (D. C), 235 Fed. 978 (1916). THE AUTOMOBILE IN PUBLIC SERVICE 1373 passengers, although the bond is proportional to the number of pas- sengers authorized to be carried.^^ Such bonds generally cover injuries to pedestrians as well as to passengers.** Sometimes the bond required covers only loss resulting to third persons from bodily injury or death.^^ A bond required to be given for the benefit of "every person injured," is not limited to persons who have been physically in- jured, but a parent whose child has been negligently injured by the bonded jitney may recover under such bond.*® § 1534. Priority of claims against bond. A statute requir- ing the owner of an auto bus to file with the city an insurance policy against loss by liability imposed by the law for damages on account of bodily injuries or death, etc., does not justify the mar- shaling of such funds for division among injured persons, the rights of such persons being fixed according to the priority of their judg- ments, prior judgments being prior liens.*'' § 1535. Prorating amount of bond among several judg- ments arising out of same accident— Laches. Where several persons who were injured in the same accident seek to recover against the surety on the bond, and their combined judgments exceed the amount of the surety's liability, theiy are entitled to have the amount pro rated among them in proportion to the amount of the judgment of each. If one of such injured persons fails to join with the others, and delays taking proper steps to hold the surety for his pro rata, whether or not he can recover from the surety depends upon whether or not. his delay has amounted to laches.** § 1536. Successive recoveries against same bond. Under a statutory provision that every person injured by a jitney may re- cover against the surety to the amount of the bond, each person injured may recover to the full amount of the bond.*^ Where a statute requiring a bond of this character provided that 63 Providence v. Paine, 41 R. I. 333, 67 Turk v. Goldberg, — N. J. Eq. — , 103 Atl. 786 (19^8). 109 Atl. 732 (1920). 6*Ehlers v. Gold, 166 Wis. 185, 164 68 Darrali v. Lion B(/nding & Surety N. W. 84S (1917). Co., — Tex. Civ. App. — , 200 S. W. 66 Gillard v. Manufacturers' Cas. Ins. 1101 (1918). Co., 93 N. J. L. 21S, 220, 107 Atl. 448 69 Nelson v. Paciiic Coast Casualty (1919). Co., 96 Wash. 43, 164 Pac. S94 (1917). 66 Bruner v. Little, 97 Wash. 319, 166 Pac. 1166 (1917). 1374 LAW OF AUTOMOBILES every person injured by the negligent operation of a jitney so bonded shall have a cause of action against the principal and surety for the full amount of the damages incurred, the liability of the surety being Umited to the amount of the bond, it was held that each person so injured could recover up to the full amount of the bond.^" §1537. Liability of surety directly to injured person. A bond covering the operation of a jitney, and executed in com- pliance with an ordinance requiring the same, is properly construed to include the requirements of the ordinance that the bond be con- ditioned for payment directly to the injured person. In such cir- ciimstances the company executing the bond as surety is properly 60 Salo V. Pacific Cpast Casualty Co., 9S Wash. 109, 163 Pac! 384 (1917). // the clause, "but the recovery against tl^e surety shall be limited to the amount of the bond," were removed from its setting, and considered as standing alone, it may be tha,t its proper construction wo^ld be to limit the liability upon the bond to the amount of $2,500, no matter how many persons may have been in- jured, or the aggregate amount of the verdicts which they had obtained. But it should be noted that this clause is the concluding part of a sentence which gives to "every person injured" a cause of action against "the principal and surety upon the bond.", The use of the jvord "every" means individually, each, or one by one. The word "every" is used in the statute as an adjective, and, in this sense, it is defined in Webster's Interna- tional Dictionary as meaning: "All the parts which compose a whole collection or aggregate number, consid- ered in their individuality; all, taken separately one by one, out of an indefi- nite number." The definition given in the Century Dictionary and Cyclopedia is: "Each, considered indefinitely as a uni- tary part of an aggregate ; aU, of a col- lective or aggregate number ; taken one by one; any, as representing all of who~m or of which the same thing is predicated." The language o^ the. statute to be con- strued, eliminating qualifications which are not here material, and stated in com- pact form, would read: "Every person shall have a cause of action against the principal and the surety upon the bond,' and, in any such action, the full amount of damages sus- tained may be recovered against the principal, but the recovery against tlie surety shall be limited to the amount of the bond." By the language of the statute, read in the light of the accepted definitions of the word "every," a right of action is given to each and every person, one by one, against the principal and the surety upon the bond, and, in any "such ac- tion," the recovery against the surety shall be limited to the amount of the bond. "Such action" refers to the action previously described — that h', one which each or every person shall have — and the clause which limits the recovery against the surety to the amount' of the bond is referable to the action described ' in the sentence which pre- cedes this clause. The effect of the language of the statute is to make the bond separate as to each or every indi- vidual injured. The statute does not use the words "all persons" shall have a right of action against the surety and the bond, but the recovery against the surety shall be limited to the amount of the bond. If it did so read, the conten- THE AUTOMOBILE IN PUBLIC SERVICE 13 75 joined as defendant in a suit by a person injured by the operation of such jitney, regardless - of the express provisions of the bond.^^ In New Jersey it is held that an injured person may sue directly the insurance con).pany on the policy, on a judgment recovered against the jitney bus owner, for damages occasioned by the opera- tion of the jitney in the public streets.®* Where a bond is given in compliance with an ordinance requir- ing it to be conditioned for the payment of all damages sustained by any person injured, etc., one so injured may sue on the bond without first suing the owner of the vehicle.®* A surety on a jitney operator's bond cannot be joined in an action against the operator for personal injuries on the theory that the operator is a "public officer." ®* § 1538. Filing bond for more than required amount— -Liability of sureties. Under an ordinance requiring every jit- ney operator to file a bond in the amount of $1,000 conditioned .^o pay all damages due to negligent operation, etc., the sureties to be liable for no more than the amount of the bond, a jitney operator filed- two bonds, each for the amount of $1,000. Held, that the sureties on each bond were liable, under a judgment for $2,000 or more, for the full amount of the bond, and not merely for a total between them of $1,000.®^ § 1539. Liability of surety when bond issued for person other than owner and operator on misrepresentations. The defiendant Wilson was at one time the owner of a Studebaker car which he was operating in Tacoma as a jitney under bond in which the casualty company was surety. Prior to the accident the defend- ant Peterson was the owner of a Stoddard-Dayton car which he de- sired to operate as a jitney. Wilson, having ceased to operate his car as a jitney, Peterson went to the office of the county auditor of Pierce county and made application to transfer the license under which Wilson had operated from the Studebaker car to the Stod- dard-Dayton car, in the application stating that Wilson was the tion of the appellant would, doubtless, 63 providence v. Paine, 41 R. I. 333, be sustained by the language of the act. 103 Atl. 786 (1918). Salo V. Pacific Coast Casualty Co., 95 64 Calvitt v. Savannah, -^ Ga. App. — , Wash. 109, 163 Pac. 384 (1917). 101 S. E. 129 (1919). 61 Milliron v. Dittman, — Cal. — , 181 66 Western Indemnity Co. v. Murray, Pac. 779 (1919). — Tex. Civ. App. — , 208 S. W. 696 62 Gillard v. Manufacturers' Cas. Ins. (1919). Co., 92 N. J. L. 141, 146, 104 Atl. 707 (1918). 1376 LAW OF AUTOMOBILES owner of the Stoddard-Dayton car. Wilson and Peterson then went to the office of the agent of the > casualty company, whom Pet- erson had visited before and made application for a bond and was informed by the casualty company that it was no longer authorized to write bonds nor to transfer bonds already written except from one car to another when operated and owned by the same licensee. On this second visit the bond already issued to Wilson upon the Studebaker car was changed so as to cover the Stoddard-Dayton car under the ownership of Wilson. This transfer being filed with the secretary of state a jitney permit was issued to Wilson to drive the Stoddard-Dayton instead of the Studebaker car, to which his jitney permit had theretofore applied. Wilson then attempted to assign this permit to drive the Stoddard-Dayton as a jitney to Peterson, and it was while Peterson was operating this Stoddard- Dayton car, through an agent as driver, that the accident occurred. The bond covered accidents arising from the use of the car by Wilson or his agents, and a statute prohibited the transferring of licenses from one person to another. Held, that the casualty com- pany was not liable.®® § 1540. Liability of surety when jitney operated by person other than owner on commission basis. Liability was en- forced under a bond protecting the owner of a jitney, although at the time of the accident the car was being driven by the servant of one who was operating the car under a> commission basis agree- ment with the owner, and there being an ordinance providing that the owner of a jitney should be liable for the conduct of any man which his servant should put in his place to drive the car, and an- other provision retjuiring jitneys to be operated on a certain schedule, which necessitated that the operator secure someone to drive the car while he was off at meal times.®'' § 1541. Liability of surety when jitney rented by owner to another. In Washington the bond required is one of indemnity to any one injured by the operation of the particular machine covered by the bond. The liability still inheres regardless of the owner's method of operation of the car. Hence, the surety is not released when the machine is operated by one to whom -the owner has rented it. Such renting is con- 66 Young V. Wilson, 99 Wash. 159, 168 — Tex. Civ. App. — , 200 S. W. 24S Pac. 1137 (1917). (1918). 67 Western Indemnity Co. v. Berry, THE AUTOMOBILE IN PUBLIC SERVICE 1377 sidered as an employment contract, under the statute of that state relating to the operation of jitneys in certain cities.^* § 1542. Liability of surety when jitney operated by person to whom owner attempted illegally to sell it. Where the automobile is presumed as matter of law to be operated by the owner's agent, as far as the rights of the public are concerned, although the owner had attempted to sell it, but had not complied with the requirements of law in so doing, the surety is still liable on its bond to persons injured by the negligent operation of the car.69 § 1543. Territorial extent of liability under bond. Under a statute providing that it shall be unlawful to carry on the business of carrying passengers for hire in automobiles within any city of the first class, without first having obtained from the secretary of state, and having filed a bond conditioned to pay all damages for personal injuries due to negligence in carrying on said business, it was held that a person injured by the negligent operation of such an automobile outside the limits of any city could not recoyer on such bond.'''' § 1544. Failure of insured to give notice to insurer as affect- ing rights of injured person. \^^here an insurance policy filed with a municipality by a jitney operator to indemnify third persons injured by the operation of such jitney, provided for the payment of the indemnity to an injured third person, the omission of the in- sured to comply with certain details thereof, in case of accident, such as notice of the d,ccident, could not affect the right of an in- jured third person to recovery under the policy.''^ § 1545. Liability of surety company as compared with gra- tuitous sureties. A surety company . furnishing a bond of this character cannot invoke, to avoid liability, the strict rules which the courts and statutes may have devised for the protection of gratuitous sureties.'''' §1546. "Operated in service of common carrier"— Driv- ing to repair shop. An automobile is being "operated in the 68 McDonald v. Lawrence, 100 Wash. 71 Gillard v. Manufacturers' Ins. Co., 21S, 170 Pac. S76 (1918). 93 N. J. L. 215, 220, 107 Atl. 446 (1919). 69 Peters v. Casualty Co., 101 Wash. 73 Bond v. HoUoway, — Cal. App. — , 208, 172 Pac. 220 (1918). 188 Pac. 577 (1920). TOBartlett v. Lanphier, 94 Wash. 354, 162 Pac. 532 (1917). B. Autos.— 87 1378 LAW OF AUTOMOBILES services of a common carrier," within the provisions of an indem- nity bond, while it is being driven without passengers to a repair shop for repairs.''* TAXICABS §1547. "Taxicab" defined. "The name is a coined one to describe a conveyance similar to a hackney carriage operated by electric or steam power, and held for public hire at designated places, subject to municipal control." ''* "The word 'taxicab' is one of recent coinage, to describe a motor- driven conveyance that performs a service similar to the cab or hackney carriage, held for hire at designated places at a fare pro- portioned to the length of the trips of the several passengers, who are takeii to be carried to destinations without regard to any route adopted or uniformly conformed to by the operator." ''* §1548. Is "public conveyance" within accident insurance policy. An accident insurance policy providing for double in- demnity for injuries received "while riding as a passenger in or on a public conveyance, provided for passenger service, and propelled by ... . gasoline," covers injuries received by the insured while riding in an automobile propelled by gasoline, which he had hired from a taxicab company, engaged in letting automobiles for hire for general public use, and which was in charge of and driven by a chauffeur in the employ of the company.''® "The cab company sent its taxicabs, equipped with taximeters, on the streets of Albany under the control of their chauffeurs to wait at stands or when traveling upon the streets and unemployed to transport any applicant for their service. A city ordinance which clearly applies to them penalizes both the chauffeur and the owner for any refusal to accept any proper applicant. Such a conveyance, stationed in a public place awaiting and accepting, for carriage, subject to reasonable regulations, any member of the public who desired it, and upon terms apparently uniform and common to all, seems clearly to be a public conveyance. It is a public conveyance because indiscriminately it conveys the public. It is not private because its use is not limited to certain persons and particular 78Ehlers v. Gold, 169 Wis. 494, 173 83, 179 S. W. 631, L. R. A. 1916B USl N. W. 32S (1919). (191S). 74 Donnelly v. Philadelphia & R. R. 76 Primrose v. Casualty Go., 232 Pa. Go., S3 Pa. Super. Gt. 78 (1913). St. 210, 81 AU. 212, 37 L. R. A. (N. 3.1 7B Memphis v. State ex rel., 133 Tenn. 618 (1911). THE AUTOMOBILE IN PUBLIC SERVICE 1379 CMxasions or governed by special terms. The taxicab which was used by the plaintiff was stationed upon a public street and in a public place intended to serve and serving indiscriminately whom- soever of the public might desire it under common conditions and upon common rates of fare. Its status as a 'public' conveyance is not impared by the fact that it did not at all times keep the same number of cabs for public service, that it did not receive for car- riage persons subject to certain objections, that it fixed its own rates of fare, that it had no fixed routes, or by the observance of a custom or regulation that when a taxicab has been engaged by one member or group of members of the public no other person, was received for carriage even though room was still left in the con- veyance, until the first trip had been completed." '"' § 1549. Taxicab is public utility. A taxicab company oper- ates a "public utility," within the meaning of a statute requiring "every public utility" to obey the lawful orders of the public utili- ties commission.'" § 1550. Taxicab company is common carrier. A taxicab com- 77 Anderson v. Fidelity & Cas. Co., 228 N. Y. 47S, 127 N. E. 584 (1920), aff'g 183 App. Div. 170, 170 N. Y. Supp. 431 (1918). In Primrose v. Casualty Co., 232 Pa. St. 210, 214, 81 AU. 212, 37 L. R. A. (N. S.) 618, it was said: "The words 'public conveyance provided for passen- ger service and propelled by gasoline' are to receive a reasonable meaning. All conveyances are either for public or pri- vate use. The automobile in the case at bar was not for merely private use. It belonged to a company which, as already stated, was engaged in the business of hiring automobiles for general public use. The use of no one of its machines was limited to any particular person, but any one able to pay the price for the privilege of riding in it, while it was under the control of and being, operated by one of the company's employees, could do so. In some cases a fare per head was charged for the use of the machine for a stipulated time or for a specified journey; in other instances there was a charge for the use of the car of so much by the hour, and under this arrangement the deceased and his friends hired the car in which they were riding." "The exclusive right to use . does not alter the situation. In Campbell v. Per- kins, 8 N. Y. 430, 435, in which the owners of a canal boat carrying passen- gers and goods for hire, chartered a boat bearing their name to another company for a single trip, a passenger, apparently knowing nothing of the charter party, engaged passage on the boat and during the trip from New York to Albany some of his luggage was lost and he brought action against the owner. It was held 'that the defendants as owners of the boat were liable to the plaintiff in their character as common carriers, notwith- standing there was no privity of contract between them and the plaintiff ; that they had a duty to perform as common car- riers and were liable for their failure to perform such duty.' " Anderson v. Fi- delity & Cas. Co., 228 N. Y. 475, 127 N. E. 584 (1920). 78 Terminal Taxicab Co. v. District of Columbia, 241 U. S. 252, 36 Sup. Ct. 583, 60 L. ed. 984, Ann. Cas. 1916D 765 (1916). 1380 LAW OF AUTOMOBILES pany following the business of transporting persons for hire, and holding itself out to carry one and all, is a common carrier of pas- sengers, and is subject to all the liabilities of such a carrier.''* 79 Illinois: Boland v. Gay, 201 111. App. 3S9 (1916). Missouri: Van Hoefen v. Columbia Taxicab Co., 179 Mo. App. S91, 162 S. W. 694 (1913). New York : Anderson v. Fidelity & Cas. Co., 228 N. Y. 47-S, 127 N. E. S84 (192'0), aff!g 183 App. Div. 170, 170 N. Y. Sup^. 431 (1918). Washington: Gushing v. White, 101 Wash. 172, 172 Pac. 229 (1918), citing this work. Federal: Terminal Taxicab Go. v. District of Columbia, 241 U. S. 252, 36 Sup. Gt. S83, 60 L. ed. 984, Ann. Cas. 1916D 76S (1916). "In the early days there was no com- mon carrier, except of goods. Common carriers of persons as such were unknown until recent times. Travel was unusual and he who traveled did not travel in wagons or conveyances furnished by a common carrier. Thereafter, the term 'common carrier' acquired a broader meaning and now applies to one who car- ries passengers as well as one who carries goods, either when he carries the passen- ger and his merchandise or baggage or when he carries a traveler without his goods." Anderson v. Fidelity & Gas. Co., 228 N. Y. 475, 127 N. E. 584 (1920). "There is quite an abundance of de- cisions, some of them accompanied by well-considered opinions, which support the, view that the operator of the modern public taxicab or of its prototype, the old-fashioned public hack, was and is a common carrier. Gushing v. White, 101 Wash. 172, 172 Pac. 229^ L. R. A. 1918F 463; Carlton v. Boudar, 118 Va. 521, 88 ' S. E. 174, 4 A. L. R. 1480; Primrose v. Casualty Co., 232 Pa. St. 210, 81 Atl. 212, 37 L. R. A. (N. S.) 618; Ga. Life Ins. Co. v. Easter, 189 Ala. 472, 66 So. 514, L. .R. A, 1915C 456; Fidelity & Casualty Co. v. Joiner, — Tex. Civ. App. — , 178 S. W. 806; Lemon v. Ghanslor, 68 Mo. 341 ;> Lewark v. Park- inson, 73 Karis. 553, 85 Pac. 601." An- derson v. Fidelity & Cas. Co., 228 R Y. 475, 127 N. E. 584 (1920). "Neither has it ever been regarded or held to be indispensable to the creation of the status of common carrier that its conveyances should move between filxed termini upon fixed routes. It is true that until modern times common carriers, taking the ordinary stage coach as an illustration, did ordinarily thus move, but no case has been cited or found which holds that such characteristics are indispensable. In fact the contrary has been held. (Parmelee v. Lowitz, 74 111. 116, 24 Am. Rep. 276; Pennewill v. Cul- len, 5 Harr. [Del.] 238). It has even been held that fixed charges are not an essential attribute of a common carrier of goods. Jackson Agr. Iron Works v. Hurlbut, 158 N. Y. 34, 52 N. E. 665,, 70 Am. St. Rep. 432." Anderson v. Fidelity & Gas. Co., 228 N. Y. ,475, ^127' N. E. 584 (1920). "We then come to the remaining ques- tion whether the Yellow Taxicab Service was a 'common carrier' for passenger service in respect of the taxicab in which plaintiff was riding at the time he re- ceived his injuries., And again in this connection it may be stated that the status of the company in respecti of such a cab and in respect of those stationed, in its garage and employed by and on spe- cial call for special purposes is not nec- essarily the same. I think and for the purposes of this discussion shall assume that as to such latter taxicabs it would more nearly have the character of a liveryman and would not be a common carrier. (Stanley v. Steele, 77 Conn. 688, 60 Atl. 640, 69 L. R. A. 561 ; McGregor V. Gill, 114 Tenn, 521, 86 S. W. 318; Siegrist v. Arnot, 86 Mo. 200, ,205, 56 Am. Rep. 424; Erickson v, Barber, 83 Iowa, 367, 49 N. W. 838; Copeland v. THE AUTOMOBILE IN PUBLIC SERVICE 1381 Although, in an action for damages against it by a passenger, there was no proof that the company was a common carrier, if the case was tried and presented by both parties on the theory that it was, the appellate court will dispose of it on that theory.*" As such it owes the duty of exercising the highest degree of care for the safety of its passengers." Draper, 1S7 Mass. SS8, 32 N, E. ' 944, 19 L. R. A. 283, 34 Am. St. Rep. 314; Conn V. Hunsberger, 224 Pa. St. 154, 73 Atl. 324, 2S L. R. A. (N. S.) 372, 132 Am. St. Rep. 770, 16 Ann. Cas. S04.)" Anderson v. Fidelity & Cas. Co., 228 N. Y. 47S, 127 N. E. S84 (1920). "There are cited jour cases which merit brief comment for the purpose of dis- ' tinguishing them from the present case. "In Darnell v. Fidelity & Casualty Co. (Sup. Ct. of Tenn., 46 Insurance L., Journal, 523) the taxicab involved had been employed on a special call to the garage and the business of the owner and operator of it was described 'as in the nature of a livery stable business.' As has already been indicated we think that the status of such a conveyance may readily be distinguished from that of the conveyance in which plaintiff was riding. "Oppenheimer v. Maryland Cas. Co. (70 Penn. Super. Ct. 383) dealt with an automobile which was ■ hired under spe- cial contract from one who so far as appears kept a garage and did not station his cars upon the street for public serv- ice, and the court disposed of the case on the theory that it involved and was controlled by the principles applicable to a livery stable keeper. "The case of City of New York v. Hexamer (59 App. Div. 4) involved the consideration of a licensing ordinance and it was simply held that the right to license the business of hackmen and to fix a license did not authorize the passage of an ordinance imposing a license fee upon a person engaged in conducting a livery stable in New Jersey and who at intervals sent his carriages into the city of New York for the purpose of meet- ing the steamers of the Trans-Atlantic Line, and conveying the passengers to their respective destinations.- It was the view of the court that such a person so conducting a livery stable and sending forth his hackmen was not 'a public hackman.' "The case of Brown v. N. Y. C. & H. R. R. R. Co. (75 Hun, 355) involved the question whether an owner of two car- riages with teams of horses which wert used in the transportation of passengers about the city of Niagara Falls was a common carrier within the meaning of a statute regulating the admission of per- sons upon the station premises of the defendant for the purpose of soliciting custom. Thete are. contradictory ex- pressions in the opinion upon the ques- tion of common carrier. It is stated that the plaintiff's business did come within the general definition of a common car- rier - but that ordinarily ' in speaking of common carriers, ' hackmen were not un- derstood to be included therein. The important fact in respect of the decision, however, is that the question whether the plaintiff was a common carrier or not was not necessary to the disposition of the case which proceeded to the same conclusion whether he was or was not." Anderson v. Fidelity & Qas. Co., 228 N. Y. 475, 127 N. E. 584 (1920). 80 Fornoff v. Columbia Taxicab Co., 1.79 Mo. App. 620, 162 S. W. 699 (1913). "Taxicabs are now, so generally in use that they are included in the class of common carriers." Donnelly v. Philadel- phia & R. R. Co., S3 Pa. Super. Ct. 78 (1913). 81 Carlton v. Boudar, 118 Va. 521, 88 S. E. 174, 4 A. L. R. 1480 (1916). In an action for personal injuries sus- tained by a taxicab passenger, an in- struction that "common carriers of per- sons for hire -are required to do all that 1382 LAW OF AUTOMOBILES A company was incorporated for the purpose of transporting and carrying passengers and their baggage, and other persons and goods, wares and merchandise to and from the variotis railroad stations and other points in the city, and there was proof that its taxicabs attended upon the depots of the various railroad com- panies, and were held out as ready to receive and transport all Who applied for passage and, were ready to pay compensation for the service. Held, that such company was a common carrier.** § 1551. Duty to protect passengers from injury by em- ployees. Upon entering a taxicab for transportation, a passen- ger places himself in the care and custody of the taxicab common carrier company, and the latter assumes towards him the obliga- tion to conduct, itself with proper decorum. The relation thus established imposes the obligation:, on the company, not only to protect the passenger from insult and assault by outsiders, but by its own servants as well. To this extent the passenger is entitled, to the a,bsolute protection of the company and to this extent the com- pany is an insurer of his safety and protection from insults, as- saults, and humiliation at the hands of its servants.*® A. taxicab company, as a common carrier, is bound to discharge the implied duty, arising out of its contract and imposed by law, that its passengers shall hp protected from injury by its servants and shall not be wilfully insulted and harmed, by them. It is not relieved from this obligation j nor from liability for its breach, by the exercise of care in the seilection of its ^employees. Either the company or the passengers must take the risk of the infirmities of iemper, maliciousness and misconduct of the employee whom the company has placed in charge of its Conveyance and to whom it has committed the discharge of its duty to protect and care for the safety of its passengers. A passenger has no control over them, and the company alone has the power to select and remove them.' It is, therefore, but just to make the company, rather than the passengers, take the risk and hold it responsible.** A taxicab company was liable for the acts of its chauffeur in holding a passenger prisoiier within its cab because of his refusal human care, vigilance anil foresight can 82 Carlton v. Boudar, 118 Va. 521, 88 reasonably do, consistent with the char- S. E. 174, 4 A. L. R. 1480 (1916). acter and mode of conveyance adopted 83 Fornoff v. Columbia Taxicab Co., and the practical prosecution of the busi- 179 Mo. App. 620, 162 S. W. 699 (1913). ness, to prevent accidents to passengers' 84 Van Hoefen v. Columbia Taxicab while being carried by them," was held Co., 179 Mo. App. S91, 162 S. W. 694 to correctly state the law. Boland v. (1913), citing -4 Elliott, Railroads (2d Gay, 201 111. App. 359 (1916). ' ed.), § 1638. THE AUTOMOBILE IN PUBLIC SERVICE 1383 to pay aiT excessive fee until the passenger torced his way out of the cab, when the chauffeur caught hold of him and held him pris- oner in the street, and caused him to be arrested and detained until the excessive fare was paid, the passenger having tendered the fare agreed upon between himself and the manager of the company. In such case it was not necessary for the plaintiff to show that the chauffeur was acting within the scope of his employment, be- cause such conduct on his part constituted a breach of the carrier's duty to protect the passenger against insults and assaults by its employees. Where the wrongful act of restraining the passeiiger of his lib- erty commenced while the latter was within the conveyance and continued until he had alighted from it, the law will not undertake to determine whether the acts of the servant committed after the passenger alighted were beyond the scope of his authority, but will treat the whole matter as having happened while the passen- ger was under his care.*^ § 1552. When relation of carrier and passenger terminates. The relation of passenger and carrier, in case of a railroad carrier, continues after the passenger has alighted form the train and while he yet remains for a reasonable time in the station of the carrier.*^ So, too, is the passenger within the care and protection of the carrier, not only until he has actually alighted from a conveyance, such as a street car, but until he is permitted to depart therefrom free from insult an|J injury at the hands of the carrier's servants in charge. Where an assault was conmienced on a street car, and was renewed after the passenger had alighted in the street, by the , conductor kicking him when he attempted to take up his umbrella, which remained on the platform, the court declared that the rela- tion of passenger and carrier continued at the time.*'' The general rule to the effect that, in case the carrier maintains no stations but discharges its passengers at appropriate places in the public highways the relation of passengers and carrier ends when the passenger alights at a proper place, does not obtain where the passenger's business with the carrier's employee concerning his transportation has not ended when he alights. "It is certain that the passenger has the right to pass from the conveyance at the 86 Van Hoefen v. Columbia Taxicab 87 piynn v. St. Louis Transit Co., 113 Co. 179 Mo. App. S91, 162 S. W. 694 Mo. App. 18S, 87 S. W. S60. (1913). 86 Hutchinson Carriers (3d ed.), § 1016. 1384 LAW OF AUTOMOBILES end of his journey in safety — that is, free frotn the assaults of the carrier's servants. Therefore, it would seem the principle attend^ ing the obligation continues to afford protection to the passenger until the further necessity , of relations with the servants of the carrier at and in the vicinity of its conveyance as by way of the settlement of the charge for the transportation is passed.** "Obviously- the passenger may not be ruthlessly assaulted by the carrier's servant without liability on its part while in the very act of paying the charge of transportation, claiming his baggage and departing from the place at \yhich he alighted, for until then the law protects him as within the care of the carrier. Though the journey is ended, the passenger is clearly within the protection of the carrier and the relation continues until the settlement of fare is made and he is permitted by the carrier to take his leave in peace." *® Nor does the relation cease when the passenger leaves the cab during transit for a proper purpose. Especially is this true when he takes his. leave temporarily with the consent of the carrier's servant in charge of the conveyance. , So, where a passenger alighted from a cab only temporarily to procure change, which the chauffeur was unable to make, and compensate the carrier for the fare, which the chauffeur was de- manding, with a view of continuing the journey, the relation con- tinued to exist. "This is true though plaintiff entered one saloon and failed to procure the change and was enroute to another when assaulted, for it appears the chauffeur either accompanied or fql- lowed him with a view of collecting such fare, and this fact alone continues the relation as if plaintiff were on the carrier's premises, for it is clear he was not discharged but remained in its care through the presence of the chauffeur who attended his movements." This principle was held to apply for like reason where, at the end ot his journey, the passenger goes in search of change.®" 88 Van Hoefen v. Columbia Taxicab to his private business, when such tele- Co., 179 Mo. App. 591, 162 S. W. 694 gram is transmitted at the carrier's de- (1913). pot. Clussman v. Long Island R. Co., 89 Van Hoefen v. Columbia Taxicab 9 Hun (N. Y.) 618. Co., 179 Mo. App. S91, 162 S. W. 694 It is proper for a passenger to leave (1913). the conveyance to procure a meal, and 90 Fornoff v. Columbia Taxicab Co., the relation of carrier and passenger 179 Mo. App. 620, 162 S. W. 699 (1913). continues to protect him while on the The relation continues to exist when premises of the carrier and about the a passenger on a train leaves for the conveyance for that purpose. Dodge v. purpose of sending a telegram pertaining Boston & B. S. S. Co., 148 Mass. 207. THE AUTOMOBILE IN PUBLIC SERVICE 1385 § 1553, Effect of refusal of passenger to pay fare. The pay- ment of fare is not essential to the relation of passenger and car- rier.®^ But where one enters a taxicab without any intention of paying his fare, and in fact does not pay it, he does not become a , passenger; and as regards to him the company is not obligated with the duties of a carrier towards its passengers.®^ 91 Perkins v. Galloway, 184 Ala. 265, 92 Fornoff v. Columbia Taxicab Co., 69 So. 87S (191S). 179 Mo. App. 620, 162 S. .W. 699 p913). CHAPTER XXXV VIOLATION OF POLICE REGULATIONS AND PROSECUTIONS THEREFOR § ISS4. Arrest 'without warrant. § ISSS. Liability of officer for loss due to illegal arrest. § 1S56. Officer firing at car to cause driver to stop. § 1SS7. Charging an offense. § 1SS8. Same — Illustrations. § 1S59. Duplicity in alleging offense. § 1560. Jurisdiction of court. § 1S61. Summary trial and trial by jury. § 1562. Proof and variance. § 1563. Two punishments for the same act. § 1564. Criminal intent. § 1565. Uncertainty of statute. § 1566. Applicability of speed regula- tion to peace officer. MANSLAUGHTER § 1567. Generally. § 1568. Criminal intent. § 1569. Negligence must be proximate cause of death. § 1570. Negligence must be gross or wan- ton in some states. § 1571. "Culpable negligence.'' § 1572. Intoxication as evidence of negli- gence. § IS 73. Accident occurring while motorist violating law. § 1574. Same — Driving without license while intoxicated. § 1575. Sufficiency of evidence. § 1576. Evidence of speed at place other than that of accident. § 1577, Running over child in plain view. 1386 § 1578.1 Disease supervening and causing death. § 1579. Conviction of owner who was riding with chauffeur. § 1580. Conviction of manslaughter un- der indictment for murder. MISCELLANEOtrS ' § 1581. Driving without registration number. § 1582. Same — Failure to display due to mistake. § 1583. Same — Unable to secure number plate. § 1584. Failure to display rate card. § 1585. Operating automobile while in- toxicated. ' § 1586. Driving while intoxicated as public nuisance. §1587. Using dealer's number for pri- vate purpose. ' § 1588. Displaying borrowed license tag. § 1589. Assault and battery. § 1590. Assault to do great bodily harm. § 1591. Assault with intent to murder. § 1592. Breach of peace — "Tumultuous and offensive carriage." § 1593. Malicious mischief. § 1594. Carrying revolver "about the person" — Carried behind seat cushion. § 1595. Forcing another into dangerous place. § 1596. Taking automobile without con- sent of owner. § 1597. Same — Aiding another to take car. VIOLATION OF POLICE REGULATIONS 1387 § 1598. Same — As larceny. § 1S99. Wrongfully operating car on highway — Instruction. § 1600. Failure to stop on signal by oc- cupant of horse-drawn vehicle. § 1601. Leaving place of accident with- out giving name, etc. § 1602. Same — Sufficiency of evidence to convict. §1603. Larceny of automobile formerly only misdemeanor in Texas. § 1604. Forbidding operation of auto- mobiles having taximeters — Violation. § 160S. Violating speed regulation — Speed greater than is reasonable, etc. § 1606. Same — ^Where statutory signs are not erected. § 1607. Passing other vehicles at forbid- den rate of speed. § 1608. Rate of speed as evidence of negligence. -- § 1609. Criminal negligence. § 1610. Owner guilty of violation of law while riding with chauffeur. § 1611. Same — Owner unaware of viola- tion. § 1612. Requirement that turn be made close to curb. § 16li. Obstructing traffic. § 1614. Violation of Sunday law in hold- ing motor-cycle races. § 161 S. Reward for evidence of violations of speed law. § 1554. Arrest without warrant. An officer may arrest any- one who violates the speed laws of a state or a municipal corpora- tion, or for any other misdemeanor, without warrant when the offense is committed within his sight.^ But he is not authorized to arrest for a past offense, not a felony, upon information or sus- picion.^ Unless the violation is committed within the view of the officer, process or warrant for arrest is required. An ordinance which, authorizes police officers to make arrests without a- warrant for breaches of municipal ordinances not committed in their pres- ence is void.' Ordinarily offenders against a statute regulating the use of auto- mobiles may be taken into custody without a warrant. Indeed, in many instances the law would be useless if this were not so, because the offender could get out of the state before a warrant could be obtained.* When a police officer's duty includes the enforcement of speed regulations, he should stop and arrest anyone found exceeding the speed limit established by ordinance or statute.* \ 1 State v. Brown, S Harr. (Del.) SOS; Prell V. McDonald, 7 Kan. 426, 446; Quinn v. Heisel, 40 Mich. S76, S78; People V. Fitzgerald, 101 Misc. 69S, 168 N. Y.. Supp. 930 (1917). 2 Com. v. Carey, 12 Cush. (Mass.) 246, 2S2; Quinn v. Heisel, 40 Mich. S76, 578; Mitchell v. Hughes, 104 Wash. 231, 176 Pac. 26 (1918). But see McCul- lough V. Com. 67 Pa. St. 30. 3 Pesterfield v. Vickers, 3 Coldw. (Tenn.) 205. See also Jud^on v; Rear- don, 16 Mmn. 431. ' 4 Crichton v. State, US Md. 423, 81 Atl. 36 (1911). B Heath v. Seattle Taxicab Co., 73 Wash. 177, 131 Pac. 843 (1913). 1388 LAW OF AUTOMOBILES §1555. Liability of officer for loss due to illegal arrest. A deputy. sheriff who illegally arrested a motorist and who, when his attention was called to the fact that the motorist had an autorno- bile on the street in a dangerous place, refused to care for it or to permit the motorist to do so, was liable for parts stolen from the car while it was standing in the street.^ § 1556. Officer firing at car to cause driver to stop. Where an officer pursued an automobile on the unjustifiable suspicion that the occupants had committed a felony, his act of firing at the car, intending to pucture a tire, was unlawful, subjecting him to prose- cution.'' § 1557. Charging an offense. One accused of an offense has the right to demand the nature and cause of the accusation against him,' consequently the complaint must state sufficient facts to notify him of the offense with which he is charged,' and which he is callpd upon to answer.^" It should state all fa<:ts essential to constitute the offense charged," and with sufficient certainty to show a valid cause of action.^^ It must show all the facts nec- essary to give the court jurisdiction.'^' Generally if the offense is chai;ged substantially in the language of the statute or ordinance, it is sufficient.^* The omission of an unimportant word of the statute from the complaint will not affect its" legality. Thus, where a statute re- quired every person "desiring" to operate an automobile to pro- cure a license, and in alleging its violation the word "desiring" was omitted from the complaint, the court declared such omissioni to be of no importance, as it would have no significance in the com- plaint.^^ And under a statute requiring the operator of an automobile, upon a signal of distress by a person driving horses, to stop the automobile and remain stationary," "unless a movement forward shall be deemed necessary to avoid accident or injury," a complaint 6 Whitehead v. Stringer, 106 Wash. SOI, l^Denninger v. Pomona, 145 Cal. 638, 180 Pac. 486 (1919).' 79 Pac. 364; St. Louis v. Babcock, 156 I Wiley V. State, 19 Ariz. 346, 170 Pac. Mo. 1S4, 56 S. W. 731. / 869 (1918). IS Com. y. Fay, 126 Mass. 235. STelheard V. Bay St. Louis, 87 Miss. i* Gallatin v. Tarwater, 143 Mo. 40, 580, 40 So. 326. 44 S. W. 750; St. Louis v. Knox, 74 Mo. SNeifeld v. State, 23 Ohio Cir. Ct. 246. 79; State v. Randall, 107 Wash. 695, 182 10 St. Louis V. Smith, 10 Mo. 438. Pac 575 (1919). II State V. Carpenter, 60 Conn. 97, 22 IB State v. Cobb, 113 Mo. App. 156, Atl. 497. 87 S. W. ,551. VIOLATION OF POLICE REGULATIONS 1389 which charged that the defendant as operator of an automobile did not stop the same on a signal of distress by a person driving a team of horses was held sufficient, although it failed to state that a move- ment forward was unnecessary.^® Some offenses are of such a nature that a charge in the language of the statute under which the accusation is brought would, be wholly insufficient to so inform the accused of the nature of the charge against him as to enable him to prepare his defence! Charg- ing that the accused operated an automobile "so as to endanger the life and limb of persons and the safety of property," the same being in the language of the statute, alleged to haye been violated, is in- sufficient, in that the accused is not informed as to the person or property endangered by his operation of the automobile. Hence, a special demurrer thereto should be sustained.^'' It is necessary that, the statute state all the elements of the offense with legal certainty,^* otherwise the charge in following it will be lacking in certainty which will render it insufficient.''® The time, place and manner of the commission of the offense should be set out,*" and when alleging the breach of an ordinance, the complaint must refer to and identify the ordinance alleged to have been violated.*^ , In charging the violation of a statute regulating the operation of automobiles and conveyances of like character, it is unnecessary to allege the particular power by which the automobile in question was propelled, as the word "automobile" has a definite popular meaning, and is understood to refer to a wheeled vehicle, propelled by gasoline, steam, or electricity, and used for the transportation of persons or merchandise.** An information which charges a violation of a gtatute prohibit- ing the use of an automobile on a highway in the absence of the owner and without his consent, must allege the ownership of the machine.** Even although it is not necessary to allege on what street ^e- 16 McCummins v. Slate, 132 Wis. 236, 20 State v. Cadwalader, 36 N. J. L. 112 N. W. 25. 283; Anderson V: Camden, 52 N. J. L. 17 Carter v. State, 12 Ga. App. 430, 289, 19 Atl. 539. 78 S E. 205 (1913). 21 Bayard v. Baker, 76 la. 220, 40 N. 18 People V. Maguire, 26 Cal. 635;. W. 818; Barker v. New York, 17 Wend. State V. Scheele, 57 Conn. 307, 18 Atl. (N. Y.) 199. 256 14 Am. St. Rep. 106; Com. v. Con- 22.Carter v. State, 12 Ga. App. 430, 78 nelty, 163 Mass. 539. S. E. 205 (1913). IBState V. Carpenter, 60 Conn. 97, 22 23 People v. Kasker, 209 lU.'App. 597 Atl. 497 ; Com. v. Bartley, 138 Mass. 181. (1918) . 1390 LAW OF AUTOMOBILES fendant violated the speed law, if the name of the street is alleged it must be proved.^* One entitled, on preliminary examination, to an examination relative to the offense subsequently charged, if any, cannot be charged with a second offense of a statute if he was examined as if the alleged offense was his first.^^ § 1558. Same— Illustrations. Where an information alleged that, ... did then and there upon a public highway situated within the corporate limits of the city aforesaid, "drive a motor vehicle at a speed greater than is reasonable and proper having regard to the traffic and the use of the way so as to endanger the hfe or limb or injure the property of any person," etc., which was in the language of the statute, it was held to sufficiently state the offense.^^ An indictment alleged that the accused operated an automobile on one of the public highways "at a rate of speed greater than was reasonable and proper, having regard to the traffic and use of the said highway, and then and there, upon approaching a certain pair of mules hitched to and driven to a certain wagon by W. C. Dobbs on said highway, did, while operating said machine on said highway, then and there fail and refuse to give reasonable warn- ing of the approach of said, machine by the use of a bell, horn, gong, or other signal, and fail to use every reasonable precaution to insure the Safety of persons in said wagon, and to prevent frightening said mules." These acts were prohibited by statute. It was held that no offense was alleged in that part of the in- dictment which charged that the accused operated the machine "at a rate of speed greater than is reasonable and proper, having regard to the traffic and use of the said highway," as the allegation was too general and indefinite; that this allegation could be treated as surplusage, as the allegation of failure to warn of the machine's approach charged an offense; and that it was not necessary to allege how the animals became frightened, nor the manner in which the driver of the animals was injured.^'' Where the statute alleged to have been violated prohibits the operation of any automobile in excess of a designated rate of speed for a distance of one-fourth of a mile, an information charg- ing the defendant with having operated an automobile at a rate 24 White V. State, — Tex. Cr. App. — 26 People v. Levin, 181 III. App. 429 198 S. W. 964 (1917). (1913). 2B People V. Reppin, 126 N. Y. Supp. 27 Holland v. State, 11 Ga. App. 769, 169 (1910). ' 76 S. E. 104 (1912). VIOLATION OF POLICE REGULATIONS 1391 of speed in excess of that mentioned in the statute, but which omitted to state that he operated at such rate for a distance of one-fourth of a niile, did not charge an offense.^* Where a speed statute requires the erection of signs in the highways to apprise motorists of the prohibited rate of speed, an information charging a violation of the speed law at a described place must allege the erection of the required sign or signs.^^ An indictment for violation of a statute requiring the operator of an automobile who knows that injury has been caused by his machine to leave his name, etc., need not allege that the acci- dent in question occurred on a public highway.*" So, where one was prosecuted for operating a motorcycle with- out registering the same as required by statute, which prohibited operation without registration "upon any street, road, highway or any other public thoroughfare or elsewhere in Tennessee," it was not necessary for the indictment to allege that the machine was operated on a street, road, etc.'^ A complaint which charged that defendant operated and drove an automobile on the "highway of the street of Mt. Holly known as High or Main street while under the influence of intoxicating liquors," was held to allege facts sufficient to show that the offense was committed on a public street or highway.*^ An indictment charging that the defendant did "unlawfully oper- ate a motor-vehicle upon the streets of the city of Lancaster, Pa., when intoxicated, sets forth an indictable offense under the Penn- sylvania statute.** So did an indictment which charged that the defendant "did un- lawfully operate a motor-vehicle in the village of N. at a rate of speed exceeding one mile in two and one-half minutes." ** Under a statute providing that, "Every driver of a motor vehicle, after knowingly causing an accident by collision or otherwise, or knowingly injuring any person, horse, or vehicle, shall forth- with bring his motor vehicle to a full stop, return to the stene of the accident, and give to any proper person, demanding the same, the number of his driver's license, the registration number of the 28 People V. Winston, ISS App. Div. 32 Curtis v. Joyce, 90 N. J. L. 47, 99 907, 139 N. Y. Supp. 1072 (1913). Atl. 932 (1917). 29 People V. Hayes, 66 Misc. 606, 124 33 Com. v. Snader, 27 Pa. Dist. 623 N. Y. Supp. 417 (1910). (1917). 30 People V. Curtis, 217 N. Y. 304, 112 84 Com. v. Rieker, 27 Pa. Dist. 621 N. E. 54 (1916). ' (;i917). 31 State V. Seinknecht, 136 Tenn. 130, 188 S. W. 534 (1916). 1392 LAW OF AUTOMOBILES motor vehicle, and the names and residences' of e^ch and every male occupant of said motor vehicle," a complaint which charged that defendant "did not forthwith bring said motor vehicle: to a full stop or return to said scene of said accident," was not insuffi- cient in charging only the failure to stop and return to the place of the accident, since, by failing to return, defendant prevented com- pliance with the remaining requirements of the statute.** An indictment charging that the defendant "unlawfully,, wil- fully, wantonly, feloniously, and with malice aforethought did kill and murder J. H., by then and ther* strilpiig and causing to be struck the said J. H. with an automobile being then and there operated, inanaged, and driven by said defendant in an unlawful, wilful, wanton, careless, and negligent manner," etc., was held to sufficiently apprise the defendant, of the crime and facts consti- tuting the crime charged against, him.'^* Where the offense consists of the violation of "An act gov- erning the use of automobiles upon public highways," an indict- ment omitting to aver that the defendant used or operated his automobile upon a public highway, charged no offense.*'' So, in a prosecution for the violation of a statute prohibiting the opera- tion of an automobile on a public road in excess of a designated rate of speed, a conviction will not be sustained if the evidence does not show that the road in question was a public one.** A complaint charging the defendant with operating a motor vehicle "on Broadway, a public highway in said Pawtucket, where the territory contiguous thereto is closely built up, at a rate of speed greater than IS miles per hour," was held to contain all. the in- formation necessary to notify defendant of tjhe nature and cause of the accusation, as he was presumed to know the law, including' the definitions therein of "clpsely built up." It was also held that it was not necessary that the complaint should furnish infor- mation in addition to the allegation of place^ to enable defendant to ascertain in which section of the city, either jbusin.ess or residential, he was charged with exceeding the statutory speed limit, as this he could determine by inspection, or a bill of par- ticulars might be obtained.*' 36 state V. Smith, 29 R: I. S13, 72 38 Allen v. State, 74 Tex. Cr. Rep. 623 Atl. 710 (1909). 169 S. W. 1151 (1914). 36 Madding v. State, 118 Ark. 506, 177 39 state v. Buchanan, 32 R. I. 490, 79 S. W. 410 (1915). Atl. 1114 (1911). 87 Ex parte Worthington, 21 Cal. App. 497, 132 Pac. 82 (1913); State v. Hall, 64 Wash. 99, 116 Pac. 59'3 (1911). VIOLATION OF POLICE REGULATIONS 1393 Where a statute prohibiting the operation of any automobil'e on a public road faster than a designated rate of speed, excepts from such provision its operation on any race course or speedway, an indictment for its violation must negative the fact that the ex- cessive rate of speed occurred on a race course or speedway." It is unnecessary to describe the particular kind of automobile in question, in an indictment charging manslaughter, due to the negligent operation of an automobile.*^ A conviction cannot be sustained under an indictment charging the defendant with unlawfully permitting his infant son to oper- ate an automobile in violation of certain statutory provisions, where the evidence clearly showed that the defendant himself was oper- ating the automobile at all times referred to.*^ § 1559. Duplicity in alleging offense. In an English case the defendant was convicted of driving a motor car in a public highway "at a speed or in a manner" dangerous to the public, having regard to all the circumstances of the case, including the nature, condition, and use of the highway, and to the amount of traffic which was actually at. the time or which might reasonably be expected to be on the highway. It was held that the convic- tion could not be allowed to stand because the corhplaint stated two offenses, and the conviction did not specify the particular of- fense of which the defendant . was convicted. The couirt holding that "at a speed" constituted one offense and "in a manner" an- other; that a person might be going at quite a moderate rate of speed and yet be driving in a manner dangerous to the public; that is, by swaying from side to side or not having proper control of the machine.*^ ' § 1560. Jurisdiction of court. A court of limited jurisdic- tion has no authority to impose a greater fine for an infraction of the law than it is expressly authorized by the statute defining its jurisdiction, even though the law which has been violated pro- vides for a larger maximum penalty than the court has authority to impose. And an attempt to go beyond such authority by as- sessing a fine greater than it is authorized to impose, renders -the sentence and judgment of the court null and void.** Thus, where 40 Byrd v. State, S9 Tex. Cr. Rep. S13, 68 J. P. 392, 2 Loc. Giv. 913, 91 L. T. 129 S. W. 620 (1910). Rep. (N. S.) 98, 20 T. L. R. S49. 41 People V. Falkovitch, 280 III. 321, 44 Kane v. Sloane, 98 App. Div. 450, 90 117 N. E. 398 (1917). N. Y. Supp. 762; People v. Carter, 48 43 Coryell v. State, 92 Neb. 482, 138 Hun (N. Y.) 16S; Lattimore v. People, N. W. S72 (19.12). 10 How. Pr. Rep. (N. Y.) 336. 43 Rex. V. Wells, 20 Cox Cr. Cas. 671, B. Antos. — 88 1394 LAW OF AUTOMOBILES a court, authorized to punish by fine not to exceed fifty dol- lars, imposed a fine of one hundred dollars for the violation of a statute regulating the speed of automobiles on the public high- ways, which statute provided for a penalty of one hundred dollars for violations thereof, it was held that the court exceeded its juris- diction and its judgment was therefore void.** , ' A statute relating to persons charged with violating the motor vehicle law is not invalid because it confers jurisdiction upon justices of the peace to try such offenders without a jury.*^ So, where the statute confers jurisdiction to try such offenders on the nearest justice of the peace, the fact that some other justice is a short distance nearer, or some distance that would be imma- terial to the accused, will not oust the jurisdiction of a justice. And it is not necessary that the warrant for the arrest of the alleged offender show on its face that it was issued by the near- est justice.*'' § 1561. Summary trial and trial by jury. Infractions of mu- nicipal or local police regulations, such as the violation of an ordinance prohibiting fast driving, are not looked upon as crimes or misdemeanors as those . terms are employed in our criminal law. In such cases, unless expressly provided by constitution or statute to the contrary, the defendant is not entitled to a trial by jury.*' There is a distinction between offenses against municipal police regulations and those which, in their nature, are public crimes, or made so by the laws of the state. In the latter the constitutional right of trial by jury is generally held to apply.*® > § 1562. Proof and variance. Evidence that the offense charged of operating an automobile at a rate of speed in violation of a stat- ute occurred on September 8, without showing any year, was in- sufficient to prove that the offense was committed within two years prior to the charge, which alleged that it occurred on September 9, 191S." § 1563. Two punishments for the same act. It has been de^ cided that the same act may constitute several crimes or misde- « People V. De Graff, S6 Misc. 429, Atl. 36 (1911); McQuUlin, Mun. Ord. 107 N. Y. Supp. 1038. § 328, et seq. 46Crichton V. State, US Md. 423, 81 « In re Jahn, SS Kan. 694, 697, 41 Atl. 36 (1911). Pac. 9S6; Neitzel v. Concordia, 14 Kan. IT Crichton v. State, US Md. 423, 81 446. Atl. 36 (1911). 60 Buchanan v. State, I8S Ind. 222, 113 48 Crichton v. State, US Md. 423, 81 N. E. 726 (1916). VIOLATION OF POLICE REGULATIONS 1395 meanors, and the trial and punishment of one will not bar a prose- cution of another growing oujt of the same act.^^ And an act being made punishable by, both the state law and municipal ordinance of the place where it was comimitted is gen- .erally held to constitute two distinct and several offenses: an of- fense against the state and an offense against the municipality. The offenses, although growmg out of the same act, are distinguish- able and wholly disconnected, and the prosecution at the suit of each proceeds upon a different hypothesis. The purpose of the ordinance is to provide a mere police regulation for the enforce- ment of good order and quiet within ^he limits of the corporation: the state law has a more enlarged purpose, namely, the mainte- nance of the peace and dignity of the state.^^ In New York a statute prohibits punishment under state law and ordinance for the same act.^* § 1564. Criminal intent. The only intention necessary to ren- der a person liable to a penalty for a violation of an automobile statute is the doing of the act prohibited.®* § 1565. Uncertainty of statute. The provisions of a penal statute should be certain and unambiguous in stating the ' offense which it creates and the persons to whom it applies. Where onie was charged with operating an automobile without a license in violation of an act the title of which provided for licensing "oper- ators" of automobiles, and in the body of the act there was no pro- vision for licensing "operators," but a provision for licensing the "owners," it was held that the defendant could tiot be convicted under the charge. Plainly the owner might be one person and the operator another.** The state cannot make an act penal without defining the act in terms sufficiently clear for any person to understand that in per- forming the act he is guilty of a violation of the statute. If the law is of such doubtful construction, and describes the act de- nominated as a crime in terms so general and indeterminate, as to 61 Gardner v. People, 20 111. 430, 434; 63 People v. Fitzgerald, 101 Misc. 695, Freeland v. People, 16 lU. 380; Moore v. 168 N. Y. Supp. 930 (1917). Illinois, SS U. S. (14 How.) 13; Fox v. 64 People v. Thexton, 188 111. App. 2 Ohio, 46 U. S. (S How.) 410. (1914). 62 Woods V. State, IS Ala. App. 251, 65 Com. v. Densmore, 29 Pa. Co. Ct. 73 So. 129 (1916); McQuUlin.Mun.Ord., 217. §510; Kansas City v. Clark, 68 Mo. 588; Blatchley v. Moser, 15 Wend. (N. Y.) 215. 1396 LAW OF AUTOMOBILES make the question of crimipality dependent upon the idiosyncrasies of individuals who may happen to constitute the court and jury, and of such a nature that honest and- intelligent men are unable to ascertain what particular act is condemned by the state, the law is incapable of enforcement and will be held to be null and void.''® • A city ordinance prohibiting the operation of an automobile upon one of the streets of the city "in a careless or reckless man- ner," and making a violation thereof punishable, was declared void, because of its failure to sufficiently define the prohibited act." A statute making it penal to operate an automobile on any of the public highways of the State "at a rate of speed greater than is reasonable and proper, having regard to the traffic and use of such highway, or so as to endanger the life or limb of any person or the safety of any property," has been held to be too indefinite and uncertain in its terms to be capable of enforcement.^' But the contrary has been held by a case in which the court expressly declined to follow the Georgia decision.^® A statute prohibiting the operation of a motor vehicle "at a speed greater than is reasonable or proper, having regard for width, traffic, use and the general and usual rules of' such road or high- way, or so as to endanger the property, life or limb of any person," is a valid statute.®" A statute providing that no person shall' operate a motor-vehicle "recklessly or at a rate of , speed greater than is reasonable and proper, having regard to the width, traffic and use of the highway, or so as to, endanger property or the life or limb of any person," was held not void for ; uncertainty.®^ A statute which, provides the exact speed, which, if exceeded in various classifications of localities, shall be prima, facie evidence of a violation of such statute, is not invalid for uncertainty.®^ A statute making it unlawful for any person to operate an automo- bile upon the public highways at night wi|h front lamps projecting forward a, light of such glg,re and brilliaiicy as to seriously interfere with the sight of, or temporarily blind the vision of, the driver of a 66 Hayes V. State, 11 Ga.App. 371, B9 Smith v. State, — Ind. — , US N. 7SS. E. S23 (1912). E. 943 (1917); State v. Goldstone, — "Hayes v. State, 11 Ga.-App. 371, Minn. — , 17S N. W. 892 (1920). 75 S. E. S23 (1912). 60 state v. Schaeffer, 96 Ohio 215, 117 68 Hayes v. State, 11 Ga. App. 371, N. E. 220 (1917). 75 S. E. 523 (1912) ; Holland v. State, 11 61 Com. v. Clime, 26 Pa. Dist. 663 Ga. App. 769, 76 S. E. 104 (1912) ; Els- (1916). bery v. State, 12 Ga. App. 86, 76 S. E. 62 People v. Beak, 191 111. 449, 126 N. 779 (1912). E. 201 (1920). VIOLATION OF POLICE REGULATIONS 1397 vehicle approaching from an opposite direction, was held to be in- valid as the "glare" and "brilliancy" were not described by any standard that is certain; the law requiring some degree of certainty in denouncing acts as criminal.^* ' A statute penalizing a violation of a provision that, when meet- ing another vehicle in the highway a motorist "must turn his vehicle to the right, so as to give one-half of the traveled roadway, if practicable, and a fair opportunity to the other- to pass by with- out unnecessary interference, was held to be too uncertain and in- definite to be capable of enforcement." ^* A statutory provision that "upon approaching a bridge, dam, high embankment, sharp curve, deiicent or crossing of intersect- ing highways and railroad crossings, the person operating a machine shall have it under control and operate it at a speed not greater than six miles an hour," was held to be definite and certain in its terms, and capable of enforcement. It was contended that the word "descent' was too general and indefinite to be enforceable; but the court held that the word referred to only such declivities where it would be more dangerous to operate a machine at an excessive rate of speed than it would on level ground.^* A statutory provision making it a penal offense to operate an automobile at a rate of speed greater than 6, miles an hour on approaching a crossing of intersecting highways, has been held to be sufficiently definite and certain to be capable of enforcement.^® . §1566. Applicability of speed regulaticn to peace officer. It has been held that peace officers are answerable only for an abuse of their privilege in respect of local traffic regulations while in pur- suit of their duties, and not for mere violation thereof. In this case the court said: "That the enforcement of statutory or ordinance provision limiting the speed at which a motor-pro- pelled vehicle shall be driven over a public highway against a peace officer would have a tendency to hamper him in the performance of his official duties can hardly be doubted. The case in hand affords an illustration. Here the felon was fleeing with a stolen automobile. Naturally he would pay but little regard to the minor offense of exceeding the speed limit. And, if the sheriff must con- es Griffin v. State, — Tex. Cr. App. — , ^^ Hayes v. State, 11 Ga. App. 371, 7S 218 S. W. 494 (1920). S. E. S23 (1912); Elsbery v. State, 12 64 Hale V. State, 21 Ga. App. 658, 94 Ga. App. 86, 76 S. E. 779 (1912). S. E. 823 (1918),. 65 Elsbery v. State, 12 Ga. App. 86, 76 S. E. 779 (1912). 1398, . LAW OF AUTOMOBILES fine himself to that limit, pursuit in the , manner adopted would have been useless, since the felon could not have been overtaken. The rule contended for would also hinder the public peace officer in enforcing the statutes regulating traffic upon the state highways. These statutes- contain somewhat stringent regulations as to the speed a motor-propelled vehicle may be driven over them, and con- tain no exception in favor of the peace officers whose duty it is made to enforce them. If these officers may not pursue and overtake one violating the regulations without themselves becoming amen- able to the penalties imposed by them, the old remedy of hue and cry is not available in such instances, and many offenders who are now brought to answer will escape. "It is not meant to be asserted, of course, that there are no restric' tions upon the speed a sheriff or a peace officer may travel in the pursuit of a fleeing criminal. Such officers may abuse their privi- leges in this respect as well as in others and must answer for such abuse. What is meant to be said is that the statutory regulations as to speed do not apply to them, and that fpr an abuse of their f)rivileges in this respect they must answer in the manner they are requii-ed to answer for other abuses of privilege." *'' MANSLAUGHTER . § 1567. Generally. An ihvoluntary killing without design in the commission of some unlawful act or in the improper perform- ance of some lawful act, such as the operation of an automobile at an unlawful rate of speed, constitutes the offense of involuntary manslaughter; no intent to kill being required.®* One who wilfully drives an automobile in a public street at a rate of speed or in a manner expressly forbidden by statute, and thereby causes the death of another, or one who, with reckless dis- regard for the safety of others, so negligently jdrives an automobile in a public street as to cause the death of another, is guilty of crimi- nal homicide.®^ 67 State V. Gorham, — Wash. — , 188 structions on the question of reasonable Pac. 457 (1920). doubt. Com. v. Hoskins, 60 Pa. Super. 68 Madding v. State, 118 Ark. S06, 177 Ct. 230 (191S). S. W. 410 (1915); State v. Oakley, 176 «» Arkansas: Madding v. State, 118 N. C. 755, 97 S. E. 616 (1918). Ark. 506, 177 S. W. 410 (1915); Bowen Reasonable doubt. — ^A conviction of v. State, 100 Ark. 232, 140 S. W. 28 manslaughter for killing a person by the (1911). alleged negligent operation of an automo- Connecticut: State v. Campbell, 82 bile, cannot be sustained, Vvhere the trial Conil. 671, 74 Atl. 927, 18 Ann. Cas. 236 judge failed to give any adequate in- (1909). VIOLATION OF POLICE REGULATIONS 1399 One who kills another while operating an automobile in excess of the rate of' speed permitted by statute is guilty of felonious homicide; such violation of statute being negligence.'"' The negligence must be something more th'an is required on the trial of an issue in a civil action, but is sufficient to be submitted to the jury if it is likely to produce death or great bodily harm.'^ In the trial of one for manslaughter resulting, it was charged, from operating his automobile at a rate of speed prohibited by "statute in a "business and closely built up portion of the city," it was not competent to prove that the place where the accident hap- pened was a "business and closely built up portion" of the city by a city ordinance which defined it as such.''^ In the prosecution of such a case, contributory negligence is not a defense,''* nor is the fact that the driver of another automo- bile, in which the deceased was riding, was guilty of negligence Del. — , Delaware: State v. long^ 108 AU. 36 (1919). Georgia: Reams v. State, — Ga. App. — , 100 S. E. 230 (1919) ; Hayes v. State, 11 Ga. App. 371, 75 S. E. S23 (1912j. Illinois: People v. Adams, 289 111. 339, 124 N. E. S7S (1919) ; People v. Falko- vitch, 280 111. 321, 117 N. E. 398 (1917). Indiana: Dunville v. State, — Ind. — , 123 N. E. 689 (1919); Luther v. State, 177 Ind. 619, 98 N. E. 640 (1912). Kentucky: Held v. Com., 183 Ky. 209, 208 S. W. 772 (1919). Michigan: People v. Pretswell, 202 Mich. 1, 167 N. W. 1000 (1918). Minnesota: State v. Goldstone, — Minn. — , 175 ISf. W. 892 (1920), Nebraska: Schultz v. State, 89 Neb. 34, 130 N. W. 972, 33 L. R. A. (N. S.) 403 (1911). New Hampshire: State v. Currier, — N. H. — , 106 Atl. 491 (1919). New Jersey: Intoxicated driver. State V. Snook, 93 N. J. L. 29, 107 Atl. 62 (1919). New York: People v. Scanlon, 132 App. Div. 528, 117 N. Y. Supp. 57 (1909). North Carolina: State v. Gash, 177 N. C. 595, 99 S. E. 337 (1919) ; State V. Mclver, 175 N. C. 761, 94 S. E. 682 (1917). Ohio: State v. Schaeffer, 96 Ohio 215, 117 N. E. 220 (1917). South Carolina: State v. Hanahan, 111 S. C. 58, 96S. E. 667 (1918). Texas: Hoffman v. State, — Tex. Cr. App. — . 209 S. W. 747 (1919). One who, with reckless disregard for the safety of others, so negligently drives an automobile in a public street as to cause the death of another, is guilty of criminal homicide. He, is also liable civ- illy for the death of such person. State V. Goetz, 83 Conn. 437, 76 Atl. lOpO, 30 L. R. A. (N. S.) 458 (1910)'. 70 State V. Long, — Del. — , 108 Atl. 36 (1919) ; State v. Gash, 177 N. C. 595, 99-S. E. 337 (1919) ; Lauterbach v. State, 132 Tenn. 603, 179 S. W. 130 (1915). 71 State V. Mclver, 175 N. C. ,761, 94 S. E. 682 (1917). 72 State V. Born, 85 Ohio St. 430; 98 N. E. 108 (1912). 73 Arkansas: Bowen v. State, 100 Ark. 232, 140 S. W. 28 (1911). Kentucky: Held v. Com., 183 Ky. 209, 208 S. W. 772 (1919). North Carolina: State v. Oakley', 176 N. C. 755, 97 S. E. 616 (1918) ; State v. Mclver, 175 N. C. 761, 94 S. E. 682 (1917). South Carolina: State v. Hanahan, 111 S. C. 58, 96 S. E. 667 (1918). Tennessee: Lauterbach v. State, 132 Tenn. 603, 179 S, W. 130 (1915). 1400 . LAW OF AUTOMOBILES any defenseJ* The question of the deceased|s contributory, negli- gence, however, is material and relevant to the extent that it bears on the -negligence of the defendant.'* "The plaintiff in error is not relieved by the fact that the child ran suddenly in front of the machine. One who is engaged, in the performance of an unlawful act must take the criminal conse- quences of whatever happens to third persons as a result of that act. It was His duty to anticipate that he might encounter, not only grown persons, but even little children, or even people who were* afflicted with blindness or deafness. One who disobeys the stat- utory rule as to speed is acting in defiance of law, and must be held to have anticipated the possibility of any injury caused, by his recklessness." ''^ , , It is no defense that after the defendant discovered that the dan- ger to the deceased was imminent he did everything in his power to avert the accident.''"' An instruction, in a prosecution for manslaughter for the killing of a girl by the negligent operation of an automobile, that if, at the time the defendant struck the deceased, he was operating his car in excess of 10 miles an hour (the statutory maximum rate of speed in the circumstances), he was guilty of manslaughter, was held to be erroneous, because it eliminated from the case the question of proximate cause, and ignored the question of criminal intent. In tills regard the court said: "We have here the positive testi- mony of the respondent that he was not running at the time to exceed 8 or 10 miles an hour. From aught that appears in this record, the injury might have occurred just the same if the re- spondent had been running 9 miles an hour as it would were he running 1 1 miles an hoUr. The charge eliminates from the case all qiiestioa of whether the respondent, in good faith, believed he was running within the statutory limit, and makes a mistake of judg- ment on the part of respondent amount to a crime. While it is not the law that. In order to convict the respondent, it must be made to appear that he knowingly violated the statute, because he is bound to know the law, yet there is authority to the effect; that he must have been aware, in order to be convicted, that he was doing the unlawful act complained of . . . . We think the better 'iSchultz V. state, 89 Neb. 34, 130 76 Lauterbach v. State, 132 Tenn. 603, N. W. 972, 33 L. R. A. (N. S.) 403 179 S. W. 130 (191S). (1911). "State V. CampbeU, 82 Conn. 671, 76 Held V. Co^i., 183 Ky. 209, 208 S. 74 Atl. 927, 18 Ann. Cas. 236 (1909). W. 772 (1919) ; State v. Oakley, 176 N. C. 7SS, 97 S. E. 616 (1918). VIOLATION OF POLICE REGULATIONS 1401 doctrine is that the question of the speed of the automobile should have been submitted to the jury, in connection with other facts, as bearing -upon the question whether he was guilty of gross negli- gence in the manner in which he ran the automobile. While it might be said that the wilful violation of this statute would con- stitute negligence, it does not follow that such negligence would in a given case amount to gross negligence or manslayghter, under the circumstances of the case." ''* It is provided by statute in some of the states that any person causing the death of another by ah act or omission amounting to culpable negligence, when there was no intention to effect death, shall be deemed guilty of manslaughter; the statute prescribing, in what degree. Thus, where the operator of an automobile negli- gently ran over and killed a child in a public street, his conviction of manslaughter in the fourth degree, under a statute providing that the killing of a human being by the culpable negligence of another, which would be manslaughter at common law, and which is not declared by statute to constitute some other crime, shall be deemed manslaughter in the fourth degree, was upheld.'''' §1568, Criminal intent. Negligence and recl^less indifference to the lives and safety of others, is sufficient to supply the intent in the offense of manslaughter, arising out of the killing of a child by the negligent operation of an autmobile.*" It is no defense to a charge of manslaughter for the defendant to show that, while grossly reckless, he did not actually intend to cause the death of his victim. The law is regardful of human life and personal safety, and, if one is grossly and wantonly reckless in exposing others to danger, it holds him to have intended the natural consequences of his act and treats him as guilty of a wilful and intentional wrong. In such casse there is a constructive inten- tion as to the consequences which, entering into the wilful, in- tentional act, the law imputes to the offendei:, and in this way a charge which otherwise would be mere negligence becomes, by reason of a reckless disregard of probable consequences, a wilful wrong.^^ § 1569. Negligence must be proximate cause of death. To warrant a conviction of manslaughter, on account of the killing of a human being by the negligent operation of an automobile, 78 People V. Barnes, 182 Mich. 179, 80 State v. Biewen, 169 la. 256, 151 148 N. W. 400 (19.14). ' N. W. 102 (191S). Testate V. Watson, 216 Mo. 420, US 81 Luther v. State, 177 Ind. 619, 98 S W 1011. N. E. 640 (1912). 1402 LAW OF AUTOMOBILES the conduct qf the accused must have been the proximate cause of death. *^ While the contributory negligence of the deceased is no defense, still the conduct of the deceased must be considered in de- termining the proximate, or actual, cause of the death.** It was held that the death of one of the participants in a friendly scuffle through the accidental discharge of a pistol carried in the pocket of the other, contrary to the provisions of a statute, could not be said to be caused by the performance of a wrongful act, so as to render the one carrying the pistol guilty of manslaughter, under the provisions of a statute that whoever unlawfully kills a human being in the commission of some unlawful act is guilty of that crime.** In the case last cited, it was said: "It is undoubtedly true, as. a general rule of law, that a person engaged in the commission of an unlawful act is legally responsible for all of the consequences which may naturally or necessarily flow or result from such unlawful act. But, before this principle of law can have any application under the facts in the case at bar, it must appear that the homicide was the natural or necessary result of the act of appellant in carrying the revolver in violation of statute. . . . With equal reason and' force, it may be asserted that the mere fact that the accused was unlawfully carrying the weapon in question at the tiirie it was accidentally discharged is not, under the circumstances, a material element in the case, for it is manifest that such unlawful act did not, during the scuffle between the parties, render the pistol any more liable to be discharged .than if the carrying thereof had been lawful." So, the ultimate inquiry is: Was the defendant criminally neg- ligent, and, if so, did his criminal negligence cause the death of the deceased? *^ § 1570. Negligence must be gross or wanton in some states. In some states it is held that, in order to convict one of man- slaughter for the killing of another by the negligent operation of an automobile, the conduct of the operator must have amounted to gross negligence, implying an indifference to consequences. In these jurisdictions the terms "gross negligence" means something more than mere negligence. It means wantonness and disregard of the consequences which may ensue, and indifference to the rights 82 People v. Barnes, 182 Mich. 179, 148 N. E. 129, 64 L. R. A. 942, 102 Am. St. N. W. 400 (1914). Rep. 198. 83 People V. Barnes, 182 Mich. 179, 148 86 People v. Barnes, 182 Mich. 179, 148 N. W. 400 (1914). N. W. 400 (1914). 84 Potter V. State, 162 Ind. 213, 70 VIOLATION OF POLICE REGULATIONS 1403 of others that is equivalent to a criminal intent. "Not every degree of carelessness or negligence, if death ensues, renders the pdrty guilty of manslaughter. The case may be one of mere misadven- ture. To warrant conviction it must be gross negligence. It has been well said that there is little distinction, except in degree, be- tween a will to do a wrongful thing and an indifference whether it be done or not. Therefore gross negligence is criminal, and within limits supplies the place of affirmative criminal intent." *^ §1571. "Culpable negligence." A statutory rule of civil conduct cannot be applied in, a prosecution on a criminal charge. Thus, in a prosecution upon a charge of manslaughter on account of the killing of a pedestrian by the negligent operation of an auto- mobile, the trial court instructed the jury that "culpable negli- gence," which was an essential element in the crime charged, con- sisted of the failure to exercise "the highest degree of care which a very prudent and ordinarily skillful driver of an automobile would have used under the same or similar circumstances," and author- ized a conviction if they found that the death resulted from the failure of defendant to usfe said "highest degree of care." This, instruction was founded on a statute which regulated the use of automobiles on the public highways, and prescribed the degree of care stated to be observed by operators.*'' In holding the giving of this instruction to amount to error, the court said: "This was clearly erroneous. It is true that the Act of 1911 (Laws of Missouri 1911, pages 330, 331) makes the 'owner, operator or person in control of an automobile' respond in civil damages for any injury resulting from the failure to use 'the highest degree of care' as by said act defined, but said act has reference only to civil actions, and is in no sense to be considered a part of the Criminal Code, and therefore has no part in fixing the standard of care required in measuring criminal responsibility." ** The term "culpable negligence," as a necessary element in the crime of manslaughter, has been defined as follows: "Culpable negligence is the omission to do something which a reasonable, pru- dent, and honest man would do, or the doing something which such a man would not do under all the circumstances surrounding each particular case.*' 86 People V. Barnes, 182 Mich. 179, 148 89 state v. Coulter, — Mo. — , 204 S. N. W. 400 (1914). W. S (1918),; State v. Emery, 78 Mo. 87 Mo. Laws 1911, pp. 330-331. 77, 80. 88 State V. Horner, 266 Mo. 109, 180 S. W. 873 (191S). 1404 LAW OF AUTOMOBILES § 1572. Intoxication as evidence of negligence. Intoxication of the defendant at the time of the accident may be shown as tend- ing to prove negligence.*" : "It is a matter of common knowledge that the conduct of men is greatly influenced by the condition they are in at the time they are called upon to act; that men urider the influence of liquor do not possess the same cool judgment and discretion that men pos- sess when not under its influence. When one is charged with care- less, reckless conduct, pr with conduct indifferent to tlie rights of others, a showing that he was' intoxicated at the time is a very persuasive factor in leading the mind to the conclusion that the charge is well founded. Much, 6i course, depends upon the stage at which the party has arrived at the time. Grossly intoxicated men have scarcely any judgment and discretion, and as a irule little regard for the rights of other peoplp. The same evidence that would fail to convince the mind that a sober man, a man in his sober setises, did a specific act involving a reckless disregard of the rights of others, might readily be assumed to be true in the case of one who is grossly intoxicated, or operating under the influence - of liquor." ^^ § 1573. Accident occurring while motorist violating law. It has been held that a person who, while doing or attempting to do an unlawful act, dangerous to himian life, accidentally kills another is guilty of manslaughter at least, even though the act was not unlawful at common law.*^ Where one is operating his automobile in violation oi a statute, or in somp other negligent manner, and such conduct proximately causes the death of some other person, he ; is guilty iof man- slaughter.*^ Where a motorist approached a street intersection at a high rate of speed, in violation of both a statute and an ordinance, and struck and killed a boy bicyclist, he was guilty of manslaughter.** Many courts do not recognize any distinction where the unlaw- ful act is in its nature dangerous to human life, and where the un- lawful act manifests an evil nature or -wrongful disposition to harm or injure another in his person or property.** 80 state V. Coulter, — Mo. — , 204 S. 93 People v. Barnes, 182 Mich. 179, 148 W. 5 (1918). ' N. W, 400 (1914). 91 State V. Salmer, 181 la. 280, 164 N. 94 state v. Mclver, 17S N. C 761, 94 W. 620 (1917). S. E. 682 (1917). 92 People V. Abbott, 116 Mich. 263, 74 9S People v. Barnes, 182 Mich, 179, 148 N. W. 529. * N. W. 400 (1914). VIOLATION OF POLICE REGULATIONS 140S § 1574. Same— Driving without a license while intoxicated. One who ran over and killed a child in a public street while driv- ing an automobile without a license and while in an intoxicated condition, was held properly convicted of involuntary man- slaughter. In such a case, the questions whether or not the defend- ant was driving while intoxicated and without a license, were held to be proper subjects for proof and elements for the jury to con- sider in making up a verdict. It was not material whether or not the defendant exercised his best judgment to avoid hitting the child and was not negligent, if he was engaged at the time in the performance of an unlawful act, "such as driving recklessly or driving while intoxicated or without a license." '® § 1575. SuflSciency of evidence. Where there was evidence from which the jury could find that it was proved, beyond aVea- sonable doubt, that the defendant drove his automobile at a grossly excessive rate of speed, and without timely warning, and recklessly in such close proximity to two tip carts in use by street sweepers as to endanger the lives ot the men in charge thereof, and that the death of one of the men was due directly to such negligent driving, the defendant was properly convicted of manslaughter.^ In a prosecution of a motorist for manslaughtfer for kilUng a boy bicyclist at a street intersection, it was held that the defend- ant could reasonably anticipate meeting some one at the crossing, and to approach it at a rate of speed twice that allowed by the state statute, and four times that allowed by ordinance, without reducmg the speed, and without signal, was evidence of reckless- ness, which justified submitting the question of guilt to the jury.* In the prosecution for manslaughter on account of the killing of a pedestrian by the negligent operation of an automobile, the court stated the evidence as follows: "The evidence upon the part of the state tended to show that the death of the deceased occurred about 3:30 p. m., July 31, 1913, at the intersection of Fourth street and Washington avenue. At the hour of the accident there was very little travel on the street at that point. A west-bound street car had, stopped just east' of the intersection of these two streets for the purpose of taking on of letting off passengers. The deceased left the sidewalk at the north- east corner of the street intersection and was walking rapidly, in a 96 Com v. Tole, 25 Pa. Dist. 9S7 estate v. Mclver, 175 N- C. 761,. 94 (1916). S.E. 682 (1917). 1 State V. Wagner, — R. I. — , 86 Atl. 147 (1913). 2 1406, LAW OF AUTOMOBILES southwesterly direction, toward the southeast corner oi the inter- section. When he was some 10 or IS feet out in the street, the automobile, which struck him, approached from the south, coining 'fast.' One witness estimated the speed at from 15 to 20 miles an hour. The witnesses for the state testified that they did not hear any signal or warning given by the defendant who was driving thfe automobile. About this time, the street car started across the street, but only moved about. 6 feet into the street before it came to a stop. It is clearly inferable from the state's evidence' that the view between deceased and defendant as defendant approached near the intersection was unobstructed. Deceased was at the center of the street where the street car tracks crossed when he was struck by the automobile. The defendant in driving the automo- bile/undertook to swerve the machine to the left to avoid striking the deceased, but the right-hand lamp struck the deceased, knock- ing him down under the automobile, and he died in a short time thereafter. Deceased was apparently oblivious of the approach of the automobile until the same was upon him. Deceased's body was found lying about 25 feet from the place where the automobile struck him, and the automobile was stopped about 35 feet from the point of collision. The defendant testified in his own behalf, stating that he approached the intersection of the two streets run- ning at a rate of about 6 miles per hour, and the street appearing to be clear he sounded his horn and started to cross the street on the right-hand side and, as he approached the center of the inter- section, deceased came running around the front of the street car which had started up. When defendant first saw deceased he was within 3 feet of the defendant's machine. Defendant yelled at him and swerved the machine to the left in an attempt to avoid striking him. That the car was a left-hand drive and that he did not know he had struck the deceased until he had crossed the street and looked back. He thereupgn hastened to the si(ie of the wounded man arid helped place him in a conveyance so that he could be taken to a hospital. There was evidence tending to show that this automobile, going 6 miles per hour, could be stopped in a distance of 3 or 4 feet." It was held that the evidence on the part of the state was suffi- cient to take the case to the jury.^ § 1576. Evidence of speed at place other than that of acci- dent. In a prosecution for manslaughter for the killing of a person 8 state V. Horner, 266 Mo. 109, 180 S. W. 873 (191S). VIOLATION OF POLICE REGULATIONS 1407 by the alleged negligent operation of an automobile, it is error to permit a witness to testify as to the average speed of the automobile from a point a mile and a half distant from the place of the accident to a point within 50 or 60 feet of the person struck by the car, at which latter point the accused slackened his speed. This because of the fact, which is one of common knowledge, that a competent operator, and it was uncontradicted that the accused was competent in this respect, would so be able to control and Change the speed of an automobile at different points in the space covered that it would be no aid to, or criterion for, the jury to know what the average speed of the automobile was on this occasion.* So, too, it was held in the same case, that it was prejudicial error to permit a witness to testify as to the rate of speed of an automobile which he saw driven on the day in question at a point a mile and a half distant from the place of the accident, when the only testimony identifying the automobile was that it was red with a black top, like the accused's, and that there were two persons in it, there being two in defendant's automobile at the time in ques- tion. This evidence "was too remote and vague to identify the automobile in question, and too immaterial to be submitted to a jury in the trial of a criminal case. ... In a much traveled public street like the one in question, we think it unsafe to leave to a jury testimony of this nature. The rate of speed testified to by the witness at this point was a high rate of speed of 40 miles an hour. Not only was it remote in point of distance, from the place of the accident, but it was so vague and indefinite as to identity that it sent the jury into the field of speculation as to whether the car which witness saw was the defendant's car or not." Evidence that defendant was seen, shortly after the homicide, running his car in the same peculiar manner in which the car which ran over and killed the deceased was being run at that .time, was admissible for the purpose of identification.^ § 1577. Running over child in plain view. Where a child about 18 months old, in plain view in a road was run oyer and killed by an automobile, where there was no obstacle to turning the machine aside so as to avoid the collision, it was held that death mighf well have been found to have been in consequence of the recklessness of the driver. "This was true," said the court, "whether the driver observed the child or not, for, if he did not see, he should have done so, in the exercise of ordinary diligence. 4 People V. Barnes, 182 Mich. 179, 148 6 Reams v. State, — Ga. App. ^, 100 N. W. 400 (1914). S. E. 230 (1919). 1408 ' LAW OF AUTOMOBILES The slower he was moving in such a situation, the greater must have been his carelessness." It was also held that the act of the driver in going on without stopping or tendering . assistance after striking -the child, was a circumstance indicative of guilt on his part.® ' ' . § 1578. Disease supervening and causing death. Ari infor- mation charged that on July 31, 1912, the accused was driving an automobile upon the highway in Newton, in which one Gilbert was riding as a passenger; that the accused then and there negligently drove such automobile at a dangerous rate of speed upon an em- bankment of stones and earth at the side of the traveled path; that such negligent driving of the automobile was done with reck- less disregard of the safety of Gilbert and was criminal' negligence; that such recklessly negligent driving caused Gilbert to be thrown from the automobile upmn the ground, wounded and bruised about the head and body; and that such wounding and bruising, so caused, directly and proximately caused the death of Gilbert on August 3, 1912. The state claimed and offered evidence tending to prove that Gilbert was taken at once to a hospital in D anbury and there delirium tremens developed, from which he died August 3, 1912; that Gilbert at the time of the injury had an alcoholic brain, which rendered him susceptible to delirium tremens from a blow or injury to his head ; that the delirium tremens causing his death was caused by the injuries received in being thrown from the car as aforesaid, and that delirium tremens causing his death would not then have occurred except for such blows or injuries; that the injuries re- ceived in the fall from the car would not have caused Gilbert's death if he had not had an alcohol brain; that Gilbert was not in- toxicated at the time of the accident; and that the severe physical shock and wounds produced delirium tremens resulting in his death. ! The accused was convicted of manslaughter, and on appeal com- plained of an instruction substantially charging the jury that it was sufficieilt if they found from the evidence that the injuries received by Gilbert in his fall from the automobile caused delirium tremens, which caused his death, and that the delirium tremens would not have occurred and caused his death if the wounds re- ceived from the' fall had not been received. The conviction was affirmed, the court holding that the instruc- 6 State' V. Bifewen, 169 la. 256, ISl N. W. 102 (191S). VIOLATION OF POLICE REGULATIONS 1409 tion properly declared the law, and following the rule that, "If a man receive a wound which is not in itself mortal, but for want of helpful applications or neglect it turns to gangrene or a fever, and the gangrene or fever be the immediate cause of the death, yet this is murder or manslaughter in him that gave the stroke or wound, for that wound, though it was not the immediate cause of the death, yet if it were the mediate cause, and the fever or gangrene the im- mediate cause, the wound was the cause of the gangrene or fever, and so consequently causa causati." '' §1579. Conviction of owner who was riding with chauf- feur. The conviction of the owner of an automobile, who was rid- ing therein when it was being driven at a high rate of speed and negligently run against a buggy, killing an occupant thereof, was unjustified, where it appeared that his chauffeur was driving the machine, and that he could have done nothing to prevent the col- lision, and there was no evidence that it was the habit of the chauffeur to run dangerously close to other vehicles to the knowl- edge of the owner without correction.* § 1580. Conviction of manslaughter under indictment for murder. Under statutes by virtue of which the killing of a human being, unless excusable or justifiable, is murder in the first degree when committed by an act imminently dangerous to others and evincing a depraved mind regardless of human life although with- out a premeditated design to effect the death of any person, and making homicide manslaughter in the first degree when committed without design to effect death by a person engaged in or attempt- ing to commit a misdemeanor affecting the p,erson or property of another, the operator of an automobile, committing several misde-^ meanors in the operation of his car, and negligently striking and killing a boy while violating a speed statute, may be indicted and tried for murder in the first degree and convicted of manslaughter in the first degree.® MISCELLANEOUS § 1581. Driving without registration number. One who oper- ates an automobile on the highways in violation of a statute re- quiring him to have displayed thereon a distinctive number, cor- « T State V. Block, 87 Conn. 573, 89 Atl. 117 N. Y. Sujip. 57 (1909) ; post, § 1610. 167 (1913). 9 People v. Darragh, 141 App. Div. 408, 8 People V. Scanlon, 132_App. Div. 528, 126 N. Y. Supp. 522 (1910). B. Autos. — 89 1410 LAW OF AUTOMOBILES responding to a proper certificate of registration, is guilty of an offense without regard to criminal intent.^" Such operator may be convicted, although the owner of the ma- chine, who was riding with him, has already been convicted of the offense, based upon the same act of operating the car on the high- ways. And it is no defence that the operator is a minor and the owner his father, under whose direction he was driving at the time.'^^ § 1582. Same— Failure to display due to mistake. Where a corporation had purchased license plates for all its cars, its de- fense that, on account of a change in the personnel of its employees, orders to attach the plate to the car in question were not carried out, was held to be good.^^ § 1583. Same— Unable to secure number plate. One who has performed all the requirements of a statute relative to the registra- tion of his automobile, is not liable to prosecution for failure to display the registration number while operating the. machine on the highways where he has been unable to secure the number plate through no fault of his own, although a statute prohibits the opera- tion of the automobile unless such number plate is displayed, and provides a penalty for its violation. In a prosecution for the violation of a statute prohibiting the operation of any automobile on the public highways unless the registration number be displayed thereon, it appeared that by statute automobiles were required to be registered with the secre- tary of state, who was required, among other things, to send to the owner of each machine two number plates bearing the distinctive number assigned to the particular machine, and that the statute further provided that no person shall operate a motor vehicle on the public highways unless such vehicle shall have the two number plates mentione/d conspicuously displayed, etc. It was admitted that the defendant operated his automobile on the public highways without displaying thereon such number plates. He offered evi- dence tending to prove that more than one month prior to the day on which he was charged with violating the law he had properly re-registered his motor vehicle with the secretary of state, and had paid the full fee required therefor; that the re-registration had in 10 People V. Schoepflin, 78 'Misc. 62, 12 Axtell v. State, — Tex. Cr. App. — , 137 N. Y. Supp. 675 (1912). 216 S. W. 394 (1919). 11 Com. V. Buzard, 27 Pa. Dist. 21 (1917). VIOLATION OF POLICE REGULATIONS 1411 fact been' entered by the secretary of state, and a number assigned to defendant; that the re-registration receipt including the number, had been received by the defendant; that defendant did not re- ceive his number plates; that such failure was through no fault of his. This evidence was rejected, and the defendant found guilty. On appeal judgment was reversed, the court in part saying: "Taking the entire legislative act now under consideration, it is manifestly a regulation of the use of motor vehicles and not an attempted prohibition thereof. It ought therefore to be construed consistently with its character in that regard. The gist of the violation, therefore, must be, not the mere use of the motor vehi- cle by the owner, but the failure of the owner to perform the stat- utory duties laid upon hiin as conditions precedent to its use. In order that the owner may be constitutionally precluded from the use of his vehicle, he must himself be found in default in the per- formance of some statutory duty imposed upon him as a condition precedent to its use. . . . Counsel for the state do not contend for any power in the Legislature to penalize the owner of a vehi- cle for failure of the state official to furnish the number plates. Their contention is that he is subject to penalty for using his vehi- cle before getting the number plates. But to compel the owner to desist from the use of his vehicle for an indefinite length of time because of the inability of the official machinery of the state to furnish him the number plates, as contemplated by the statute, would, of itself, amount to a very practical penalty, which might operate more seriously upon him than the maximum fine imposed by the statute. If the Legislature is without power to impose upon him a direct penalty for the mere default or failure of another, the statute ought not to be construed so as to impose an indirect pen- alty upon him under the same circumstances and without any de- fault on his own part." The court also stated that the view that the statute was violated by one who operated a car on the highways without displaying such number plates, regardless of the cause therefor, and regard- less of any fault on the part of such person, had its analogy in the construction, adopted by th^t court, of the statutes relating to the sale of intoxicating liquors and permits and consents to sell. The court then distinguished between the two statutes as follows: "The reason of such construction of such statutes is that absolute prohibition of the sale of intoxicating liquors is the rule in this state and that such prohibition is not lifted except by the full per- formance of the necessary conditions precedent. The statutes and 1412 LAW OF AUTOMOBILES pur construction rest upon the undoubted legislative authority to enact absolute prohibition of the sale of intoxicating liquors. If the Legislature has authority to enact absolute prohibition of the use of motor vehicles, it might afford a reason why an analogous construction should be put upon this statute as is put upon such statutes relating to sales of intoxicating liquors. Doubtless no one will contend that the Legislature can. absolutely prohibit the use of motor vehicles without transcending its constitutional limita- tions." 13 § 1584. Failure to display rate card. In the prosecution of a person alleged to be carrying passengers for hire for failing to display a card showing the rates of fare, etc., as required by ordi- nance, there is no presumption of law that the defendant actually engaged in the business in question merely because he had taken out a license to do so. Consequently, it is competent, as a de- fence, to show that he was not so engaged.^* § 1585. Operating automobile while intoxicated. This offense differs from that of a public nuisance in this:' The former is com- plete when the thing prohibited by the statute has been done, whether with or without inconvenience or annoyance to the public; while the latter offense is not committed unless and until liiere is an inconvenience or annoyance to the public. It is not essential to the existence of this offense that the operator should be so intoxi- cated that he cannot safely drive a car. "The expression, 'under the influence of intoxicating liquor,' covers not only all the well known and easily recognized conditions and degrees of intoxication, but any abnormal mental or physical condition which is the result of indulging in any degree in intoxicating liquors, and which tends to deprive him of that clearness of intellect and control of himself which he would otherwise possess." ^^ An instruction which authorized the jury to convict the defend- ant of driving an automobile while intoxicated though the liquor drunk by him did not render him incapable of giving the care and attention to his automobile that a man of prudence and reasonable intelligence would ^ive, was held to be prejudicial error, the evi- dence as to intoxication being slight. Mere reckless operation of an automobile is not evidence of intoxication.'^'' Instate V, Gish, 168 la. 70, ISO N. 16 State v. Rodgers, Ql'N. J. L. 212, W. 37 (1914). 102 Atl. 433 (1917). 14 Chicago V. Gall, 19S 111. App. 41 20 People v. Weaver, 188 App. Div. (1915). , 395, 177 N. Y. Suf)p. 71 (1919). VIOLATION OF POLICE REGULATIONS 1413 § 1586. Driving while intoxicated 'as public nuisance. One who when "good and drunk" drives a large automobile on a public street of a city, and through the front window of a saloon, breaking the glass and framework of the window and driving the front of his car to the front of thq bar, is guilty of a public nuisance at com- mon law. "A large automobile capable of doing what this one did is an engine of such power that, when driven on the public street by an intoxicated man, endangers life and limb of the public in general, and is well within the definition of a public nuisance." ^^ § 1587. Using dealer's number for private purpose. Al- though a dealer in automobiles is permitted by statute to have one registration number for all of his cars, without the necessity of procuring a number for each machine, such provision not applying to automobiles operated by him for private use or for hire, he is guilty of a violation of the law when he uses one of his cars, dis- playing only his dealer's number, in delivering automobile parts to a customer as a matter of accommodation.^^ § 1588. Displaying borrowed license tag. He who borrows a license tag in order to avoid identification, and while using it violates the speed law, may be convicted of the offense. But, , aside from a statute covering the act, the owner of the license tag is guilty of no offense, even though the tag he loaned was a dupli- cate which he had for the purpose.^* § 1589. Assault and battery. Assault and battery may be committed by striking another with an automobile intentionally, or by drixdng the machine so recklessly as to justify a jury in finding that there was a reckless disregard of human life and safety.^* The same is true where, under like circumstances, the automo- bile is driven against another vehicle in which persons are riding, 21 state V. Rodgers, 90 N. J. L. 60, 99 Indiana: Bleiweiss v. State, — Ind. — , Atl. 931 (1917). 122 N. E. S77 (1919); Luther v. State, 22 People V. Hanna, 26 N. Y. Cr. R. 177 Ind. 619, 98 N. E. 640 (1912); 324, 136 N. Y. Supp. 162 (1911). Schneider v. State, 181 Ind. 218, 104 N. 28 Com. V. David, 33 Pa. Co. Ct. 12, E. 69 (1914). IS Pa. Dist. 793, 794. Kentucky: Lyons v. Com., 176 Ky. Zi Colorado: People v. Hopper, — 657, 197 S. W. 387 (1917). Colo. — , 169 Pac. 1S2 (1917), citing this South Carolina: State v. Abney, 109 S. work. C. 102, 95 S. E. 179 (1918). Georgia: Tift v. State, 17 Ga. App. 663, 88 S. E. 41 (1916). 1414 LAW OF AUTOMOBILES whereby the collision occasions bruises, blows, and similar physical injuries to persons in the vehicle so struck.^^ ' The crime of assault and battery may be committed by driving an automobile on a public highway at a rate of speed that endangers the safety of other persons, and actually results in such an injury. While it is true that both the wilful wrongdoing, which constitutes malice in law, and an intention to inflict injury are of the essence of a criminal assault, and that, as a necessary corollary, mere neg- ligence will not sustain a conviction for such crime, still the nec- essary malice may be implied from the doing of an unlawful thing from which injury is reasonably to be apprehended, and an inten- tion to injure need not be specifically directed to the particular individual that was injured, but may be inferred in law from the consequences that are naturally to be apprehended as the result of the particular act, the doing of which was intentional. One must be taken to have intended the natural consequences of his acts, and the driving of an automobile in a reckless manner or at an excessive rate of speed is a wilful act, an act which follows upon a determination of the will of the operator that it shall be done, an intentional act. It is not the result of mere inattention or negli- gence.^® A wilful act and an act resulting from inattention or negligence ''cannot be confused," said the court in one case, "any more than the hurling of a baseball bat into a crowd of spectators could be confused with its accidentally slipping from the hand of a batter. If a blow inflicted in the former manner would constitute an as- sault, so must a blow inflicted by a wilful act applied to a much more dangerous agency (automobile), since it cannot be that what would be a crime if done with a plaything weighing a few ounces ceases to be a crime if committed with an engine weighing thousands of pounds driven by many horsepowers of force. It has often been held that responsibility increases wiUi the likelihood of injury, but never the reverse." '^'^ The intent in such a case is a question of fact to be determined, estate V. Lewis, 4 Pennew. (Del.) State, 177 Ind. 619, 98 N. E. 640 (1912). 332, SS Atl. 3; Tift v. State, 17 Ga. App. 86 People v. Hopper — Colo. — , 169 663, 88 S. E. 41 (1916). Pac. 152 (1917), citing this work; Luther "That an assault and battery may be v. State, 177 Ind. 619, 98 N. E. 640 committed upon one riding on a bicycle (1912). by another driving an automobile by the 27 state v. Schutte, 87 N. J. L. IS, 93 unlawful touching in collision is clear, for Atl. 112 (1915). the force need not be direct." Luther v. VIOLATION OF POLICE REGULATIONS 1415 by the court or jury trying the case, from all the evidence intro- duced at the trial .^* Where there was evidence that the defendant, some distance before and up to the place of the accident, drove his automobile at an unusually high rate of speed, zigzagged across the road, sud- denly turned his car to the wrong side of the road, swerved into a, ditch, and struck an obstruction which threw his car in the path of an approaching car, from which a collision resulted, causing injuries to the occupants of the other car, a conviction 'for assault and bat- tery was sustained. In such case it was held proper to admit evi- dence as to the defendant being in an intoxicated condition at the time.^® One operating his automobile in excess of the rate of speed per- mitted by statute, upon a city street, and who unintentionally col- lided with a person rightfully passing along or across such highway, was properly convicted of assault and battery.*" Where the evidence showed that the accused ran his automobile at high speed, on the wrong side of a broad highway, at^'night, in such a manner that it zigzagged from side to side, and so that it collided with another automobile, wrecking the same, a verdict of assault was sustained.'^ A person who knows that he is subject to attacks of vertigo or like malady, which renders him wholly unable to control an auto- mobile, may be guilty of assault and battery, although committed while under the influence of such an attack, if he intentionally runs his automobile at a high rate of speed on a, public highway before the attack comes on which directly causes the commission of the offense. In such a case the following instruction was approved: "If you find beyond a reasonable doubt that at the time of said collision and injuries the defendant was subject to frequent attacks of vertigo or similar afflictions which, when they came on, neces- sarily rendered him powerless to control a moving automobile that he might at the time be driving, and that, with full knowledge that he was subject to such attacks and the effect of such attacks, de- f endailt was intentionally running said automobile at a rate of speed so high as to obviously make said machine dangerous to others traveling in vehicles upon said highway, and while thus running said car defendant suffered a custoinary attack of such malady,, which rendered him powerless to control said car, whereby said col- za Schneider V. State, 181 Ind. 218, i04 80 Fishwick v. State, 33 Ohio Cir. Ct. N. E. 69 (1914). Rep. 63 (1911). 29 Com. V. Gayton, 69 Pa. Super. Ct. 31 Com. v. BergdoU, 5S Pa. Super. Ct. S13 (1918). 186 (1913). 1416 'LAW OF AUTOMOBILES Ijsion occurred, resulting in such injuries, the collision would not be attributable to misfortune or accident, but defendant would be guilty of the offense of an assault and battery." *^ The fact that a motorist was exceeding the limit of speed allowed by statute is not the controlling factor, but is only a circumstance to be considered, in determining whether or not he was running his car at a rate of speed obviously dangerous to others using the highways. "A man who deliberately drives his car into a mass of people standing in the street looking at a baseball score board is guilty of assault and battery for running over some' of them, although his automobile is traveling far below the speed limit; whereas, one driving on a lonely coimtry road with no pedestrians on it in sight might be entirely guiltless of the crime of assault and battery for running over a child which suddenly darted from a concealed position by the, highway, although the automobile at the time was exceeding the speed limit." ** The mere fact that a motorist was driving in excess of the rate of speed' permitted by ordinance, does not render him guilty of assault in striking a person with h,is machine.'* Nor is he subject to prosecution for assault and battery where the collision in question was an accident due to defendant's mere negligence, without any intent to commit an assault.'® § 1590. Assault to do great bodily harm. One driving an automobile in a defectively equipped condition, at a negligent rate of -speed, at night without lights, was not necessarily guilty of the offense of assault to do great bodily injury merely because he struck and injured a person while so driving; intent to commit such injury being an essential element of the offense, and in this instance the defendant did not know that he had struck any- one. However, the jury may find him guilty of such offense.'® § 1591. Assault with intent to murder. The defendant was convicted of assault with intent to murder one M., by running his automobile against and over said person .with intent to kill him. In affirming judgment the court said: "This is a very peculiar case. It is not shown that' defendant had any ill feeling for the man al- leged to have been assaulted, no reason appears why he should have 32 Tift V. State, 17 Ga. App. 663, 88 86 Coffey v. State, — Tex. Cr. App. — , S. E. 41 (1916). 200 S. W. 384 (19l8). 83 State V. Schutte, 88 N. J. L. 396, 96 36 state v. Richardson, 179 la. 770, 162 Atl. 659 (1916). N. W. 28 (1917). 8* People V. Hopper, — Colo. — , 169 Pac. 152 (1917). VIOLATION OF POLICE REGULATIONS 1417 wished to run him down on a public highway, and no explanation of his conduct is apparent, unless he was actuated by a reckless dis- regard of human life. The presumption of malice may arise from reckless disregard of human life, without regard to the instrumen- talities employed to effect a personal injury to another. The de- fendant was shown to be an expert operator of an automobile, and there is no evidence that the machine became unmanageable or skidded in any way and injured M. by accident." ''' § 1592. Breach of peace— "Tumultuous and offensive car- riage." The complaint on which the defendant was convicted charged that he did disturb and break the public peace by tumul-, tuous and offensive carriage, in that he ran an automobile upon the public highway at a high rate of speed and in a dangerous, reck- less, and riotous manner, and in a manner to imperil the safety, peace, and security of persons then using the highway, and ran into persons then lawfully using the highway, and put them in great fear of bodily harm and by assaulting one Nelson Derby and other persons, in that he ran said automobile at such a high rate of speed, and in such a dangerous and reckless manner as to injure said Derby and other persons. The complaint was founded on a statute which provided for the punishment of one who "disturbs or breaks the public peace by tumultuous and offensive carriage, by threatening, quarreling, challenging, assaulting, beating or striking another person." It was held that the phrase "tumultuous and offensive carriage," as used in the statute, was broad enough to cover the charge against defendant, and that he was properly convicted.** § 1593. Malicious mischief. Driving an automobile on a pub- lic road- in a furious manner regardless of the- rights of the owner, and not caring if it is wrecked, and while so driving wrecking and breaking the car, constitutes the crime of malicious mischief. And where several conspire to so unlawfully use the car of another, they may be convicted of the offense of conspiracy.*^ § 1594. Carrying revolver "about the person"— Carried be- hind seat cushion. A revolver behind the cushion on which a 37 Dennard v. State, 14 Ga. App. 48S, 89 State v. Abney, 109 S. C. 102, 95 S, 81 S. E. 378 (1914). E. 179 (1918) ; State v. Davis, 88 S. C. He may be guilty of murder. Reams 229, 70 S. E. 811, 34 L. R. A. (N. S.) V. State, — Ga. App. — , 100 S. E. 230 29S (1910). (1919). 88 State V. Boyd, — Vt. — , 99 Atl. SIS (1917). 1418 LAW OF AUTOMOBILES jitney driver sat was carried "about the person" in violation of statute.*" § 1595. Forcing another into dangerous place. If a reason- ably prudent man would have deemed it necessary to drive his auto- mobile into a dangerous place to escape a still more dangerous col- lision with another machine, the driver of such other machine is criminally responsible for the act he rendered necessary.*^ § 1596. Taking automobile without consent of owner. A statute providing that "any person who shall take and operate the motor vehicle of another without the consent of the owner thereof, or a person having the same in charge, shall be guilty of a mis- demeanor," is designed to protect the owners of motor vehicles in the possession and operation of their Cars, and indirectly to pro- tect' the public from the consequences of the improper use of motor vehicles. The scope of the statute is not restricted to the taking and *0 Wagner v. State, 80 Tex. Cr. App, 66, 188 S. W. 1001 (1916). " 'A pistol in a basket on one's arm is carried "about the person." Johnson v. State, SI Tex. Cr. R. 648, 104 S. W. 902.' " 'A pistol on the wagon seat or under the buggy cushion on which defendant, sat is carried "about his person." Gar- rett V. State, 2S S. W. 28S; Leanard v. State, 56 Tex. Cr. R. 84, 119 S. W. 98; Mayfield v. State, 170 S. W. 308.' " 'A pistol in the bottom of the buggy in which defendant rode is "about" his person. De Friend v. State, 69 Tex. Cr. R. 329, ISS S. W. 881.' " 'A pistol under a buggy seat is "about" the person. Hill v. State, SO Tex. Cr. R. 619, 100 S. W. 384.' "Opposed actually or apparently to the holdings above stated, it was held, in Hardy v. State, 37 Tex. Cr. R. 511, 40 S. W. 299 that having a pistol in the front end of a wagon in which defendant was riding was not 'about' the person. It has also been held that having a pistol in a wagon about halfway between the seat and th§ rear end is not carrying 'about the person.' Thompson v. State, 48 Tex. Cr. R. 146, 86 S. W. 1033; George v. State; 29 S. W. 386, in which case it appears that the pistol was in an over- coat in a wagon. The information al- leged that the pistol was carried on and about the person, and we respectfully submit that the weight of authority is with the proposition that a pistol under or behind the cushion of a vehicle on which the driver sils is carried about his person. The Legislature must have meant something when it used the words, 'or about the person,' and, on principle, using the word 'about' in its ordinary meaning, taking into consideration the context and subject-matter relative to which it is employed, the word, not being specially defined, must, as we believe, be held to mean, within the pistol statute, near by, close at hand, convenient of ac- cess, and within such distance of the party so having it as that such party- could, without materially changing his position, get his hand on it; otherwise every person having a vehicle would be authorized to keep prohibited weapons in his vehicle and within reach of his hand, ready for action, and thus fill our streets and highways with armed men, while peaceful pedestrians and passengers or guests in such vehicles would be so ex- empt from the law." 41 State V. Abney, 109 S. C. 102, 95 S. E. 179 (1918). VIOLATION OF POLICE REGULATIONS 1419 operation of a motor vehicle by one who has no relation whatever to the owner, but extends to and includes one who may have a general relation or a special relation to the owner, such as a servant or bailee. A chauffeur employed to operate a machine, or a garage manager or a garage employee engaged to care for or repair a ma- chine, who exceeds the contract of his employment by taking and operating his employer's machine without his employer's consent, is jiist as amenable to the provisions and punishments of this law as one who, without any relation to the owner, takes and operates a machine without the owner's consent. If one accompanies another in the taking and operating of an automobile, knowing or believing that the machine is being taken without the owner's consent, or under circumstances sufficient to make him believe that such is true, he is an accomplice and equally guilty with the other.*^ One who was given possession of an automobile to adjust the carburetor, without permission to operate the car, although it was necessary to run it a short distance to test the adjustment, who ran the car 87 miles, including a pleasure drive at night with his family and a friend, was properly convicted of unlawfully taking and operating an automobile without the consent of the owner, the question of what was necessary tti test the carburetor having been left to the jury. "The taking mentioned in the indictment does not mean taking from the owner, but taking it from the place where it was for the purpose of operating it unlawfully. What the statute makes an offense of is operating any motor-vehicle without the con- sent of the owner thereof. Whether the owner's consent was given directly or constructively is a question for the jury in each case. The matter of securing possession is irrelevant." *^ One who gains the consent of the owner to his use of the latter's automobile, although by false and fraudulent means, is not guilty of a violation of such a statute.** § 1597. Same— Aiding another to take car. All who procure, counsel, command, aid, or abet the commission of a misdemeanor are treated by the" law as principal offenders; and under an indictment for driving an automobile of another without the consent of the owner, a passenger who cranks the car and tells another to drive it, and knows that it is being driven without the owner's consent, in 42 State V. Cusack, 4 Boyce (27 Del.) 4* State v. Boggs, 181 la. 358, 164 N. 469, 89 Atl. 216 (1913). W. 759 (1917). 43 Com. V. Osborn, 27 Pa. Dist 696 (1918). 1420 LAW OF AUTOMOBILES violation of law, may be convicted. Accordingly, in this case the court did not err in charging the jury as follows: "I charge you further, that if this defendant entered into an understanding or agreement with another or with others to take this car, and under that agreement they took it and drove it without the consent and without the authority of the owner, he would be guilty. It does not make any difference whether he actually drove the car himself or not; but if he was present and aided or abetted or directed or pro- cured another to run it, then the other's act would be his, and he would be liable, although he didn't actully operate the car himself; but if he procured another to run it, or operate it, then the other's act would become his act and both would be jointly liable as prin- cipals in this case." *^ §*1598. Same— As larceny. Under a statute providing that the unauthorized use of an automobile sha.ll constitute larceny, such use by a chauffeur of his employer's machine is larceny, although he was driving it for testing purposes.*® § 1599. Wrongfully operating car on highway— Instruction. The defendant being charged in the accusation , with unlawfully operating, while intoxicated, an automobile upon a public highway in Laurens county, to wit, the road leading from Dublin to Wrights- ville, the following charge of the court was error: "Look to the evidence in this case, and if you find that upon a public highway in this state this defendant was operating an automobile in an intox- icated condition, then it would be yoUr duty to convict him. If you find that he, was not intoxicated while operating an automo- bile upon a highway in this state,- it would be your duty to turn him loose." This error, however, was harmless, as the evidence clearly demanded a finding that on the occasion in question the de- fendant was operating the automobile on the highway specified in the accusation.*'' §1600. Failure to stop on signal by occupant of horse- drawn vehicle. In a criminal prosecution for the violation of a statute,** providing that the operator of a motor vehicle shall, "on signal by raising the hand, from a person riding, leading or driv- ing a horse or horses or other animals, bring such motor vehicle 4B Portei- V. State, 19 Gia. App. 449, 91 47 fiurch v. State, 18 Ga. App. 290, 89 S. E. 876 (1917). S. E. 341 (1916). « Rose V. Balfe, 223 N. Y. 379, 119 48 Mo. Laws 1911, p. 326, §8 N. E. 842, 17 N. C. C. A. 721 (1918), rev'g 177 App. Div. 907, 163 N. Y. Supp. 1129. VIOLATION OF POLICE REGULATIONS I'421 immediately to a stop," it appeared that defendant was driving his automobile on a public highway towards a wagon drawn by a team of mules; that the driver called to defendant to stop, and an occu- pant in the rear seat raised his hand as a signal to defendant to stop. Defendant testified that he did not see any signal, and heard no one call until just as he passed the team, which did not appear frightened until he was passing them. It was held that the con- viction could not stand, the court in part saying: "The statute is both penal and criminal. It must be strictly construed in favor of the defendant and against the state both as to the charge and the proof. While this does not mean that no regard is to be had to the intent and spirit thereoi, when construing its literal terms, it does mean that the statute cannot be extended beyond the plain mean- ing and purport of the language employed. ... It is reasonable to suppose that the Legislature intended, so far as concerns this phase of the statute, that the driver of a motor vehicle shall have regard to the person driving or in charge of the animal or animals in question, and. that he be required to act upon signal from such person only. It may readily be assumed that the statute was de- signedly drawn in this respect, with the idea that the driver, or person in charge of the animal or' team, is in a position to know whether or not a signal to stop is necessary, and that he will timely give one if there be any need therefor. "It is urged that, inasmuch as the evidence shows that the driver upon this occasion was using both hands in holding the reins to control the team and was thus unable to signal, a signal given by any other occupant of the vehicle should be held sufficient. But we cannot thus extend the scope and operation of this statute. One observing a team and its driver may not see a signal given by some other person, and defendant testified that he did not see this signal; but it is sufficient to say that the statute does not fasten criminal liability upon the driver of a motor vehicle for failure to observe and obey such a signal. . . . The language of the statute is clear and unambiguous, and not of doubtful import; and we can- not, under the guise of judicial construction, read into it something which the Legislature did not see fit to place therein." *^ § 1601. Leaving- place of accident without giving nanie, etc. The purpose of a statute requiring the operator of an automobile causing injury to person or property to stop and give his name and address, etc., to the person injured or the owner of the damaged 49 State V. Wilson, 188 Mo. App. 342, 174 S. W. 163 (191S). 1422 LAW OF AUTOMOBILES property, is to enable such injured person or property owner to obtain forthwith accurate information as to the person in charge of the automobile, and it should be interpreted in such a way as to effectuate this end. It imposes active and positive duties on the operator, and it is not satisfied by his stopping at some remote, obscure, or inaccessible place, nor by a mei;e passive willingness to answer questions. It is intended that the operator shall iipme- diately and on the spot, give explicit and definite information as to himself which will identify him readily, and make it simple and easy to find him thereafter.®" ' "Knowingly" is a word frequently inserted in statutes creating crimes. In such connection, it comifoonly imports a perception of the facts requisite to make up the crime. For one who operates an automobile "knowingly" to go away without making himself known requires a consciousness not only of the fact that he is going away, but of the further fact that he has not made himself known. If in truth he has ■ delegated the duty of revealing his identity to an' agent, and honestly and with good reason supposes that this delegated duty has been performed, he cannot be said "knowingly" to have failed to comply with the statute, even if the agent did not discharge his duty.®^ One cannot be said "knowingly" to have gone away without stopping and making himself known after causing an injury, if, after the accident, he sent back from the place where his automo- bile stood disabled by the collision a messenger with instructions to tell his name and residence, and he supposed that the messenger had done as directed, although he had not.''* On the other hand it is held that when an operator knows that he has collided with another machine, it is his duty under such a statute to stop and personally investigate, and if injury has been done to person or property, to comply with the requirements of the statute; and if he relies upon what he is told by another, who in- vestigates for him, he does so at his peril.®* Such a statute requiring the motorist to give the information to any proper person demanding it, applies although the injured per- son was rendered unconscious and there was no other person pres- ent; the accident occurring at 6 o'clock p. m., in a city street.®* 60 Com. V. Horsfall, 213 Mass. 232, B3 People v. Curtis, 225 N. Y. S19, 122 100 N. E. 362 (1913). N. E. 623 (1919). Bl Com. V. Horsfall, 213 Mass. 232, 100 54 state v. Sterrin, 78 N. H. 220, 9S N. E. 362 (1913). Atl. 482 (1916). 62 Com. V. Horsfall, 213 Mass. 232, 100 N. E. 362 (1913). VIOLATION OF POLICE REGULATIONS 1423 The statute mentioned in the case last citeci provided: "Any person operating a motor vehicle, knowing that injury has been caused to a person, shall forthwith bring his motor vehicle to a stop, return to the scene of the accident, give to any proper person demanding the same his name and address, the number of the driver's license, the registration number of the motor vehicle, and the name and address of each occupant thereof." In this respect the court said: "It is argued that because in the present case the person injured was unconscious, and no other per- son was present, therefore the defendant was at liberty to at once leave the scene of the accident, without waiting for the arrival of any one who might demand the information described in the stat- ute. It is apparent that the Legislature could not have intended to make it easier for the operator of a car to escape detection in case of severe injury like, the one here inflicted than where the injury was trifling. The object was to secure information in cases where identification might be difficult if the statute was hot observed. Nor it is true that this intent is not fairly expressed by the language used. The statute means that the person causing the injury must return to the place of the accident and there remain for a sufficient time to give 'proper persons' a reasonable opportunity to demand of him the information which the statute requires that he should give upon such demand. It is manifest that what conduct will or will not amount to a compliance with this obligation must vary with the varying circumstances of the individual cases. If there could be a case where it was evident that no person who could make the demand was likely to' appear, and therefore the operator of the car could be excused for not waiting for such appearance, the situ- ation in this case was not one to warrant any such conclusion. The place where the collision occurred was a city street, and the time shortly before 6 o'clock in the afternoon. There was every reason to believe that some one would shortly appear to whom the required information could be given if demanded. It was not even shown that the defendant went away because he thought there was not likely to be an opportunity to give information. On the contrary, his own testimony establishes the fact that he left to avoid being identified as the person responsible for what had occurred. The evidence, if believed, proved that the statute had been violated, and the case was properly submitted to the jury." § 1602. Same— Sufficiency of evidence to convict. In a pros- ecution for violation of a statute requiring motorists whose ma- chines collide with other vehicles to stop and render assistance 1424 LAW OF AUTOMOBILES to the occupants of the vehicle collided with, there was evidence that defendant's automobile, being driven at 40 miles an hour, and in which there were four other persons, collided with a motorcycle, on which deceased and another were riding; that the impact of the collision was heard by two ladies in a passing closed limousine, and by a man who was sitting on his porch 100 yards away; that the body of deceased was carried by defendant's car 45 to 60 feet before falling to the roadside; that on the side of the car next to the impact the fenders and tool box had beeii bent and indented by the impact, and that the side of the car and the coat of one of the occupants were bespattered with blood of deceased. It was held that the evidence was amply sufficient to show that the defend- ant knew of the accident at the time it occurred, and to sustain his conviction.^* The New York statute provides that, "Any person operating a motor vehicle who, knowing that injury has been caused to a per- son or property, due to the culpability of the said operator, or to accident, leaves the place of said injury, or accident, without stop- ping and giving his name, residence, including street and * * * number, and operator's license number to the injured party, or to a police officer, or in case no police officer is in the vicinity of the place of the said injury or accident, then reporting the same to the nearest police station, or judicial officer, shall be guilty of a felony," etc. Under this provision it was held that where,' after injuring a person, a motorist drove on to his home, a distance of several miles, without stopping and without reporting to the injured person, he was properly found guilty, although it was not proved that he did not report the accident to ^ police officer or at a police station.*® § 1603. Larceny of automobile formerly only misdemeanor in Texas. In Texas it seems that the theft of an autmoobile is merely a misdemeanor, regardless of the value of the machine. 66 People v. Fodera, 33 Cal. App. 8, accident without stopping and giving his 164 Pac. 22 (1917). Rehearing denied name, etc.; and I believe that in so do- by Supreme Court. ing he, being uninjured and his machine 66 "The statute states that a person uninjured, thereby committed the crime, who 'leaves the place of said, injury or I believe that this statute means that accident without stopping and giving unless a malefactor of this character is his name, etc., 'is guilty of a felony.' injured personally, or a situatoin is There was testimony of two disin- somehow created whereby an immediate terested and credible witnesses in the report cannot be made by him, he is case at bar that this defendant, after required to stop and report immediately." the mishap, ran right straight on a num- People v. McLaughlin, 100 Misc. 340, 16S ber of miles and turned into his yard; N. Y. Supp. S4S (1917). that he clearly left the place of the VIOLATION OF POLICE REGULATIONS 142 S This was true at least at the time of the rendering of a decision in which the defendant had been prosecuted for larceny for the tak- ing of an automobile of the value of about $1,200. The trial was had under a statute defining theft of personal property in excess of $50, and prescribing a term in the penitentiary upon coilviction. The defendant was found guilty and his punishment assessed at two years in the penitentiary. On appeal it was held that the de. fendant could not be prosecuted under the statute mentioned, be- cause of the. existence of a statute providing that, whoever shall steal any motor vehicle, if the value is $35 or more, shall be im- prisoned in the county jail for not less than six months nor more than one year.®' This decision was followed in cases decided by the same court a few weeks later.®' § 1604. Forbidding operation of automobiles having taxi- meters — Violation. It is not a violation of an ordinance provid- ing that, "Any vehicle that has a taximeter affixed and uses the streets and avenues of the city of New York for the purpose of carrying passengers for hire shall be deemed a public hack and li- censed under this amendment," to operate without license vehicles for hire without a meter which are sent out from a private garage and for which patronage is not solicited on the public streets.®® § 1605. Violating speed regulations— Speed greater than is reasonable, etc. One who drives his automobile at a very high rate of speed violates a provision of the law prohibiting driving at a greater rate of speed than is reasonable and proper, having regard to the traffic on the highway. Thus, where it was shown that the defendant drove his motor car at a high rate of speed through a village and was convicted of a violation of such provision on the ground that the speed was "to the common danger of the passen- gers" using the road, it was held that such conviction was proper although there was no evidence that at the time any vehicle or per- son using the , highway was interrupted, interfered with, incom- moded, or affected by reason of such high rate of speed at which the defendant was driving.®" 57 Sparks v. State, — Tex. Cr. App. B9 Haverty's Tajiicabs v. Mitchel, 1S9 - 174 S. W. 351 (191S). N. Y. Supp. 965 (1915). 68 Howard v. State, — Tex. Cr. App. 60 Mahew v. Sutton, 86 L. T. (N. — 174 S. W. 824 (1915); Greenwood S.) 18, 50 Weekly Rep. 216; Smith v. V. 'state, — Tex. Cr. App. — , 174 S. W. Boon, 84 L. T. (N. S.) 593, 49 Weekly 1049 (1915). Rep. 480. B. Autos.— 90 1426 LAW OF AUTOMOBILES One may be convicted of violating a statute prohibiting the operation of an automobile at a rate of speed greater than is rea- sonable and: proper, having regard to traffic and the use of the way and the safety of the public, and providing that speed in excess of ,a certain rate in certain localities shall bonstitute prima facie evidence of a rate greater than is reasonbale and proper, although he does not exceed the rate specified as constituting prima facie evidence of a violation of the provision.®^ If one drives an automobile at a rate of speed prohibited by statute, he is guilty of a violation of the statute without regard to his intent. And he is likewise guilty although the automobile was under the control of another who was present in the auto- mobile, unless he can show that he was under duress and so drove the car at the instance and requirement of another.®* §1606. Same— Where statutory signs are not erected. Under a statute regulating the speed of automobiles, and cbntain- ing a provision that "the local authorities having charge of any of the highways may, in dangerous or built-up sections, place signs marked 'danger; run slow,' in letters not less than five inches in height," it was held that one could not be convicted of a violation of such speed regulation in a borough when the complaint did not allege that a "run slow" sign had been erected, and the evidence did not show clearly that he had exceeded the prescribed speed limit for places where such signs were not required.®' § 1607. Passing otheii vehicles at forbidden rate of speed. A statute provided that, "Upon approaching railroad crossing and intersection of highways, or a bridge or a sharp curve or a steep descent, or another vehicle or an animal or person outside of any village or city, the person operating a motor vehicle shall reduce the speed of such vehicle to a rate not exceeding eight miles an hour and shall not exceed such speed until entirely past such inter- section, bridge, curve, descent, vehicle, animal or person." An information drawn under such provision charged the de- fendant with wilfully and unlawfully driving his automobile on a public highway (outside of any city or village) past a horse and buggy being driven by a named person, after having over- taken the same, at a speed much greater than 8 miles an hour. 61 Com. V. Cass^y, 209 Mass. 24, 9S 68 Com. v. VoUraer, 25 Pa. Dist. 1070 N. E. 214 (1911). (1916). 62 Goodwin v. State! 63 Tex. Cr. Rep. 140, 138 S. W. 399 (1911). VIOLATION OF POLICE REGULATIQNS 1427 In holding that the information charged no offense, the court said: "The statute permits the driver of an^ automobile to over- take and pass a vehicle of less speed than an automobile and pre- scribes how it may be done. It does not require tjie driver of the other vehicle to reduce his speed. Yet the motorist is author- ized to pass if he can do so with due regard to the other provisions of the statute. The motorist is forbidden to drive at any rate of speed greater than is reasonable and proper; he is required to have regard for the traffic and conditions of the road; he is for- bidden to drive at any speed which will endanger life and limb, and specific directions are given by the statute to slow down when passing persons whom he may meet. Do these directions regu- late his conduct in overtaking and passing persons, vehicles, etc., going in the same direction as the motorist? Undoubtedly some of them do. But it is a matter of common knowledge that good horses, and they are not yet extinct in Kansas, can travel at eight miles an hour, and even at greater speed. This statute gives th^ motorist the right to overtake and pass a horse-drawn vehicle, and it is physically impossible to overtake and pass such vehicle if the provision reducing his speed to eight miles an hour applies to his right to pass persons riding in a horse-drawn vehicle driven and going in the same direction. There must be room for a common- sense interpretation of this provision of the statute. Certainly the Legislature never intended that a motorist should dawdle along behind a horse and buggy on the public road under all circum- stances, if the speed of the latter were such that an automobile could not pass without exceeding eight miles an hour." ^* § 1608. Rate of speed as evidence of negligence. An ordi- nance prohibited thte driving of any vehicle in the public streets recklessly or negligently, or at a rate of speed or in a manner so as to endanger, or to be likely to endanger, the life or limb or property of any person; "provided, that a rate of speed exceeding IS miles ^ per hour shall constitute prima facie evidence of a rate of speed and manner of driving prohibited as aforesaid and of a violation of the provisions of this section; provided further, that a rate of speed exceeding 20 miles per hour shall constitute a rate of speed and manner of driviiig prohibited as aforesaid and in violation of the provisions of this section." In construing this section of the ordinance the court held: "If a person is arrested on a charge of driving any of the vehicles at a rate of speed exceeding 15 6* state V. Pfeifer, 96 Kan. 791, 153 Pac. S52 (1915). 1428i LAW OF AUTOMOBILES miles, and up to 20 miles, per hour, such person may rebut the pre- sumption that he drove the vehicle recklessly or negligently or in a manner so as to endanger the life or limb or property of any person. Upon establishing this, the defendant should be dis- charged. The driving of any vehicle mentioned at a rate of speed exceeding 20 miles per hour constitutes a violation of the section, and a person charged therewith cannot be permitted to offer any evidence or rebut the presumption of reckless or negligent driv- ing." ®^ § 1609. Criminal negligence. One may be criminally re- sponsible for the negligent operation of an automobile. A person is guilty of criminal negligence when he does some act or omits some duty under circumstances showing an actual intent to injure, or when the breach of duty is so flagrant as to warrant an impli- cation that the resulting injury was intended; that js, when his negligeht conduct is incompatible with a proper regard for human life.*® Negligence is the gist of the offense, arid in the absence of recklessness or of want of due caution, there is no criminal lia- bility.«^ Actual intent is not an essential element of the offense.®* It is enough if there is. shown a negligent and reckless indifference of the lives and safety of others.®* § 1610. Owner guilty of violation of law while riding with chauffeur. An ordinance contained the following section: "In turning the corner of intersecting public highways the per- son operating, driving or propelling any vehicle subject to the provisions of section 1 of this article (which included automo- biles) shall not proceed, nor shall the owner of any such vehicle riding thereon or therein cause or permit the same to proceed at a rate of speed greater than four miles per hour; and in over- taking or meeting a street passenger car which has been stepped for the purpose of receiving or discharging a passenger or passen- gers, no such vehicle aforesaid shall pass or approach withiii eight 66 People V. Ruetiman, 8S Misc. 233, v. State, 89 Neb. 34, 130 N. W. 972, 33 148 N. Y. Supp. 612 (1914).. L. R. A. (N. S.) 403 (1911), quoting Similar provision in statute. People from this work. V. Lloyd, 178 III. App. 66 (1913) ; Peo- 67 state v. Obershaw, 11 Mo. App. 85. pie V. Sumwalt, 178 111. App. 3S7 (1913). 68 Kent v. State, S3 Fla. SI, 43 So. 773. 66 Thomas v. People, 2 Colo. App. S13, 69 state v. Moore, 129 la. S14, 106 N. 31 Pac. 349; State v. Grote, 109 Mo. W. 16; State v. Morrison, 104 Mo. 638, 34S, 1.9 S. W. 93; Union Pacific R. Co. 16 S. W. 492; Schultz v. State, 89 Neb. V. Roeser, 69 Neb. 62, 67, 9S N. W. 68; 34, 130 N. W. 972, 33 L. R. A. (N. S.) Com. V. Cook, 8 Pa. Co. Ct. 486; Schultz 403 (1911), quoting from this work. VIOLATION OF POLICE REGULATIONS 1429 feet of said street car so long as the same is so stopped and re- mains standing for the purpose aforesaid." It was held that the owner of an automobile, riding therein with the driver, was liable for the violation by his driver of either or both of the offenses created by the section quoted — the last of- fense mentioned as well as the first. Said the court: "To hold otherwise would be to give it an unnatural and meaningless con- struction and to defeat the legislative intent. It is unreasonable to assume that the board of aldermen intended to impose re- sponsibility upon an owner for allowing his chauffeur to operate a vehicle at a greater rate of speed than four miles an hour while turning a corner of intersecting highways, and to absolve the owner from all liability if his chauffeur passes or approaches within 8 feet of a passenger car which has been stopped for the purpose of receiving and discharging passengers, for in the latter case the hazards are just as great as in the former. Ordinances should be so construedj if they can be, that they may have reasonable effect, agreeably to the intent of the framers." '"' If the owner of an automobile while riding with his chauffeur instructs or permits him to drive at an illegal rate of. speed, he will be equally guilty with the chauffeur of violating the law. Thus, where it was shown that the defendant was the owner of, or had such a special property in, an automobile as gave him control of it, he was held to be guilty of a violation of the law in allowing the chauffeur to drive the automobile at an unlawful rate of speed while he was riding in the same.''^ It has been held that where an owner was riding in his machine, driven by his chauffeur, and it was not shown that the chauffeur took the particulai: action complained of because of directions given him by the owner, the latter could not be convicted of the criminal offense of operating a motor vehicle on the public highway reck- lessly, under the Pennsylvania statute.''^ § 1611. Same— Owner unaware of violation. Where the owner was riding in his automobile while it was driven at a pro- hibited rate of speed by his chauffeur, the fact that the owner was talking to his wife and did not know that the speed was excessive, did not relieve him of a charge of guilt under an ordinance provid- ing that no owner while riding in a vehicle shall permit it to be oper- 70 People V. Colon, 8S Misc. 229, 148 72 Com. v. Druschell, 27 Pa. Dist. 791 N. Y. Supp. 321 (1914); ante, § 1S79. (1918). 71 Com. V. Sherman, 191 Mass. 439, 78 N. E. 98. 1430 LAW OF AUTOMOBILES ated or driven recklessly or negligently, etc, and fixing certain rates of speed as constituting prima jade evidence of a prohibited rate; the word "permit," as so used, being synonymous with "suffer" or "allow" — not to prohibit or to prevent — an act of omission as opposite to the commission implied in the word "cause." "'^ § 1612. Requirement that turn be made close to curb. One may be guilty of a violation of a statute providing that, "In cities or villages, or any place where traffic is large, or on streets usually congested with traffic of horse-drawn vehicles or street cars, slow- moving vehicles must keep near the right curb, allowing those mov- ing more rapidly, to keep nearer the center of the street," although he does not block any traffic, but merely drives on a part of the street most convenient for him, and no other vehicles are near him.^* It is no defense to a prosecution for violation by the operator of an automobile of an ordinance requiring the driver of a vehicle in turning from a street into an intersecting street to turn as near the right curb as possible, that he would have had to stop his machine until persons standing between street cars and the curb moved out of the way. The, purpose of such a provision is to minimize the danger of accidents. Iii part it was said by the court in the case referred to: "It must be assumed that the people who stood between the cars and the curb knew appellant had the right of passage superior to their right to -stand, unnecessarily, in the street, and that, had he signaled to them seasonably, they would have given way for him. If it were left to every owner of an auto- mobile to violate such a city regulation when otherwise he would experience some inconvenience, there would be very little use of having such an ordinance and the difficulty, now very great, of guarding against automobiles being a serious menace to the per- sonal safety of people while on the public ways would be intoler- able." ''^ § 1613. Obstructing traffic. It is lawful to leave an automo- bile standing in the highway, but not in such a manner nor for such a length of time that it will materially impede or obstruct the traffic on such highway. Proof that an automobile was left ''S People V. Harrison, 183 App. Div. N. W. 49S, 31 L. R. A. (N. S.) 682 812, 170 N. Y. Supp. 876 (1918), rev'g (1910). 102 Misc. 151, 169 N. Y. Supp. 199 75 Oshkosh v. Campbell, 151 Wis. 567, (1917).,/ 139 N. W. 316 (1913). T^Stajte V. Bussian, 111 Minn. 488, 127 VIOLATION OF POLICE REGULATIONS 1431 on the street near the curb for two hours was held insufficient to sustain a conviction of the owner for unnecessarily obstructing the street.''® And where a hotel proprietor was allowed to keep an automobile standing in front of his hotel to be rented only to his guests, he cannot be properly convicted of unnecessarily obstruct- ing the free passageway of the street and delaying traffic thereon because he happens to rent such automobile to someone going into the hotel and engaging it, who proved not to be a guest. He is not presumed to know every guest of his hotel.''"' § 1614. Violation of Sunday law in holding motor-cycle races. Conducting motor-cycle races on Sunday is in violation of a statute prohibiting all "public sports" on that day.''* §1615. Reward for evidence of violations of speed law. By virtue of authority to charge the county for "all expenses necessarily incurred" by him "in criminal actions or proceedings arising in his county," a district attorney offered a reward of twen- ty-five dollars to any person furnishing evidence upon which a con- viction should be had for the violation of the state "inotor vehicle law." In deciding that the district attorney was without authority to offer such reward, the court said: "I do not think the offer in question can be regarded in any sense as moneys expended by the district attorney in executing the duties of his office. His duties are in the prosecution of offenses committed, and do not specifically include the prevention of crime in any other sense than as that duty devolves upon every good citizen. It would be a great strain of language to regard the offer of a sum of money to be paid by the county for evidence by which to secure the conviction of an of- fender, for a crime not yet committed, as an expense necessarily incurred by the district attorney in a criminal action." '" 76 Gassenheimer v. District of Colum- '''S Velodrome Co. v. Stengel, 91 Misc. 'bia, 2S App. Cas. (D. C.) 179. S80, 155 N. Y. Supp. 575 (1915). 77 Gassenheimer v. District of Colum- 79 McNeil v. Board of Supervisors, 114 bia, 25 App. Cas. (D. C.) 179. App. Div. 761, 100 N. Y. Supp. 239. CHAPTER XXXVI INSURANCE § 1616. Authority of company to insure. § 1617. Validity of insurance. §1618. "eovering ' note" as insurance. § 1619. Oral contract of insurance. § 1620. Transfer of policy from one car to another as new contract — Compliance with rules of asso- ciation. § 1621. Character of company required to maintain reserve. § 1622. By what law policies are gov- I erned. § 1623. Valued policy law. § 1624. Duty and liability of company to insured. § 162S. Duty of company as to and upon taking appeal. § 1626. Effect of neglect of company to appeal from judgment against insured. § 1627. Reformation of policy. § 1628. Effect of company repudiating * obligation under policy. § 1629. Effect of company assuming de- ^ fense of suit or settlerdent of claim. § 1630. Liability of company for depre- ciation in value of damaged automobile after being repaired. § 1631. "Suit" does not include criminal prosecution. § 1632. "Accident." § 1633. "Immediate" notice of accident. § 1634. What accidents must be reported. § 1635. Waiver of provision as to notice — Estoppel. 1432 § 1636. Waiver of notice by- defending suit. §1637. Request for past-due assessments as waiver of forfeiture of policy. § 1638. Rejection of claim on one ground as waiver of other grounds. § 1639. "In or on" a private conveyance. § 1640. Insurance against loss by acci- dent as limiting liability to use of car by owner. § 1641. Same — Car operated by member of insured's family of legal age. § 1642. Liability of insurer when car owned by individual partner is used , in partnership business. § 1643. Insurance against loss by pay- ment of judgment — ^Waiver- Estoppel. § 1644. Liability of company when in- solvent insured borrows money and pays judgment. § 164S. Effect of insured giving note in payment of judgment.- § 1646. Payment of judgment within ninety days, etc. § 1647. Misrepresentations by insured. § 1648. Same — Cost and value and period of service. § 1649. Same— Model. § 1650. Same — ^No defense to recovery on policy, when. § 1651. Misstatement as to property traded for autoihobile. § 1652. Misstatement of license number — Reformation of policy. INSURANCE § 1653. Whether car is new or second hand. § 16S4. Insuring car after disposing of same. § 16SS. Warranty that automobile is not rented to another. § 16S6. Warranty against operating auto- mobile for hire. § 16S7. Same — ^Applies to both mortga- gor and mortgagee of car. § 16SS. Change of ownership, interest, title or possession — ^Waiver. § 16S9. Breach of warranty against in- cumbrance. § 1660. Sole and unconditional owner- ship. § 1661. Same — ^Waiver. § 1662. Policy as covering unlawful use of automobile. § 1663. Automobile driven in violation of law as to age of driver. § 1664. Loss occurring while car is being "used for demonstrating and testing." § 166S. Insuring against sinking of ves- sel transporting automobiles — Seaworthiness of vessel. § 1666. Skidding and overturning as causing damage by "derail- ment." § 1667. Right of injured person against insured not affected by insur- ance. § 1668. Right of person, injured by in- sured, against company. § 1669. Settlement by insured without- out company's consent. § 1670. Settlement of suit by insured after refusal of company to defend. § 1671. Right of insured to settle for liability in excess of policy. § 1672. Company coercing insured to con- tribute to settlement. § 1673. Failure or refusal of, insured to assist in settlement of claim. § 1674. Failure of insured to assist in defense of action. 1433 § 167S. Interfering in actions and in ne- gotiations for settlement. § 1676. Settlement by company — Right of insured to recover damages from claimant incurred in same accident. § 1677. Authority of adjuster. § 1678. Joining owner and insurer as parties defendant. § 1679. Subrogation of company to rights of insured. * § 1680. Sanje — Ini whose name action against wrongdoer may be maintained. § 1681. Waiver of right of subrogation. § 1682. Effect of defeat of subrogation by insured. § 1683. Right of trustee in bankruptcy under indemnity policy. § 1684. Notice of cancellation sent by mail. FIRE INSURANCE § 168S. Total destruction of car as en- titling insured to face value of policy. § 1686. Burden of proof on plaintiff to show value. § 1687. Admission of liability — what amounts to. § 1688. Duty to safeguard insured prop- erty — Increase of hazard — Neg- ligence. § 1689. Depreciation in value of car after being insured. § 1690. "Fire originating within the vehi- cle." § 1691. Violation of private garage war- ranty. § 1692. Shed or lean-to as a "garage." § 1693. Waiver of violation of private , garage warranty. § 1694. Settlement with mortgagee as waiver , of proof of loss by owner. § 169S. Proof of loss— Failure to furnish blanks waiver of, when. 1434 LAW OF AUTOMOBILES § 1696. Same — Making appraisement as waiver of. § 1697. Company not liable to statutory- penalty for failure to settle when insured refuses to arbi- trate. § 1698. Gasoline in premises. § 1699. Award signed by only two ap- praisers. § 1700. Award vitiated by misconduct of appraiser. § 1701. Waiver of right to appraisement by admission of value. § 1702. Remedy upon failure of company to pay award. § 1703., Agreement as to repairs super- cedes policy and bars action thereon. § 1704. Identification of burned car by extrinsic evidence. THEFT, ROBBERY OR PILFERAGE § 1705. Generally. § 1706. What amounts to theft, robbery or pilferage — Illustrative cases. § 1707. "Pilferage." § 1708. Recovery of car after time for payment of loss — ^Abandonment to company. § 1709. Diminution in value due to use by thief. § 1710. Liability of company when car is destroyed after being stolen. § 1711. Conversion by borrower. § 1712. Fraudulent conversion by bailee. § 1713. Theft 'or conversion by condi- tional bi(yer. § 1714. Conversion by one in possession for purpose of sale. § 171S. Theft by person not in employ- ment, service or household of insured. § 1716. Theft by employee of public garage. § 1717. Theft by employee of corpora- tion, of which insured is presi- dent. § 1718. Items for which insured, a con- ditional vendor, entitled to re- cover. §1719. Notite of theft— Waiver.^ § 1720. Proof of theft. § 1721. Duty and liability of company when car has been recovered. COLLISIOISrS § 1722. "Collision with object." § 1723. "Roadbed"— Collision with em- bankment at side of road. § 1724. Gutter and curb as part of road- bed. §1725. Automobile backed and falling into elevator shaft in building — "Entering or leaving any building." § 1726. Running automobile into river. § 1727. Damages due to collision after upsetting. § 1728. Damage due to "upsets" — Car falling from bridge and collid- ing with water, etc. § 1729. Suit on policy for total loss- Pleading value of car. § 1616. Authority of company to insure. It has been held that an automobile insurance policy "against loss or expense aris- ing or resulting from claims upon the assured for damages by reason of the ownership, maintenance, manipulation, or use of any automobile enumerated and described in schedule of state- ments, on account of;" injury to persons, damage to property, defense of suits, payment of Costs, and medical aid, is more than "insurance on automobiles," and not authorized to be issued by a INSURANCE 1435 statute authorizing certain companies, "To make insurance upon automobiles, whether stationary or being operated under their own power against any hazard." Although this company had authority to write liability insur- ance in the state where it was incorporated, it was without author- ity in Michigan to insure against loss resulting from bodily injuries or destruction of property through the operation of automobiles, it being the policy in that state to separate the business of in- surance upon property from other lines> A statute providing that any company authorized to do busi- ness in this state "may insure the health of persons and against personal injuries, disablement or death resulting from traveling or general accidents by land or water," and that any company may "insure employers against loss in consequence of accidents or cas- ualties of any kind to employees or other persons or to property resulting from any act of an employee, or any accident or casualty of any kind to persons or property or both, occurring in or con- nected with the transaction of their business; or from the opera- tion of any machinery connected therewith," was held not to author- ize the business of insuring automobile owners against loss from liability on account of personal injuries . or death suffered by any person caused by the maintenance and use of their respective auto- mobiles, or on account of property damage directly caused thereby.^ § 1617. Validity of insurance. A policy of indemnity insur- ance is not void as against public policy, because it indemnifies against loss sustained in consequence of the violation of a statute fixing the speed limit for automobiles. "Undoubtedly a contract indemnifying another against consequences arising from wilful vio- lations of a statute, or from the commission of crime generally, committed by the assured himself, is void for the reason given, but one may lawfully insure another against the consequences of such acts committed by his servants and employees, if such acts are not directed by or participated in by the assured." ^ 1 American Automobile Ins. Co. v. "// it is contended that sound, unde- Palmer,' 174 Mich. 295, 140 N. W. SSI clared public policy demands a denial of (1913). such policies of insurance, we cannot See note in 6 A. L. R. 376. agree to the proposition." American 2 American Fidelity Co. v. Bleakley, Fidelity Co. v. ; Bleakley, 157 la. 442, 157 la. 442, 138 N. W. 508 (1912). 138 N. W. 508 (1912). 8 Taxicab Motor Co. v. Pacific Coast Cas. Co., 73 Wash. 631, 132 Pac. 393 (1913). 1436 LAW OF AUTOMOBILES "There was a time when all insurance, and especially of life, was" looked upon with suspicion and disfavor, but it was only be- cause regarded as a species of wagering contract. That time has long gone by. And with the intelligent study of political economy bringing the recognition of the fact that even the most apparently disconnected and sporadic occurrences are subject to at least an approximate law of averages, the insurance against loss from any such occurrence has been recognized as a legitimate subject of pro- tection to the individual by a guaranty of indemnity from some party undertaking to distribute and divide the loss among a number of others for a premium giving them a prospect of profit." * A legal contract of insurance is not made void by an incidental violation of the highway law.® §1618. "Covering note" as insurance. Sometimes for the purpose of effecting immediate insurance a covering note or bind- ing slip is issued to the insured by the insurer providing insurance for a short time, generally subject to the terms set forth in the policy forms of the insurer. When such covering note is properly executed it amounts to a contract of present insurance, although no policy may ever be issued.® "The cover note was so signed, and the fact that it was not delivered until after the accident is immaterial. It purports to take effect prior to the date of that occurrence, and the evidence establishes that it is the memorial of a prior oral contract for such a cover note agreed to in its essentials, and which the parties in- tended should take effect as stated in the note." '' "The words printed across the face of the contract, 'This cover- ing memo must be returned with the application,' do not make its meaning in the least obscure. The sentence is merely a direction 4 Gould V. Brock, 221 Pa. St. 38, 69 avoided by subsequent insurance without Atl. 1122 (1908). This case recognizes the consent of the company, when the and upholds the validity of automobile same person acts as agent for both corn- indemnity insurance. panics and issues both policies. Brad- SMessersmith v. American Fidelity bury v. Insurance Co., — Me. — , 111 Co., 187 App. Div. 3S, 17S N. Y. Supp. Atl. 609 (1920). 169 (1919), rev'g 101 Misc. 598, 167 6 Law v. Northern Assur. Co., 16S N. Y. Supp. 579. Cal. 394, 132 Pac. 590; Kerr v. Union ESect of other insurance. —Under a Marine Ins. Co., 124 Fed. 837; Ellis v. statute binding insurance companies by Albany Co., 50 N. Y. 402, 10 Am. -Rep. the knowledge of their agents, a policy 495. containing a provision that it shall be 'Jones v. International Indemnity void if any other insurance shall be made Co., — Cal. App. — , 179 Pac. 692 on the same property without the writ- (1919). ten consent of the company is not INSURANCE 1437 what shall be done with the 'covering note' if an application shall be made for a policy to take its place. To say that these words would convert the writing into a mere application for insurance or that they might reasonably be so interpreted seems to us entirely illogical. The contract was one of present insurance. By it the defendant does not merely promise to insure, but by its very terms it 'hereby' in the present 'secures' the plaintiffs from loss by fire. It has long been established that such a 'covering note' is itself a contract of present insurance." * § 1619. Oral contract of insurance. Oral contracts of auto- mobile insurance have been held valid.' "It must now be considered as the well-settled doctrine by the nearly universal concurrence of the authorities that oral agree- ments of insurance are enforceable. The principle underlying these doctrines is this: That the right to make contracts of insur- ance, like any other right of contracting, exists as at common law, unless prohibited by statute; that the contract of insurance hav- ing its origin in mercantile law and usage, the distinction which denies the power to enter into such a contract, except in particular modes and forms, is without foundation and repugnant to, and inconsistent with, the general capacity of contracting which the common law concedes to every person ordinarily competent to enter into binding engagements; that the provisions of a charter of a company that they shall have the right to make contracts of in- surance by the signature of a president, etc., are regarded by the courts as merely enabling and not restrictive of the general power to effect contracts in any other mode not unlawful, dictated by con- venience; and that the distinction between a contract to insure or to issue a policy of insurance, and the policy itself, is obvious and constantly recognized by the courts." " 8 Law V. Northern Assur. Co., 16S Cal. ance agent can bind himself by parole 394, 132 Pac. S90. to procure insurance, and if there is a 9 Sheridan v. Massachusetts F. & M. breach of the contract he is liable in Ins. Co., — Mass. — , 124 N. E. 249 damages. Sargent v. National Fire Ins. (1919); Cass v. Lord, — Mass. — , 128 Co., 86 N. Y. 626; Everett v. O'Leary, N. E. 716 (1920). 90 Minn. 154, 95 N; W. 901. But to be "A valid oral contract for fire insur- valid and enforceable the contract must ance binding the company before the be mutually binding and supported by a issuance of a policy undoubtedly can be consideration." Cass v. Lord, — Mass. entered into as pointed out in the recent — , 128 N. E. 716 (1920). cases of McQuade v. ^tna Insurance 10 King v. Phoenix Ins. Co., 195 Mo. Co., 226 Mass. 281, 115 N. E. 428, and 290, 303, 92 S. W. 892, 113 Am. St. Rep. Mowles v. Boston Insurance Co., 226 678, 6 Ann. Cas. 618, and authorities Mass. 426, 115 N. E. 666, and an insur- there cited. 1438 LAW OF AUTOMOBILES § 1^0. Transfer of policy from one car to another as new contract — Compliance with rules of association. The rules of an automobile insurance association provided that, if a member de- sired to have the policy cover a substituted car, he should give notice to the association's attorney in fact and pay a fee. Ap- pellants owned a Buick car, which was covered by insurance, and which they sold, purchasing in its stead a Chandler. They then mailed the association a letter asking for a transfer of the policy and inclosing the fee. The Chandler car was stolen after the let- ter was mailed, but before it was received. The association, upon receipt of the letter, transferred the policy as requested, in ignor- ance that the car had been stolen. It was held that as the applica- tion for the transfer was in law an application for a new contract of insurance, not effective until validity accepted, and as appel- lants had no absolute right to a transfer, the car was not covered when stolen, hence there was no liability on the part of the associa- tion." § 1621. Charater of company required to maintain reserve. An insurance company empowered to write "all kinds of insurance on automobiles," was required to maintain a reserve required by a statute providing that such companies shall report, "The lia- bilities of the company, as follows: First, the amount due or to become due to banks or other creditors; second, losses" of all 11 Palmer v. Bull Dog Auto Ins. Ass'n, — 111. — , 128 N. E. 499 (1920). " This: court has held that a renewal of a policy is, in effect, a new contract of assurance, being, unless otherwise ex- pressed, on the same terms and condi- tions as were contained in the original policy. Hartford Fire Ins. Co.i v. Walsh, 54 111. 1«4, 5 Am. Rep. US; Hartford Fire Ins. Co. v. Webster; 69 111. 392. When they made the application for the transfer oif the policy, appellants realized that their request required the accep- tance of the attoriiey in fact of the association, for the letter closed with the statement, 'Kindly acknowledge receipt and notify me of the changes.' 'Where a loss .occurring before the risk attaches is known only to the applicant, and he obtains a policy without disclosing the fact of loss, the policy is void, even though the contract be given a date prior to the loss.' 1 Joyce on Insur- ance (2d Ed.) § 107. The risk could not have attached to the auto under this contract until the application had been accepted on August 8 by tbe attor- ney in fact, and that was after the auto had been stolen. Where an appli- cation for insurance provides that the policy shall take effect on the day the application may be approved, if it is not approved there is no contract of insur- ance. Baptist Church v. Brooklyn Fire Ins. Co., 28 N. Y. 1S3. An application for insurance is not itself a contract, but is a mere proposal, which requires acceptance by the insurer through some one actually or apparently authorized to accept the same, to give it effect as a contract. 1 Cobley's Briefs on Insurance, 413." Palmer v. Bull Dog Auto Ins. Ass'n, — 111. — , 128 N. E. 499 (19^0). INSURANCE 1439 kinds; and, "fifth, premium reserved or amount required to safely reinsure all outstanding risks;" which statute includes fire policies, and the company in question was authorized to write such policies. ^^ § 1622. By what law policies are governed. The general rule is that the law of the state in which an insurance company writes its policies govern the contracts.^* However, a statutory provision in the state where the contract of insurance was made declaring that an insurance company doing business under the laws of that state, which issues policies cover- ing property located therein and on such policies receives cash pay- menj;s of premium, shall insert in every policy an obligation to cancel it upon the written request of the person insured, was held not to apply to policies of insurance on automobiles located out- side the state, and that a clause in such policies waiving the pro- visions therein relating to cancellation was valid. ^* § 1623. Valued policy law. The valued policy law becomes a part of every policy of insurance to which it applies issued after such law became effective.^® Under the Missouri law a fire insurance policy on chattels is valued only to the extent of precluding the company from denying that value at the time the policy was written. Hence, the insured must allege and prove the value of the property insured at the time of the fire.^® Omission to plead value of the car at the time of the loss is cured, however, by defendant's reply containing such allegation." Instate ex rel. v. Schramm, 271 Mo. of the domicile. Dennis v. Modern 223, 196 S. W. 21 (1917). Brotherhood, 119 Mo. App. 210, 95 S. 13 Automobile Ins. Co. v. Guaranty W. 967; 6 Cooley, Briefs on Ins., Supp., Securities Corp., 240 Fed. 222 (1917); 561. Cooley, Briefs on Ins., p. 558 et seq. IS Sharp v. Niagara Fire Ins. Co., 164 14 Automobile Ins. Co. v. Guaranty Mo. App. 475, 147 S. W. 154, constru- Securities Corp., 240 Fed. 222 (1917). ing Rev. St. Mo., 1909, §7020. A life policy executed in Milwaukee, 16 Sharp v. Niagara Fire Ins. Co., 164 and payable there, and which provided Mp. App. 475, 147 S. W. 154. that it was made and to be performed The rule is diferent as to real prop- in Wisconsin, was a Wisconsin contract, erty. Sharp v. Niagara Fire Ins. Co., although insured and the beneficiary re- 164 Mo. App. 475, 147 S. W. 154; sided in another state. Northwestern Cooley, Briefs on Ins., Supp., 1193, old Mut. L. Ins. Co. V. Adams, 155 Wis. page 3059. 335, 144 N. W. 1108, 52 L. R. A. (N. The Washington valued policy law gs ' 27S. does not apply to personal property. But statutory provisions of another Bright v. Hanover Fire Ins. Co., 48 state in which the insurer is permitted Wash. 60, 92 Pac. 779. to do business and in which the con- " Wolff v. Hartford Fire Ins. Co., - tract is made usually override the law Mo. App. — , 223 S. W. 810 ^(1920). 1440 LAW OF AUTOMOBILES "The statute (of Missouri) is not only a valued policy law but it carries as well an inhibition against an insurance company issu- ing an insurance' policy on property to exceed three-fourths of its value. It proceeds in the view that the insurer shall go out and investigate the value of the property himself and detei;mine the matter as to the amount of insurance which should be written there- on, not exceeding, however, three-fourths of its value. It is true the insurer may neglect to do this and thus, carelessly coptract to indemnify for a valuation beyond what he would otherwise do. If so, he is treated as estopped from thereafter disputing the value placed upon the property, where such valuation has been attained through a valid contract free from fraud and deceit." ^^ This statute does not preclude the insurer from showing, in de- fense, fraudulent misrepresentations as to value made by the in- sured, and relied on by it in issuing the poHcy. "Here the repre- sentation as to the cost of the automobile, if made with a fraudu- lent intent in order to procure an overvaluation in the policy, as by an overiiisurance, is to be regarded as material to the risk, on the issue of fraud in the inducement to the contract fixing the value, for the reason that it antedated the issuance of the policy. The policy is, therefore, free from the influence of the statute and the subject matter of the inquiry is in no wise concluded by its operation on a valid contract of insurance through which the value was fixed and determined. Indeed, the entire defense of fraud above stated pene- trates quite beyond Hie influence of the valued policy statute and operates on the inducement to the contract by which the value of the property is said to be fixed at its very inception." ^' It is said that a representation by insured that his car is of later model than in fact it is' becomes particularly important in a valued policy, because the insurer agrees in advance that the property insured is worth the amount for which it is insured.^" Where the insured, suing on a policy of automobile insurance in which the car was "valued at the sum insured," alleged and sought to prove the actual value of the car by evidence of what it cost him, and also what it cost his vendor, he could not on appeal urge that the valuation stated in the policy was controlling.^^ § 1624, Duty and liability of company to insured. A policy providihg that if any person shall sustain bodily injury by acci- 18 Farber v. American Auto Ins. Co., 20 Solomon v. Federal Ins. Co., 176 191 Mo. App. 307, 328-329, 177 S. W. Cal. 133, 167 Pac. 8S9 (1917). 67S (191S). 81 Hoffman v. Prussian Nat. Ins. Co., 19 Farber v. American Auto. Ins. Co., 181 App. Div. 412, 168 N. Y. Supp. 841 191 Mo. App. 307, 177 S, W. 675 (1915). (1918). INSURANCE 1441 dent by reason of the use of jthe automobile, for which injuries the insured is, or is alleged to be liable for damages, then the company will indemnify the insured against such liability, and will pay all costs incurred with the company's written consent, was held to in- demnify against liability, as distinguished from loss. Under such provision the insured, having established that he is obligated to pay a reasonable attorneys fee for defense of an action, which the company had refused to defend, is entitled to recover same from the company, although he has not yet paid the fee. It was also held, that the company, after repudiating its obligation to defend, cannot be heard to say that, before it is liable for attorney's fees, its consent in writing to incur the fee must first have been had. "The company cannot refuse to perform its part and de- mand anything of the assured." ^^ • - Under a policy indemnifying the insured against "loss by reason of the liability imposed by law for damages for- bodily injuries," etc., it was held that the recovery of a judgment against plaintiff by a third person for such damages was proof of liability imposed by law and of the insured's right to recover.^* A provision in the policy that no action shall lie against the in- surer to recover for any loss or expense to the assured under the policy, unless it shall be brought for loss or expense actually sus- tained "after actual trial of the issue," was held to be satisfied where the insured refrained from settling an action against him until after a complete record of the facts relating to his liability had been made by the presentation of all of the evidence. Especially was this held to be so in view of the fact that the insurer had broken its contract by refusing to defend the action brought against the insured.^* If the insured settles an action before judgment, he assumes the risk in an action against the insurer of showing, not only a lia- bility covered by the' policy, but the amount of the liability; and the recovery against the insurer may be limited by the loss sus- tained, although the evidence may show that the settlement was for less than the liability.^* If the insurer repudiates its obligation to defend an action brought against the insured, it is liable for reasonable attorney fees 22 Royal Indemnity Co. v. Schwartz, Cas. Ins. Co., 169 App. Div. 772, 15S. — Tex. Civ. App. — , 172, S. W. S81 N. Y. Supp. 7S (1915). (1914). 26 Mayor, L. & Co. v. Commercial 23 Lewinthan v. Travelers Ins. Co., 61 Cas. Ins. Co., 169 App. Div. 772, ISS Misc. 621, 113 N. Y. Supp. 1031. N. Y. Supp. IS (1915;. 2* Mayor, L. & Co. v. Commercial B. Autos.— 01 1442 LAW OF AUTOMOBILES and expenses incurred by the insured in defending the action..*^ Under a policy provision that "if any suit, even if groundless, is brought against the insured to recover , damages on account of injuries or death covered by this policy * * * the company will, at its own cost and expense, defend such suit in the name and on behalf of the assured," it was held that the insurer was re- quired to defend every action in which the complaint showed a claim for damages covered by the policy, notwithstanding the suit was groundless and was defeated, and that if the insurer failed to defend it was liable to the insured for the cost a;nd expenses of defending.*'' § 1625. Duty of company as to and upon taking appeal. A provision in a policy giving the insurer the right to defend actions against the insured, carries with it the right to appeal from a judg- ment rendered in any such action.** It is held that when judgment is rendered against the insured on a claim covered by a policy, in which the insurer agrees to de- fend all such suits, the obligation is on the insurer, when dis- satisfied with the judgment, to provide the bond for appeal and protect the insured from execution until the suit is terminated.*® Where failure of the insurer to give appeal bond resulted in the insured having to pay the judgment, it was, so far as the insured was concerned, the judgment of a court of last resort, and he was entitled to institute suit to recover for such payment from the insurer before the appeal from such judgment was disposed of.^° § 1626. Effect of neglect of company to appeal from judg- ment against insured. A policy required the insurer to defend actions brought against the insured on account of liability for per- 26 Mayor, L. & Co. v. Commercial Insurer nfust either provide the neces- Cas. Ins. Co., 169 App. Div. 772, ISS sary supersedeas bond, and appeal, or N. Y. Supp. 7S (191S). pay the agreed liability. Seessel v. New ^1 Greer-Robbins Co. v. Pacific Sur- Amsterdam Cas. Co., — Tenn. — , 204 ety Co., 37 Cal. App. S40, 174 Pac. 110 S. W. 428 (1918). (1918). /{ was the duty of the company to 28 Rochester Min. Co. v. Maryland give a supersedeas bond, the insured not Cas. Co., 143 Mo. App. SSS, 128 S. W. being allowed to incur any obligation 204. ' without its written consent. Pacific ZSSeesel v. New Amsterdam Cas. Coast Cas. Co. v. General Bondmg & Co., — Tenn. — , 204 S. W. 428 (1918) ; Cas. Ins. Co., 240 Fed. 36, 153 C. C. Rochester Min. Co. v. Maryland Cas. A. 72. Co., 143 Mo. App. 555, US, S. W. 204; 30 Rochester Min. Co. v. Maryland Pacific Coast Cas. Co. v. General Bond- Cas. Co., 143 Mo. App. SSS, 128 S. W. ing & Cas. Ins. Co., 240 Fed. 36, 1S3 204. C. e. A. 72. INSURANCE 1443 sonal injuries resulting from the operation of the automobile cov- ered, and prohibited the insured from assuming any liability or settling any claim without the consent of the insurer. In such an action, defended by the insurer, and after judgment had been rendered against the insured for more than the amount of liability covered by the policy, the insurer induced the insured to refrain from appealing by assurance that it would take such appeal itself, because the verdict was against the evidence and because reversible errors had been committed. It was held that by neglecting to take such appeal the insurer became liable to the insured for the amount paid by him in settlement of the judgment in excess of a sum paid by the insurer, and that this was true although the amount of the judgment exceeded the amount covered by the policy.'^ § 1627. Reformation of policy. In Cooley's Briefs on Insur- ance (vol. 6, Supp. 337, et seq.) it is said that the rules as to the reformation of written instruments apply to an insurance policy in the same manner as other contracts. Hence, on a clear showing that through fraud or mistake, that is, mutual mistake or mistake on the one hand and fraud on the other, the policy does not ex- press the intent of the parties, it will be reformed. Where a policy on an automobile was cancelled by the insurer, and the agent, having no other company that would write a simi- lar policy, obtained from the agency of another company a differ- ent policy, which insured the machine only while it was in the ga,r- age, after telling insured that he would get a policy similar to the cancelled policy, and the insured knew that any agent assuming to act for the last company would exceed his authority if he under- took to bind the insurer by any other form of contract than that written and delivered, and a loss occurred which was not cov- ered by the last policy, insured was not entitled to reformation of the policy on the ground that the agent had agreed to procure a policy similar to the one cancelled, which would have covered the loss.'® An insured, upon discovering a mistake made by him and the local agent of the insurer in attaching the wrong "rider" to his application for the policy, which both thought covered risks against' collisions, retained the policy issued to him, and neither requested 31 McAleenan v. Massachusetts B. & 32 Mississippi Electric Co. v. Hart- Ins. Co., 173 App. Div. 100, 1S9 N. Y. ford F. Ins. Co., 105 Miss. 767, 63 So. Supp. 401 (1916), aff'd. 219 N. Y. S64, 231 (1913). 114 N. E. 114 (1916). See post, § 16S2. 1444 LAW OF AUTOMOBILES the issuance of a different policy, nor offered to pay the premium requisite to insure against the risk which he believed the rider to cover. It was held that the insured thereby accepted the policy as it was, and was not entitled to reformation after an accident by collision.*' § 1628. Effect of company repudiating obligation under policy. An indemnity company, having repudiated its obligation to defend an action brought against the insured, will not be heard to say that, before it is liable for attorney's fees, incurred by the insured in defense of such action,, its consent in writing to incur ,the fee must first have been had, as required by the terms of the policy, because "the company cannot refuse to perform its part and demand anything of the assured." ** In a New York case it was judicially declared that a condition in a policy forbidding a settlement without the written consent of the company, "should be limited to cases in which the company performs its contract obligations with respect to defending an action.?' '* The refusal of the insurer to defend an action brought against the insured has the effect of releasing the insured from the agree- ment not to settle the claim without the insurer's consent, and is a waiver of the condition that it is only liable for judgment ren- dered after trial and satisfied.*^ Where the insurer was notified of an action brought against the insured, but denied liability and refused to defend the same, it was not necessary to notify it of a second action brought for the same cause after the voluntary dismissal, of the first action.*'' In a case brought by the insured against the insurer growing out of the refusal of the latter to defend an action, under its policy, brought against the former, it was held that the liability of the insured to the person injured and the extent of such liability could be litigated in the first instance in the present action; the insured having settled the claim of the injured, person out of court.** 83 Browne v. Commercial Union As- Sup. Ct. 400, SO L. ed. 712; Butler siir. Co., 30 Cal. App. S47, 1S8 Pac. Bros. v. American Fidelity to., 120 765 (1916). Minn. 1S7, 139 N. W. 355, 44 L. R. A. , 8* Royal Indemnity Co. v. Schwartz, (N. S.) 609. — Tex. Civ. App. — , 172 S. W. 581 37 Butler Bros. v. American Fidelity ('l914). Co., 120 Minn. 157, 139 N. W. 355, 44 36 Mayor, L. & Co. v. Commercial L. R. A. (N. S.) 609. Cas. Ins. qo., 169 App. Div. 772, 155 38 St. Louis Dressed B. & P. Co. v. N. Y. Supp. 75 (1915). Maryland Cas. Co., 201 U. S. 173, 26 36 St. Louis Dressed B. & P. Co. v. Sup. Ct. 400, 50 L. ed. 712. Maryland Cas. Co., 201 U. S. 173, 26 INSURANCE 144S And it has been held that "a judgment rendered upon a stipula- tion of settlement should be held to be presumptive evidence of the liability of the insured and tiie amount thereof." *® Under a provision exempting the insurer from liability for loss unless the loss is paid by the insured in satisfaction of a judgment "after trial of the issue," it is no defense to an action on the policy that the judgment paid by the insured was obtained by default vydthout a trial, where the insured gave adequate notice of the action to the insurer and the latter appeared and filed an answer and afterwards declined to defend the action. The insurer cannot be allowed to take advantage of the non-performance of a condition precedent due to its own mistake or misconduct.*" A provision in a policy binding the insurer to defend "any suit brought against the assured to enforce a claim ^for damages on account of an accident covered by this policy," does not limit the. insurer's liability to meritorious claims, and refusal of the insurer to defeiid such a suit, at its own cost, as 'required by the policy, renders it liable for necessary costs, expenses, and counsel fees in- curred by the assured in a successful defense against such action.*^ A provision in the policy that the insurance company would not be responsible for expenses incurred by the insured in the absence of special authorization, wa,s held to apply only where both parties proceed in accordance with the terms of the policy. Hence, where the company's counsel wrote the insured that the latter Seemed so much in sympathy with the plaintiff (in the action brought against the insured) that counsel might be compelled to withdraw from the suit at the trial, in order to protect the interest of the^ insurance company, and suggested that insured should have its own counsel present at the trial in order to protect its interests, which it did, the insurance company was held liable for counsel fees so expended.*^ A provision limiting lia,bility to sums paid "in satisfaction of a judgment after trial of the issue" was held to be waived where the insured made a settlement in good faith with the injured person, after notifying the insurer of the proposed settlement and the insurer refused any advice or to take part in the case.*^ 39 Butler Bros. v. American Fidelity ISO S. W. 94, Ann; Cas. 1913E 107. . Co, 120 Minn. 1S7, 139 N. W. 3SS, 44 *2 Anderson &' Ireland Co. v. Mary- L. R. A. (N. S.) 609 land Cas. Co. 123 Md. 67, 90 Atl. 780. iOTighe V. Maryland Cas. Co., 218 « Bradley v. Standard Life & Ace. Mass. 463, 106 N. E. 13S. Ins. Co., 46 Misc. 41, 93 N. Y. Supp. 41 South Knoxville Brick Co. v. Era- 24S. < pire State Surety Co., 126 Tenn. 402, 1446 LAW OF AUTOMOBILES A statement on the part' of the insurer, when the insured's auto- mobile was stolen, that it "would not do a damn thing," constituted a waiver of a provision in the policy that no right of action should exist, if there was a difference as to the value of the property, until after an appraisal by appraisers to be agreed upon, and also of a provision that no action should be commenced before the expira- tion of 60 days after notice of loss.** § 1629. Effect of company assuming defense of suit or set- tlement of claim. Under a policy of insurance which excludes the assured from participation in the defense or settlement of any claim against him, • the insurer cannot, after settling some of the claims growing out of an accident and undertaking the defense of a suit on other claims, withdraw from the defense and cast the burden thereof on the assured on the theory that it had mis- taken the nature of its obligation under the policy.*® "We are further disposed to the view that the insurance com- ** ^Callahan v. London & L. Fire Ins. Co., 98 Misc. 589, 163 N. Y. Supp. 322 (1917). IBFuIIerton v. United States Cas. Co., 184 la. 219, 167 N. W. 700, 6 A. L. R. 367 (1918); Fuller Bros. T. L. & B. Co. V. Fidelity & Cas. Co., 94 Mo. App. 490, 68 S. W. 222; Sanders v. Frankfort M. A. & P. G. Ins. Co., 72 N. H. 48S, S7 Atl. 655, 101 Am. St. Rep. 688; Lom- bard V. Maguire-Penniman Co., 78 N. H. 110, 97 Atl. 892. In Fuller Bros., etc., Co. v. Fidelity & Cas. Co., 94 Mo. App. 490, 68 S. W. 222, the defendant had insured an em- ployer against liability for personal in- juries to his employees. One Goza, an employee, being injured in the operation of an elevator, made claim for damages, and the insurer, on notice from the employer, assumed the defense and con- ducted it to final settlement. Later an- other employee, one Hobert, suffered a similar injury in the same elevator, and also made claim for damages, but the insurer denied liability on the theory that the policy did not cover injuries so arising; but the court, referring to the company's act in defending and settling the Goza case, said: "We are thus fur- nished with the indubitable evidence of the meaning the defendant assigned to the policy. As said in the case of St. Louis Gaslight Co. v. St. Louis, 46 Mo. 121: 'In a case of that kind, whose inter- pretation should prevail? If the court gives one differing from that understood by the parties, it * * * makes a new contract-^-the veiry thing most to be avoided. If it leaves the parties to be governed by their understanding of their own language, it, in effect, enforces the contract actually made. That they should be so permitted to construe their own agreement accords with every prin- ciple of reason and justice.' It is obvious from the acts and declarations of the parties 'that they understood the policy to cover the liability of plaintiff to his employees for injuries suffered by them while engaged in work in and about its elevators, and, that being so, it becomes our duty to adopt that understanding as the proper guide to its meaning." An insurer against liability for negli- gence who undertakes the defense of an action against his insured, cannot there- after be discharged except by payment of the indemnity to the assured or by sC-- curing his discharge from the claim. Lombard v. Maguire-Penniman Co., 78 N. H. 110, 97 Atl. 892. INSURANCE 1447 pany having, with full knowledge of the facts, undertaken to de- fend against the claim and suit of Mrs. Jacobson at its own cost and on its own responsibility, it could not, while the case was still pending and undetermined, rightfully abandon it for no better rea- son than its belated conviction that the policy did not impose upon it the duty to assume such defense. The company had not only bound itself to^ assume the defense of 'any claim' against which it undertook to indemnify the plaintiff, but it had also carefully ex- cluded him from all right to act independently of the company on the matter of such suit by a provision in the policy that the 'as- sured shall not voluntarily assume any liability either before or aifter the accident, nor shall he, without the written consent of the company, incur any expense or settle any claim except at his own cost, nor interfere in any negotia § 1647. Misrepresentations by insured. Whether a misrep- resentation or concealment will avoid a policy of insurance depends upon its materiality to the risk undertaken. When a representa- tion is not a warranty the fact that it is untrue does not avoid the policy unless material to the risk assumed by the insurer. And the burden of showing the falsity of such representation, as well as its materiality, is on the insurer.*" Every faCt stated in an application for automobile insurance will be deemed to be material which would materially influence the judgment of an insurance company either in accepting the risk or, in fixing the rate of prerfiium.*^ '8 Taxicab Motor Co. v. Pacific Coast Cas. Co., 73 Wash. 631, 132 Pac. 393 (1913). 79 Taxicab Motor Co. v. Pacific Coast Cas. Co., 73 Wash. 631, 132 Pac. 393 (1913). 80 British & F. M. Ins. Co. v. Cum- mings, 113 Md. 3S0, 76 Atl. 571 (1910). "/t was not error to fail to define the word 'misrepresentation,' for the rea- son that the word as used in policies of insurance is talcen in the same sense as it is ordinarily used by the laity, and it is therefore not a technical term. Web- ster defines misrepresentation as, 'Un- true "Representation, false or incorrect statements or account;' and misrepre- sent as 'To represent incorrectly * * * to give a false or erroneous representa- tion of, either maliciously, ignorantly or carelessly.' Misrepresentation, as used in insurance law, means 'a false statement touching matters material to the risk,' and, as stated in Smith v. Ins. Co., 188 Mo. App.' 297, 304, 175 S. W. 113, 115; it is immaterial 'whether the misstatement resulted from bad faith or from accident or ignorance." Zackwik V. Hanover Fire Ins. Co. — Mo. App. — 225 S. W. 135 (1920). 81"Farber v. American Auto. Ins. Co., 191 Mo. App. 307, 177 S. W. 675 (1915) ; Smith V. American ,Auto. Ins. Co., 188 Mo. App. 297, 175 S. W. 113 (1915); Lummus v. Firemen's Fund Ins. Co., 167 N. C. 654, 83 S.-E. 688 (1914); St. Paul Fire & M. Ins. .Co. v. Huff, — Tex. Civ. App. — , 172 S. W. 755 (1915). "A fact is material to the risk when it is such that the insurer, acting in accordance with the usual custom or practice of insurance companies, would not have issued the policy had he known of it. Failure to disclose a fact mate- rial to the risk is fraudulent when the insured knows of it, and it is such that an ordinarily prudent person would know it to be material to the risk." Hartford Fire Ins. Co. v. Golden, — Ky. — , 224 S. W. 177. 1462 LAW OF AUTOMOBILES It is not essential in order to defeat a recovery upon a policy of insurance, that a material misrepresentation by the applicant be shown to have contributed in some way to the loss for which indem- nity is claimed.*^ The fact that the misrepresentations complained of were made in procuring the original policy, and the suit is on a renewal policy, is not material.*^ A statute providing that the warranty of- any fact incorporated in a fire insurance policy, purporting to be assented to by the in- sured, which shall not materially affect the risk, shall be taken as a representation only, does not impair the effect of a warranty per- taining to a fact material to the risk insured against, unless-other- wise concluded by some other statute.** While the question of materiality is generally for the jury, yet when the risk is undoubtedly material; when it is of such a char- acter as to strike all informed and fair minds alike, then the ques- tion of the materiality of the risk is one of law for the court and should be so declared.** The burden of proving false representations by the insured is on the company.*®* §1648. Sam,e— Cost and value and period of service. A statement of the cost of an automobile is one of fact^ while a state- ment of its value is more or less of opinion. Hence, the overvalua- tion of the automobile insured must be grossly enormous to admit of any dispute, and a statement of value, if honestly made, will not vitiate the policy.** In the same case, however, in a separate opinion, Reynolds, J., said: "I am very strongly inclined to think that a misrepresenta- 82Lummus v. Firemen's Fund Ins. ready market, a matter of opinion, Co., 167 N. C. 6S4, 83 S. E. 688 (1914). whereas the cost of an article is the 83 Solomon v. Federal Ins. Co., 176 amount which one has paid out for it Cal. 133, 167 Pac. 859 (1917). and about which he is fully advised 84Farber v. American Auto. Ins. Co., and may make a positive statement of 191 Mo. App. 307, 177 S. W. 675 fact." Farber v. American Auto. Ins. (191S). ' Co., 191 Mo. App. 307, 329-330, 177 S. 85 Smith v. American Auto. Ins. Co., W. 675 (1915). ^^ 188 Mo. App. 297, 175 S. W. 113 (1915). Statements that machinery had cost 85a Zackwik v. Hanover Fire Ins. Co., $1,200 and had only been in use two — Mo. App. — , 225 S. W. 135 (1920). years, when in fact it had cost only 86 Farber v. American Auto. Ins. Co., .$250 and had been in use more than 191 Mo. App. 307, 177 S. W. 675 (1915). s?ven years, defeated recovery on the "The value of an article is regarded policy. Craddock, etc., Co. v. Con- as the market value— that is, the price necticut F. Ins. Co., 160 Ky. 519, 169 it would command in the open market S. W. 1015. — and is frequently, in event there is no INSURANCE 1463 tion as to the cost of the machine is not such a fraud as goes to affect the amount insured and paid for, or that under our valued policy law this is a misstatement or misreprestation of which, under that law, the insurer can avail itself. Cost is not the measure of value. Insurance is made on value, not on cost. It was open to the insurer to ascertain value — it was bound to do so and had no right to rely fdr that value on the statement of the insured as to cost, if she made one, and that is disputed, but was bound itself to determine value, that is, the amount for which it would insure and on which it charged and collected its premium." A statute of Missouri providing that no insurance company shall take a risk ton any property at a ratio greater than three-fourths of its value, and, when taken, its value shall not be questioned in any proceeding, applies to insurance on personal and real property, and is a part of every policy of fire insurance, and estops the insurer, issuing a valid policy, from disputing the value of, the property at the time of issuance of the policy, but fraudulent representations of fact, designedly made by the insured, relative to the value of prop- erty, as an inducement to the contract of insurance fixing the valua- tion, if believed and acted on by the insurer, so as to cause it to issue a policy in excess of the true value of the property at the time, will render the policy void from its inception, and the fraudu- lent representations may be shown in defense; the words "when taken" implying that the negotiations antecedent to the poUcy shall be honest and fair as to material matters, to the end that a valid contract as to value may be had.*'' Statements in an application for autonlobile insurance that the machine was new and not second hand and had cost a specified sum, are warranties and not representations, where the parties have stipulated in the policy that the statements are material and if untrue shall avoid the policy. Being affirmtive and not promissory warranties, no recovery can be had on the policy if the statements were untrue.** Suit was brought to recover under a policy insuring an automo- bile and its equipment against loss or damage by fire to an amount not exceeding $1,000. It appeared that in his application for the insurance the plaintiff stated the cost of the automobile to him to have been $1,850, and "when purchased by its present owner was secondhand (been run about three months)." It was shown that the insured did not pay that amount in cash for the machine, 87Farber v. American Auto. Ins. Co., 88 Miller v. Commercial Union Assur. 191 Mo. App. 307, 177 S. W. 67S (191S). Co., 69 Wash. 529, 125 Pac. 782 (1912). 1464 LAW OF AUTOMOBILES but traded property equivalent to that value for it, and that it had been run by the former owners about a year before plaintiff acquired it. The plaintiff testified that in answering the queistion as to the time of service, he" referred to the length of time that he had owned it, which was truly about three months at the time the application for insurance was made. The defendant's agent who took the application testified that he looked at the machine, and it looked all right, nearly as good as new; that he did not ask the plaintiff the circumstances of the purchase of the car; that he only asked him what it cost, and he answered "$1,8S0;" that there was nothing said at the time about that being a trading proposition. A statute relating to insurance of this kind provided that the matter or thing represented in the answers or statements made in the application must be material to the risk in order to avoid the contract, and that it must be so shown upon the trial and decided as a question of fact. The case was submitted to the jury who found that the misrepresentations in question were not material, and re- turned a verdict for the plaintiff. Affirming, judgment entered on the verdict, the court said, in part: "The manifest purpose of the statute was to leave open to judicial investigation in the ordinary way the question of whether the fact concerning which inquiry was made and an untrue answer given was material to the risk. If the fact untruly represented was something not found to be material to the risk, then the policy should not be avoided. Generally stated, a fact would be material to the insurance risk which would induce the insurance company to decline the insurance altogether, or not to accept it unless at a higher -premium. Taking this as a fair test, in a general way, of the materiality of a fact in regard to insurance, it is believed that reasonably careful and intelligent men might have regarded the answers complained of as facts not materially affecting the insur- ance contract. The policy here is an open one in which the value of the machine is left to be estimated in case of loss by fire not to exceed the specified sum ; and the statements or facts represented in the application may be regarded as information bearing only upon insurable value of the machine. Comparing such statements as rep- resentations of insurable value with the amount of insurance granted, the inference is allowable that they did not influence the accepting or rejecting of the risk." " 89 St. Paul Fire & M. Ins. Co. v. Huff, — Tex. Civ. Afjp. — , 172 S. W. 7SS- (191S). INSURANCE 1465 Under the laws of California, a policy of automobile insurance providing that if any warranty is breached the policy shall be null and void, precludes any consideration of the materiality of a breach consisting of a misstatement of the value of the machine.^" § 1649. Same— Model. In an action to recover the amount of a fire insurance policy issued in 1912 upon an automobile which was subsequently destroyed by fire, it was held that the represen- tation by plaintiff at the time of securing the insurance that the automobile was a 1910 model, Premier, when in fact it was a 1906 model, Premier, was a material misrepresentation, which rendered the policy void under a provision therein that the policy "shall be void if the insured has concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning this in- surance or the subject thereof." In this respect the court said: "It is impossible for insurance agents to ascertain the condition of the car from its outside appear- ance. The condition largely depends upon the wearing of the gears, which are concealed within metal-bound cases. It also largely de- pends upon the year of the manufacture, as it iAa matter of com- mon knowledge that in the manufacture of automobiles changes are made from year to year to remedy defects that are found to exist, and to add to the conveniences and safety in the use of the car, as are shown to be important through experience. It is a matter of common knowledge that in 1912 a 1910 Premier was of a value greatly in excess of that of a 1906 Premier. So that there was a clear misrepresentation of a material fact which as a matter of law vitiates the defendant's contract." ^^ Where insurance was not written by the insurer on automobiles of a model prior to 1908, and as cars increased in age the premium rate was correspondingly higher, a representation that an auto- mobile, insured in 1912, was a 1910 model, when in fact it was a model of 1907, was material, and avoided the policy as matter of law, no matter how innocently made.^^ A representation that a car was a 1909 model, when in fact it was made in 1906, was fatal to the policy .^^ 90 Solomon v. Federal Ins. Co., 176 the insurer, a finding that it was new Cal. 133, 167 Pac. 8S9 (1917). at such time is conclusive. Blesser v. 91 Reed v. St, Paul Fire & M. Ins, Co., Vulcan Ins. Co., 174 App. Div. 743, 161 165 App. Div. 660, ISl N. Y. Supp. 274 N. Y. Supp. 439 (1916). (1915). 92 Smith v. American Auto. Ins. Co., Where the question whether or not 188 Mo. App. 297, 175 S. W. 113 (1915). a car was new when it was insured is 93So]omon v. Federal Ins. Co., 176 submitted to the jury at the instance of Cal. 133, 167 Pac. 859 (1917). 1466 LAW OF AUTOMOBILES " A representation that the automobile was a 1907 model, when in fact it was a 1906 model, was material, and barred recovery under the policy for loss.'* * § 1650. Same— No defense to recovery on policy, when. An insurance company is regarded as knowing what it ought to know, and it cannot set up a material misrepresentation in defense of an action on a policy, if with proper attention to its own business it could have been apprised of the truth of the subject of the representation. And if it knows that such statement was false and proceeds as if it were true, it will be estopped to set it up in defense. When the insured gave, all information concerning the automo- bile insured correctly, except that he stated that it was a 1907 model, believing it to be such, when in fact it was a 1906 model, the premium rate on the 1906 cars being higher than on the 1907; but it appeared that from the information given the company could have ascertained from the manufacturer's catalog fhat the car was a 1906 model, and it was not discovered that it was a 1906 car until after it was destroyed by fire, it was held that the company was estopped from setting up such misrepresentation for the purpose of avoiding liability under, the policy .®® So, where most of the information, including factory number, given by the insured concerning the automobile was correct, it was held to be a question for the jury whether a misstatement as to the year model was material.'® Although a car was represented as having been made in 1911, but the fact, was not known, and the agent examined the car and be- came satisfied for himself, it was no defense that the car was made in 1908.'^ § 1651. Misstatement as to property traded for automobile. The insured, when applying for fire insurance on his automo- bile, represented that the insured car was obtained by exchanging a Ford automobile and money therefor, whereas in fact the Ford »4 Harris v. St. Paul F. & M. Ins. An instruction that the company did Co., 126 N. Y. Supp. 118 (1910). ' not know of the alleged misrepresenta- 96 British & F. M. Ins. Co. v. Cum- tions as to the insured car was properly mings, 113 Md. 3S0, 76 Atl. S71 (1910). refused, there being evidence that the 96 Locke V. Royal Ins. Co., 220 Mass. agent looked at the car before writing 202, 107 N. E. 911 (1915). the insurance. Zackwik v. Hanover Fire 97 Berryman v. Maryland Motorcar Ins. Co., — Mo. App. — , 22S S. W. 135 Ins. Co. — Mo. App. —,204 S. W. 738 (1920). (1918). , INSURANCE 1467 car, with cash, was first exchanged for a Crow Elkhart car, and the latter, with money, was traded for the insured car. It was held that, as the record contained nothing tending to show a dishonest motive, or that the insurer was misled by the inaccuracy, the lower court rightly denied the charge of fraud made by the insurer.®' § 1652. Misstatement of license number— Reformation of policy. At the time of signing the application for a policy of insurance the insured could not remember the automobile number, and it was arranged that the agent should insert it later. The fol- lowing morning insured notified the agent that the number was 17217, and this number was inserted in the application. After loss of the car it was discovered that this number was not that of the license plate furnished by the secretary of state. Held, that the number of the automobile was inserted merely for the purpose of identification; that the insurance was of the car, and not the number plate; that it was the car insured quite as certainly, if fully identified, without resort to the number; and that, as the evidence showed that the autoinobile burned met the description contained in the policy in all other respects, was the only auto- mobile owned by the insured, and was the one intended to be cov- , ered by the policy, recovery could be had without reforming the policy by correcting the number. "When the insured property can be so identified, there is rio occasion for correcting the description contained in the policy." ^ § 1653. Whether car is new or second hand. An employer purchased an automobile and delivered it to an employee, for whom, in reality, he purchased it, under an agreement that the title and possession should remain in the employer until paid for. Two or three months later the employee acquired title by payment of the machine, and it was turned over to him, and he then secured in- surance on the car against theft, representing that the car was new. Held, in an action to recover under the policy for theft of the car, that the car was new and not second hand.* 98 White V. Home Mut. Ins. Ass'n., — sured are identified by extrinsic evidence, la — , 179 N. W. 31S (1920). State Ins. Co. v. Schreck, 27 Neb. 527, 1 White V. Home Mut. Ins. Ass'n., - 43 N. W. 340, 6 L. R. A. 524, 20 Am. la. _, 179 N. W. 315 (1920). St. Rep. 696; Kansas Farmers' Fire Ins. See 'ante, § 1627. Co. v. Saindon, 52 Kan. 486, 35 Pac. Many courts of respectable authority IS, 39 Am. St. Rep. 356. hold that reformation of the description 2 Rabinowitz v. Vulcan Ins. Co. 90 of realty, in event of mistake therein, N. J. L. 31, 100 Atl. 175 (1917). is unnecessary, where the buildings in- 1468 LAW OF AUTOMOBILES § 1654. Insuring car after disposing of same. A policy of automobile insurance issued to one after he has disposed of his interest in the car is void. Hence, it cannot be assigned to the owner of the car.' § 1655. Warranty that automobile is not rented to another. A warranty, in an automobile insurance policy covering loss aris- - ing "by reason of the ownership, maintenance, or use" of such auto- mobile, that "none of the automobiles herein described are rented to others," has been held to speak as of its date, and not to be vio- lated because the automobile covered by the policy was rented out at the time its operation caused a loss, nearly two years subsequent to the date of the policy.* § 1656. Warranty against operating automobile for hire. A "warranty" may be either affirmative or promissory, the former affirming the existence of certain facts at the time of the insurance, the latter requiring the performance or the omission of certain things after the taking out of the insurance. A provision in an automobile insurance policy that, "It is war- ranted by the insured that the automobile hereby insured, during the term of this policy, shall not be used for carrying passengers for compensation, and that it shall not be rented or leased," con- stitutes a promissory warranty, an unjustifiable breach of which by the insured prevents recovery, without regard to whether the prohibitive use increased the risk.* The clause that the automobile insured "will not be rented or used for passenger service of any kind for hire," contemplates, not a single act of renting or using the car for hire, a mere casual or isolated instance, but something of a more permanent nature. "The words 'passenger service,' when considered in connection with the preceding words 'rented' or 'used,' imply more than a single act of renting or using, and refer to the business of carry- ing passengers for hire." Accordingly, where it appeared that the car in question had been used only twice during a year and a half for carrying passengers for hire, once in taking a man to a railroad station, and again in taking out a party of hunters, on which trip it broke down and an- other car had to be substituted, it was held that the" court properly 3Mowles V. Boston Ins. Co., 226 Mass. 32 N. Y. 399; Mayor, Lane & Co. v. 426, lis N. E. 666 (1917). Commercial Cas. Ins. Co., 169 App. Div. 4 Mayor, Lane & Co. v. Commerciol 772, ISS N. Y. Supp. 75 (191S). Casualty Ins. Co., ISO N. Y. Supp. 624 ,6 Orient Ins. Co. v. Van Zant-B. D. (1914), citing Smith v. Mechanics' Co., Co., — Okla. — , 151 Pac. 323 (1915). INSURANCE 1469 instructed that this was not such a renting or using of the car as was forbidden by the policy.® The warranty in an automobile fire insurance policy "that the automobile hereby insured during the term of this policy shall not be used for carrying passengers for compensation," has been held to mean that the automobile should not be continuously used for that purpose for any length of time, or, in other words, the owner should not make a business of using the automobile for carrying passengers for hire. It was accordingly held that, where on two or three afternoons during a state fair, the insured's son used the car covered by the policy containing such warranty, for carrying passenger for hire to and from the fair grounds, such use did not violate the war- ranty.'' Under a similar clause, where the insured permitted his son to make trips with the, machine covered by the policy, for the accom- modation of tourists and passengers, charging for the same and retaining the fares, the policy was avoided arid no recovery could be had under it for the loss of the machine by fire.* In Missouri it is held that, although the machine has been let for hire during the period covered by the policy, recovery is not de- feated if the machine was not in hire when burned.® § 1657, Same— Applies to both, mortgagor and mortgagee of car. The condition in a policy of fire insurance issued on an automobile to the mortgagee and mortgagor of the car, as their respective interests might appear, that the car shall not be used for renting purposes or for hire, applies to both the mortgagor and the mortgagee. Where a policy of fire insurance on an automobile, issued to plaintiff and one who bought the automobile from plain- tiff and gave back a mortgage for part of the purchase price, provides that the automobile shall not be used for renting pur- 6 Crowell V. Maryland Motor Car Ins. The law is that temporary noncompli- Co., 169 N. C. 35, 8S S. E. 37, Ann. ance with provisions of the policy, un- Cas 1917D SO (1915). l^ss such provision is a warranty, will 7 Commercial Union Assur. Co. v. Hill, not work a forfeiture, if there was com- Tex. Civ. App. , 167 S. W. 1095 pliance at the time of the loss. Organ /jgi4) V. Ins. Co., 3 Mo. App. 576; Greenlief 8 Elder v. Federal Ins. Co., 213 Mass. v. Ins. Co., 37 Mo. 25 ; Obermeyer v. 389, 100 N. E. 655 (1913). Ins. Co., 43 Mo. 573; Kennefick-Ham- 9 Berryman v. Maryland Motorcar mond Co. v. Ins. Co. 119 Mo. App. 308, Ins. Co. — Mo. App. -, 204 S. W. 80 S. W. 694; Id., 205 Mo. 295, 103 738 (1918). S. W. 957. 1470 LAW OF AUTOMOBILES poses or for hire, and the evidence shows that such car was used mainly, if not entirely, for livery purposes and uses by such mort- gagor, there can be no recovery under the policy.^" § 1658. Change of ownership, interest, title, or possession- Waiver. Where a fire insurance policy, covering an automobile, provides that a change of ownership of the property, without the wiritten consent of the insurance company, renders the policy void, and that agents of the company cannot waive any provisions of the policy unless such waiver is written upon the policy or attached thereto, yet where the local agent of the company knew, before he issued the policy to A., that the automobile had been sold by A. to B., the company was bound by such knowledge, and "was estopped from setting up, as a defense to a suit upon the policy, the non- compliance of the plaintiff with these provisions of the policy .^^ A conveyance or mortgage of the insured property which is not intended by the parties to effect the transfer of any right, title, or interest, or right of possession, but simply to place the naked title in the grantee, or an apparent lien only upon the property for entirely other reasons, does not invalidate a policy providing that any change or diminution in the interest, title or possession of the insured shall work a forfeiture.^^ i It ha^ been held that where the ia^sured owns the title of the subject of insurance, and makes an executory contract to convey the property, and the consideration . has been fully paid, but no transfer either of title or possession has been actually made, no change has taken place in interest, title^ or possession.^' An option given another to purchase the insured property, but not exercised up to the time of loss of the property by fire, does not breach a provision of the policy concerning change of interest in the property insured.^* l*Marmon Chicago Co. v. Heath, 205 issued, the question is for the jury. Coin- Ill. App. 60S (1917). mercial Union Assur. Co. v, Lyon & 11 Commercial Union Assur. Co. v. Kelly, 17 Ga. App. 441, 87 S. E. 761 Lyon & Kelly, 17 Ga. App. 441, 87 S. E. (1916). 761 (1916). 12 Cone v. Century F. Ins. Co., 139 Question of forfeiture on account of la. 20S, 117 N. W. 307. change in interest, title, or possession IS Garner v. Milwaukee Mechanics' is a mixed one of law and fact. Zeitler Ins. Co., 73 Kan. 127, 84 Pac. 717, 4 V. Concordia F. Ins. Co., 169 Mich. SSS, L. R. A. (N. S.) 654, 9 Ann. Cas. 459, 135 N. W. 332. 117 Am. St. Rep. 460. // there is conflict in the evidence as 1* Terminal Ice & Power Co. 'v. Ameri- to whether the automobile in question can F. Ins. Co., 196 Mo. App. 241, 194 was sold before or after the policy was S. W. 722. INSURANCE 1471 Where a dealer sold an insured car to one who drove it to an- other state without the knowledge or consent of the insurer, the lat- ter was not liable for its destruction by fire; there being a provision in the policy providing for forfeiture for change of interest, title or possession.^® Where a transaction concerning an automobile was heM to be a sale with a chattel mortgage security for payment of purchase price, there was a transfer of title in violation of a provision in an insurance policy held by the seller providing that a change of title should invalidate the policy." It has been held that knowledge on the part of the insurer's agent of the sale of an insured automobile, and subsequent failure of the insurer to cancel the policy, and return the unearned portion of the premium, constituted a waiver of the clause providing that a change in title of the 'automobile should invalidate the policy.^'' In Kansas it is held that the word "interest" in the forfeiture clause of an insurance policy which provides that the policy shall become void "if any change take place in the interest, title or pos- session of the subject of insurance," has application only where the insured owns and insures an interest less than title, and has no application where the insured owns the title." On the other hand, the word "interest" is held to be broader than the word "title," and to include both legal and equitable rights.^® § 1659. Breach of warranty against incumbrance. The pro- vision in a policy of automobile fire insurance that if the prop- erty insured "be or become incumbered by a chattel mortgage, or if any change other than by the death of an assured take place in the interest, title, or possession of the subject of insurance," the entire policy shall be void, is a valid stipulation, and its breach works a forfeiture of the rights of the assured under the policy. On June 29, 1911, the plaintiff purchased from an agent an auto- mobile, making partial payment therefor, and giving his note, of 15 Cranston v. California Ins. Co., 94 R. A. (N. S.) 6S4, 9 Ann/. Cas. 4S9, 117 Oreg. 369, 18S Pac. 292 (1919). Am. St. Rep. 460^ Pomeroy v. Aetna Ins. 16 Hamilton v. Fireman's Fund Ins. Co. 86 Kan. 214, 217, 120 Pac. 344, Ann. Co., — Tex. Civ. App. — , 177 S. W. Cas. 1913C 170, 38 L. R. A. , (N. S.) 173 (1915). 142. 17 Hamilton v. Fireman's Fund Ins. 19 Finkbohner v. Glens Falls Ins. Co., Co., — Tex. Civ. App. — , 177 S. W. 173 6 Cal. App. 379, 92' Pac. 318; Gibb v. (1915). _ Fire Ins. Co., 59 Minn. 267, 61 N. W. 18 Garner v. Milwaukee Mechanics' l'37, SO Am. St. Rep. 405. Ins. Co., 73 Kan. 127, 84 Pac. 717. 4 L. 1472 LAW QF AUTOMOBILES that date, for the balance, $650, payable in 30 days, and the car was delivered to him. Thereafter, on July 6, 1911, a policy of fire insurance was issued to plaintiff, application for which was made by him on July 1 or 2. This policy contained a clause Simi- lar to the one quoted above. The car was burned and plaintiff brought suit to recover on the policy. It appeared that on July 5, 1911, a representative of the automobile agent came to plaintiff and stated that if he would sign a paper, which was shown him, it would be easier for the agent to discount said note, and plain- tiff, "as a personal courtesy to him (the agent) in order that he might be able to raise money on the note," executed the paper and acknowledged same before a notary public. This paper was in form a conditional contract of sale, in which it was set forth that the plaintiff had received of the agent one automobile of a stated make for which he agreed to pay $1,200, $500 upon the execution of the agreement, and the balance of $650 in monthly installments of $50 each, title to the proprety to remain in the agent until all payments were made. Thus, it will be seen that a new and dif- ferent agreement as to the ^mode and time of payment was made. This instrument, on July 7, was recorded in the same manner as a chattel mortgage, but defendant did not learn of it until after the fire. The court on appeal held that the defendant was entitled to a directed verdict, and judgment for the plaintiff was reversed and the cause remanded, the court saying: "The sole question is whether, by said instrument, plaintiff encumbered the insured prop- erty. If he did, the company had a right to insist that its liability under the policy was thereby terminated. Admittedly, when this instrument was executed, plaintiff owed the agent $650, which he was then obliged to pay in 30 days. It is familiar law that a prece- dent debt is a good consideration for a chattel iriortgage. It is equally plain that an extension of time of payment constitutes a valuable consideration for such a mortgage. In the present case, 'there was not only a precedent debt, but an extension of time of payment, for, under the new arrangement, the plaintiff was given more time in which to pay the balance due^ Plaintiff, however, insists that, inasmuch as title had already passed, and this instru- ment is in form a conditional contract of sale, it is a mere nullity, and did not affect the title of the plaintiff. This contention is one that no court of justice would for a moment entertain. Whatever the form of the instrument, it is perfectly apparent that the plain- tiff, when he executed it, understood that it was to be used by the INSURANCE 1473 agent in raising money. Clearly, had he defaulted in the payment of the indebtedness thereby secured, the automobile could have been sold^ under this instrument and the proceeds applied to the liquidation of the balance due. The intent of plaintiff to vest the legal title to this chattel in the agent clearly appearing from the instrument which he executed, the particular form of that instru- ment is immaterial. The property was encumbered within the meaning of the policy." *" § 1660. Sole and unconditional ownership. The clause in an insurance policy relating to sole and unconditional ownership of the insured property has reference to conditions existing at the date of the issuance of the policy, and not to future changes in the title.*^ . § 1661. Same— Waiver. If, at the time of issuing the policy, an insurance company is informed that the insured is not the un- conditional owner, or if afterward it receives such knowledge, and thereafter fails to rescind for an unreasonable time and retains the premium, it thereby waives the condition.^^ § 1662. Policy as covering unlawful use of automobile. An insurance policy which agrees to indemnify the insured against damages resulting to him because of his violation of a criminal statute is illegal and void. Bui one may lawfully insure another against the consequences of such acts committed by his servants and employees, if such acts are not directed by or participated in by the assured. "If this were not so, bonds taken to insure against the misappropriation or embezzlement of funds by employees gen- erally would be void." ^^ *0 Springfield F. & M. Ins. Co. v. "It appearing by undisputed facts that Chandlee, 41 App. D. C. 209 (1913). appellant knew of the character of ap- 21 Parsons v. Lane, 97 Minn. 98, 4 pellee's title, when the policy was issued, L. R. A. (N. S.) 231,' 7 Ann. Cas. 1144; and again when proof of loss was made, Rosenstock v. Mississippi Home Ins. Co., April 26, 1916, that suit was com- 82 Mis§. 674; Collins v. London Assur. menced July S, 1916, and that it de- Corp., 165 ?a. St. 298. ' layed to tender back the premium until "The object of these and similar con- September 2, ,1916, this defense was ditions in this and like policies is to waived, and the court did not err in make sure that the person seeking in- instructing the jury at the close of the surance is the real and substantial owner evidence to return a verdict for appellee of the property, or interest in it, on for the full amount of his claim." Vul- which he intends to obtain insurance, can Ins. Co. v. Johnson, — Ind. App. and thereby to prevent wagering policies — , 128 N. E. 664 (1920). and fraudulent losses." Lewis v. New 23 Taxicab Motor Co. v. Pacific Coast England F. 'ins. Co., 29 Fed. 496. Cas. Co., 73 Wash. 631, 132 Pac. 393, 22 Vulcan Ins. Co. v. Johnson, — Ind. (1913). App. — , 128 N. E. 664 (1920). B. Autos.— 93 1474 LAW OF AUTOMOBILES The obligation of the insurer under a poUcy valid on its face will be enforced, though indirectly connected with an illegal trans- actioli, if the insured does not require the aid of the illegal trans- action to make out his case. The fact that an automobile, the owner of which was insured against liability for damages on account of injury to others caused by the operation of * the automobile, was being driven by a boy under 18 years of age, which was in violation of law, and was not registered as required by law, at the time its negligent operation caused injury to another, did not relieve the insurer from liability to indeninify the owner therefor under the terms of the policy.^* § 1663. Automobile driven in violation of law as to age of driver. Where a policy provides that the company shall not.be liable for accidents if the automobile at the time of accident, was being driven by a person in violation of law as to age, the company is not liable where the automobile of the insured was being operated by his 16-y ear-old-son, at the time it ran over and killed a child, in violation of an ordinance making it unlawful for one under the age of 18 years to operate an automobile within the city.^* The; plaintiff held a policy of indemnity issued by the defend- ant, whereby the latter agreed to indemnify him against loss suf- fered by him on account of bodily injuries accidentally sustained by others by reason of his ownership and maintenance of a certain automobile. The policy stipulated tha|;, "This agreement shall not apply while any sucl^ automobile is driven or manipulated by any person under the' age fixed by law or under the age of sixteen years in any event." While the automobile was being driven by plaintiff's son, in plaintiff's business, an accident occurred resulting in injury to another boy, causing his death, for which plaintiff was compelled to pay damages. The plaintiff's son at the time was between 16 and 17 years of age, was not licensed to Operate an automobilp, and was not accompanied by a licensed operator. A statute of the state^^ prohibited un- licensed persons from operating automobiles on the highways, and prohibited the issuance of a license for that purpose until the "sec- 24 Messersmith v. American Fidelity Same holding in Morrison v. Royal Co., 187 App. Div. 3S, ,17S N. Y. Supp. Indemnity Co., 180 App. Div. 709, 167 169 (1919), rev'g 101 Misc. 598, 167 N. Y. Supp. 732 (1917). N. Y. Supp. 579 (1917). 26 Conn. Pub. Acts 1911, c. 85, §5, 26 Royal Indemnity Co. v. Schwartz, p. '1337. — Tex. Civ. App. — , 172 S. W. 581 (1914). INSURANCE 1475 retary is satisfied that the appHcant is over 18 years of age and is a proper' person to receive it," and that, "nothing herein shall pre- vent the operation of a motor vehicle by an unlicensed person 16 years of age or more, if accompanied by a licensed operator." Held, that the insured could recover, as the provision of the stat- ute requiring that an unlicensed person must be accompanied by a licensed operator had no reference to the age of the person so oper- ating the car. In this respect the court said: "The provision of the statute, that an unlicensed person operating a car must be accompanied by a licensed operator, has no relation to the age of the operator. It applies to the man of 70 as well as the boy of 17. Neither may operate the car unless so accompanied, and, when so accompanied, either may, although unlicensed, operate it. If the operator is not so accompanied, the law in each case is violated, not because the operator is under the age fixed by law for operating the car, but be- cause of his non-compliance with the other provision of the stat- ute. The provision in the policy upon which the defendant re- lies, excepts from the coverage of the policy cases where the oper- ator may be duly licensed and above the age fixed by law but imder the age of 16 fixed by the defendant, as well as cases where he may be above the age fixed by the defendant and un- der that wnich is fixed by the law. It raises these two questions: first, was the operator under 16 years of age; if so, the case is not covered by the policy; although the law of the state may permit a person under that age to operate a car and receive a license to do so; second, if above the age of 16 years' fixed by the defendant, was the operator under the age fixed by law; if so, the case is not covered by the policy. Thp prgvisioii relates solely to the question of age, and not at all to the question whether the operator has complied with the other requirements of law. The de- fendant's construction makes liability depend upon the question whether a licensed operator accompanied the plaintiff's son at the time of the accident and not upon the question of his age. But the proviso does not attempt to excuse lie defendant from liability for losses incurred by the operation of the automobile contrary to the provisions of the statute. The manifest purpose was to excuse from liability only in case the operator was too young, either in the opinion o-f the defendant or under the terms of the statute, to operate a motor vehicle upon the public highways." "'' 87 Brock V. Travelers Ins. Co., 88 Conn. 308, 91 Atl. 279 (1914). 1476 LAW OF AUTOMOBILES A policy of insurance in which the insurer agrees "to indemnify the insured against loss by reason of the use of the automobile," has been held to cover loss incurred while violating a law of the state, the insured permitting the car to be operated with his knpwl- edge and consent by a minor under 18 years of age, in violation of law.^* Under a policy providing that no liability should attach to the insurer if at the time of an accident the automobile was being operated by any person under the age of 16 years, it was held that the insurer was not relieved from liability in a case in which it appeared that the defendant's son, under 16 years of age, was driv- ing his father's car while the latter rode with him; that when it apr peared that plaintiff was in dariger of being struck by the car, the father leaned over, took the wheel, telling the son to get out of the way, and thereafter guided the car, which struck plaintiff, he doing nothing more than sound the horn.''' § 1664. Loss occurring while car is being "used for demon- strating and testing." In an action to recover under a polidy of automobile insurance, which excluded loss occurring while the machine was "used for demonstrating and testing," it was held that the case was for the jury, where the chauffeur testified that after taking the owner for a drive he "made a slight adjustment of the carburetor and took the car out to see what effect it had on the running of the motor, and in going around a turn the accident occurred," and the experts called by both parties differed as to whether the facts stated by the chauffeur did or did not consti- tute a demonstration or test. "The terms used are not so self-explanatory, and so well under- stood by the general public that it could be held as matter of law, that adjusting the carburetor «and ascertaining the result of that adjustment by the owner's chauffeur, when he returned the car to the barn after an ordinary family drive, constituted 'demonstration and testing' as used in the policy. "The testimony submitted fey the experts was contradictory, and each party claimed tha!t the admitted facts did or did not consti- tute a demonstration or test. This conflict but emphasized the judge's duty to fairly submit this fact to the jury. While the in- terpretation of a written contract is, in the first instange, for the 28 Messersmith v. American Fidelity 29 Williams v. Nelson, 228 Mass. 191, Co., 187 App. Div. 35, 17S N. Y. Supp. 117 N. E. 189, Ann. Cas. 1918D 538 169 (1919), rev'g 101 Misc. 598, 167 (1917). N. Y. Supp. 579 (1917). INSURANCE 1477 court, and not for the jury, it is just as well held that a condition in a policy of insurance, being the language of the company, must, if there be any ambiguity in it, be taken most strongly against them; if reasonably susceptible of two interpTetations it is to be construed in favor of the assured, so as not to defeat without plain necessity the claim to indemnity, which it was the object to secure. "Automobile insurance is a new business, and deals with methods and complicated machinery of recent introduction; the several parts and the operation of the automobile have given to us many new words of indefinite meaning, and it is of ten necessary to rely on the mechanicians and trade experts to reasonably understand them, and, as in this case, the selected experts often differ in the mean- ing to be given to words that in other business affairs seem to have a clear and ptecise significance. This dispute was purely one of fact, and experts, who claimed technical and peculiar knowledge on the subject, were called by each party to give their opinions as to the business or trade meaning of the words — demonstration and testing. It is true, that words if of common use, are to be taken in their natural, plain, obvious and ordinary significations ; but if technical words are used, they are to be taken in their special or technical sense, unless a contrary intention clearly appears in either case from the context." '" § 1665. Insuring against sinking of vessel transporting automobile— Seaworthiness of vessel. In an action to recover under a policy, insuring an automobile against loss or damage by the burning, derailment, collision, stranding or sinking of any convey- ance, by land or water, in or upon which the automobile is being transported, it is immaterial that the petition alleged that the ferry, which- sunk with the machine, went down and remained under the water, "held there by the weight of the automobile," and that the 30 Kunlde v. Union Casualty Ins. Co., quality, or genuineness of anything is or 62 Pa. Super. Ct. 114 (1916). may be determined; means of trial; "Test, to put to proof, to prove tiie hence, in phrases to bring or put to the truth, genuineness, or quality of by ex- test or stand the test, the testing or periment, or by some principle or stand- trial of the quality of anything; exami- ard; to try." Webster's Diet. nation, trial, proof. Mechanics, etc. The "Test, to put to the test, being to trial ' action by .which the physical properties and examination, compare with a stand- of substances, material^, machines, etc., ard; try, as to test the soundness of a are tested, in order to determine their principle; to test the validity of an argu- ability to satisfy particular requirements, ment; to test a person's loyalty; to test Among these are bending test, compres- the electrical resistance of a wire." Cen- sive test, drop test, tensile test, trans- tury Diet. verse test, etc.'' Oxford Diet, vol 9, Test: "That by which the existence, pt. 2. 1478 LAW OF AUTOMOBILES evidence showed that when relieved of the weight of the car, the ferry rose to the surface, as allegation and proof of the sinking of the ferry on which the car was being conveyed fastened liability on the insurer. In such action the defense of unseaworthiness of the ferry is not applicable, as such a policy differs materially from policies of strictly marine insurance, there being no implied war- ranty of seaworthiness of the vessel inhering in the policy.*^ § 1666. Skidding and overturning as causing damage by "derailment." The word "derailment," as used in a transporta- tion certificate of automobile irisurance, is used only in connection with transportation by rail, as distinguished from transportation by vehicles over land by means other than rails, and as distin- guished from transportation by water. In the margin of a certificate of this kiiid were the following printed words: "This insurance is only a!gainst loss or damage by fire, collision or derailment on land, and marine perils while on ferries and transfers." In the body of the certificate the following appeared: "Shipped by Autp Truck at and from Medford, Mass., to destination East Princeton^ Mass., covering only while in transit by land." While the insured automobile was in the course of transporta- tion by auto truck the wheels of the truck skidded in the gutter, causing the truck to capsize, and damaging the insured automo- bile. As the damage was not caused by fire, or Jay collision, the sole question presented was whether it was caused by a "derail- ment.". In affirming judgment for the defendant, the court said: " 'De- railment' is defined by Webster's International Dictionary as 'The act of going off, or the state of being off, the rails of a railroad.' The word is to be interpreted according to the general and ordinary acceptation of the language used in the absence of evidence that it has acquired by custom or otherwise a peculiar meaning distinct from the popylar sense of the word." '^ § 1667. Right of injured person against insured not affected by insurance. If the real and primary object of a suit is to re- dress the grievance of the plaintiff and there is an actual contro- versy, involving real and substantial rights between the parties to the record, the suit will not be dismissed because the result oi the litigation will affect the interest of a third person. 81 American Auto. Ins. Co. v. Fox, 82 Graham v. Insurance Co., 22C Mass. — Tex. Civ. App. — , 218 S. W. 92 230, 107 N. E. 91S (191S). (1919). INSURANCE , 1479 In an action against the owner of an automobile to recover for personal injuries due to the alleged negligent operation of the ma- chine, if the defendant is primarily liable for the negligence that caused the injury, the fact that an insurance company will be ultimately liable to pay the amount of plaintiff's judgment, does not affect the plaintiff's right of action against the defendant.*' § 1668. Right of person, injured by insured, against com- pany. Where the policy provides merely for reimbursing the as- sured for liabilities actually discharged, the holder of a judgment against the assured when he becomes insolvent has no rights against the insurer. The plaintiff was injured by an automobile operated by an auto- mobile company, and secured judgment against the company on account of such injuries. The company was protected by a policy of indemnity insurance issued by the defendant which contained the following clause: "No action shall lie against the company to recover for any loss or expenses under this policy, unless it shall be brought by the assured for loss or expense actually sustained and paid in money by him after actual trial of the issues, nor unless such action is brought within two years after payment of such loss or expense." At the time the judgment was rendered the company had gone into receivership, and, being unable to collect on the judgment from it, the plaintiff sued in equity to compel the insur- ance company to pay the amount thereof. In affirming judgment sustaining a demurrer to the petition, the court said: "Cornplainant's theory is that a court of equity may treat the contract as made for the benefit of any person injured by tlie auto company, and this without regard to its terms and limita- tions. This theory can find flo support in any principle of law or equity, and is too untenable for serious discussion. Courts can- not tamper with and change the terms of contracts, nor can they substitute as beneficiaries thereunder unnamed and unintended strangers who have' nothing whatever to do with either the contracts or the contractors. To exercise such powers would be to usurp despotic authority. If the insurance company received the funds of the auto company in payment of the policy premium under circumstances which make their diversion from the coffers of the auto company a material fraud upon complainant, he might recover the amount of the premium in a proper proceeding; but he cannot claim the fruits of the contract." ** ^ 38 Fitzjarrell v. Boyd, 123 Md. 497, 91 34 Goodman v. Georgia Life. Ins. Co., Atl. 547 (1914). 189 Ala. 130, 66 So. 649 (1914). 1480 XAW of automobiles In Massachusetts, by statute, one securing a judgment for dam- ages for bodily injuries may enforce the payment of insurance money to the satisfaction thereof. This statute applies only to the person injured, and is not for the benefit of another suing to recover on account of the injury to such person.^® In Minnesota it has been held that where, under a policy insur- ing against loss by reason of the operation of assured's automobile, an action is brought by a person injured by such automobile against the assured, and the insurance company thereupon takes sole charge of the defense, to the exclusion of JJie assured, as it had the right to do under the policy, a judgment in the action against the assured becomes, as between plaintiff, defendant, and the com- pany, a liability or debt owing unconditionally by the company to the assured, which such plaintiff may reach by garnishment. It was further held that a provision in the policy that no action shall lie against the company, "unless it shall be brought by the assured for loss or expense actually sustained and paid in money by him after trial of the issue," applies only in case the company" denies liability and refuses to defend.'* Where judgment was rendered against insured on a claim against which the company had insured him by a policy substantially the same in effect as the policy considered in the case last cited (Pat- terson case), the liability of the company was subject to garnish- ment, under the rule announced in the Patterson case.''' § 1669. Settlement by insured without company's consent. The settlement, by an insured, with a person whom he has in- jured, without the previous consent of the insurer, as required by the policy, releases the insurer from' liability. So, where, without the insurer's consent, the insured paid a judgment rendered against him, from which the insurer had appealed, and the appeal was *5 waiiams v. Nelson, 228 Mass. 191, debtor can secure money enough to pay 117 N. E. 189, Ann. Cas. 1918D S38 his judgment will be from the proceeds (1917). of that insurance contract." Lorando No constitutional right of the insurer v. Gethro, 228 Mass. 181, 188, 117 N. E. or of the insured is violated by enabling 185. one, who has recovered a judgment ^6 Patterson v. Adan, 119 Minn. 308, against the latter on a liability, against 138 N. W. 281, 48 L. R. A. (N. S.) 184 loss from which he is protected by con- (1912), followed in Mahr v. Maryland tract of casualty insurance. It may be Cas. Co., 132 Minn. 336, 156 N. W. in his own name. Such a judgment 668; Standard Prmting Co. v. Fidelity creditor has a direct interest in the per- & Deposit Co., 138 Minn. 304, 164 N. formance of the undertakings in the con- W. 1022. tract of casualty insurance. It may be ^1 Powers v. Wilson, 139 Minn. 309, that the only source from which his 166 N. W. 401 (1918). INSURANCE 1481 dismissed by the court because of such settlement, the insurer was discharged from all liability.** But it has been held that where the insurer fails to perform Its contract duty to defend an action brought against the insured, it waives its right to the benefit of a provision precluding the insured from settling without its consent.*^ § 1670. Settlement of suit by insured after refusal of com- pany to defend. It has been held that refusal of the company to defend a suit against the insured, aS required by its policy, has the effect of releasing the insured from the provision forbid- ding him to make settlement without the written consent of the company.*" A policy of automobile liability insurance contained the fol- lowing provision, omitting the unessential portions: "If any per- son shall sustain bodily injury by accident by reason of the use of the automobile for which injuries the insured is, or is alleged to be liable for damages, then the company will indemnify the in- sured against such liability and will pay all costs incurred with the company's written consent." The policy also prohibited the insured from making any admis- sion of liability, and from settling any demand without the writ- ten authority of the company, and provided: "No action for the indemnity provided by this policy shall be against the company except for reimbursement of the amount of loss actually sustained and paid in money by the insured in full satisfaction of a judgment duly recovered against the insured after final determination of the litigation." While the automobile of the insured was being operated by his son, it ran over and killed a child, and action was brought against the insured to recover for such death. The company dis- claimed liability for a reason not based on any of the terms of the policy here mentioned, and refused to defend the suit. The insured went to considerable expense in employing attorneys to defend the action, and subsequently compromised and settled the claim. He then brought suit against the company to recover the expenses so 38 Kennelly v. London G. & A. Co., 4* Mayor, Lane & Co. v. Commercial 184 App. Div. 1, 171 N. Y. Supp. 423 Ins. Co., 169 App. Div. 772, ISS NT.' Y. (1918). Supp. 75' (191S). '■ " '■ 38 Mayor, L. & Co. v. Commercial Cas. Ins. Co., 169 App. Div. 772, 155 ; -.. N. Y. Supp. 76 (1915). '?e ante, § 1628. 1482 LAW OF AUTOMOBILES incurred, not including the amount paid in settlement of the suit. The company contended that, the insured not being liable for the tort of his child, before he could have a cause of action against the company, for indemnity to him for damages arising out of the accident, and expenses incurred in defending, it was incumbent up- on him to allege and prove that the claim for damages was one for which he was liable; that, the attorney's fees sued for not having been reduced to judgment and not having been paid, it was not within the terms of the policy sued on. In holding that the insured could recover, the court said: "The facts show conclusively that Schwartz (the insured) is now liable to his attorneys for services performed in the settlement of ' a suit brought by Eubanks for damages arising by reason of the death of a child occasioned by the operation of the automobile con- cerning which the policy was issued. The company having re- fused to defend, as it had obligated itself to do, it was incumbent upon Schwartz to conduct his own defense. Since the question of Schwartz's liability for the, death of the child is not now in question, because he is not suing for the amount paid as damages, but only for attorney's fees for which he is liable, he is clearly entitled to recover, and it was not necessary that the fee be paid to enable him to recover, but when he established that he was obli- gated to pay, and, that the fee is reasonable, the liability contem- plated by the policy had arisen, and his cause of action had accrued. And the company after repudiating its obligation to de- fend, cannot be heard to say that, before it is liable for attorney's fees, its consent in writing to incur the fee must first have been had. The company cannot refuse to perform its part and demand anything of' the assured."*^ However, the insurer is not necessarily bound by any settlement made by the insured with an injured person, merely because it refused to defend the suit as required by the policy. "The insurer is not prejudiced by a settlement made by the assured of a liability covered by the policy. It undertook to in- demnify him against such liability and also t9 defend the action. Having failed to defend, its liability and the extent thereof would have been conclusively determined by a judgment against the as- sured where it had notice to defend. When, however, the assured saw fit to settle before a recovery, he assumed the risk in an action *!• Royal Indemnity Co. v. Schwartz, — Tex. Civ! App. — , 172 S. W. 581 (1914). INSURANCE 1483 against the insurer of showing, not only a liability ,covered by the policy, but the amount of the liability, and the recovery against the insurer would be limited by the loss sustained, even though the evidence might show that the settlement was for less than, the liabihty." ^'^ § 1671. Right of insured to settle for liability in excess of policy. A clause, in a. policy under which the insurer's liability m any single instance was limited to $5,000, which provided that the insured should not incur any expense or settle any claim, except at his own cost, did not affect the right of the insured, pending a suit, to pay the plaintiff a sum of money in satisfaction of any damages he might recover in excess of $5,000. "If such payment would not increase the company's liability, or enhance its difficulties in de- fending the action, it would not amount to a breach of the con- tract." *» The insured having the right to settle fOr liability in excess of that covered by the policy, he cannot impose liability on the insurer for its refusal to consent to Such settlement, although on account of his failure to make such settlement the insured became liable to pay a greater amount.** It has been held that the insurer cannot deprive the insured of the right to settle at his own cost the portion of a claim in excess of the policy. "If the intention on the part of the insurance com- pany in writing this clause was to pirohibit the insured from settling at his own cost that part of any claim in excess of the liability of the insurance compahy, we are well satisfied that such intention should not be given effect by the courts, and that a breach of it would not avoid the indemnity guaranteed to the insured.'' *^ Insured carried a policy for $5;000, and a judgment was rendered against him for $12,500, on a claim covered by the policy. Appeal was taken without giving bond to stay proceedings. Thereafter plaintiff entered judgment and issued execution under which all of insured's property was sfeized. Insured then made an agreement 42 Mayor, Lane & Co. v. Commercial A. 1917D 9S2 ; Pickett v. Fidelity & Cas. Ins. Co., 169 App. Div. 772, 1S5 N. Y. Co., 60 S. C. 477, 38 S. E. 160, 629. Supp 75 (1916). 44McAIeenan v. Massachusetts B. & 43McAleenan v. Massachusetts B. & Ins. Co., 173 App. Div. 100, 159 N. Y. Ins Co, 173 App. Div. 100, 159 N. Y. Supp. 401 (1916), aft'd 219 N. Y. 564, Supp 401, (1916), 179 App. Div. 34, 114 N. E. 114 (1916). Also 179 App. 166 N. Y. Supp. 184 (1917). Div. 34, 166 N. Y. Supp. 184 (1917). Similar holding in General Ace, F. & 45 General Ace, F. & L. Assur. Corp. L Assur Corp. v. Louisville Home Tel. v. Louisville Home Tel. Co., 175 Ky. Co., 175 Ky. 96, 193 S. W. 1031, L. R. 96, 193 S. W. 1031, L. R. A. 1917D 952. 1484 LAW OF AUTOMOBILES for settlement conditioned upon the company paying the amount of the policy. The company refused to settle and continued the litiga- tion to final conclusion. It was held that making this conditional agreement did not release the company, as its rights were not affected thereby.*^ §1672. Company coercing insured to contribute to settle- ment. The plaintiff was insured by the defendant against acci- dents occurring in relation to the operation of plaintiff's automo- bile. During the life of the policy a person was injured through the operation of the automobile, and later brought suit against this plaintiff for $10,000, which was subsequently increased to $25,000. The defendant's liability to this plaintiff was limited to $5,000 under the terms of the policy. The defendant began negotiations for the settlement of said suit, which dragged along till the eve of trial, when the plaintiff, being informed of the negotiations, con- sulted his own attorneys at the suggestion of the attorneys for the defendant. The claimant finally agreed to accept $3,150 in full settlement of his claim. The defendant refused to pay more than $2,400, and took the position that, if plaintiff wanted to so dispose , of the case against him, he would have to pay the balance necessary to make up the $3,150. The. plaintiff paid such balance, and then demanded reimburse- ment from the defendant, on the ground that the latter had agreed imder its policy to pay any loss that plaintiff might sustain, not ex- ceeding $5,000. He also claimed, in substance, that he was coerced into paying the $750 because of defendant's refusal, and the belief that, if the accident case went to trial, a recovery would be had for a substantial sum exceeding the amount for which the defendant agreed to indemnify him. There was no question that the defend- ant was prepared to defend the suit and to fulfil the obligations of its policy, except in so far as plaintiff claimed its refusal to pay a larger sum in settlement was a violation of its duty. Said the court: "The defendant was under no duty to settle the claim. The policy ^ave it the option of contesting it, if it saw fit to do so. It had the right to await the decision of the court, as to the claimant's demand, or to pay such supi in settlement as it saw fit. The plain- tiff apparently believed that it was to his interest to settle, rather than face the uncertainty of a trial and a possible verdict against 46 Powers V. Wilson, 139 Minn. 309, 166 N. W. 401 (1918). INSURANCE 148S him, part of which he might have to pay. I think the defendant was acting strictly within -its rights and in observance of the con- tract of insurance, and that the plaintiff failed to make out a case of coercion or violation of the policy." *'' § 1673. Failure or refusal of insured to assist in settlement of claim. An insured may lose the benefit of his policy by a vio- lation of the provision requiring him to aid in effecting settlements and in securing evidence for the defense of suits, etc. If he refuses to allow a fact of substantial defense to be pleaded and relied on in defense, he may thereby lose his rights under the policy. But this is not true as to a matter which, as matter of law, constitutes no defense. Where the insured refused to permit the defense of con- tributory negligence, and there was sufficient evidence to go to the jury on that question, he was properly found to have violated the terms of his policy.*' §1674. Failure of insured to assist in defense of action. That the insured did not render such co-operation and assistance in the defense of the action against it as the terms of the policy required, was not shown by the fact that an officer of the insured testified at an inquest and gave testimony which differed from his testimony at the trial; there being nothing to show that he wilfully testified falsely, or that his testimony was more than the result of a mistake, and especially where it was not shown to have affected the verdict.*® § 1675. Interfering in actions and in negotiations for settle- ment. An insurance policy covering Habihty arising from acci- dents provided that the insured should not interfere in any nego- tiation for settlement of legal proceedings or interfere in such pro- ceedings brought against him without the written consent of the company, and it appeared that on account of a collision between insured's car and the car of another each had entered suit against the other. It was held that settlement by the insured's suit against the other person, at which time he signed an agreement with such other that the settlement should not be used to prejudice the siiit of the other against the insured, and that insured had consented to 47 Levin v. New England Casualty Co., « Collins' Ex'rs v. Standard Ace. Ins. 101 Misc. 402, 166 N. Y. Supp. 10S5 Co., 170 Ky. 27, 18S S. W. 112 (1916). (1917) aff'd 174 N. Y. Supp. 910 49Taxicab Motor Co. v. Pacific Coast (1919).' See same case in 97 Misc. 7, Cas. Co., 73 Wash. 631, 132 Pac. 393 160 N. Y. Supp. 1041 (1916). (1913). 1486 LAW OF AUTOMOBILES a continuance of the suit against him as part consideration for the settlement, did not constitute a violation of the terms of the policy.®" The plaintiff, Hopkins, carried an automobile indemnity policy, during the term of which he incurred a liability. The insuring com- pany undertook ,the defense, but afterwards disclaimed it on the ground that plaintiff had withheld the name of a material witness and had meddled in a settlement contrary to express provisions, re- quiring his assistance and information, as well as forbidding his interfering in compromises. It appeared that the day after the' accident Hopkins telephoned the claimant, expressing his sympathy, stating that his attorneys would endeavor to get a settlement with the insurance company, and that he would call soon to see the claimant, whom he urged not to employ Ismyers. The company's counsel protested against Hopkins having mentioned his being insured, and they sought an interview with the claimant themselves as his representative. Hopkins there- upon telephoned the latter that the lawyer coming was not his, but the insurance company's though he might call himself Hopkins'. Of this talk the company learned nothing at that time,, and, arriv- ing at no settlement they let the matter drop. Suit being subse- quently begun by the claimant, the company took over the defense and, after filing pleadings, agreed on a compromise, but, learning of Hopkins' second talk, they dropped the negotiations and with- drew from the case. In holding that the insured had not violated the terms of his policy the court said: "What constitutes interference it would be difficult to say, but we are satisfied that here there was none. It is _ obviously impossible for the assured to avoid conversation with the injured, their families, or their representatives. Indeed, the insurer himself must desire them to say what they can to reduce irritation. If they are then compelled to admit that they are insured, the law will not forbjd their admitting the truth, and as to their volun- tarily telling it, that is saying little more than claimants know. The vast majority of those who own automobiles are thus insured, and nearly every claimant knows or believes that they are. Neither can we assume tha,t, even if claimants do not know or suppose this, they will be harder to deal with when they find it out. That will depend on whether the owner appears of ample means himself. About this nothing is disclosed here. As for Hopkins in a degree discrediting 50 Utterback-Gleason Co. v. Standard Ace. Ins. Co., 179 N. Y. Supp. 836 (1920). INSURANCE 1487 the company's lawyer in the second message, language more explicit and positive than "interfere in negotiations for comptomise" must be used to forbid what has occvirred here. This is not the insured's meddling with settlements accepted or becoming a busybody about offers, of encouraging claimant to a stiff demand, or of secretly furnishing him useful facts." *^ The refusal of the insured to rely upon the defense that the neg- ligence of the driver was imputable to the injured person, who was riding as guest in insured's automobile, was held not to violate a provision of the policy requiring the insured to aid in resisting the recovery of damages against her; the facts showing that there was no ground for such defense.^* § 1676'. Settlement by company— Right of insured to re- cover damages from claimant incurred in same accident. The fact that the company's adjuster settled a claim made against the insured for damages to a machine which collided with insured?s machine, the accident being due to the fault of the claimant, does not bar insured from recovering from him for damages to his ma- chine; insured having nothing to do with making the settlement, and being prohibited by the policy from interfering therewith.*' § 1677. Authority of adjuster. Under a policy of automobile insurance which limited the liability of the company to the actual cost of repairing or replacing damaged or pissing parts, an adjuster had implied power to ascertain the extent of the damage to car and adjusting the cost of repairing same, was not impliedly authorized to bind the company to make additional repairs due to wear and tear of the car and to an accident occurring prior to the writing of the insurance.** A settlement having been made by an insurance adjuster, it is permissible to prove his authority by showing that he was acting under the provisions of an indemnity policy issued to the defendant by the company which the adjuster represented; this for the pur- pose of connecting the defendant with the transaction.** §1678. Joining owner and insurer as parties defendant. In Texas the rule is that the plaintiff, in an action growing out of 61 Hopkins V. American Fidelity Co., 18, 194 S. W. 751 (1917). 91 Wasli 680, 1S8 Pac. S3S (1916). ' 64ChishoIm v. Royal Ins. Co., 22S 52Comns V. Standard Accident Ins. Mass. 428, 114 N. E. 715 (1917). Co 170 Ky 27, 185 S. W. 112, Ann. BBAlthoff v. Torrispn, 140 Minn. 8, Cas'. 1917D 59 (1916). 16? N. W. 119 (1918). 63 Buriiham v. Williams, 198 Mo. App. 1488 LAW OF AUTOMOBILES an automobile accident, may join the owner of the machine and the insurance company carrying his liability as defendants, although by the terms of the policy the insurance company is only liable after judgment is awarded against insured. However, the law in that state permits the injured person to proceed to judgment against the owner, and then sue the company on that judgment. In the case in question the court in part said: "When two causes of action are connected with each other, or grow out of the same transaction, they may be properly joined, and in such suit all parties against whom the plaintiff asserts a common or an alternative lia- bility may be joined as defendants. The-rule is that a suit may in- clude an action for breach of contract and one for tort, provided they are connected wi,th each other or grew out of the same trans- action. Cases cit^ in which reference to insurance on the part of the defendant is condemned during a trial have no applicability to a case in which misjoinder is being urged. Those cases condemn any reference to an insurance company where it is not joined in the suit, on the ground that it might increase the damages against the defendant as to whom an action is being prosecuted. Under the cleaf provisions of the policy in this case it operated for the bene- fit of any injured person, and appellee was authorized to sue the ■insurance company, and the proposition that such suit could only be maintained by a suit separate from the party who was insured and who inflicted the injuries cannot be entertained under our system of judicial procedure."^® § 1679. Subrogation of company to rights of insured. Where an insurance company pays the insured for the theft, of his automobile, it is subrogated to the rights of the insured as against the person whose negligence was the cause of the machine being stolen.*'' Subrogation results by operation of law from the mere fact of payment of" the loss, and does not depend on the voluntary act of the assured.** But the rights of the insurer under subrogation can be no greater than those of the insured, from' whom they are derived, and if the 56 American Auto. Ins. Co. v. Struwe, when it pays the loss. Allen & A. Auto — Tex. Civ. App. — , 218 S. W. S34 R. Co. v. United Tr. Co., 91 Misc. S31, (1920). 1S4 N. Y: Supp. 934 (191S). 67 Stevens v. Stewart-W. S. Corp., 68 Brown v. Merchants' Marine Ins. 223 Mass. 44, 111 N. E. 771 (1916). Co., 152 Fed. 411, 81 C. C. A. 553. Company is entitled to subrogation n. AutoB.— 94 INSURANCE 1489 insured could not recover from the third person the insurer is like- wise barred from recovering for the same reason. ^^ Where the insured was personally injured in the same accident in which his automobile was damaged, recovery by him from the wrongdoer on account of his personal injuries does not affect the right of the insurer to recover for the damage to the automobile, ^or which it had paid the insured, and in respect of which it was subrogated' to the insured's rights.^" § 1680. Same— In whose name action against wrongdoer may be maintained. It appeared, in an action to recover dam- ages to the plaintiff's automobile, that he had been paid by his in- surer; that the only interest acquired by the insurer was to so much , of the cause of action as -was represented by the payment made to the plaintiff, leaving the remainder in the plaintiff; that the in- surer's sole title to this part of the cause of action was by way of subrogation under the policy. Held, that the plaintiff could main- tain the action, the court saying: "In this situation all the author^ ities, cited by th& respondent to the effect that one who has parted with his entire cause of action cannot bring suit in his own name, are quite irrelevant. Indeed, "from one of the cases cited by re- spondent, I quote the very apt rule: 'Where the value of the prop- erty destroyed exceeds the insurance money paid, then the suit must be tried in the name of the insured.' * * * The mere fact that plaintiff chose not to prove all the damages which he might have been entitled to recover as for loss of use of the automobile, in addition to the physical injury, did not affect his status as the legal owner of the cause of action." Further in this case, the court observed: "Had objection been made by defendants that there was a defect of parties plaintiff,, the question would have arisen whether the power of attorney from the indemnity company to plaintiff was sufficient to conclude the indemnity company from any adjudication obtained in this suit. Since, however, the motion to dismiss was based on the claim that plaintiff was not the real party in interest, it suffices to point out that he. was certainly one of the parties in interest^ even assum- ing that against appropriate objection neither he nor the indem- nity company alone could have maintained the action." ®* 59 New York Ins. Co. v. Chicago, B. 60 Underwriters v. Vicksburg Tr. Co., & Q. R. Co., 1S9 la. 129, 140 N. W. 106 Miss. 244, 63 So. 4SS, SI L. R. A. 373; Spring Garden Ins. Co. v. Inter- (N. S.) 319 (1913). nationals G. N. R. Co., — Tex. Civ. 61 steinhaus v. New York, 179 N. Y. App. — , 131 S. W. U47. Supp. 195 (1919). ' B. Autos.— 04 1490 LAW OF AUTOMOBILES "Where the owner has been reimbursed by the insurance com- pany only partially for the loss suffered, and the latter thereby sub- rogated to the rights of the owner only to the extent of the payment of such partial loss, the right of action is in the owner, and he may maintain the suit in his own name; and that the question of the distribution of the proceeds of recovery in such cases is a matter concerning only the owner and the insurance company, and with which the wrongdoer is not concerned." ^^ § 1681. Waiver of right of subrogation. In a case in which the insured, under an automobile policy giving the company the right of subrogation, had a claim for damages against a city, the same being covered by the policy, it appeared that the insured offered to make assignment of his clairtr to an attorney representing the com- pany, and that the attorney refused to accept it at the time for want of full authority to act for the company, and because reason- able time had not elapsed to make investigation of t^e injury; that imniediately afterwards the insured filed his claim for settlement with the city; and tJiat soon thereafter the city settled with him, and took from him a release in full of all claims, thereby pre- cluding the company from exercising its right to subrogation. It was held that the facts did not show a waiver by the company of its right to subrogation. ' Here the insured had bound himself by the terms of the policy to make the assignment of his cause of action upon payment by the company of the loss. The time when the payment was to be made was not specified; hence a reasonable time would be given by law for the company to make payment of the loss and call upon the insured to make the assignment of his cause of action against the city. It would then become the duty of the insured, in order to perform his part of the agreement, to continue in a position to make it legally possible for him to make the assignment when called upon to do so within a reasonable time by the company. The company could not be denied its right to a reasonable time from the date of the injury to investigate the accident and loss, and to make pay- ment and call for the assignment to it.^* § 1682. Effect of defeat of subrogation by insured. If the insured, under an automobile policy giving the company the right of subrogation, settles with or releases a wroiigdoer from liability 62 Wyker v. Texas Co., — Ala. — , 79 Haggard, — Tex. Civ. App. — , 168 S. So. 7 (1918). W. 1011 (1914). 68 Maryland Motor Car Ins. Co. v. INSURANCE 1491 for loss before payment of the loss has been made by the company, the latter's right; of subrogation against the wrongdoer is destroyed. If such settlement has the effect of destroying the company's rem- edy of subrpgatipn under the policy, then the insured, by making settlement, has discharged the company from its obligation to pay him to the full extent to which he has defeated the company's rem- edy of subrogation.^* § 1683. Right of trustee in bankruptcy under indemnity policy. Insured was a surgeon and carried a so-called indeimnity policy, limited to $5, 000, in which the insurer agreed, (1) "to in- demnify the assured against loss from liability imposed by law upon the assured for damages on account of bodily injuries or death suffered by any person or persons in consequence of any malprac- tice, error or mistake of the assured; to defend, in the name and on behalf of the assured, any suit brought against the assured," etc. Other clauses provided tha,! the insurer would continue the defense of any such suit "until a final decision is rendered in the assured's favor, or until the case has been appealed to the highest court to which an appeal can be taken, or until the suit has been settled with the written consent of the assured," and that the assured should not "voluntarily assume any liability nor incur any expense, * * * nor, except at his own cost, settle any claim, nor interfere in any negotiations or legal proceedings conducted by ;the company on. account of any claim," Suit was brought against the insured to recover damages for ■ alleged malpractice, and the insurer^ assumed the defense. Judg- ment was rendered against insured for $10,000, and, with his con- sent, the insurer decided not to prosecute any proceedings for re- view. Thereupon insured filed a voluntary petition in bankruptcy, and was adjudged a bankrupt. He scheduled the judgment as his only debt, and listed assets of some $400. The trustee in bank- ruptcy brought suit against the insurer to recover the amount of the policy, $5,000, and the insurer claimed that it was only liable to the extent of $200, which had been paid on the judgment claim by the trustee by way of a dividend. It was held that the judgment constituted a loss within the terms of the policy, and that the trustee was entitled to sue to recover full liability under the policy for the benefit of the judgment 64 Maryland Motor Car Ins. Co. v. Haggard, -- Tex. Civ. App. — , 168 S. W. 1011 (1914). 1492 LAW OF AUTOMOBILES ' creditor, who was the sole creditor scheduled. " 'Loss' is not a word of limited, hard and fast meaning. There are many kinds of loss, besides money oulr of pocket. No man would doubt that he might rightly call a 'loss' that event which changed his status from solvency to insolvency, and compelled him either to gb through bankruptcy or else be unable to own any prop- erty ^s long as he lived. Indeed, in the strictest sense of the word, the business man against whom a judgment of this kind became final during a fiscal year, so that at the end of that period he must carry it on his books as a liability, would, according to all familiar systems of bookkeeping, enter it as a loss for that period, and treat it accordingly ; and he would seem to have a right to deduct it from his gross income under the permission of the income tax law to deduct 'losses.' It is clear to us that, as this word is used in clause 1 , it is ambiguous, and may have .attributed to it either of the meanings claimed by the respective parties here, according as the whole contract and the conceded circumstances may dictate. It is the familiar rule that ambiguities in such contracts are resolved against the interest of the insurer." ®^ It will be noticed that the policy sued on in this case did not contain the so-called "no action clause" generally found in polices of its kind. Such clause usually provides: "No action shall lie against the company as respects any loss under this policy, unless it shall be brought by the assured himself to reimburse for loss actually sustained and paid by him in satisfaction of a judgment after a trial of the issue." § 1684. Notice of cancellation sent by mail. The terms of an automobile fire insurance policy relating to notice of an inten- tion to cancel the policy by , sending same through the mail, is to be- construed strictly as against the insurer.*® Action^ was brought by the plaintiff to recover on an automobile fire insurance policy, which purported to cover his automobile from September 3, 1912, to September 3, 1913. The company contended that the policy had been canceled pursuant to the provisions of the following clause: "This policy may be canceled at any time by either of the parties hereto upon written notice to the other party stating when thereafter cancellation shall be effected; the date of cancellation as fixed in such notice shall be the end of the policy 65 Schambs v. Fidelity & Cas. Co., 259 Watts, 12 Ala. App. S18, 67 So. 758 Fed. 55, 170 C. C. A. 55, later appeal (1914), certiorari denied by_ Supreme in 263 Fed. 895. Court, 67 So. 1017. 66 American Automobile Ins. Co. v. INSURANCE 1493 period ; if canceled by the company, the earned premium shall be computed and adjusted' on a pro rata basis ; if canceled by the as- sured, the, earned premium shall be computed at short rates in accordance with the table printed hereon; notice of cancellation deposited in the United States mail, postage prepaid, to the address of the assured, as stated herein, shall be sufficient notice." The defendant, by its secretary, wrote a letter to the plaintiff, dated May 20, 1913, giving notice of its intention to cancel said policy, stating that the cancellation should become effective on May 22, 1913, at noon. This letter was addressed to plaintiff at Selma, Ala., which was his address as stated in the policy, and was registered in the post office at St. Louis, Mo., on May 22, 1913. In the upper left corner of the envelope containing the letter were the words: "Return in five days to Amercian Automobile Insurance Co., Pierce Building, St. Louis, Mo." The letter was received at the post office at Selma on May 24, 1913, and on that day a notice with the plaintiff's name on it and advising him that there was regis- tered mail for him and for him to call for it was put in his box in that office, which was where he regularly received his mail. A sec- ond and similiar notice was placed in his box on May 27. There was nothing on either of the notices to indicate the name of the sender of the registered mail. The registered letter was not de- livered within five days after its arrival at that office, and upon the expiration of that time it was rettirned to defendant. The plaintiff was not in Selma while the letter was there, arid never had any knowledge concerning it or of defendant's intention to cancel his policy, until after his automobile was burned about August S, 1913. It appeared that in the absence of any directions on the envelope, the post master would have held it for delivery not exceeding three months, but that such intsructions of the sender to return by mail if placed between three days and ninety days, were complied with. It was held that the notice was insufficient to cancel the policy, and judgment for the plaintiff was affirmed. In part the court said: "The existence of different methods of mailing a letter, each equally permissible, and of differences in the opportunies afforded to the addressee of actually receiving it, ac- cording -as one or another method is adopted injects an element of ambiguity into a stipulation which in general terms tails for a deposit of the letter in the mail, postage prepaid, to a stated address, without specifying the particular mode of mailing to be adopted. If it is held that such a stipulation is complied with by adopting a method of mailing, the result of which, in the not improbable event 1494 LAW OF AUTOMOBILES of the addressee being absent for a few days from the place to which the letter is addressed, will be that he will not get it at all, the construction is one under which the sender may make the ad- dressee'a opportunity of getting the letter materially less than it would be if it was so mailed as to permit it to be forwarded to the addressee or to be held for a considerable time for delivery to him at the place to which it was addressed. To hold that under such a stipulation the sender has the option of selecting the method of mailing to be adopted would be construing it liberally in his favor, and not strictly in favor of the other party to the contract. The result would be that the stipulation, which is susceptible of more than one interpretation, would be Interpreted most unfavorably to the insured, So far as the latter is concerned, an obvious purpose of the requirement of notice to him of a cancellation of the policy by the company is to give him an opportunity to reinsure. The company is not to be enabled to reduce this opportunity to a mini- mum, or to be given a chance to deprive the insured of it entirely, when the stipulation may be fully complied with in a way much less likely- to involve such a result. The insured; by, assenting to the stipulation in question, agreed to take such chance of his actually getting a notice of cancellation and a check for the return premium as was involved in the deposit of them in the mail, pos- tage prepaid, to his stated address; but it is not to. be supposed that it was in the contemplation of either of the parties to the contract that the insurer was to be at liberty to reduce this chance to a mini- mum by requesting the return of the letter if it should not be de- livered within a very brief period after it reached the place to which it was to be addressed, especially as, if there was any benefit to the insurer in its getting back into its possession the undelivered notice of cancellation and its unused check, it was a benefit to which the contract did not entitle it, while, by its bringing about that result in that way, the purpose of the stipulation so far as the insured was concerned would be wholly defeated." *'" FIRE INSURANCE § 1685. Total destruction of car as entitling insured to face value of policy. The total destruction by fire of the automobile insured does not necessarily, under the provisions of most policies, entitle the insured to the full amount for which the policy is writ- s'' American Automobile Ins. Co. v. (1914), certiorari denied by Supreme Watts, 12 Ala. App. S18, 57 So. 758 Court in 67 So. 1017. INSURANCE 1495 ten. In one case in which the plaintiff was seeking to recover under a policy for the value of an automobile totally destroyed by fire, the court used the following language in reference to this question: "The plaintiff's contention that the total destruction of the automo- bile rendered an appraisement of the loss unnecessary and impossi- ble is not tenable. There is no statute in this state that renders an insurance company liable for the full amount of -the policy in event of a total destruction of movable property. The contract provides that the appraisers must state separately the sound value and the damage; that the liability of the insurer is limited to the actual cash value of the property at the time of loss, allowing proper de- duction for depreciation however caused ; and that it shall not exceed what' it would cost to replace the property lost with other of like kind and quality. Hence the insurer is not liable for any sentimental or peculiar value of the property to the insured." ^* Where the evidence was in conflict as to the value of the de- stroyed automobile, it was reversible error for the court to instruct the jury that, if they found for the plaintiff, they must find for the face value of the policy.*® § 1686. Burden of proof on plaintiff to show value. It has been held that a statutory provision that, "No company shall take a risk on any property in this state at a ratio greater than three- fourths of the value of the property insured, and, when taken, its value shall not be questioned in any proceeding," goes no further than to conclusively establish the value of the automobile at the date of the policy. And, where the property insured is personalty of a changing character which is subject to diminution or deprecia- tion, and the policy provides that the insurer shall not be liable beyond the actual cash value of the property at the time of the loss, the extent of the insured's demand and of the insurer's liability is, in the case of a total loss, the value of the property at the time of its destruction by fire; and this " question of the value of the property at the time of the fire is open to dispute and litigation. The burden is therefore on the plaintiff in such cases to prove the value of the automobile at the time of the fire.''" 68 Hart V. Springfield F. & M. Ins. Co., the time the policy was written. Sharp 136 La. 114, 66 So. 558 (1914). v. Niagara F. Ins. Co., 164 Mo. App. For subject of valued policy law see 475, 147 S. W. 154. ante, §1623. 69 Palatine Ins. Co. v. Commerce Under the insurance laws of Missouri Trust Co., — Okla. — , 175 Pac. 930 a fire insurance policy on chattels is (1918). valued only to the extent of precluding "> strawbridge v. Standard Fire Ins. the company from denying that value at Co., 193 Mo. App. 687, 187 S. W. 79 (1916) . 1496 LAW OF AUTOMOBILES § 1687. Admission of liability— what amounts to. An auto: mobile insured against destruction by fire in the sum of $1,400, was destroyed by fire. Having received notice of the loss under the policy, the company prepared to avail itself of its option "to replace the property lost Or damaged with other of like kind and quality within a reasonable time on giving notice, within 30 days after the receipt of the proof (herein required) of its intention so to do." The company's agen,t wrote the insured to the effect that it had an offer of a second-hand car, of the kind destroyed, for $750, and added: "As this represents the value of the car destroyed and which value is the maximum of the company's liability, we enclose proof of loss for $750 for execution and return." It was held that the words "represents the value of the car destroyed" constituted an admission of liability by the company to the extent of $750.'^ § 1688. Duty to safeguard insured property— Increase of hazard — Negligence. A casual or temporary change will not ordinarily be sufficient to void a policy under the "increase of hazard" clause.''^ The provision does not pTohibjt the owner from exercising the usual and ordinary acts of ownership ;T* nor does it include mere acts of negligence on the part of the insured, unless these are so continuous and of such a nature as to increase the hazard more or less permanently.'* It is to be presumed that the contract of insurance was entered into with reference to the character of the property and the owner's use of it, and it would greatly impair the advantages of insurance were trivial or temporary variations permitted to defeat the con- tract.'^ When the subject of insurance is jJei*- Columbiana Ins. Co., 4 Ohio St. 286. sonal property, the burden is on the ''3 Petei-Son v. Mississifjpi Valley Ins. plaintiff to show the actual cash value Co., 24 la. 494, 9S Am. Dec. 748; Jolly of the property at the time of the fire, v. Baltiinore Equitable Socy., 1 Harris and his consequent loss by reason of its & Grill (Md.) 29S, 18 Am. Dec. 288. destruction. Sharp v. Niagara F. Ins. '''*Nash v. American Ins. Co., — la. Co., 164 Mo. App. 475, 147 S. W. 154. — , 174iN. W;. 378. 71 Hart V. Springfield F. & M, Ins. Co., 75 Nash ; v, American Ins. Co., — la. 136 La. 114, 66 So. 558 (19^4), — , 174 N., W. 378; Adair, v. Southern TZNash V. American Ins. Co., — la. Mut. Ins. Co., 107 Ga. 297, 33 S. E, — , 174 N. W. 378; First Congregational 78, 45 L. R. A. 204, 73 Am. St. Rep. Church V. Holyoke F. Ins. Co., •'158 122 ;, Siemers v. Meeme Mut. Home Pro- Mass. 475,1 33 N. :E. 572, 19 L. ,R..A. tection, Ins. Co,, 143 Wis. 114, 126 N, W. 587,, 35 ,Anj. St. Rep. 508; Harris v, 669, 139 Am. St, Rep, 1083, : INSURANCE 1497 Under a provision that "the entire policy shall be void if the hazard be increased by any means within the control or knowledge of the insured," it was held: "The term 'increase of hazard' de- notes an alteration or change in the situation or the condition of the property insured, which tends to increase the risk. These words imply something of duration, and a casual change of temporary character would not ordinarily render the policy void." ''^ In an action on a policy insuring an automobile, which was de- stroyed by fire, it was held to be no defense that the owner was negligent.''' Where an automobile was wholly destroyed by two fires occur- ring a few days apart, recovery could not be defeated on the ground that the owner was negligent in not properly safeguarding the auto- mobile after the first fire, there being no clause in the policy re- quiring him to do so.''* § 1689. Depreciation in value of car after being insured. Where the value of the automobile at the time of insurance is fixed or determined, the only diminution on the value thereof, which could be considered in determining the loss for which payment can be demanded as insurance, is the inherent depreciation in the ma- chine itself through use, injury, or damage, accruing to it subse- quent to the date of the policy. A statute prohibited insurance companies from taking a risk at a ratio greater than three-fourths of the value of the property in- sured, and declared that when taken^its value shall not be ques- tioned. An automobile insured for $1,500 had a value of $2,000 at the time it was insured. Held, that any diminution in value of the machine must be deducted from the value of the machine ($2,000), and not from the amount of the insurance.'" ''fiAngier v. Western Assur. Co., 10 "This instruction told the jury that S. D. 82, 71 N. W. 761, 66 Am. St. Rep. the car was worth $2,666.66 when it 68S. was insured; that they should deduct '■if White V. Home Mut. Ins. Ass'n, — from that amount any sum that they Ga. — , 179 N. W. 3 IS (1920), citing found the car had, depreciated in value Nash V. American Ins. Co., — la. — 174 from the date it was insured to the date N. W. 378^ it was burned. A little more than two I'S St. Paul F. & M. Ins. Co. v. Huff, months had elapsed from the time the — Tex. Civ. App. — , 172 S. W. 7SS car was insured until the time it was (19 IS) destroyed, and plaintiff's evidence tended '9 Strawbridge v. Standard Fire Ins. to show that there was no depreciation Co., 193 Mo. App. 687, 187 S. W- 79 between the two dates. The statute (sec- (1916); Zackwik v. Hanover Fire Ins. tion 7030, R. S. 1909), provides that Co., — Mo. App. — , 22S S. W. 13S the amount of insurance shall be taken (1920). as three-fourths of the value of the 1498 LAW OF AUTOMOBILES The mere fact that a machine has been used, thereby becoming a second hand car, and in consequence of which it will not sell for as much in the market as a new car, is not evidence that it has depreciated in value since it was insured ; the insurance having been placed when it was new. "Of course, at the time of the fire, the automobile could not have been sold for as much on the market as a new car of the same make and model; for, compared with the latter, the automobile in ques- tion would thenibe what is commonly called a 'second hand' car. But, as between parties hereto, the value of the car, in respect of insurance, means its actual value as an instrumentality for con- tinued use. If, through no depreciation inherent in the car itself by reason ^of the lapse of time, use, injury, or damage, the car, as an instrumentality for continued use by the plaintiff, is worth as much or more than the amount claimed, the defendant cannot com- plain. He cannot add to that actual inherent depreciation the de- crease in the price it would bring simply because it is- not a new, but is now a used or second hand, car. One might buy a set of fur- niture, and, after using it in the house for one day without a particle of injury or damage thereto ill any way, would be unable to sell it for anything like the price it would command if it had never left the store; and yet the furniture as subject of insurance between the owner and the insurance company, would be as valuable as ever, because the insurance company insures it as used property intended for further use by the insured." *" § 1690. "Fire originating within the vehicle." The fair and natural import of a policy of automobile fire insurance, excepting from its provisions of insurance "Idss or damage caused by fire originating within the vehicle," was held to be to exclude loss by fire, danger of which was inherent in the use or operation of the automobile without the intervention of any extrinsic cause or agency. Accordingly, damage by fire due to an explosion of gaso- line, which, owing to the partial overturning of the automobile in a ditch containing water, ran out of its tank upon the water, and its vapor coming into contact with the lighted lamps attached to the automobile, was ignited and exploded, it was held that the fire originated within the vehicle, and that the loss was not covered by the policy. property insured. We think there is no 8" Strawbridge v. Standard Fire Ins. question but that the instruction was Co., 193 Mo. App. 687, 187 S. W. correct. Zacliwik v. Hanover Fire Ins. 79 (1916). Co., — Mo. App.—, 22S S. W. 13S (1920). INSURANCE 1499 The court, by way of illustrating the principle involved, said : "If an incendiary, desiring to destroy the automobile, should throw a lighted match into the tank the fire would, under a literal read- ing of the policy and under the position assumed by the respondent's counsel, originate 'within the vehicle,' but in our judgment such a loss would not fall within, the spirit or fair interpretation of the exception, but on the contrary, be covered by the policy. What the policy intended to except was fire developed by or originating in the use of the automobile as distinguished from fire occasioned by external causes." *^ § 1691, Violation of private garage warranty. A policy of automobile fire insurance contained the following clause: "Private Garage Warranty. — In consideration of the reduced rate at which this policy is written, it is understood that the property insured hereunder shall at all times be kept or stored in the private gar- age or private stable, situated in rear of residence. No. 1412 Third Avenue, Columbus, Ga. Privilege, however, to operate car and to house in any other building or buildings for a period of not exceed- ing fifteen days at any one location at any one time, providing the car is en route, visiting, or being cleaned or repaired." In an action to recover under said policy for the loss of the auto- mobile by fire, it appeared that after the policy was issued and de- livered, and without the knowledge or consent of the defendant, the plaintiff, during the month of June, 1911, removed said automobile from the private garage mentioned to Charlotte, N. C, where it re- mained for a period of 5 or 6 months until it was placed in a machine shop in Columbia, S. C, where, on January 10, 1912, it was destroyed by fire; that said automobile, while in Charlotte, N. C, for the period mentioned, was not en route from Columbus, Ga., nor was it visiting, nor being cleaned or repaired, but, on the contrary, its removal from the location in Columbus, Ga., was per- manent. It was held that the violation of the clause in question avoided the policy, and that, consequently, the defendant was not liable thereunder. The court in part said: "Nothing is better settled thaii that the location of the property insured is essentially material in contracts of insurance, and enters largely into the consideration of the company in fixing the rate of premium. The clause of the policy in this case, containing this warranty, expressly declares that 81 Preston v. Aetna Ins. Co., 193 N. S.) 133 (1908), rev'g 118 App. Div. Y. 142, 85 N. E. 1006, 19 L. R. A. (N. 784, 103 N. Y. Supp. 638. 1500 LAW OF AUTOMOBILES a reduced rate of premium is granted because of the insertion of this provision in the contract. ^ The contention of the plaintiff that the policy could remain dormant for six months and then be re- vived suddenly because the property was burned up in a repair shop is utterly untenable." ** Where the insured, at the time of signing the application for in- surance, correctly described to the agent thie place where the car was kept, and the policy was issued with such knowledge, it was no defense to an action on such policy that the car was not kept in a private garage, as stated in the application.** § 1692. Shed or lean-to as a "garage." The application for automobile fire insurance recited that the car was "usually kept in a private garage," and the evidence disclosed that the insured kept it in a shed or lean-to on his barn. Held, that the lean-to was a garage, within the meaning of the language so used. The court adopted the definition of a garage as "a place where a motor vehi^ cle is housed and cared for." ** § 1693. Waiver of violation of private garage warranty. In an action to recover on a policy of automobile fire insurance, the defense was that the insured had violated the private garage warranty, and the testimony showed that the insured liyed in Dallas, Tex., and wanted to go to the country for a time; that he told the company's general agent that he was going and the agent told him "all right;" that the insured asked the general agent if there was any writing needed, and the agent said no, and any tijne he wanted to go to the country it was all right; that no complaint was made that the warranty was being violated until after suit on the policy was brought; that insured talked to the general agent 82Lummus v. Firemen's Fund Ine. are inclined to the conclusion that the Co., 167 N. C. 6S4, 83 S. E. 688 (1914). insured told the agent that the car was 83 White V. Home Mut. Ins. Ass'n, — kept in a shed that joined onto the la. — , 179 N. W. 315 (1920). barn. If so, the company, having ac- "Plaintiff testified that he told the cepted the premium and issued the pol- agent, who filled out the blanks in the icy with knowledge of the place where application, that the automobile was kept the automobile was kept, must be deem- in 'a shed that joined onto the barn,' ed to have waived any misstatement and the agent's memory was that the with reference to its locality. See Key applicant 'said the car was usually kept v. Insurancie Co., 77 Iowa, 174, 41 N. in a shed, I think he termed it, near the W. 614." White v. Home Mut. Ins. barn.' Apparently the agent was not Ass'n, — la. — , 179 N. W. 31S (1920). certain of the precise words used, and; as 84 White v. Home Mut. Ins. Ass'n, the' plaintiff's version harmonizes with — la. — , 179 N. W- 31S (1920). the facts and is the more probable, we INSURANCE 1501 half a dozen times about going out of the city to his farm in another part of Texas, and that he told the agent when he was going to make a trip to Oklahoma; that at no time did the agent make any objections, but on the contrary said it was all right to go, and that his word was all that was needed. Held, that the provisions of the warranty clause were waived.*^ § 1694. Settlement with mortgagee as waiver of proof of loss by owner. The fact that the insurer of an automobile against loss by fire settled with the mortgagee of the machine some eight months after loss, does not constitute a waiver of proof of loss on the part of the insured, who was owner and mortgagor.*" § 1695. Proof of loss— Failure to furnish blanks waiver of, when. If the policy does not provide for forfeiture for failure to comply with the provision requiring written notice of loss, neglect to give such notice does not have that effect.*®* It is sometimes made the duty of the company by statute,*''^ on receipt of a notice of loss, to furnish the insured with blank forms for the proof of loss, wherein the insured is required to give the company certain detailed information mentioned in the statute. A failure or neglect on the part of the company to give the insured the blank forms for proof of loss is declared to be deemed a waiver of the requirement to furnish the proof of loss, and in a suit on the policy the insurer will not be heard to complain of the failure of the insured to furnish the proof of loss, notwithstanding such re- quirement or condition in the contract.** 8* Commercial Union Assur. Co. v. sworn proof of loss within 60 days, it Hill, — Tex. Civ. App. — , 167 S. W. does not provide for forfeiture for a 109S (1914). ' failure to give immediate written notice 86 Glaser v. Williamsburg City F. Ins. of the loss, although it provides for such Co., — Ind. App. — , l2S N. E. 787 notice. It was stated in Dezell v. Fi- (1920). delity & Casualty Co., 176 Mo. 2S3, 281, 86a "It is insisted that no notice of loss 7S S. W. 1102, 1119 'There is no for- in writing was given, as required by feiture expressly provided for, and we the policy. There is nothing in the rec- are not authorized to supply one by con- ord to show that a \yritten notice of struction.' " Zackwik v. Hanover Fire loss was given to the defendant, but Ins. Co., — Mo. App. — , 22S S. W. 13S the record does show that the defendant (1920). had notice within 4 days after the fire, 67 For instance. La. Acts 1908, No. and had an adjuster on the ground in- 168. vestigating the loss. While the policy 88 Hart v. Springfield F. & M. Ins. provides that the same shall be null and Co., 136 La. 114, 66 So. SS8 (1914). void unless insured should furnish a 1502 LAW OF AUTOMOBILES § 1696. Same— Making appraisement as waiver of. If the company, under the terms of a policy of automobile fire insurance issued by it, after a loss and within the time thereafter allowed for proof of loss, enters into an arbitration of the question of- the amount of the loss, it thereby waives all question as to the fact and sufficiency of the proof of loss.*' § 1697. Company not liable to statutory penalty for failure to settle when insured refuses to arbitrate. Iri Louisiana.it is provided by statute that if the proof of loss furnished by the in- sured under a policy of autoniobile fire insurance is satisfactory to the insurer, it is the duty, of the company to pay to the insured the amount of the loss shown to be due within 60 days after the receipt of the proof, or it will be liable to a penalty of having to pay the insured, in addition to the amount of the loss, 12 per cent thereon as damages and a reasonable attorney's fee. If the proof of loss is not satisfactory to the company, it then becomes the duty of the company, and it is consequently the right of the company, to proceed with an appraisement and adjustment of the loss and liability under the terms of the policy. In this event, if the com- pany fails or neglects to pay the insurpd the amount of the loss thus ascertained to be due under the policy within 60 days from the date on which the company received the proof of loss submitted .by the, insured, the company will be liable for the penalty, men- tioned. The statute under discussion finally provides that, when- ever the insurance company shall pay to the insured, within 60 days from the date on which it receiveql the proofs of loss offered by the insured, the amount which its adjuster or agent has deter- mined or admitted to be due, the insured shall only recover the difference between the amount paid and the arnounit judicially ascer- tained to be actually due imder the policy, together with 12 per cent damages on this difference and reasonable attorney's fees. It has been held under these provisions, that the company is not liable to the statutory penalty for withholding . the amount of its liability admitted by its agent or adjuster, as long as the insured refuses to submit to an appraisement; "for the insurer has a right to an adjustment of its liability before being penalized for not pay- ing it. The provision that the company may pay the amount of liability admitted by its agent or adjuster, and thereby protect it- self pro tanto from the penalty,, is advantageous to the insured, in 89 Union Marine Ins. Co. v. Charlie's Tr. Co., 186 Ala. 443, 6S So. 78 (1914). . INSURANCE 1503 that he may accept the payment and reserve his right to recover any additional amount that may be judicially ascertained to be due him ; but it does not absolve him of his obligation in the contract to submit to an appraisement." *" §1698. Gasoline in premises. The bringing into the insured premises of a forbidden quantity of gasoline, which is removed be- fore the property is destroyed by fire, does not affect the right of the insured to recover for such loss. A clause in a policy forbidding the admission into the insured premises of any gasoline othei: than that contained in the tanks of machines "permanently or temporarily stabled" therein, did not effect a forfeiture of the policy where, at the time the premises were destroyed by fire, there were five automobiles, in addition to one which belonged to the insured, stored therein.®^ § 1699. Award signed by only two appraisers. An award, made under the provisions of a policy of automobile fire insurance, signed by only two of the appraisers — the umpire and one of the appraisers^s sufficient, under a stipulation of the policy that the award of the appraisers and umpire, or any two of them, should determine the amount of the loss, where the appraiser refusing to sign does so, not from any lack of opportunity., but because, having fully and finally considered the matter with his fellows, he dissents from their finding and refuses to sign.^^ §1700. Award vitiated by misconduct of appraiser. An award may be disregarded if the arbitrators were guilty of bad faith, partiality, or misconduct, substantially affecting the result of the appraisement.'* In an action to recover on an insurance policy for damage to an automobile by fire the defendant pleaded an appraisement and arbi- tration by which it declared the plaintiff was bound. The plain- tiff replied charging bad faith and misconduct on the part of the appraiser selected by the defendant. The policy provided that in case the insured and the company could not agree upon the amount of the loss, the same should be ascertained by two competent and disinterested appraisers, the insured and the company each select: ing one, and the two appraisers should select an umpire to whom only questions upon which the two could not agree were to be sub- so Hart V. Springfield F. & M. Ins. 92 Union Marine Ins. Co. v. Cliarlie's, Co., 136 La. 114, 66 So. SS8 (1914). Tr. Co., 186 Ala. 443, 65 So. 78 (1914). 91 O'Neill V. Caledonian Ins. Co., 166 93 Jones v. Orient Ins. Co., 184 Mo. Cal. 310, 13S Pac. 1121 (1913). App. 402, 171 S. W. 28 (1914). 1504 LAW OF AUTOMOBILES mitted. In this instance the insured selected W. and the company selected H. to act as appraisers, and these two selected C. to act as umpire, the latter being engaged in the automobile livery business. There was evidence, that as the three men drove up- to the gar- age H. asked C. what his charges were to drive to a certain pjace, and the latter told him; that they then- looked at the damaged auto- mobile; that the hood was taken off, but the machine was not taken apart so that the intricate parts could be inspected; that W. arid H. agreed upon the amount of damage to several parts; that H. refused to allow anything for the fenders, althotigh they were burned and warped; that when W. protested H. said: "If you don't like it, we will call C- in and you can step to one side. We will npt agree on those fenders and you have got nothing more to say. You can stand to one side. I have got no more business with you; me and C. will settle this." W. testified that as many as half a dozen different times he tried to call the attentiori of H. to damaged parts, but each time H. told him to keep quiet, that- he had nothing to say.- When a list of the damaged parts was made out, W. asked how much it came to and H. told him it was none of his business. There was evidence that C^ paid no attention to the damaged parts W. called attention to, saying he didn't know whether he had a right to say what they were damaged as he didn't hardly know what he was there for. After the list was made out C. signed it upon H. insisting that he should, although W. protested aga;inst it, and C. expressed the , opinion several times that the amount of damages was not enough. It was held that there was sufficient evidence from which the jury could find bad faith and misconduct on the part of H. which vitiated the award. In part the court said: "Even if it be true, as contended by ap- pellant, that an appraiser cannot remain in and conduct an appraisal for the purpose of accepting the result if satisfactory, and then, merely because something in the procedure did not suit him, kick over the appraisement, if the same is not as large as he expected, still such is not this case. W. was forced out of the appraisement by H. who seems to have wanted to get rid of him as soon as possi- ble and have substituted in his place the umpire C, whom he had seen and talked to beforehand and whom he had suggested to W. for appointment as umpire. W. was forced out before it was known whether or not an agreement could be reached on cither items of damage and before it was finally known whether an agreement could 94 Jones V. Orient Ins. Co., 184 Mo. App. 402, 171 S. W. 28 (1914). • INSURANCE 1505 be reached even on the fenders. The policy provided that the loss should be estimated by the two appraisers and if they failed to agree their differences should be submitted to the umpire. The agreement for submission provided that the umpire should act with the ap- praisers in matters of difference only." ** §1701. Waiver of right to appraisement by admission of value. Under a provision of a policy of automobile fire insurance providing that, in the event of disagreement as to the amount of loss, the same shall be ascertained by two competent and disinter- ested appraisers, etc., the company may waive its right to an ap- praisement by an admission that the car destroyed was of a cer- tain value, provided the insured accepts such estimate. If the in- sured rejects the company's estimate of the amount of the loss, then the company is not bound thereby. Under the very terms of the policy it is the disagreement as to the ambunt of the loss that gives the company the right to an appraisement, and such disagreement occurs when thg company's estimate of loss is rejected by the in- sured.'* § 1702. Remedy upon failure of company to pay award. When a valid award has been made by the appraisers under the terms of an automobile fire insurance policy, the insured's right of action would seem to be properly based on the award, But he may join in the same complaint or petition a count seeking to re- cover the amount of the award, with a count based on the terms of the policy. Under statute in Texas, and in other states, all actions on contracts may .be joined, and even actions ex delicto may be joined with actions ex contractu arising out of the same transaction, or relating to the same subject matter. "So the defend- ant may have stood on the award, if it had been so disposed, or it might have pleaded inconsistent pleas. But defendant had no right to limit the controversy at its threshold to the award." '® § 1703. Agreement as to repairs supercedes policy and bars action thereon. If the parties, after damage to an insured ma- chine, agreed that the insurer should repair same, a new contract is thereby entered into which supercedes the policy of insurance, and the only remedy of the insured thereafter is. an action for breach of such agreement. If no time within which the repairs are to be made is specified, a reasonable time is implied. 95 Hart V. Springfield F. & M. Ins. Co., ^ Union Marine Ins. Co. v. Charlie's 136 La. 114, 66 So. SS8 (1914). Tr. Co., 186 Ala. 443, 65 So. 78 (1914^). B. Autos. — 95^ 1506 LAW OF AUTOMOBILES Where, after claiming tbe full val^ie of a clamaged truck, the insured accepted an offer qi the insurer tp repair the truck, stat- ing, in effect, that the truck must be jnadegood as, new and that they were not to be delayed too long, and the insurer estimated the time needed for repairs at 4 weeks, and insured made no com- plaint relative to delay or that the truck was not repaired as re- quired, they were bound to accept the truck when it was tendered within a reasonable time properly repaired, and they could not thereafter bring suit on the policy. "The election of plaintiffs to have the car repaired, and the undertaking of defendant to make the repairs within a reasonable time, created a contractual relatiqn between the parties which ter- minated all rights of both parties under the policy contract. Such substituted contract deprived defendant of asserting any rights or option it had under the policy and deprived plaintiffs under the circumstances of this case of any fight to assert a claim undei" the policy. The only remedy, if any, either party' thereafter had was for breach of' the new or substituted contract." ''' § 1704. Identification of burned car by extrinsic evidence. Where the description of the insured automobile was ambiguous, in that it did not appear whether the number given was the factory number of the ear or the numbfer of the license plate, it was held that extrinsic evidence was properly resorted to, to show what was intended.^* § 1705. Generally. In order that recovery may be had under a policy insuring an automobile against theft; robbery, or pilferage, it is essential that a felonious intent be shown in the taking of the machine. Where, therefore, the automobile is taken by one under an honest belief that he is entitled to the possession thereof, although he obtains possession by a threat, no recovery can be had, as the felonious intent is wanting.'' 9'? Gaffey V. St. Paul F. &, M. Ins. Co., 540 (1917); Rush v. Boston Ins. Co., 221 N.: Y. 113, 116 N. E. 778 '(1917), 88 Misc. 48, ISO ,N. Y. Supp. 4S7 (1914). rev'g. 164 App. Div. 381, 149 N. Y. Tkere must be an intention to steal. Supp. 859 0914): Stuht v. Maryland M. C. Ins. Co., 90 . 98 White V. Home Mut. Ins. Assn., — Wash. 576, 156 Pac. 557 (1916); Hart- la. — , 179 N. W. 315 (1920). ford Fire Ins. Co. v. Winibish, 12 Ga. 1 Phoenix Assur. Co. v. Eppstein, — App. 712, 78 S. E. 265 (1913). Fla. — , 75 -So. 537, L. R. A. 1917 F INSURANCE 1507 The criminal intent must generally be gathered from the sur- rounding circumstances. Proof of the taking by trick and device would justify an inference of felonious intent; but it would be completely rebutted by proof that the person gaining possession of the car honestly believed he was entitled thereto.^ Taking a machine from a bam under claim of ownership, but without the knowledge of the owner, and transferring it to another barn in another part of the city, did not constitute "direct loss by .burglary, theft or larceny." To. create liability under the policy there must have been a felonious apportation, and as the act result- ing in the loss of the machine was merely a trespass, the trial court properly directed a verdict for defendant.' "Theft," as used in such a policy is synonymous with larceny, and does not include every unlawful taking.* However, the word "theft," as so used, is said not to include' all forms of la,rceny recog- nized by law. It was held not to include larceny by trick and de- vice, where to commit the offense it was necessary to deceive the insured by obtaining possession of the machine through a written agreement to sell it for him.^ v"The eleinents of what constitutes a larcency must be deter- mined by the principles of the common Jaw and, of course, include a felonious intent. The plaintiff has obviously no cause of action against the iiisurance company, even though he has been wrpngfully deprived of his property, unless he has been so deprived of his prop- erty feloniously." * Every taking by one pef'son of the personal property of another, without his consent, is not larceny; and this, although it was taken without right, or claim of right, and for the purpose of appropriat- ing it to the use of the taker. In addition to this there must have been a felonious intent, for without it there was no crime. It would in the absence pf sucli an intent, be a bare trespass, yyhich, however aggravated, would not be a crime. It is the criminal mind and purpose going with the act which distinguishes a criminal tres- pass from a mere civil injury.'' 2 Rush V. Boston Ins. Co., 88 Misc. 6 Delafield v. London & L. F. Ins. 48, ISO N. Y. Supp, 4S7 (1914). Co., 177 App. Div. 477, 164 N. Y. Supp. SBigus V. Pacific Coast Cas. Co., 145 221 (1917). Mo. App. 170, 129 S. W. 982 (1910). 6 Rush v. Boston Ins. Co., 88 Misc. 4 Phoenix Assur. Co. v. Eppstein, — 48, ISO N. Y. Supp. 4S7 (1914). Fla. — , 7S So. 537, L. R. A. 1917 F 540 7 Valley MercantUe Co. v. St. Paul (1917); Hartford Fire Ins. Co. v. Wiin- F. & M. Ins. Co., 49 Mont. 430, 143 bish, 12 Ga. App. 712, 78 S. E. 26S Pac. SS9, L. R. A. 1915 B 327 (1914). (1913). 1508 LAW OF AUTOMOBILES The intent which accompanies the act of taking must be the criminal inten,t to deprive the owner of his property, not tempor- arily, but permanently.* "The words 'theft,' 'robbery,' and 'pilferage' are well understood. They were used in this policy in their common and ordinary mean- ing. If the automobile was stolen, or if it was robbed or pilfered of any of its accessories, or of personal effects left therein, to the amount of $25, then the insurance company would be liable." ' § 1706. What amounts to theft, robbery or pilferage— Illus- trative cases. Where plaintiff's automobile was taken from his garage by some one unknown and was returned so damaged as to require repairs to various parts, and with some tools missing, it was held that such damage and loss were not within the terms of an insurance policy covering tjjjieft, robbery or pilferage.^" The plaintiff's automobile was insured by defendant against loss or damage by theft, robbery, or pilferage. The machine was kept at a garage, and one evening about eight o'clock several boys took it out of the garage, unlawfully and without the consent of anyone, for the purpose of taking a joy ride, and while so using the machine, they drove it into a fence an9 wrecked it, and abandoned it where it was wrecked. It was held that recovery could not be had, there being no intent to steal the car, and judgment for the plaintiff was reversed. In part the court said: "The facts in this case are sufficient to rebut any inferred intent that might be included in, the unlawful taking. Indeed, in this case the finding, both by impli- cation from the affirmative facts found and because of the absence of an express finding on said subject, is in effect a finding against plaintiff on said essential element of his right of recovery." ^^ The plaintiffs carried a policy on their automobile insuring them against loss in excess of $25 on any single occasion, resulting from the theft of the automobile by persons other than those in the employ, household, or service of the assiu-ed. While the policy was in force plaintiffs placed the automobile in a paint shop in Missoula, Mont., and while it was there it was taken by two em- ployees of the paint shop, and by them driven to De Smet and dam- 8 "A felonious intent means to deprive 9 Stuht v. Maryland M. C. Ins. Co., the owner, not temporarily, but perma- 90, Wash. S76, 156 Pac. 557 (1916). nently, of his own property, without color !<► Felgar v. Home Ins. Co., 207 111. of right or excuse for the act, and to App. 492 (1917). , convert it to the taker's use without the H Michigan Com'c'l Ins. Co. v. Wills, consent of the owner." Re Mutchler, 57 Ind. App. 256, 106 N. E. 725 (1914). 55 Kan. 164, 40 Pac. 283. INSURANCE 1509 agea. The machine was taken by the employees at the close of the' working day, while it was still light, without the consent of their employer or of the plaintiffs, after the shop had been locked by the employer, ran it to a point near De Smet, where an accident oc- curred that caused the damage. Help was then securied by tele- phone from a public garage, and the car was towed back to the paint shop at Missoula. When the man arrived from the public garage he found both employees standing by the damaged auto- mobile, which was headed towards Missoula. Both employees con- tinued to work at the paint shop a considerable time after this occurrence. One of the employees testified that they took the car for a "joy ride," without any intention of stealing it; that they had driven to De Smet and had started back to Missoula, when the car "blew up;" that they immediately telephoned to the garage in Missoula, and waited until help came; that they secured gasoline from the paint shop; that they were seen leaving with the car by employees of a laundry; and that they took the car when the owner of the shop and the owners of the car would not likely see them. It was held that there was no evidence from which it could be inferred that it was the intention of the employees to steal the car, and that, therefore, no recovery for - the damage to the car could be had under the policy. "The fact," said the court, "that the taking was altogether wrongful, and that it was the intention of the employees to appropriate the car to their own use during the ride, and to that extent to deprive the owners of their property, are not sufficient to constitute their acts larceny." "They must have had a criminal intent — the intention to steal the car, without which the act of taking, however repreh^sible and wrongful, amounted only to a trespass or a civil wrong." ^^ §1707. "Pilferage." It has been judicially declared that, " 'pilferage' has but one meaning and is some form of stealing."^* § 1708, Recovery of car after time for payment of loss- Abandonment to company. Under a policy of theft insurance providing that the sum-for which the company is liable shall be pay- able 60 days after the notice, ascertainment, estimate and satisfac- tory proof of los5, and also providing that "there can be no aban- donment to this company of the property described, it was held that the company became liable to pay the full amount of its lia- 12 Valley Mercantile Co. v. St. Paul 18 Felgar v. Home Ins. Co., 207 111. F. & M. Jns. Co., 49 Mont. 430, 143 App. 492 (1917). Pac. 559, L R, A. 1915 B 327 (1914). 1510 LAW OF AUTOMOBILES bility-60 days after the required notice and proof of loss, and that the faet that the automobile was recovered after the expiration of the '60 days did not affect its liability; the term "abandonment," as used, meaning that there could be no voluntary abandonment by the owner before the expiration of the 60 dayg.''* § 1709. Diminution in value due to use by thief. A policy insuring an automobile "against loss or damage Jf amounting to $25 or more on any single occasion by theft, robbery, or pilferage by any person,'' etc., and providing that, "In the. event of loss or dg-mage under this policy, this company, shall be liable only for the actual cost of repairing, or, if necessary, replacing the parts damaged or destroyed," covers loss by diminutipn in value of the automobile while used by a thief. "The language used in the policy insuring against .loss or damage, if amovmting to $25 or more on any single occasion by the theft, robbery, or pilferage, is very broad and comprehensivei, and it cannot be maintained with iiny degree of reason that the diminution in value was not a pa,rt of the loss or damage insured against under the plain terms of the policy;"" "If, following the, theft, the car shpuld be recovered intact, in the same condition it was before the ,thef t, plaintiff's only damage would be expenses incurred in recovering the car, and perhaps, in addition, , the value of its use during the period betvvepn, the theft and the recovery of the car. If the car were damaged or destroyed while in the custody of the thief, plaintiff's damage would include also the diminution or loss of value of the car thus stolen." ^® § 1710. Liability of company when car is destroyed after being stolen. Under a policy insuring against theft, robbery or pilferage of an automobile, the company is lia,ble for the full value of the car when it was stolen and wrecked, it being a total loss. In so hplding the court said: "It is also contended, a^d this. is, the main issue presented on this appeal, that the policy only insured the plaintiff against damages directly resulting from theft, rob- bery, or pilferage, and that the occurrence of the accident by col- lision was hot the direct result of a theft, and cannot be deemedto 14 O'Connor v. Maryland Motor' Car 16 Callahan v. London & L. F. Ins. ' I>ns. Co., '287 111. 204, 122 N. E. 489, 3 Co., 98 Misc. 589, 163 N. Y. Supp. 322 A. L. R. 787 (1919). (1917), aft'd 179 App. Div. 890, 16S IB Federal Ins. Co. v. Hiter, 164 Ky. N. Y. Supp. 1079 (1917). 743, 176 S. W. 210, L. R. A. 191S E S7S (191S). INSURANCE IS 11 have been in contemplation of the parties entering into the con- tract. I am of the opinion that the proper construction of the policy is that it covers all damage resulting, or which, in the con- templation of the parties, might result, from theft, which would include damages caused by reckless driving or handling of the car and storage of the same, or any use which destroyed' its value in whole or in part. If, following the theft, the car should be re- covered intact, in the same condition it was before the theft, plain- tiff's only damage would be expenses incurred in recovering the car, and, perhaps, in addition, the value of its use during the period between the theft and the recovery of the car. If the car were damaged or destroyed while in the custody of the thief, plaintiff's dainage would include also the diminution or loss of value of the car thus stolen." ^^ § 1711. Conversion by.borrower. Where the owner of an automobile loaned it to another for a, specific purpose, and to go to a certain place, and the borrower went not only beyond that place, but never returned the machine, and abandoned it in a remote section of a distant state in a badly damaged condition, and did not notify the owner where it might be found, and it was not in -fact recovered for some 6 or 7 weeks after it should have been re- turned, there was a conversion of the machine, as much so as if the borrower had sold the machine and appropriated the pro- ceeds, and the damage came within the terms of a policy insuripg the automobile against loss or damage occasioned by theft; rob- bery, or pilferagie.'^' § 1712. Fraudulent conversion by bailee. Mrs. Gunn brought suit for the value of an automobile, under a policy of insurance protecting her against "theft, robbery, or pilferage, excepting by any person or persons in the assured's household or in the assured's service or employment, whether the theft, robbery or pilferage oc^ cur 4uring the hours of such service or employment or notl" The evidence discloses that the plaintiff had been induced to purchase the car, a secondhand one, by virtue of the representations of one C. R. Miller, an automobile mechanic, who at the time of the pur- chase was a lodger of the plaintiff; that shortly thereafter the car got out of order; that the plaintiff stated to Miller, who in the meantime had removed from the plaintiff's residence, that IT Callahan v. London & L. Fire. Ins. 18 Federal Ins. Co. v. Hiter, 164 Ky. Co., 89 Misc. 589, 163 N. Y. Supp. 322 743, 176 S. W. 210, L. R. A. 191S E 0917). S7S (191S). 1512 LAW OF .AUTOMOBILES it was "up to him to fix it"; that the car was turned over to Miller for such purpose under the statement above quoted, and without any understanding that Miller was to receive any com- pensation for his services in repairing it. The evidence indi- cates that, after the car had been intrusted to Miller, he fraudu- lently converted it to his own use. Upon these facts being made to appear, the trial court granted a nonsuit. Held, under the terms of such a policy written to indemnify an owner against loss by "theft, robbery, or pilferage," the usual and ordinary meaning of these words, involving the wrongful and fraudulent taking and carrying away of the article stolen, should have apfilication, and the reasonable intention of the contract should not be extended to cover the fraudulent conversion by a baitee of the property so in- trusted. The true and manifest intent and spirit of the contract should not be so technically construed as to require that it par- take of the nature of a blanket fidelity bond guaranteeing the in- tegrity of all such pfersons as may be intrusted by the owner with the possession and control of the article covered by the policy of :gisurance." ^' § 1713. Theft or conversion by conditional buyer. A policy covering a motorcycle was issued to both the seller and purchaser of the machine under a conditional bill of sale "as interest may ap- pear," and covered loss "by theft, robbery or pilferage by any person or persons other than those in the employment, service or household of the insured." It was held that both the interest of the seller and the conditional buyer were insured, and that as re- spects the seller's interest in the policy the buyer Was not within the exception quoted and that the seller was entitled to recover from the insurer where the conditional buyer stole the motorcycle.** An agreement in a policy of automobile theft insur9,nce that the policy should cover theft of the- automobile by a vendee in pos- session under a conditional sale, has been held to include embezzle- ment or unlawful conversion by puch a vendee ; the word "stealing" including the unlawful appropriation of things which are not tech- /uically a subject of larceny. The policy in question consisted of the original policy issued, which contained the usual clause as to theft, but excluding wrong- ful conversion or secretion by a mortgagor or vendee in, possession iSGunn V. Globe & R. F. Ins. Co., G. Ins. Co., 178 App. Div. 730, 16S N. — Ga. App. — 101; S. E. 691 (1919). Y. Supp. 204 (1917). 20Neal, etc., Co. v. Liverpool & L. & INSURANCE 1513 under mortgage, conditional sale, or lease agreement, and a letter, dated June 8, 1916, written by the insurer to the insured, as fol- lows : "I wish to advise you that the International Indemnity Com- pany will from this date extend policies on all cars in which you may have an equity to cover any claims arising under the following conditions: * *,* Third: If the conditional buyer of an auto- mobile, or any member of his immediate family, should steal any automobile insured under our policies; and thereby commit a felony, upon warrant being secured for the arrest of such party or parties, the company hereby'agrees that your equity in any automobile in- sured by this company will be fully protected." - . In construing the term in question, the court said: "In the present case, we thiiik that when the word 'steal' was accompanied by the qualifying words, 'by a conditional buyer,' these qualify- ing words clearly extended the word 'steal,' so as to make it in- clude embezzlement, a crime which is consistent with th§ legal right of possession in the vendee under a conditional contract of purchase. Furthermore, if the contract contained in said letter be construed as appellant desires, merely to cover a technical theft by a conditional purchaser, or, as stated by the appellant, 'only to cover a case where there was a felonious intent at the time that the automobile purchaser acquired possession,' then the owner was already protected against such a situation by the policy proper, and without the addition of the letter of June 8, and therefore the portion of the contract contained in the letter is meaningless and useless; for the policy itself provides against theft by any and every one, excepting only persons in the assured's household or employment. There is no exception made as to theft by one hav- ing a conditional contract of purchase, and, if we concede the pos- sibility of such an offense, then no exception is made of it in the. policy. The only thing that is excepted with regard to the condi- tional purchaser is 'wrongful conversion.' Therefore it appears that, if the letter of June 8 added any protection against the actions of the conditional purchaser, it must have been by nja^king inoper- - ative this exception against wrongful conversion. We therefore agree with the trial court in its holding that the contract was in- tended by the parties to cover unlawful conversion by the ven- dee." " 21 Buxton V. International Ind. Co., imports larceny, it,may be shown to im- Cal. App. — , 191 Pac. 84 (1920). port a charge of embezzlement. Taylor Hearing denied by Supreme Court. v. Short, 40 Ind. Sll. The word "steal" Although the word ''steal" ordinarily can be shown, in the connection in which 1514 LAW OF AUTOMOBILES § 1714. Conversion by one in possession for purpose of sale. Where an automobile was delivered by the owner to another under an agreement that the latter "is to sell said car and pay you the sum of $700 in fuU payment for same, said payment to be made after" said person "has sold above mentioned car," the act of such person in selling: the car for $400 did not constitute a "theftj rob- bery, or pilferage," in view of a statute providing that, "When goods are delivered to the buyer 'on sale or return,' or on other terms indicating an intention to make a present sale, but to give the buyer an option to retiurn the goods instead of paying the price,, the property passes to the buyer on delivery, but he may revest the property in the seller by returning or tendering the goods," etc.*^ §1715. Theft by person not in employment, service or household of insured. In order to recover for loss pr damage occasioned by theft, robbery, or pilferage by any person or per- sons /Other than those in the employment, service or household of the insured it is incumbent upon the plaintiff to prove his case by a preponiderance of the evidence. It is essential to a recovery that the evidence adduced establishes that the damage to the automobile was occasioned by the taking of the same by some person not in the employment, service, or household of the insured, without the consent of the owner, and with the intent to permanently deprive the owner of his property.^' § 1716. Theft by employee of public garage. Insurance on an automobile Against "loss by theft, robbery or pilferage, by per- sons not in the employment, service or household of the assured" covers theft by an employee of a public garage keeper at whose garage the owner kept his car. To be in the service or employment of the assured, within the meaning of the policy, it was essential that the person taking the it is used, not to import larceny, 26 It is said in Darling v. Clement, 69 Am. & Eng. Ency, of Law (2d. Ed.)' Vt. 292, 297, 37 Atl. 779, that the natural 770; Dunnell y. Fiske, S2 Mass. (11 and obvious meaning of the word "steal" Mete.) SSI, SS4. is a felonious taking of property by lar- "The term 'steal' is commbnly used ceny, but it may be qualified by accom- in indictments for larceny, and denotes panying words, so as to show that such a commission of theft; but, in a popular was not the meaning, usage, 'stealing' is a wider term than lar- 22 Siegel v. Union Assur. Socy., 90 ceny, inasmuch as it may include un- Misc. SSO, 1S3 N. Y. Supp. 662 (191S). lawful appropriation of things which are 23 phoenix Assur. Co. v. Eppstein, — not technically a subject of larceny.',' Fla. — , 7S So. 537, L. R. A. 1917 F S40 Black's Law Dictionary. (1917). INSURANCE 1515 car must have been subject to the control and direction of the asr sured and bound to render personal service to him.^* § 1717. Theft by employee of corporation, of which insured is president. The fact that an automobile was stolen from a garage owned by a corporation of which the insured was presi- dent, and that an employee of the corporation who was a caretaker at the garage was implicated in the theft, did not relieve the in- surer of liability under a clause exempting it from liability in case the automobile should be stolen by a person in the employment or service of the insured.** § 1718. Items for which insured, a conditional vendor, en- titled to recover. In ah action to recover under a policy Of automiobile insurance against conversion by a conditional vendefej' and which provided that any act 'of the assured in recovering, saving and preserving the property should be considered as done for the benefit of all concerned, and all reasonable expenses should constitute a claim undet the policy j hlbney palid by the insured to a detective agency in attempting to recover the automobile, -Which had been converted by the conditional vendee, was recoverable against the company. ^ The insured's interest in an automobile sbld by him on terms of conditional sale, is tie unpaid installments, plus interest there- on, wherie thfe contract of sale provided for interest bii all de- ferred paymients, and this is the basis on which he has k right to' recover under the policy.*® § 1719. Notice of theft— Waiver. An informal notice in writ^ ing of the theft of an automobile, not accompanied by; affidavit as required by the policy, was held to he sufficient, where the agent of the insurer to whom it was given treated it as sufficient; the owner having the right to rely upon the assurance of the agent that the notice given was sufficient and that no affidavit was need- ed." By denying liability before 60 days had elapsed after the theft,, the insurer waived a provision that the policy should be void unless 24Schmid v. Heath, 173 111. App. 649 — Cal App. — , 191 Pac. 84 (1920). ( (1912). Hearing denied by Suprenie Court. 86 Callahan v. London & L. Fire Ins. 27 O'Connor v. Maryland Motorcai Co., 98 Misc. S89, 163 N. Y. Supp. 322 Ins. Co., 287 111. 204; 122 N. E. 489, 3 (1917). A. L. R.,787 (1919). 26 Buxton V. International Ind. Co.,, } 1516 LAW OF automobiles' the insured, within 60 days of the loss, rendered a sworn state- ment of loss to the insiu-er.** Where the insurpd sought to recover insurance for the loss of a car stolen on March 11th, and the insurer disclaimed absolutely that it had issued any policy of an earlier date than March 12 th, the insured was relieved "from the necessity of going through an idle ceremony in presenting proofs of loss." '^ § 1720, Proof of theft. Since an action to recover on a policy of automobile insurance against theft is a civil action, the plain- tiff is required tO/prove his case only by a preponderance of the evidence, the rule being the same as it is in civil actions gen- erally.^" He must, however, in order to recover, prove every ele- ment of the crime of larceny, and for the elements of this crime resort must be had to the criminal law.'^ The fact that an automobile was stolen by some person or per- sons "other than those in the employment, service, or household of the assured," may be established by circumstantial evidence; and in a civil action the fact need not be established beyond a reason- able doubt.'* In an action to recover on a policy of automobile insurance, covering loss of or damage to the automobile "by theft, robbery, or pilferage by persons other than those in the employment, service, or household of the assured," the evidence given by the plain- tiff's witnesses showed that a salesman took the automobile out at night, with the permission of the agent of defendant, oh the pretense that he wanted to demonstrate it to some friends, who would be in town that night and who were thinking of buying a car; that the salesman left the automobile in line with other ma- chines across the street from a hotel while he and his friends went in the hotel, and when he came out a few minutes later the auto- mobile was gone; that the automobile was never recovered; that the salesman was a heavy drinker, and had been drinking that evening, and that he was in need of money; that he telephoned the loss of the car to the pqlipe, but had forgotten the number, and the police could do nothing until the next morning when they obtained 28 Neal, etc., Co. v. Liverpool & L. *! Valley Mercantile" Co. v. St. Paul & G. Ips. Co., 178 App. Div. 730, 16S F. & M. Ins. Co., 49 Mont. 430, 143 Pac. N. Y. Supp. 204 (1917). SS9, L. R. A. 1915 B. 327 (1914). 29 Fodor V. National Liberty Ins. Co., 32 Kansas City Regal Autd Co. v. Old 175 N*. Y. Supp. 112 (19.19). Colony Iris. Co., 187 Mo. App. 514, 174 SOBuxton V. Interriatiohal Ind. Co., S. W. 153 (1915). — Cal. App. — , 191 Pac. 84 (1920). ^ INSURANCE 1517 the number from the manager; that he did not report the loss to the manager until the next morning, his excuse being that he could not find him, that he was away from home. The defendant offered no evidence, and the jury were directed to find for the plaintiff. Held, that while the jury would have been justified in finding that the car had been stolen under circumstances entitling plaintiff to recover, the testimony raised an issue as to the salesman's guilty participation in the disappearance of the car that required, the question of theft by a person not in the service of the defendant to be submitted to the jury.** Plaintiff proved that he, accompanied by two friends, drove the automobile aboard a ferryboat crossing the Hudson river from Englewoodj N. J., to Dyckman street, N. Y. He placed the ma- chine close up to the front of the boat, and put on the emergency brake, and stopped the engine. He, and his friends then went into the cabin before the boat started. There was no other vehicle on the boat on that trip. Some minutes later, and when the boat was out on the river, they all came out and found the machine gone, the chain at the rear of the boat lying loose on the deck, and the gate at the rear half way open. Held, to make a prima facie case of theft.8* Theft with felonious intent is shown where a discharged servant of plaintiff, whose duties while in employ of the master did not include driving an automobile, unlocked the garage and put equip- ment on the car and drove it away without the owner's knowledge or consent.'* In an action by an insurer to recover a car, which it alleged had been stolen from its assured, and for the loss of which it had re- imbursed assured, the statement by assured as a witness that his car had been stolen was inadmissible as purely a conclusion.*® In such an action the burden is on the insurer to prove a better title than the prima facie title of defendant arising from possession by purchase from a third person.*'' § 1721. Duty and liability of company when car has been recovered. A policy of insurance against loss or damage by theft is indemnity insurance, and it is the duty of the insurer, 33 Kansas City Regal Auto Co. v. Old 35pask v. London & L. F. Ins. Co., Colony Ins. Co., 187 Mo. App. 514, 174 211 111. App. 271 .(1918). S. W. 1S3 (1915). 36 Federal Ins. Co. v. Munden, — 34Chepakoff v. National B. F. Fire Tex. Civ. App. — , 203 S. W. 917 (1918). Ins. Co., 97 Misc. 330, 161 N. Y. Supp. 37 Federal Ins. Co. v. Munden, — 283 (1916). , Tex. Civ. App. — , 203 S. W. 917 (1918)., 1518 LAW OF AUTOMOBILES when loss or damage by theft OGCurs, to make the insured whole. When the car is recovered by the company, its duty is performed by restoration of the car at the place where it was stolen and pay- ment of all damages caused by the theft.** Where an automobile was stolen in Kansas City, Mo., and the insurer found it in Ottawa, 111., and after securing possession of it, took it to Peoria, 111,, and stored it, the duty of the insurer was not performed by offer to turn the car over to the insured at that place andj to pay all damages resulting from the theft. In such case the insured did not know the damage to the. car, what liens had been created against it, or the cost of returning it to the place where stolen.'® ; ; ' COLLISION §1722. ''Collision with object." The word "collision," as used in a policy insuring against loss or damage to an autoniobile resulting solely from collision with, any object, means the act of colliding; a striking together; violent contact.*" i , The word "object" rtjieans "anyt^iing , which .comes within : the cognizance or scrutiny of the senses, especially anything tangible or visible., Anything, whether, concrete or abstract, real or imagin- ary, that may be perceived or apprehended by the mind; that of which, the .understanding has knowledge." As, used in such. a. policy of insurance it includes water and land> ,'',They are not abstract or imaginary, but tangible, visible, concrete, and real, and may be perceived and apprehended by the mind; the understanding has knowledge of them." As so used it includes both perpendicular and horizontal objects, iiicluding the flat e9.rth." ., ' The word; "collision," as used in such a policy, is not confined to casfes where bo,th the colliding objects, .are in motion. "Collision with" means striking against.*^ It has been held that the driving of an automobile into a hole 38 Kansas Xity Regal Auto Co. v. Old F. Ins. Co., 60 Pk. Super. Ct. 37 (191S) ; Colony Ins.' Co., 196 Mo. App. 2SS, 19S Dougherty v. Insurance Co., 38 Pa. Go'. S. W. 579 (1917). ,Ct. 119 (1909). 39 Kansas City Regal Auto Co. v. Old *l Harris v. American Casualty Co., Colony Ins. Co., 196 Mo. App. 2SS, 195 83 N. J. L., 641, 8S Atl. 194 44 L. R. S. W. 579 (1917). • A. (N. S.) 70, 32 Ann. Cas, (1914 B) 40 Harris v. American Casualty Co., 846 (1912). 83 N. J. L. 641, 8S Atl. 194, 44 L. ,R. A. 48 Lepman v. Employers! Lia. Assur. (n! S.) 70, 32 Ann. Cas. (1914 B) 846. Corp., 170 111. App. 379 (1912). (1912).; Wetherill v. Williamsburgh City INSURANCE IS 19 six or seven inches deep and eighteen inches wide between car tracks in a city street, is not such a "collision with an object" as in con- templated by the patties to an insurance policy containing a col- lision clause.** Where an automobile was being driven on a road the sides of which sloped from the edges of the roadbed at an angle of 30 to 45 degrees into a deep ditch, and at a turn in the road the machine turned out on the side of the ditch, the rear wheels skidded !and threw the rear of the machine farther into the ditch than the front wheels, and in attempting to regain the road the right front wheel collapsed, it was held that there was nothing to indicate that the damage was caused by coUision with any object, and that no re- covery could be had.** The falling, upon an automobile, of the second floor of a garage, where it is kept, does not come within the terms of a policy of this kind.*^ The burden is on the insured to show that the damage complained of was caused by collision with some object covered by the terms of the policy.*® §1723. "Roadbed"— Cblligion with embankment at side of road. An insurance policy covered damage to the automobile by being "in collision with any other automobile, vehicle or object, excluding damages caused by striking any portion of the roadbed." Held, to cover collision with an embankment beyond the traveled portion of the roadbed. Said the court: "We cannot concede to the view that the word 'object' as used in the policy should be construed to mean 'some object similar to an automobile or vehicle.' We are inclined to the view, and so hold, that the word, 'object' should be construed in the ordinary and usual acceptation of the word, and that the rule of ejusdem generis is not applicable. The word 'object' in its proper significance implies that which is visible or tangible, and as here used should be construed in the broad, common, and usual acceptation of the word. We are more con- firmed in our view that the rule of ejusdem generis was not intended to apply to this provision of the policy by the words used in the policy itself ; for, while the policy covered damage to the auto- es Dougherty V. Insurance Co., 38 Pa. iBQ'Leary v. St. Paul F. & M. Ins. Co. Ct. 119 (1909). Co., — Tex. Civ. App. — ,' 196 S. W. 44 Hardenbergh v. Employers' Lia. As- , S7S (1917). .sur. Corp., 80 Misc. 522, 141 N. Y. Supp. 46 Hardenbergh v. Employers' Liabil- 502 (1913), rev'g 78 Misc. lOS, 138 N. ity Assur. Corp., 80 Misc. S22, 141 N. y. Supp. 662. Y. Supp. 5132 (1913). 1520 LAW OF, AUTOMOBILES mobile by being in collision with any other automobile, vehicle, or object, it specifically excludes 'damage caused by striking any portion of the roadbed, or by striking the rails or ties of street, steam, or electric railroads,' and if the contention of the appellant that the word 'object' was intended to cover only 'some object simi- lar to an automobile or vehicle' were correct, then there would be no need for setting out in the policy the specific exception above noted. "Appellant further contends that there can be no recovery in this case, in that the evidence shows that whatever damage may have been done to the autornobile was caused by its striking the embankment which is part of the roadbed,, and the poliqy specifically excluded 'damages by striking any portion of the roadbed.' This con- struction of the word 'roadbed,' when used in a policy of this, char- acter, should not be adopted. We must keep in mind the fact that the term 'roadbed' as here used refers to streets and public high^ ways, and has no reference to railroads. We hold that the term 'roadbed' applies only to that portion of the road which was con- structed and used for travel. In this view of the meaning of the word 'roadbed' the embankment was not such a part of the road- bed as to fall within the exemption contended for by appellant." *'' Suit was brought to recover for damage to an automobile under a policy insuring against loss or damage caused solely by collision with another object, either moving or stationary, and the petition alleged, among other things, that damages were sustained to said automobile caused solely by collision with another object, the same being the bank or side of the ditch on what is known as the Sand Bar Ferry road; said automobile leaving the roadbed of said road and running into the ditch on the side of said road, and into the bank on the farther side of said ditch and turning over. There was a clause in the policy, a copy of which was attached to the petition, which formed a part of the sentence referred to and on which plaintiff relied for recovery, which provided: "Excluding, however, all loss or damage caused by striking any portion of the roadbed or any impediment consequent upon the condition there- of." It was held that this petition was not subject to general de- murrer; that when the plaintiff averred that he had left the road- bed, he did not, as matter of law, allege facts which show that the accident fell within the exception quoted.** « Rouse V. St. Paul F. & M. Ins. Co., *8 Hanvey v. Georgia Life Ins. Co., — Mo. App. — , 219 S. W. 688 (1920). 141 Ga. 389, 81 S. E. 206 (1914). INSURANCE 1521 § 1724. Gutter and curb as part of roadbed. The curbing or curbstone of a street has been held to be a "portion of the road- bed," in the sense of precluding recovery for damage to the in- sured's automobile due to collision therewith^ under this excep- tion.*' In a suit to recover under a policy insuring against loss or dam- age to an automobile caused solely by collision with another object, excluding, howjever, all loss or damage caused- by striking any por- tion of the roadbed, tjiere was evidence that iJie plaintiff was driv- ing his automobile on a roadway in a park, and while descending a hill it became unmanageable, and slipped or skidded so as to thrust the rear wheels across the guttering adjacent to the roadway, and a,cross a grass plat two feet wide between the guttering and the sidewalk, where the rear wheels collided with the sidewalk, which caused the machine to head about, jump over the sidewalk, and overturn backwards, falling across the gutter and upon the road- way; that the gutter had ho perpendic«lar curb, as is usual on the side of city streets, but was about 20 inches wide, about 3, inches deep in the center and was level with the roadway and grass plat on the sides; that the sidewalk was about 6 inches higher than the grass plat; that the collision with the sidewalk was the proximate cause of the damage done to the automobile; that the rear wheels collided with the sidewalk with such force as to tear the tires from the wheels, but that the skidding across the gutter may have dis- severed the tires. It was held that the trial court properly instructed that thei gutter was no part of the roadbed, and judgment for plaintiff was affirmed. On the question of the gutter forming a pai:t of the road- bed the court said: "It is urged that this instruction inheres with error for the reason the gutter is within and a part of the street or roadway. The proposition is, no doubt, entirely true with respect to the power of a city to construct, improve, and maintain streets, and is usually so declared. But though such be true, it is obvious , that the gutter constructed in the street or on the roadway and along the side of the roadbed is not a portion of the roadbed when, con- sidered with reference to the subject matter contemplated in this insurance policy. The language employed in insurance policies is to be construed so as to effectuate the insurance and not for the purpose of defeating it, for the insurance vouchsafed is the very object and purpose of the contract. Therefore, if the language *9 Gibson v. Georgia L. Ins. Co., 17 Ga. App. 43, 86 S. E. 33S (1915). B. Autos.— 96 1522 LAW OF AUTOMOBILES is- in the last doubtful, it is to be more strictly construed against the company, who selects and incorporates it into the policy, and in such a way as to protect the interests of the insured who had paid a consideration for the indemnity. In this view, the courts construe exemptions from liability, incorporated in insurance p61i- cies on account of injuries incurred on railway roadbeds to refer alone to the foundation on which the superstructure of the rail- road, consisting of the ties and rails, is rested, and not to that portion of the right of Way beyond. "Here the policy does not exclude loss or damage caused by striking any portion of the roadway or street, but rather confines the exemption of liability to the more restricted area of the 'road- bed.' In common roads the term 'roadbed' refers to the whole material laid in place and ready for travel. Obviously the road- bed involved here consisted of that portion between the gutters on either side which was constructed for Ixavel, and not to the gutters designed for the purpose of -draining water from the adjacent road- bed." «" § 1725. Automobile backed and falling into elevator shaft in a building — "Entering or leaving any building." An automobile was driven from a street to a point 30 feet inside a building, then halted and afterwards backed into an open elevator shaft and thus precipitated to the, ground floor below. It was held that the owner was entitled to recover for damage to the car under a policy which by its terms is "extended to cover damages to the automobile and equipment herein insured caused by collision with .ah other vehicle, or with any animal or object or any obstacle placed as a barrier; or in entering or leaving any building adjacent to any roadway; but nothing in this clause shall be held as making this company liable^ for damages caused by striking any portion of the gutter, roadbed, or ditch, or by striking street or a steam rail- road rails or ties." In construing these provisions the court said: "The rider reads: 'Collision with any object or in entering or leaving any building.' The first phrase, standing alone, would mean an object anywhere, unlimited as to place; and this was understood by the insurer when it says: 'Nothing in this clause shall be held as making this com- pany liable for damages caused by striking (collision with) any portion of the gutter, roadbed or ditch,' etc. 60 Stix V. Travelers' Indemnity Co., 173 Mo. App. 171, 157 S. W. 870 (1913). INSURANCE 1523 "Is it not a fair inference, based upon their own interpretation and coming after the words 'entering or leaving any building,' that it was intended to include all accidents the result of collision, except those especially excepted; and is it not another fair inference,, when gutters, roadbeds, and ditches were excepted, that it contemplated a liability for damages caused by striking any other part of. the earth? To hold that the phrase under discussion would mean col- lision upon entering or leaving a building and not while inside a building, as asked by the a,ppellant, would nullify the; intendment of this policy. ,,The disjunctive 'or' prohibits such thought. Under this policy the insurer is liable for striking an object without re- gard to the place wher^ it might occur and it is liabJe for, any damage to the automobile on entering or leaving the building from accidents not caused by collision." bi § 1726. Running aixtomobile into river. A policy of insur- ance carried the following rider: 'fin consideration of an additional premium of $36 this policy also covers, subject to its other condi- tions, damage to the automobile, and equipment * * =•? by being in collision during the period insured with any other automobile, vehi- cle or object, excluding f * .* dapiage caused by i striking any por- tion of the roadbed or by striking the rails or tips of street, steait^ or -electric railroads, etc." ' , , s In, an. action to recover urider this provision for damages to the ;automobil.e! insured, it appeared that.^rtrhUe, the maqljiine was being u^ed by an. agent of :the, plaintiff he accideritally ran it off the main rog,d,and down a bank of three or four feet into a river, causing the damage in question. The court held that the accident was not covered by the, provision mentioned, and in part sa;id: "This accident is so obviously outside of the quoted stipula- tion of .the , policy that discussion seems superfluous. In order to bring the case within , the policy, there, must have been: First, a collision ; second, the collision must haye been with, another auto- mobile, vehicle, or somewhat similar object, ejusdem generis; and, third, it must not have been with aiiy portion of the roadbed, meaning the gfoiind on which the machine ^as running or attempt- ing to run. No such collision was shown as that insured against." ^^ § 1727. Damages due to collision after upsetting. Where it appeared that an automobile was driven down a street at a high rate BlWetherill V. Williamsburgh City F. 1S7 Wis. 433, 147 N. W. 360, Ann. Cas. Ins. Co., 60 Pa. Super. Ct.i 37 (191S). 191S A 626 (1914). szWettengel v. United States Lloyds, 1524 LAW OF AUTOMOBILES of spfeed, and when the driver tried to turn into an intersecting street at the brink of a hill, the machine upset and went over the hill, striking a sluice box and colliding with a tree, both outside the roadway, there could be no recovery under a policy insuring the owner against damage to the automobile, "if caused solely by col- , lision with another object, either moving or stationary (excluding, however, all loss or damage by fire from any cause whatsoever; all loss or damage caused by striking any portion of the roadbed, or by striking street or steam railway rails or ties ; and all loss or damage caused by the upset of the injured automobile unless such upset is a direct result of such a collision as is covered hereby) ." ** § 1728. Damaged due to "upsets"— Oar falling from bridge and colliding with water, etc. An automobile, was insured against loss or damage resulting solely from collision with any object, excluding however, "damage resulting from collision due wholly or in part to upsets." While it was being driven over a bridge it crashed through the guard rails on one side and was pre- cipitated into the stream below. The machine turned upside down after leaving the bridge and rested in an inverted position on the bed of the stream. It was damaged to the extent of $1,200. In reversing judgment entered on a directed verdict for the defendant, the court said: "It cannot be said that the collision of plaintiff's automobile with the water and land under the water was caused by an upset. It may be that the car upset by reason of contact with the water or the earth, but the collision was not due to an upset — the upset may have been the result of the collision. The pro-^ vision in the policy cannot mean that where a collision has first taken place, there can be no recovery because, as .the result of the collision, the machine is upset. When the car ran off the bridge dy- namic force and gravitation determined the position in which it would strike first the water and then the bed of the stream. Its final position was merely incidental to the collision." '* § 1729. Suit on policy for total loss— Pleading value of car. Plaintiff brought suit to recover under a policy of collision insiirr ance for, the total loss of his machine, praying to recover the full amount of the policy, but without alleging the actual value of the car. The defendant's answer denied total loss of the car, and also alleged depreciation in value of same since the insurance was 68Stuht V. United States F. & G. Co., 83 N. J. L. 641, 85 Atl. 194, 44 L. R. A. 89 Wash. 93, 1S4 Pac. 137 (1916). (N. S.) 70, 32 Ann. Cas. (1914 B) 846 B* Harris v. American Casualty Co., (1912). INSURANCE 152S written, and that its value at the time of the accident was only $400. It was held that the petition necessarily alleged the value of the car, in view of a statute providing that no company shall take a risk having a greater ratio than three-fourths the value of the property insured, which value shall not be questioned in any proceeding. Held, further, that the issue aS to the value of the car was raised by the answer and that defendant could not com- plain that the-petition did not properly plead such issue.** 55 Wolff V. Hartford Fire Ins. Co., — 6S0, that—, 'At all events, when we con- Mo. App. — , 223 S. W. 810 (192^. sider this entire record, petition, answer Valued policy law, see ante, § 1623. and the testimony adduced, we think "This plaintiff's reply put. in issue, so defendant must be treated as having that the value of the insured property waived the imperfections of the plead- became a substantial issue in the case and ing, and the same should be held good the record discloses the parties so treated enough after verdict.' " Wolff v. Hart- it. In light of this fact we can but ford Fire Ins. Co., — Mo. App., — , 223 hold, in the language used in Boulware S. W. 810 (1920). V. Insurance Co., 77 Mo. App. loc. cit. INDEX [eeferences are to sections.] ABANDONMENT— (See Insurance.) ACCESSION— (See Sales.) ACCIDENT— defined, 1632. driver required to give name, etc., in case of, .S7 wrongfully leaving place of, 1601. sufficiency of evidence, 1602. ACCIDENT INSURANCE— (See Insurance.) ACTION— (See Warranty.) ADDRESS— (See Regulation.) ADJUSTER— (See Insurance.) AGENT— (See Insurance; Regulation.) AGENT AND MANUFACTURER— (See Manufacturer; Sales.) abandonment gives right to cancel order; 1465. accepting agency for other cars as breach of agency contract, 1464 "agency" defined, 1440. agency for automobiles as including taxicabs, 1447! agent's commission, 1470, 1471, 1472, 1478. authority of agent to warrant, 1402. "best energies of agent," 14S2. breach of contract by agent to pjirchase, 1473. measure of daniages 1474, 147S. "current catalogs," 14S4. , damages for breach by agent, 1474, 147S. damages for breach by M'f'r, 1476. loss of profits, 1477. sale by M'f'r in agent's territory, 1478. 1527 • 1528 INDEX [references are to sections.] AGENT AND MANUFACTURER— Continued, "dealer" defined, 1441. deposit, forfeiture of, 1461. deposit, recovery of, on cancellation or breach of contract, 1460. description of cars, indefiniteness, 1449. discharge of salesman for misconduct, 14S3. dissolution of partnership acting as agent, 1466. excloiSiive agency contract, validity, 1445. "exclusive agfent," 1478. failure of agent to return old part to manufacturer who replaced it with new,, 981. measure of recovery, 981. fixing retail price, validity, 1446. fraud of agent, liability of M'f'r 1479. lien of agent on consigned cars, 144^. misrepresentations made on authority of M'f'r, 1403. mutual abandonment or rescission, 14S8i mutuality of contract, 1448. notice essential to cancellation, when, 1459. ordering cars, 1467. proof of agency, 1442. proof of employee's authority to make agency contract for M'f'r, 1431. provision that M'f'r need not honor order, 1469. ratification of agent's acts, 1450. refusal to deliver cars after acceptance of order, 1468. right of M'f'r to cancel contract requiring satisfactory performance, 1462. service on agent as service on manufacturer, 1444. set off of one breach against another, 1463. threatened cancellation of contract by M'f'r, duty of agent, 1457. waiver of right to cancel contract for breach, 1456. waiver of terms of agency contract, 1455. AMBULANCE— negligence of driver as imputable to nurse, 507. right of way of, 244. ANIMALS— (See Frightening Horses.) collisions with, 888-901 animals unlawfully at large, 899. bull led by rope halter, 895. colt at large, 898. damage to automobile, liability owner of animal, 892. dog, 889. driver walking in highway, 902. herd of cattle, 897. hogs running under automobile, 891. horse led behind buggy on left side of street in emergency, 893. horse led by long rope, 894. horse tied to hitching post, res ipsa loquitur, 896. horseback rider, 901. ' ' INDEX 1S29 [hepeeences are to sections.] ANIMALS— Continued. instructions to jury, 889, 899. mule, ridden in highway, backing into collision, 900. turkey, 890. frightening horses, see Frightening Horses. overturning of automobile due to striking dog, 528. injury to occupant,. 528. pedestrian in charge of when injured, 310, 311. APPEAL— (See Insurance.) APPLICANT— (See License.) APPROACHING— defined, 283. ARMY— (See Federal Laws; Regulation.) ARREST— firing at car to cause driver to stop, 1556. illegal, liability of officer for loss due to, 1555. without warrant, 1SS4. ASSAULT AND BATTERY— ' to do great bodily harm, 1590. with automobile, 1589, by person subject to vertigo, 1589. with intent to murder, 1591. AUTOCAR— ■ defined, 4. ATTRACTIVE NUISANCE— truck as, 1104. ' AUTOMOBILE— as dangerous instrumentality, 15, 16. as stage coach, 6. as carriage or vehicle, 19-23. care required of driver, see Motorist; Negligence. characteristics, 24. collisions, see various headings of this index with reference to kind of vehicle collided with, dangerous vehicle, IS, 16. defined, 1-6. development, 9. effect of operating unregistered machine, see Unregistered Automobile. effect of operating without a license, see Unlicensed Operator. excluding from highways, 35. for hire, see Automobile 'in Public Service. ■ history, 8, 9. 1530 . INDEX [rehekences are to sections.] AUTOMOBILE— Continued. horses tend to frighten at, 2S. _ included in "teams, carts and carriages," 19. in interstate commerce, see Interstate Commerce. inventions, 8, 9. ' is lawful conveyance, 13. judicial notice as to, 27. laws regulating traction engines not applicable to, 17S. laws relating to animals not applicable, 18. left on car track, 224. left unattended in highway, 222. started by gravity, 223. started by third person, 222. , liability of M'f'r, see Manufacturer. licensing, see License. noises incident to operation, 26. as negligence, 26. not a. nuisance, 14. not classed with ferocious animals, 17. on the highways, see Highways. origin of word, 1. popularity and success, 11. power to regulate, 34. regulation, see Police Power; Regulation. right to use on highways, 147. statutory definitions, S. taking without consent of owner, prosecution, 1S96 all aiding are principals, 1597. ' as larceny, 1598. taxing, see Taxation. tendency to frighten horses, 25. terms defined, 4. use not negligence per se, 148. use on highways, 231. use of highways, see Highways. use of turnpikes, see Turnpikes: used in evading federal tax, 143. uses of, 10. AUTOMOBILE BICYCLE— defined, 4. I AUTOMOBILE IN PUBLIC SERVICE— as forming class for regulation, 1491. automobile as public hack, 1497. backing down, hill, injury to passenger, 1509., baggage, obligations in carrying, 1505. chauffeur is servant of owner, 1510. collision, injury tp passenger, 1508. common carriers, 1502. ; ' motorist carrying others. to and from work for hire is not, 1503. INDEX 1531 • [references are to sections.] AUTOMOBILES IN PUBLIC SERVICE— Continued, duty to carry according to contract, 1504. "hackney coach," 1496. hacks and hack stands — regulation, 1493. ordinance vesting discretion in officer as to whom permits shall be given, 1494. rights of abutting property owner, ISOO. in interstate commerce, 1489. license required by city through which car operated, ISOl. license to operate is mere privilege, 1492. revocation, 1492. obstructing streets, 1499. passengers injured, 1S06 — 1509. ' "plying for hire," 1498. power of city to operate bus line, 1488. "public hack," 1495, 1497. "pubUc stand," 1493. regulation of, 1486. by municipalities, 1487. by Public Utilities Comniissions, 1490. revocation of license, 1492. sight-seeing car as public hack, 1495. sight-seeing car, liability to passengers, 1506. skidding, injury to passenger, 1507. "soliciting," 1487. taxing, 109. undertaker as carrier for hire, 1511. JITNEYS ■ , ,, applicant for license required to state he is owner of, validity, 1523. as forming class for legislation, 1519, 1520. bond of indemnity — failure of insured to notify insurer of accident, 1544. may be required, 1532. "operated in service of common carrier," driving to repair shop, 1546. priority of claims against 1534. prorating among several judgments, laches, 1535. successive recoveries against, 1536. territorial extent of liability, 1543. who may recover against 1533. certificate from public utilities Com'n and license required, 1526. common carrier, 1513. defined, 1512. duty of operator to passengers, 1514. ' • ■ enjoining operation, street car company complainant, 1522.- ' excluding from certain zones, 1524. forbidding taking on or letting off passengers near street railway, 1525. injury to passenger, prima facie case, 1515. license may be required to operate through city, 1527. license or occupation fee, 1528-1531. graduated according to capacity, 1528. prohibitive as to certain streets, 1529. 1532 INDEX [references are to sections.] AUTOMOBILES IN PUBLIC SERVICE— Continued. . not a tax, 1530. five per cent of income, 1S31. "operated in service of common carrier," driving to repair shop, 1S46. operating unlawfully, all persons assisting are guilty, 1S21. power of municipality to regulate, IS 18. prohibitive tax to operate on certain streets, 1529. regulation, 1516, 1518. jitney operating under license previously issued, 1517, jitneys as forming class for, 1519, 1520. res ipsa loquitur, injury to passenger, 1515. surety on bond, liability of — bond for more than required amount, 1538. bond wrongly, issued on misrepresentations, 1539. comparative liability of surety company and gratuitous surety, 1545. directly to injured person, 1537. failure of insured to notify insurer of accident, 1544. jitney operated by person other than owner on commission basis, 1540. jitney operated by vendee, sale illegal, 1542. jitney rented to another by owner, 1541. territorial extent of liability, 1543. TAXICABS common carrier, 1550. defined, 1547. protection of passengers from injury to employees, 1551. publit conveyance, 1548. public utility, 1549. refusal of passenger to pay fare, effect, 1553. termination of relation of passenger and carrier, 1552. AUTOMOBILE INSURANCE— (See Insurance.) AUTOMOBILE LINE— defined, 4. ' AUTOMOBILE SCHOOL— liability for negligence of student, 1159. AUTOMOBILE TERMS— "autocar," 4. "auto stage," 4. "automobile-bicycle," 4. "automobile line," 4. "automobilism," 4. "automobilist," ''autotruck," 4. "four-wheel carriage for passengers," 4. "joy riding," 4. "locomobile," 4. "motor car," 4. INDEX 1533 [references are to sections.] AUTOMOBILE TERMS— 'Continued, "motorcycle," 7. "motor vehicle," 4. "motorist," 4. "public service motor vehicle," 4. AUTOMOBILES, COLLISIONS BETWEEN— attempting to pass in front of turning car, 798. backing, causing collision between other machines, 801. colliding with automobile parked at curb, 790. colliding with motorcycle while passing vehicle moving in same direction, 791. collision caused by driving in front of street car, 800. deflecting one car against pedestrian, 383. driving close behind another car, colliding when front car stops, 794. evidence of custom to signal intention to stop, 793. failure to comply with own signals as negligence, 799. front car turning into intersecting way, 796. head-on collision, 788. last clear chance, collision at street intersection, 833. leaving theater on signal from vehicle officer, 806. left side of highway, automobile on, 78S-788. look, motorcyclist looking down at engine, 803. look to rear before turning, ordinande requiring, occupant looking, 797. overtaking and passing, 807-811. ' failure of front car to give room, 808. instruction as to duty of front car, 808, 809. turning too short after passing, 809. passing on right as forward car turns in same direction, 810. colliding with car standing on left side of road, 811. parked car, colliding with, 790. passing vehicle moving in same direction, colliding with motorcycle, 791. racing in highway, 802. rear wheels sliding in ruts, 789. riding with leg over rear door when injured, 80S. sitting on floor between seat and hood when injured, 804. skidding onto left side of street, 787. standing automobile, man underneath, 226. stopping or slackening speed without tvarning to vehicles in rear, 792. evidence as to custom, 793. street mtersections, collisions at, 812-833. car stopped near corner, struck by unlighted truck, 828. cutting corner, 820. ' duties and rights generally, 812, 814. emergency, acting in, 832. excessive speed, 818, 830. excessive speed, failure to signal, 831 excessive speed of defendant, plaintiff acting in emergncy, 832 failure to see ca.r in view, 827. fire department vehicles, 817. illustrative cases, 813. 1534 INDEX [heperences are to sections.] AUTOMOBILES, COLLISIONS BETWEEN^Continued. last clear chance, 833. reducing speed then starting faster, 829. right of way, construction of statutes and ordinances relating to, 816. right of way, driving in front of car entitled to, 819, right of way, duties and rights when one car has, 814, 81S. right of way, failure to'give car moving at excessive speed, 81S. right^ of way, fire department vehicles, 817. right of way, instruction to jury, 81S. signal, failure to, excessive speed, 831. signal, failure to, or slacken speed, 826. skidding at crossing where view obscured, 825. slacken speed, failure to, or to signal, 826. turning to left^ emergency, 832. turning to left to avoid collision, 823. unlighted truck colliding with car stopped near corner, 828. view obscured by other vehicles, 824. view obscured, skidding on wet street, 82S. wrong side of street, plaintiff on, 821. , wrong side of street, truck swerving onto, 822. struck by street car causing collision with another machine, 800. turn to right, unable to, out of rut, 784, 789. turning car, attempting to pass in front of, 798. turning into intersecting way, struck by car following, 796. turning to left on meeting, 783. turning without warning to cars in rear, 795. warning signal, driver failing to comply with own, 799. collided with from rear, 799. warning, stopping or slackening speed without, 792; warning, turning without, 79S. . wrong side of highway, autom'obile on, 78S-788. AUTDMOBILISM— defined, 4. * AUTOMOBILIST— (See Motorist.) defined, 4. AUTO STAGE— defined, 4. AUTOTRUCK— defined, 4. BACKING— (See Negligence; Pedestrian.) against parked car, 859. as negligence, 225. colliding with horse, 861. onto street car track, 634. out of driveway onto car track, last clear chance, 670. out of garage, 225. INDEX 1535 [references are to sections.! BACKING— Continued. street car backing into Y, 653. striking street sweeper, 491. train, see Trains, Collisions' With. witliout warning, 225, 860. ; without warning, injury to cliild, 432.' res ipsa loquitur, 432. BADGE— of licensed operator concealed at time of accident, 260, BAGGAGE— (See Automobiles in Public Service.) BAILMENT— (See Garageman; Repairman.) BALL— (See Children.) BANKRUPTCY— (See Insurance.) BARRIERS— (See Defective Highways.) BELL— (See Occupant; Signal Device; Trains, Collisions With.; BICYCLE— history of, 12. held to be, and not to be, vehicle or carriage, 29, 30. BLIND— (See Incapacitated Persons.) BOND— (See Automobile in Public Service; Insurance.) BORROWER— liabiUty of, 1134. liability of owner for acts of, 1128-1133. BRAKES— . defective, 152, 162. defective, care required of, motorist, 152. defective, permitting children to play on automobile, 428. duty as to, 162. efficient and sufficient, 162. engine as brake, 163. evidence as to condition, 162. independent, 163. "two independent brakes," 163. BREACH- (See Warranty.) 1536 INDEX [references are to sections.] BREACH OF PEACE— (See Prosecution.) BRIDGE— (See Defective Highways.) child injured on, see Children. is highway, 228. pedestrian struck on, see Pedestrian. B,UILDING MATERIAL— (See Defective Highways; Pedestrians.) BUNDLE DELIVERY BOY— (See Children.) BURDEN OF PROOF— (See Insurance.) in action against owner for injuries caused by driver, 1047. under statute making specified rate of speed prima facie negligence, 166. unregistered automobile, 249. ' BUSINESS PORTION— defined, 282. CANCELLATION— (See Agent and M'f'r; INSURA^•CE.) ' CARE— , •(See Chauffeur; Motorist; Negligence.) evidence of want of, 1S9. CARRIAGE— automobile is, 19, 21, 22. automobile is not, 23. bicycle as, 29, 30. CARRIERS FOR HIRE— (See Automobiles in Public Service.) CAVEAT EMPTOR— (See Sales.) CHARACTERISTICS— (See Automobile; Judicial Notice.) CHARTER POWERS— (See Construction; Municipal Corporations.) CHAUFFEUR— (See Motorist.) accepting commission on supplies, 1031. authority to bind owner for repairs, 1030. badge concealed at time- of accident, effect, 260. classification, 1029. competency, opinion evidence as to, lOlS. presumption, 160, 1229. INDEX 1537 [REEEiRENeES ARE TO SECTIONS.] CHAUFFEUR— Continued. definition and.origin of WRfd, 1023. driver in army as, 1024._ ,;, "duly licensed chauffeur," 1.025. helper on truck cranking engine, is, not, ,2,66. inexperienced, injuring pedestrian, 389. injuries to, see Owner, Liability of. intoxicated, evidence, 161. liability for acts of, see Owner, Liability of. license is personal, 100, 1027. may be revoked, 101, 1027. , license of, 1027. licensed, accompanying unlicensed operator, 265. requirement construed, 265. object of licensing, 99. of car for^hire is servant of owner, IS 10. of garageman, see Garaoeman. opinion evidence as to compfstency, 1015, origin of word, 1023. person steering towed automobile is not, 1027. position of, 1026. presumption as to competency, 1229. presumption as to skill, 160. regulation of, 1028. United States soldier as, 1024. unlicensed, see Unlicensed Operator. CHILD— (See Owner, Liability or.) CHILDREN, INJURIES TO— aged motorist, defective sight and hearing, 424. at crossing failing to look for automobile, 463. > automobile approaching from front, 4S8. automobile not seen by child, 440, 449. automobile on wrong side of street, 436, 478. automobile on wrong side, boy jumping from wagon, 478. automobile turned to left to avoid other, vehicle, 435. automobile turning towards curb after pacing vehicle, 451. automobile turning towards same side of s,treet boy running to, 462. backing without warning, 432. : res ipsa loquitiWi 432. i • ball, running after, 457. both automobile and child starting after having stopped, 43.7. boy permitted to ride on running board, 484. brakes defective, permitting children to play on automobile, 428. bridge, running suddenly onto driveway of, 460. bundle boy, struck after jumping from wagon, 474. care required of, 423. • care required of motorist, 422. " B. Autos.— 97 1S38 INDEX [references ASE to [SECTIONS.] CHILDREN, INJURIES TO— Continued. chauffeur permitting children to climb on automobile, 1103, llOf. child found injured in street, res ipsa loquitur, 485. child on sidewalk struck by skidding machine, 434. climbing on and playing about automobile, 481. climbing on running board, 482, 483. coasting in street, 446. coasting into rear wheel of truck, 447. colliding with side of automobile, 461. contributory negligence of, 423. crossing close in front, of automobile, .449-451, 460. crossing street at school yard gate, 470. crossing street in middle of block near other children, 469. deflecting ' car to avoid child, 426. depending on, heeding signal of approach, 427. driving around other vehicle, failure to see child, 468. driving. behind wagon on rear of which children are riding, 479. driving past other vehicle, child running from in front of horses, 467. diving past street car, child emerging from behind pole, 466. driving past street car under authority of statute, 466. driving through .crowd of, 429. emerging from behind — street car, 464. telegraph pole, 466. wagon, 424, 465: excessive speed, 431. steering gear failing to work, 433. failure of boys on crossing to look for automobile, 463. follo\ifing crowd, 452. football, playing in street, 448. I group, striking one of, in plain view; 430. hoop rolling in street, 445. inexperienced driver under instructor, 440, 448. injured at races, 393. ^ jumping from wagon, struck after, 473-478. last clear chance, boy on skates unlawfully holding to automobile, 444. last clear chance, coasting in street, 446. last clear chance, newsboy in plain view, 471. minor driving in violation of law, effect on right to recover for injuries, 425. motorist with defective sight and hearing, 424. negligence of person in custody of, not imputable to, 423. neither seen by the other, 440. newsboy in plain view, 471. last clear chance, 471. newsboy running in front of automobile, 472. not seen by motorist, 440, 442, 468. / struck near curb, 442. overtaken by automobile, 454. parent, child pulling away from in sudden peril, 439. parent permitting child to cross in front of automobile, 438. INDEX 1S39 ' [l!EI«S£IICES ASE TO SECTION'S.] CHILDREN, INJURIES TO— Continued. permitting, to play on automobile, 428. starting unattended truck, 428. playing in highway, autoinobile approaching from front, 4S8. playing football in street, 448. private driveway, child on sidewalk at, 441. pulling away from parent in sudden peril, 439. res ipsa loquitur, car backing without warning, 432. res ipsa loquitur, child found injured in street, 485. riding in small wagon attached to rear of wagon, 480. riding on rear of wagon, 479 autoinobile following behind, 479. rights and duties of, 423. " ' roller skater holding to automobile" in violation of law, 444. roller skating into collision with automobile, 443. rolling hoop in street, 44S. ' running after ball, 457. running against side of automobile, 461. running board — climbing on, 482. permitting boy to ride on, 484. starting while child on, 483.- running from behind street car, 464. running from in front of horses, automobile passing other vehicle, 467. running from other children, 456. running in street, overtaken by automobile, 454. running into street in play, 453-457, 459-461. running suddenly into street at night, 459. running suddenly onto driveway of bridge, 460. school yard gate, struck near, 470. sidewalk, child on, at private driveway, 441. sidewalk, struck on, 435. signal, depending on child heeding, 427. skidding machine striking child on sidewalk, 434. sled-coasting in street, 446, 447. spectators at races, injuries to, 393. speed, excessive, 431. steering gear failing to work, 433. starting after having stopped, 437. starting unattended truck, 428. starting while child on running board, 483. steering gear failing to work, 433. street car, emerging from behind, 464. striking one of group in plain view, 430. struck near curb, 442, 462. not seen by driver, 442. ' trespasser, child in street is not, 423, 445, 446, 448. turning back after running into street, 455. wagon, struck after jumping from, 473. bundle delivery boy, 474. at regular crossing, 475. 1S40 INDEX [RETERENCHIS are to SECTIONS.l CHILDREN, INJURIES TO— Continue4'. ,,; /; from rear of wagon, 476. moving wagon, 477. automobile on wrong side, 478. walking close in front of automobile, 449, 450, 451. walking in street following crowd, 452. wrong side of street, automobile on, 436, 478. CLAIM— (See Insurance; Lien.) CLASS LEGISLATION— (See Automobiles in Public Service; Classification.) classification of automobiles for regulation and taxation, 113, 114. ordinances, 87. regulation of automobiles as, 43: special law, 112. CLASSIFICATION— automobiles for hire, see Automobiles in Public Service. by municipality for purpose of license, 135. chauffeurs, 1029. for purpose of licensing and taxing, 113, 114. COASTING— automobile, negligence, 174. children, see Children. COLLISIONS- (See heading indicative of that which was collided with'.) repair wagon having right of way, 244. telephone pole in highway, 221. COLLISION INSURANCE— (See Insurance.) COMMISSION— (See^AoENT and M'f'r.) COMMON CARRIERS— (See Automobiles in Public Service.) COMMON ENTERPRISE— (See Joint Enterprise.) COMMUNITY PROPERTY— husband and wife riding in, husband's negligence imputable to wife,, 503, CONCEALED WEAPONS— (See Prosecution.) CONCURRING ACTS— (See Liability.) CONCURRING NEGLIGENCE— (See Last Clear Chance.) INDEX 1541 i[REFEM;SlCES ARE t6 SECTIONS.] CONDITIONAL SALES— • (See Sales.) CONDITIONAL SELLER— (See Repairman; Sales.) CONDUCTOR— (See Street Car Employees.) CONFUSION— (See Pedestrian.) CONGESTED STREET— (See Pedestrian.) CONSIDERATION— (See Sales.) CONSIGNMENT— (See Agent and M'f'r; Sales.) CONSPIRACY— (See Prosecution.) CONSTITUTIONAL LAW— (See License; Police Power; Regulation; Registration.) CONSTRUCTION— charter powers of municipality, 81. class legislation,. 43, 87. conflict of ordinance with statute, 91, 93. illustrations, 92. distinction between regulate and .prohibit, 88. effect of partial invalidity of statute, 41. of ordinances, 82, 83. passed under express power, 84. passed under implied power, 8S. penal, 86. of statute creating only criminal liability, ISS. of statute imposing high degree of care, 153, 1S4. one subject to be expressed in title of statute, 42, 110. ordinance requiring automobiles to stop in rear of street cars, lS4i penal statutes, 40. police ordinances, 82. power of 'municipality to impose license and taxj 122. provisions relating to conduct at intersecting highways, 190-195. rtegistration laws, see Registration. regulation as class legislation, 43. regulatory terms, see Regulatory Terms. right of way, statutes and ordinances giving, 816. same act may isffend both stktute and ordinance, 94. CONTRACT— (See Agent ^nd M'f'r; Sales.) 1542 INDEX [references are to sections.] CONTRACTOR— (See Pedestrian.) CONTRIBUTORY NEGLIGENCE— ^ (See various headings of this index.) of children, 423. CONVERSION— (See Damage to Automobile; Garageman; Insurance.) damages for, 971. CONVEYANCE— (See Private Conveyance.) CORNERS— (See Intersecting Highways.) CORPORATION- (See Owner, Liabtlity of; Resignation; Sales.) authority of secretary-treasurer to enter car in race, 393. COUNTY— (See Defective Highways.) COUNTY LICENSE— necessary in every county, 117. COURT— (See Prosecution.) CRANKING ENGINE— (See Frightening Horses; Owner, Liability of; Pedestrian.) CREDIT SALES COMPANY— (See Warranty.) CRIME— (See Prosecution, and Various Specific Offenses; Regulation.) CRIMINAL INTENT— (See Manslaughter; Prosecution.) CRIMINAL LIABILITY— statute creating, violation as negligence, 155. CRIMINAL NEGLIGENCE— (See Manslaughter; Prosecution.) CRIMINAL PROSECUTION— , (See Indictment; Prosecution.) CROSSING ACCIDENTS— (See Street Cars, Collisions With; Trains, Collisions With.) CROSSING BELL— (See Occupant; Trains, Collisions With.) INDEX 1543 [references are to sections.] CROSSING FLAGMAN— (See Trains, Collisions With. CROSSING GATES— (See Trains, Collisions With.) CROSSINGS— (See Intersecting Highways, and various topic headings of this index.) CULPABLE NEGLIGENCE— defined, 1S71, CURB— (See Insurance.) fence or barricade as, 270. requirement to drive close to, 272, 273. CURVES^ care required at, 193. where view obscured, 194. CUSTOM— (See Evidence.) CUSTOMS DUTIES— on automobiles, 141. household effects, 141. used abroad not less than one year, 141. CUTTING CORNER— (See Intersecting Highways.) as negligence per se, 197. collision between automobile, 820. injuries to pedestrians, see Pedestrians. DAMAGE TO AUTOMOBILE— average daily net earnings, 976. conversion of automobile, 971. cost of effort to preserve or restore car, 970. cost of gas and upkeep, 974. cost of hiring another machine, 974. cost of repairs, 969. cost of storage, 978. damaged parts replaced with new of better quality, 980. depreciation due to accident, 982. due to freezing, liability for stopping engine of car belonging to anotter, 984. effect of insurance carried by either party, 983. evidence as to, 98S, 986. evidence of condition or value, 1436. failure to return old part to manufacturer in return for new,- 981. infant, liability of, for damaging borrowed car, 987. loss of profits, 979. measure and elements of recovery, 968 et seq. profits, loss of, 979." 1544 INDEX [RErERENCES ARE TO' SECTIONS.] DAMAGE TO AijTOMOBILE— Continued. proof of market value by experts, 1437. qualification of witnesses as to, 98S. rental value, 975. , no machine hired to replace damaged car, 975. repair bills as evidence, 986. repairs— , , , : , , . ' cost of, 969. old parts replaced with new of better quality, 980. failure to return old part replaced with new, 981. evidence as to, 985, 986. who may testify as to, 985. stopping engine of car belonging to another, liability for damage due to freez- ing, 984. ■ ' : usable value, 972, 973. pleasure car, 973. wages paid chauffeur while car being repaired, 977. DAMAGES— (See Agent and M'f'r; Sales.) breach of contract by agent or M'f'r, 1474-1477. breach of warranty, 1433. caused by car, lien thereon in some states, 59. failure to replace defective parts, 1434. fraudulent pro''curement of exchange of automobile for land, 1421. rescission of sale by buyer and refusal 'of seller to accept', ri^ht to recover for storage and insurance, 1435. DANGEROUS INSTRUMENTALITY— (See Automobile.) liability of owner on theory of, 1042. car out of repair, 1043. DAUGHTER— (See Owner, Liability or.) DEAF PERSONS— (See Incapacitated Persons.) , motorist, aged and deaf, 424. DEALER— (See Registration; Regulation; Unregistered Automobile.) registration number of, used for private purpose, prosecution, 1587. negligence of driver for, as imputable to prospective pui'chaser, 508: FURNISHING DEMONSTRATOR OR INSTRUCTOR as accommodation to purchaser, 1120. demonstrator delivering goods for prospective purchaser, 1125. driving ca!r through congested part of city for purchalser, 1119. employee of prospective purchaser driving under control of demonstrator, 1124. instructing purchaser, 1118. owner driving while mechanic listens to engine, 1127. permitting prospective purchaser to crank car, 1123. INDEX 1545 [referencts are to sections.] DEALER— Continued. salesman demonstrating car, 1121, 1122. ' seller's employee permitting employee of prospective purchaser to drive, 1126. DEFECTIVE AUTOMOBILE— (See Manufacturer.) DEFECTIVE HIGHWAYS— (See Highways.) approaching culvert in cloud of dust, 949. barricade in street, 916. barriers or guard rails- absence of, 846, 947, 953. absence of, at curve where, at night, street appears to continue straight on, 947. ' breaking through, 9Sl, 952. ' culvert without, 949. declivity outside of highway, 948. * defective gear causing car to break through, 952. duty to erect, 946. embankment without, 950. narrow grade approaching culvert without, 953. sufficiency of, 946, 951. breaking through roadway into drain, 964. bridge approach, defective, 927. •' bridge carried away by flood, driving into river at night, 956. bridge, crossing at high speed, 932. bridge, crossing with great weight, 931. bridge entrance unlighted, 928. bridge, defective, 926, 930. bridge, missing, at night and driving over embankment, 955.- bridge railing, defective, 929. building material in street, 957, 958. bundle of papers in street, 962. care required of motorist, 910. contractor — , removing planks from culvert, 930. leaving obstruction in street, liability, 957, 958, 963. culvert, defective, contractor removing planks, 930. culvert without railings, motorist approaching in cloud of dust, 949. declivity outside of highway, 948. defect outside traveled portion, 908. defective gear causing car to break through guard fence, 952. "defective street," or street "out of repair," 906. depression — causing automobile to strike pedestrianj 936. y jolted from truck by, 937. excavation improperly refilled, 938. slight, 939. in turnpike, 966. 1546 INDEX [references are to sections.] DEFECTIVE HIGHWAYS— Continued. ditch made by street railway employees, 917. drawbridge- negligent operation of, 923. trap door in, partly open, 924. crossing upon signal from tender, 925, driving between two rows of red lights at night, 920. driving on road knowing that it is being reconstructed, 911. duties and rights of motorist, 910. and occupant, 910. duty of municipality as to its highways, 903, 946. for use by automobiles, 904. lighting, 90S. beyond corporate limits, 907. electric poles in street, 9S9, 960. v embankment, mbsing bridge at night and driving over, 9SS. embankment, skidding over, on wet road, 9S4. embankment without guard rails, 950. excavation improperly refilled, 938. excavation without warning lights, 919. fence placed in street by contractor, 963. gasoline can used by workmen in street, colliding with and exploding, 941. gravel pit outside macadamized portion of road, 935. intoxicated person, 914. jolted from truck, 937. joy riders, 913. lighting streets, duty, 90S. lights at nights-^ barricade in street without, 916. excavation without, 919. driving between two rows of, 920. bridge entrance unlighted, 928. losing control of truck, colliding with pile of stones, 940. manhole extending above surface of street, 943. narrow fill for roadway, 918. narrow grade approaching culvert, no guard rails, 953. notice on part of municipality, 909. nuisance, stones in highway as, 945. obstruction left in street by contractor, 957. papers, bundle of, in street, 962. paving blocks left in street by" city employees, 933. proof of cause of injury when object not seen beforp collision, 967. racing and testing autontobiles in street, 912,., railroad crossing, 921. roadway breaking through into drain, 964. rope stretched across highway, 922. skidding over embankment on wet road, 954. slight depression, liability, 939.' slippery street, tar and oil, 915. snowdrift left by highway officers, 934. INDEX 1S47 [REi'ERENCES ARE TO SECTIONS.] DEFECTIVE HIGHWAYS— Continued, stones in highway, 940, 944, 94S, 9S0. as nuisance, 94S. striking stone, causing car to go over embankment, 950. stump, driving over, 942. telegraph pole lying in street, 960. testing automobiles in street, 912. tree blown across park driveway, 961^ turnpike companies, duty and liability, 96S. turnpike, depression in, causing injury, 966. DEFECTIVE SIGHT— (See Incapacitated Persons.) DEFENSE— matters properly shown in, in action by pedestrian, 400. DEFINITIONS— (See Regulatory Terms ; Words and Phrases.) DELIVERY— (See Sales.) DEMONSTRATOR— (See Owner, Liability or.) DEPOSIT— (See Agent and MVr.) DEPRECIATION— (See Damage to Automobile; Insurance.) DEVIATION— (See Owner, Liability or.) DISCOVERED PERIL DOCTRINE— (See Last Clear Chance.) explained and applied, 202. DISCRIMINATION— (See Class Legislation; Registration.) ordinances, 87. DISEASE— (See Manslaughter.) DOG— (See Animals.) DOUBLE TAXATION— (See License Fee; Taxation.) DRAWBRIDGE- (See Depective Highways.) 1548 INDEX [references are to sections.] DRIVER— (See Chauffeur; Motorist; Occupant.) struck while crossing street from rear of wagon, carrying armful of pies, 341. DRIVER OF TEAM— (See Frightening Horses.) struck while walking in highway "driving team, 902. DRIVEWAY— (See Children; Pedestrian.) DUE PROCESS OF LAW— (See Registration.) ELECTRIC POLES— (See Defective Highways.) EMPLOYEES— as fellow servants, see Fellow Servants. in joint enterprise, see Joint Enterprise. in streets, injuries to, 486 et seq. automobile on wrong side, injury to traffic officer, 494. backing automobile, 491. carrying wood from pile at night without light, 497. laborer working at night, 493. police officer struck while on duty, 486, 494.' ' prima facie case, 487. red light required by law, working without, 499. relying on warning being given, 488. rights and duties of, 486. street car employees crossing street from car, 496. street paver striick, 489. street sweeper struck by backing automobile, 491. street sweeper struck from rear, 490. sweeping snow from car track, 492. - ;; ^ telephone employee working at manhole, 499. i ■ traffic officer colliding with obstruction while eicceeding speed limit, 495. worker on floor of private subway used by automobiles, 498. working at night, 493, 494, 49S, 496,' 497, 499. ■ , street car employees, see Street Car Employees. EMPLQYEES OF. GARAGE— (See Garageman.) ENGINE— (S^e Traction Engines.) as brake, 163. EQUAL PROTECTION OF LAWS— regulation of automobiles, 43. ESTOPPEL— (See Insurance; Sales.) INDEX 1549 [references are to sections.] EVIDENCE— (See Damage to Automobile; Garaoeman; Insurance.) as to speed-^ as shown by 'photo speed recorder, 1009. based on speedometer, 1007. bruises received by occupants of car, lOOS. comparing speed with that of other moving objects, 1001. description of speed, 1000. determined from exhaust of engine, 996. distance traveled by car after accident, 998. effects of collision, 1004, lOOS. estimated from noise of automobile, 995. intoxication of driver, 1006. intoxication of witness at time of accident, 992. opinion based on marks made by wheels in stopping, 997. opinion evidence, 988-990. opinion not formed until after accident, 993. opportunity of witness to observe, 994. partiality of witness, 1011. photo speed recorder, 1009. preliminary examination as to qualification of witnesses, 991. qualification of witnesses, 989, 990. rate of speed at other places, 1003. rate of speed on other occasions, 1003. rate of speed such as to attract attention, 1002. res gestae, 1010. skidding after application of brakes, 999. speedometer, proof of reliability, 1008, 1009. speedometer, testimony based on, 1007. as to stopping automobile — competency of chauffeur, opinion as to, lOlS. distance in which stop was actually made after accident, 1019. experiments in stopping automobile at place of accidents, 1016. judicial notice of distance in which street car can be stopped, 1021. judicial notice of means of stopping, 1022. ' : ' operator with only one foot, 1020. opinion a? to competency of chauffeur, lOlS. opinion of competent operator, loaded truck, 1013. opinion of expert, 1012. opinion of motorman as to stopping car, 1014. possibility of stopping, 1014. stopping similar automobiles, 1017. wheel marks as showing attempt to stop, 1018. as to crossing signals having been given, 744. as to w.arning signals having been given, 188. burden of proof in action against owner, 1047. cause of accident, when object collided with not seen before collision, 967. character of horse frightened" by 'automobile, 572. condition or value of automobile, 1436. control of automobiles, 1052. custom to signal intention to stop, 793, 845. IS 50 INDEX [references are to sections.] EVIDENCE— Continued. damage to automobile, 98S, 986. excessive speed, sufficiency, 357, 3S8. failure to develop rated horse power, 140S. intoxication as, in manslaughter case, 1S72. intoxication of motorist, 161. judicial notice, see Jtjdiciai. Notice. . ' leaving place of accident wrongfully, sufficiency, 1602. noise of autonjobile, S82. of condition olf brakes, 162. of negligence, rate of speed, 1608. of speed af place other than accident, 1S76; 'of want of care, 1S9. owner and chauffeur, relationship, 10S3. ownership, proof of, 1049. car registered in defendant's name, lOSO. plea of general issue admits ownership, 1051. name on vehicle, 1066. possession as, of ownership, 1374. presumption of skill of driver, 160. probable conduct of pedestrian when confronted with danger, 307. proof of agency, 1442. proof of employee's authority to make agency contract for Manufacturer, 14S1. proof of market value by experts, 1437. . proof of ownership of repaired car, 1339. proof of repairs, 1338. quiet zone signs, introduction to prove negligent speed, 167. repairs to automobile, 98S, 986. res ipsa loquitur, see Res Ipsa Loquitur. . , scope of employment, see Owner, Liability of. skidding as, of negligence, 220. speed, 165. statutory prima facie evidence, 166. inabUity to stop within distance objects discernible, 168. state of mind of plaintiff at time of collision) 867. sufficiency in manslaughter prosecution, 1575. team otjier than plaintiff's frightened by same automobile, 575. verified copy of application for license, 120. warning signal by motorman, 652. warning signal was or was not given, 188,, 684. EXCISE TAX— (See Tax.) and privilege tax, 108. EXEMPTION— (See Taxation.) automobile exempt from execution, when, 1439. EXPERIMENTS— (See Evidence.) INDEX ISSl [references are to sections.] EXPERT TESTIMONY— danger of operating automobile in certain conditions, 159. of conduct of chauffeur at time of accident, 1S9. that automobile could be operated safely in circumstances, 171. EXPIRATION— (See License.) EXPLOSION^ (See Garageman.) EXPLOSIVES— (See Filling Stations.) EXPRESS WARRANTY— (See Warranty.) FAIR— (See Pedestrian.) pedestrian injured while crossing race track, 396. racing car leaving track, injury to officer, 39S. state holding, liability due to racing car leaving track, 393. FALSE REGISTRATION— (See Registration.) FALSE REPRESENTATIONS— (See Insurance.) in application for license, 118. FEDERAL LAWS— automobiles carrying gasoline on passenger vessels, 142. automobile in mail service subject to state regulations, 140. automobile in naval service during war not subject to state laws, when,' 139. automobile used in fraudulent evasion of tax, 143. customs duties on automobiles, 141. interstate commerce, regulation of by states, 144. interstate commerce, see Interstate Commerce. FOLLOW SERVANTS— (See Occupant.) driver and occupant, 510. FENCE— (See Defective HiGHWArs.) FENDERS— ordinance requiring on motor trucks, validity, 75. FEROCIOUS ANIMALS— (See Automobile.) FILLING STATIONS— (See Garage; Garageman.) as nuisance, 1270-1272. explosion of gasoline, 1313-1314, ISS2 INDEX Irei-brences are to sections.] FILLING STATIONS— Continued. injoining maintenance of, 12>72,j 1273. i pumps in street, power of legislature to authorize, 1274. pumps in street; power of municipality to permit,. 1,27.5. revocation of permit, 1276. revocation of permit for, 1276. storing explosives as nuisance, 1270, 1271. violation of ordinance, injunction, 1273. FIRE CHIEF-r liability of, for acts of subordinate driver, 1045. FIRE DEPARTMENT— (See Occupant.) application of speed regulations to, 169. ' captain with control over driver, S31. collision with street car, 607. driver for, and other Tnember as enga,ged in joint enterprise^ 519. negligence of driver as imputable -to other- inCinber, SOS. ' right of way, collision at street intersection, 817. right of way of,' in streets, 607. FIRE INSURANCE— (See Insurance.) FLAGMAN— (See Trains, Collisions With.) FLYING SWITCHES— (See Trains, Collisions With.) FOOTBALL— ., (See, Children. ) . FOREIGN CORPORATION^ (See Nonresident.) FOR HIRE— . . , (See Automobiles in- Public Service.) license to operate does not authorize carrying passengers, 261. FRAUD— (See Agent and M'e'r; Sales; Warrants".) FRAUDS, STATUTE OF— (See Sales.) FREEZING— (See Damage to Automobile.) FRIGHT— (See Pedestrian.) FRIGHTENING HORSES— assisting to get team past automobile, 567. care required of motorist, 567. INDEX 1553 [references are to sections.] FRIGHTENING HORSES— Continued, automobile on wrong side — continuing near horse, 562. curtains flapping, S63. ■' • ' . calling to motorist as signal to stop, S84. "chugging" of automobile passing team, 580. cranking engine near team, 579, curtains flapping, 563. ' driving close to team, 561, 562, 564; ■ i splashing mud, 561. driving horse known to be afraid of autom'obiles, 572. driving team by standing automobile, 573. duty and rights of driver of horses, 571-573. duty of motorist upon signal from driver of team to stop, 585. duty of motorist when driver of team giv6s no signal, 586. duty of operator generally, 552, 553. duty to stop engine, 555. emission of vapor or steam near horses, 557. engine running while automobile stopped at side of road, 556. ' evidence of character of horse, 572.' evidence of other team frightened by saftie automobile, S'75.' excessive speed, 5^8, 559, 565. failure to take precautions ofter frightening team, 581. last clear chance, 581. holding to frightened horses, 574. horse taking fright second time, after departure of ' aulombbild, 568. last dear chance, failure to take precautions after frightening team, SSl. loose horses driven in highway, 566. entitled to protection of statute, 566. noise made by automobile — right and duty of motorist, 576. may amount to negligence, 576. .reckless sounding of horn, 577. overtaking and jjassing teams, 578. cranking engine near team, 579. "chugging" of engine, 580. evidence as to, 582. overtaking and passing horse-drawn vehicles, 560, 578. statute requiring motorist to stop, etc., not applicable, 560. proximate cause of injury, 568. reckless sounding of horn, 577. rights of motorist, 552, 553. signal by driver of horses to motorist, 583 et seq. signal by person other than driver, sufficiency, 583. calling to motorist, 584. duty of motorist, 585. duty of motorist when no signal given, 586. stopping on signal and movjng forward whptt necessary, 587. speed, excessive, 558, 565. speed greater than reasonable, etc., 559. B. Autos.— 98 1554 INDEX [refekences are to sections.] FRIGHTENING HORSES— Continued. statutory duty to stop when it shall appear horse is frightened, S69, S70. stop, failure to after horses frightened, 554. stop, failure to, as required by statute, 569, 570. stopping close to team 564. stopping on signal and moving forward when necessary, 587. sudden appearance of automobile without warning, S6S., turning corner, meeting team at high speed, 565. warning, approaching team without, 565. reckless sounding of horn, 577. "whenever it shall appear," 569. GARAGE— (See Filling Stations; Garageman; Insurance.) as offensive busmess, 1263-1265, , as outbuilding, 1267. as violative of property restrictions, 1261-1269. "block," meaning of, 1257. buildings used as residences, determining character of buildings, 1253. cancellation of illegal permit for, 12^8. consent of property owners , to location of, 1254. defined, 1244. injoining erection in yiolation of permit, 1249. not a livery stable, 1245. not a stable, 1262. notice to lot i owners before issuance of permit, 1252. nuisance, garage as, 1248, 1269. power of municipality to regulate, 1250. prohibiting gasoline in, as amounting to eviction, 1260. prohibiting maintenance does not prohibit erection,, 1259. public garage, 1246. in which cars "are kept for storage, sale or rent," 1247, reasonableness of regulations, 1251. regulation of, 1250-1260. residences, prohibiting garage where two-thirds of lots devoted to, 1256. school, prohibiting garage near, 1255. shed or lean-to as, 1692. GARAGEMAN— (See FtLLiNG Stations; Garage; Owner, Liability of; Repairman.) as common carrier, 1278. bailment, termination, 1288. car damaged, lost or stolen while in possession of, 1284. presumption, 1284. chauffeurs, duty in hiring, 1302. ' chauffeur furnished by, to drive owner's car, 1295. chauffeur, liability for acts of, 1306. to hirer, 1306. to guest of hirer, 1307. to third persons, 1306. chauffeur of, calling. for and delivering owner's car, 1294. servant of whom, 1294. INDEX 1SS5. [Sepeeences a^e to sections.] GARAGEMAN— Continued. conversion, car stolen from garage as, 128S. conversion by hirer, 1304. damage to car by third person, right of action by, 1289. defined, 1277. duty and liability as to property other than automobile left in/his care, 1286. duty as to care of automobiles, 1279. custom, 1280. when car stolen, 1281. employee driving passenger without authority, 1298. employee injured by explosion of gasoline spilled by driver of oil compa,ny, 1313. . employee of, as servant of owner of car left to be repaired, 1296. employee of, presumption as to acting in scope of eriipioyment, 1291. employee slipping on oily floor, liability, 1312. , employee taking stored car without permissii,op, 1292. employee with habit of taking cars, retaining, 1293. employee without authority calling for car tp l?e storeid, , 1297, , , , explosion of gasoline — spilled by oil company, 1313. failure of driver to blow out rear light, 1313. pumping gasoline before motorist ready, 1314. explosion of tank, being repaired, by blowpipe, 1315., res ipsa loquitur, 13 IS. •failure to' pay for caj: misdemeanor, ordinance invalid, 1309.- giving free inspection service, liability, 1287,, i ., , guest of hirer, liability to, 1307. hired car stolen while driver using it for own purpose, liability of employer, 130S. hirer going beyond trip or putting car to different use than hired for, 1304. hirer, liability for acts of, 1308. hirer of car, care required of, 1303. hiring car on Sunday, 1310. injuries to persons in garage on business, 1311.' ••' ,. • letting car, night watchman without authority, 1301. letting cars for hire, duty, 1299. . y letting car to one not familiar with, 1300. licensee, injury to, 1311. lien of, 1317. ' night watchman letting car without authority, 1301. redelivery of cars, 1283. .; storing car in place other than contracted for, 1282. ' Sunday, letting cars on, 1310. termination of bailment, 1288., wrongfully withholding possession, 1290. GAS— (See REGUtATiON.) GASOLINE— (See Filling Stations; Garage; Gakageman.) automobiles carrying, "on passenger vessels, 142. brought into insured premises, effect of, 1698. 1556 INDEX [references are to section^.] GATES— (See Trains, Collisions With.) GONG— (See Signal Device.) GRANT OF POWER— (See Municipal Corporations.) GUARANTY— (See Warranty.) GUARD RAILS— (See Defective Highways.) GUEST— ^ • ' (See Garageman; Occupant; Owner, Liability of.) liability of, 1226. liability of, for injury caused by towing rope, 886. GUTTER— (See Insurance.) HACK STANDS— (See Automobile in Public Service.) HEAD OF FAMILY— automobile exempt to, when, 1439. HIGHWAYS— (See Defective Highways.) automobile unattended in, 222. started by gravity, 223. started by third person, 222. bridge is, 228. defective, see Defective Highways. defined, 228. driving on wrong side, see Law of the Road. duties and rights of travelers, 227.. duty to turn to right, see Law of the Road. injuries to persons employed in, see Employees. intersecting, see Intersecting Highways. law of the road, see Law of the Road. races held in, liability, 393. racing in, 173. racing in, collision between racing automobiles, 802 rights and duties of travelers, 227. right of automobiles on turnpikes, 232. right to use automobile on, 147. right of way on, 233. rules of the road, see Law of the Road. street is, 228. telephone pole in, collision with, 221. turnpike defined, 229. " ' INDEX 1557 [RErERENCES ARE TO SECTIONS.] HIGHWAYS— Continued, unreasonable use of, 149. unregistered automobile, see Unregistered Automobile. use, of, 230. use of automobiles on, legal, 231. use of automobiles on, not negligence per se, 148. HIRE— (See Automobiles in Public Service.) HIRER— (See Garageman; Owner, Liability of,) HISTORY— of automobile, 8, 9. of bicycle, 12. HOGS— (See Animals.) HOOP ROLLING— (See Children.) HORN— (See Frightening Horses; Signal Device; Warning;) HORSES— (See Animals; Automobile; Frightening Horses.) HORSEBACK RIDER— struck by automobile, 900, 901. HUMANITARIAN DOCTRINE— (See Last Clear Chance.) HUSBAND AND WIFE— (See 'Occupant; Owner, Liability of.) as joint tort feasors, 209. IMMINENT PERIL— (See Pedestrian.) care required in, 199. doctrine of, when applicable, 199. IMPLIED WARRANTY— (See Warranty.) IMPUTED NEGLIGENCE— child not chargeable with negligence of person in charge of it, 423. driver to occupant, see Occupant. employee to employer, 500, _S12. emplojfer to employee, . SOO. ' ' statute imputing driver's negligence to gratuitous passenger void, 544. INCAPACITATED PERSONS— ~ blind persons, 215. • '. care required of, 211-216. 1SS8 INDEX [references are to sections.] INCAPACITATED PERSONS— Continued, children, see Children. deaf persons, rights and duties of, 213. defective 'sight, 214. duty to, 211-216. insane, rights and duties of, 212. intoxicated persons, 216. motorist, aged, with defective sight and hearing, 424. rights and duties, 211. INCOMPETENT PERSON— intrusting automobile to, as negligence, 1040, 1041, 1172. INCUMBRANCE— (See Garageman; Insurance; Sales.) INDEMNITY— (See iNStTRANCE.) INDICTMENT— (See Prosecution.) charging an offense, 1SS7, 1558. duplicity, 1559. for murder, conviction of manslaughter, 1580. INEXPERIENCE— (See Incompetent Person.) as affecting liability of motorist, 157. INFANT— (See Minor.) INFERENCE— (See Presumption.) INFIRM PERSONS— (See Incapacitated Persons.) INjtNCTION— (See Filling Stations; Garage; Registration.) INJURIES— , (See various headings of this index.) I to persons employed in streets, see Employees. INSANE PERSONS— (See Incapacitated Persons.) INSTRUCTIONS— approaching a high erobankmeint, 284. as near as possible to the right-hand curb, 272. assault and battery with a,utomobile by person subject to vertigo, 1589. assisting to get team past automobile, 567. care required of motorist, 567. bicyclist attempting to pass between automobile and curb, 887. brake, sufficient, 162. INDEX 1559 [references are to sections.] , INSTRUCTIONS— Continued. care required for safety of children, 422. child on running board, 483. r child struck on sidewalk, 43S. children, care required of, 423. coasting in street, last clear chance, 446. colliding with animal unlawfully at large, 899^ collision with box car left in street with bar projecting, 772, collision with boy bicyclist, 869. collision with dog, 889. collision with railroad motorcar, 700. coUision with train, res ipsa loquitur, 782. confusion of pedestrian on approach of automobile, 330. congested street, injury to pedestrian, 343. crossing gates up, right and duty of motorist, 766, n. 86. damages for breach of agency contract by M'f'r, 1476. deaf driver, 842. driving horse known to be afraid of automobiles, 572. duty of front car when overtaken on highway, 808, 809. duty of guest of driver to protest against negligence, S27. duty to intoxicated person, 216. duty of motorist when approaching animal drawn vehicle, 5S2. duty of pedestrian when motorist disregards signal of traffic officer, 362; duty of street car motorman, S90. employer directing inexperienced clerk to crank car, injury to latter, 1231. family car, liability of owner, 1164. frightening horses by excessive speed, SS8. infirm persons, duty to, 211. intoxicated person, duty to, 216. last clear chance doctrine, 201. last clear chance, collisions with street cars, 670, 671, 67S. last clear chance, injury to pedestrians, 305. last clear chance, stalled on railroad crossing, 780, n. 40. lights, absence of, proximate cause, 178. lights displaying between sunset and sunrise, 182. lights, duty as to, 168. look, distance from street car track motorist should look, 594. motorist passing stopped street car, 391, 405. overtaking and colliding with bicyclist, 870.' overtaking and passing horse-drawn vehicles, 560, 836. overtaking deaf driver, 842. passenger alighting from street car, failure to look, 405. peril, conduct of person in, 199. permitting car out of repair to be operated, 1043. proximate cause, 200. res ipsa loquitur, collision with train, 782. defense, 782. right of way at intersections, 815. right to assume train operatives will comply with law, 683. skidding, 218. : skill of motorist, 157. 1560 INDEX [repesences are to sections.] INSTRUCTIONS— Continued. sounding horn at intersection, 826.. ' . i i j speed evidenced by distance required to stop, 343. speed greater than is reasonable, etc., 170. speed that endangers life, limb or property, 171; stalled on railroad crossing, last cleap chance, 780, n. 40. stopping vehicle without warning to vehicle in rear, 841. sudden peril, conduct, of person in, 199. sufficient brake, 162. traffic officer struck while on duty, 486. traffic signal, motorist disregarding, 362. trainmen, duty of, at crossings, 738. ; turning to left to avoid Sther vehicle, striking child on sidewalk, 435. vigilant watch ordinance, 672. waiver of terms of agency contract, 14S5. warning signal of approach, 185. wrongfully operating car on highway, 1599. INSURANCE— abandonment of stolen car to company after recovery, 1708. "accident" defined, 1632. accidents, notice of, 1633,, 1634. accident, waiver of notice of, 1633. estoppel, 1635. 'waiver, of notice of by defending suit, 1636. accidents, what ones must be reported, 1634. action, insured interfering in, 1875. action, in whose name brought under subrogatipj^,*; 168,0. action, joining owner and insurer as defendants, 1678. action on policy barred by agreement to repair, 1703. additional insurance, eflect, 1617 n. 5. adjuster, authority of, 1677. implied authority, 1677. proof of, 1677. admission of liability, what amounts to, 1687. after actual trial of the issue, 1624. sufficiency of compliance with provision, 1624. against loss by accident as limiting liability to use of car for owner, 1640. car operated by member of family of legal age, 1641. against sinking of vessel carrying automobile, 1665. seaworthiness of vessel not a defense, 1665. agreement to repair supercedfes policy, 1703. appeal bond, duty of company to give, 1625. appeal, duty of company as to and upon taking, 1625. appeal, neglect, of company to, 1626. application for, is not, 1620 n. appraisement, waiver for right to by admission of value, 1701. appraisers, effect of only two signing award, 1699. effect of misconduct " of , 1700. arbitration, refusal of insured to submit to, 1697. releases company from statutory penalty, 1697. INDEX 1561 [references are to sections.] INSURANCE— Continued. as affecting rights pf injured person, 1667, 1668. assignment cannot be made, when, 16S4." assuming defense of suit or settlement of claim by company, effect, 1629. authority of company to insure, 1616. award, remedy upon failure of company to pay, 1702. award signed by only two apptaisers, 1699. ' ■ award vitiated by misconduct pf appraiser, 1700. bankruptcy, trustee in, right .of under policy, 1683. binding slip' as, 1618. bond, duty of company as to, on appeal, 1625. burden of proof to show value of. destroyed car, 1686. cancellation notice sent by mail, not received, 1684. car owned by individual partner and used in partnership business, 1642. , change of ownership, title, interest or possession, 1658. > waiver- of provision, 1658. child driving car in violation of law, 1663. claim, rejection of on one ground as waiver of other grounds, 1638. coercion of insured by company to contribute to settlement, 1672. what is not, 1672. collision after upsetting, damages due to, 1727. .• , collision, car backed and falling into elevator shaft in building, 1725. » collision defined, 1722. collision insurance, 1722-1729. collision, running car into river, 1726. collision with curb and gutter, 1724. collision with embankjjient at side ' of road, 1723. collision with object, 1722, 1725. collision with "object," ejusdem generis, 1726. collision with water after fa,lling from bridge, 1728. damage due to upsets, 1728w compliance with rules of association, necessity, 1620. conditional seller, items for which entitled to recover under theft policy, 1718. consent of company to settlement, 1668, 1669, 1670. conversion of car as theft, 1711-1714. covering note as, 1618. covering unlawful use of car, 1662. car driven in violation of law as to age, 1663. criminal intent. necessary under theft policy, 1705, 1706. criminal prosecution, company not required to defend, 1631. curb as part of roadbed, 1724. damages due to collision after upsetting, 1727. defense, failure of insured to assist iuj 1674. defense of suit, effect of assumption by company, 1629. "demonstrating and testing" loss occurring while, 1664. depreciation in value of damaged car after being repaired, liability of company for, 1630. depreciation of car under fire policy, how estimated, 1689. "derailmeiit," • skidding ■ and overturning as, 1666. destruction of stolen car, liability of company, 1710. 1562 INDEX [keferences are to sections.] INSURANCE— Continued. diminution in value of car due to use by thief, 1709. liability of company, 1709. disposing or car before insurance effective, 16S4. duty and liability when stolen car recovered, 1721. duty of company as to appeal, 162S. duty of company to insured, 1624. duty of company upon taking appeal, 1625: duty of insured to safeguard property, 1688. effect of company assuming defense of suit or settlement of claim, 1629. effect of repudiation of obligation by company, 1624, 1628. embankment at side of road as part of roadbed, 1723. ' "entering or leaving any building," 172S. estoppel as to provision relating to payment of judgment, 1643. ' estoppel of company to insist on notice of accident, 1635. evidence of theft, sufficiency, 1720. extrinsic evidence, identification of burned car by; 1704. face value of policy not measure of recovery, 1685. false representations by insured, 1647. when material, 1647. when defeat recovery, 1647. as to cost, value and period of service, /1648. as to model of car, 1649. when not a defense, 16S0. as to property traded for car, 1651. as to license number, 1652. as to car being new, 1653. see Warranty, felonious intent essential under theft policyj 1705, 1706. fire insurance, 1685-1704. "fire originating within the vehicle," 1690. forfeiture of policy, request for past due assessments as waiver of, 1637. garage warranty, violation, 1691. ' waiver, 1693. shed or lean-to as garage, 1692. gasoline in premises, effect of, 1698. governed by what law, 1622. gutter as part of roadbed, 1724. identification of burned car by extrinsic evidence, 1704. "immediate" notice of accident, 1633. construction of provision, 1633. when not required, 1634, increase of fire hazard due to act of insured, 1688, incumbrance, ' warranty, breach, 1659. indemnity against loss or liability, 1624. injured person's right against insurer, 1668. injured person's rights not affected by, 1667. "in or on" a private conveyance, 1693. insurable interest, 1654. insured, failure to assist in settlement or defense, 1673, 1674. insured interfering in action or settlement, 1675. INDEX 1563 [REEEKENCES ASE to SECnONS.] INSURANCE— Continued. - , , , insured, right of to recover damages from claimant, , settled with by in- surer, 1676. insured, settlement by without consent of company, 1668. ^ after refusal of company to defp^d, 1669. for liability in excess of policy, 1671. insured settling claim without company's consent, 1669. after refusal of company to defend, 1670. ' for liability in excess of policy, 1671. interest, change of, 16S8. waiver, 16S8. interfering in action or settlement, 1675. items for which insured, a conditional vendor, entitled to recovery, 171St, judgment, duty of company as to appealing from, 162S. , judgment, loss by payment of, 1643. waiver and estoppel as to provision, 1643. paid by insolvent insured with borrowed money, 1644. judgment, neglect of company to appeal from, 1626. judgment, payment of within niney days, 1646. what amounts to compliance with provision^. 1646. larceny, 170S. law as to valued policy, 1623. , . law of what state governs, 1622. liability, admission of, what amounts to, 1687. liability and duty when stolen car recpyerjed,; 1721. liability, indepinity against, or loss, 1624. \ liability limited to use of car for owner, 1640. car operated by member of family of legal age, 1641. liability of company for depreciation in value of damaged car, 1630. liability of company to conditional vendor for stolen car, 1718. liability of company to insured, 1624. liability of company upon repudiation of obligaton, 1624, 1628. liability of company when stolen car is destroyed, 1710. , liability of company when stolen car recovered, 1709. liability when car owned by partner is used in partnership business, 1642. limiting liability to use of car by owner, 1640. car operated by member of family of legal age, 1641. loss by payment of judgment, 1643. waiver and estoppel, 1643. insolvent insured paying with borrowed money, 1644. insured giving note in payment, 1,645. effect of insured giving note in payment, 164S. loss, indemnity against, or liability, 1624. ' loss occurring before risk attaches, 1620. ' loss occurring while "demonstrating, and testing," 1664. measure of liability when stolen car recovered, 1709. measure of recovery for total destructipri of car, ,1685. burden of proof, 1686. * misrepresentation defined,* 1647 n. 80. mortgagor and mortgagee, ' warranties applicable to, 1657 1S64 INDEX [references are to sections.! INSURANCE— Continued. neglect of Company to appeal, 1625. negligence of insured as defense under fire policy, 1688. not effective at time car stolen, 1620. notice of accidents, construction of requirement, 1633, 1634. notice of accident, waiver by defending suit, 1636. notice of accident, • waiver and estoppel, 163S. notice of accident, when not required, 1634. notice of cancellation sent by mail, not received, 1684. notice of theft, 1719. waiver, 1719. sufficiency, 1719. "object" defined, 1722. operating for hire, ■ warranty against, 16S6. oral contract of, 1619. origin or fire, "within the vehicle," 1690. other insurance, effect, 1617 n. S. ' ownership, change "of, 16S8. waiver, 16^8. sole and unconditional, 1660. waiver, 1661. parties defendant, joining owner and insurer, 1678. party plaintiff in action under subrogation, 1680. payment of judgment within ninety days, etc., 1646. what is compliance with, 1646. penalty for failure to settle, company not liable to, when insured refuses to arbitrate, 1697. "pilferage," 170S, 1706, 1707. pleading value of car' in action for total loss, 1729. omission supplie'd by reply, 1729! policy governed by what law, 1622'. policy, reforination of, 1627, 16S2. policy supefseded by agreement to repair, 1703. possession, change of, warranty, 1658. waiver, 1658. private garage warranty, 1691. violation, 1691. waiver, 1693. shed or lean-to as garage, 1692. proof of loss by Owner, settlement with mortgagee as waiver, 1694. proof of loss, failure to furnish blanks as waiver of, 1695. proof of theft, 1720. preponderance of evidence sufficient, 1720. , elements and sufficiency, 1720. proof of value, burden on plaintiff to prove, 1686. recovery of stolen car, duty and liability of company, 1721. recovery of stolen car after time for payment of loss, 170S. abandonment of car to coftitiany, 1708. reformation of policy, 1627, 1652. rejection of claim on one ground as waiver of other grounds, 1638. remedy upon failure of company to pay award, 1702. INDEX 1565 [references are to sections.] INSURANCE— ConUnued. renting car, warranty against, 16SS. repairs, agreement as to supersedes policy, 1703. repudiation of obligation by comfisthy, lEffect, 1624, 1628. reserve, character of company required to maintain, 1621. "roadbed," 1723, i?24. embankment at side of road as part of, 1723. gutter and curb as part of, 1724. "robbery," 170S, 1706. right of injured person against insurer, 1668. rules of association must be complied with, 1620. seaworthiness of vessel carrying automobile, 1665. , not a defense under policy insuring against sinking, 166S. second hand car, when car is not, 16S3. settlement by company, right of insured- to recover damages from same claimant, 1676. settlement by insured after repudiation by company, 1624, 1628. settlement by insured defeating subrogation, 1682. settlement by insured without company's consent, 1669. after refusal of company to defend, 1670. for liability in excess of policy, 1671. settlement, company coercing insured to contribute to, 1672. settlement, failure of insured to assist in, 1673. settlement, insured interfering in, 187S. settlement of claim, effect of assumption by company, 1629. settlement with mortgagee as waiver of proof of loss by owner, 1694. skidding and overturning as "derailment," 1666. sole and unconditional ownership, 1660. waiver of provision, 1661. statutory penalty for failure to settle, company not liable to, when, 1697. subrogation, effect' of defeat of by insured, 1682. subrogation, in whose name action brought against wrongdoer, 1680. subrogation of company to rights of insured, 1679. subrogation, waiver of, 1681. "suit" does not include criminal prosecution, 1631. supersedeas bond, duty of company to give oh appeal, I62S. testing car, loss occurring while, 1664. "theft" 170S, 1706. theft by person not in service or household of insured, 1715-1717. by employee of public garage, 1716. of president's car by employee of corporatioi), 1717. notice and proof of, 1719, 1720. theft, conversion by borrower as, 1711. conversion by bailee as, 1712. conversion by conditional buyer as, 1713. ' ' conversion by one in possession for purpose of sale as, 1714. theft, robbery and pilferage insurance, 1705-1721. < '■ theft, sufficiency of evidence of, 1720. title, change of, 1658. ' waiver 1658. total destruction of car, amount of recovery, 1685. 156:6 INDEX , [beeerences are to sections.] INSURANCE— Continued. total loss, suit to recover, 1729. pleading 1729. transfer of policy- as new contract, 1620. . trustee in bankruptcy,, right of under policy, 1683. unlawful use of car, 1662. " driver under age permitted by law, 1663. "upsets," damage due to, 1728. car falling from bridge, colliding with water, then upsetting, 1728. upsetting, collision after 1727. validity, 16171 ' validity of oral contract, 1619. value, burden on plaintiff to prove; 1686. value, diminution in, due to use by thief, 1709. liability of company, 1709.: value, pleading in action to recover for total loss, 1729. omission supplied by defendant's repty, 1729. valued policy law, 1623. depreciation in value of car, 1689. waiver of forfeiture of policy, request for past-due assessments as, 1637. waiver of notice of accident, 163S. be defending suit, 1636., waiver of notice of theft, 1719. ; waiver of other grounds by rejection of claim on one ground, 1638. waiver of proof of loss, failure to furnish blanks as, 169S. waiver of proof of lossi by owner, settlement with mortgagee' as, 1694. waiver of 'provision as to change of ownership, etc., 16S8. ■ waiver of provision as to payment of judgment, 1643. waiver of provision as to sole and unconditional ownership, 1661. warranty— „)1 . that car is not rented- to ai^othei;, 16SS. against operating for hire, 1056. applicable to both, mortgagor and, mortgagee, 16S7. , against change of ownership, interest or possession, . 1658'. . waiver, 16S8. , , against incumbrance, 1659. breach of, 1659. as to sole and unconditional ownership, 1660. waiver, 1661, , ! ' INTENT— (See Manslaughter; Prosecution.) INTERSECTING HIGHWAYS— construction of regulatory provisions, 190-195. cutting corner, 192. defined, 2-76., general rights and duties ; at, 190; injuries to pedestrians, see Pedestrian. right of way at, 191. rights and duties at, 190. speed at, statutory regulation, construed, 195. INDEX • 1S67 [references are to sections.] INTERSECTING HIGHWAYS— Continued, turning at, 192. care in, 193. wliere view obscured, 194. vehicles having right of way, 191. warning signals, 190. INTERSTATE COMMERCE— (See Federal Laws; License; Regulation; Sales.) automobiles in — regulation, 144-146. taxation, 145, 146. license tax as to persons in, 111. INTOXICATION— (See Incapacitated Persons.) as evidence of negligence in manslaughter case, 1S72. defined, 161. driver and guest drinking together, S40. injury to guest, S40. driving car under, prosecution 1S8S, 1S86. duty to intoxicated persons, 216. instruction to jury, 216. . , . motorist struck by train, intoxication may be ; proved, 736. occupant of automobile, care required of, S21. of driver as bearing on "question of speed, 1006. of motorist as evidence, 161. of pedestrian, 399. of witness to accident, 992. person injured by defect in highway, 914. riding with intoxicated driver, 539. occupant and driver drinking together, 540^ "under influence of liquor," 1585. INSTRUCTOR— . (See Owner, Liability of.) INVITEE— (See Occupant.) care required of, 164. of driver, liability of owner, 1190. JITNEY— (See Automobile in Public Service.) JOINT ENTERPRISE— co-employees, 516. defined, 514- driver and invited guest, 517, 518. driver and occupant engaged in effect, 514-519. fireman and driver, 519. illustrative cases, 514. policeman and patrol driver,- 519. IS 68 • INDEX [REJEBtENCES ARE TO SECTIONS.] JOINy OWNERS— (See Owner, Liability of.) liability' of, 103^1. registration in name of one of, 2S8. JOINT TORT FEASORS— husband and wife, 209. illustrations of liability, 209. independant concurrent acts, liability, 210. liability, 209. JOY JRIDERS— rights and obligations of, 913. JOY RIDING— defined, 4. JUDGMENT— (See Insurance.) JUDICIAL NOTICE— as to automobile, 27. characteristics of automobile, 27. custom to drive on right side of highway, 235. distance in whicli street car can be. stopped, 1021. means for stopping automflbile, .1022. that automobiles are tested by an actual run, 1094. time of sunset, 182. JURISDICTION— (See Prosecution.) KICKING BACK— (See Trains, Collisions With.) LARCENY— of car in Texas formerly only misdemeanor, 1603. taking car without owner's consent, 1S98. LAST CLEAR CHANCE— applied to automobile accidents, 201. applied in cases of injuries to pedestrians, 30S-306. applies to property damage, 201. " backing onto railroad tracks, 710. i boy on roller skates unlawfully holding to automobile, 444. child coasting in street, 446. newsboy in plain view, 471. collision at street intersections, 833. collisions with railroad trains, 710, 713, 714, 729, 732, 780, 78K collisions with street cars — • ■ ' automobile in view several hundred feet, 681. backing out of driveway onto track, 670. concurring negligence, 673. danger not apparent until too late to stop car, 674. INDEX 1569 [references are to sections.] LAST CLEAR CHANCE— Continued. engine liilled on track, 678. illustrative cases, 670. instructions to ju*y, 671, 675. instruction under vigilant watch ordinance, 672 looking back while driving across tracks, 680. meeting on track, 676. stopping near track after passing car, 677. stopping on track, 67S. turning slowly onto track, 679. discovered peril doctrine, 202. discovered peril of driver of horses, S72. doctrine explained, 204. ' ' • • driving on car track to avoid other vehicles, 641. failure to take precautions after frightening team, 581. instruction to jury, see Instructions. is merely question of proximate cause, 204. not applicable, when, 201. steering gear breaking, collision with street car, 645. stopping close to track, 647. stopping on street car track, 633. under statute imposing high degree of care, 203. LAW OF THE ROAD— J^See Highway.) as applicable to occupant of automobile, 511. as applicable to street cars, 601. care required of motorist, 227. center of road, 234. driving on wrong side, 235. backing to park car, 236. creates civil liability, when, 237. due to negligence of another, 238. lawful, when, 235,-239. may be justified, 238. negligence, when, 235-239. presumption, 235. ' skidding to left side, 218. when not meeting other vehicle, 239. duty to turn to right, 234. forced to leave roadway by negligence of another, 240. general consideration, 227. highway defined, 228. in emergency, 240. passing in same direction, 241. street cars, 242. regulation of trafiic by police officers, 245. right of automobile to use turnpike, 232. right of way on highways, 233. right of way, vehicles having, 244. B. Autos.— 99 1570 INDEX ' [references are to sections.] LAW OF THE ROAD— Continued, seasonably, 234. traveled part of road, 234. turning arbund in street, 243. turn to right on meeting, 234. failure as negligence, 234. turnpike as defined, 229. use of highways, 230. by automobiles, 231. vehicles having right of way by law, 244. ambulance, 244. repair wagon, 244. vehicles passing in same direction, 241. street cars, 242. ' when not meeting other vehicles, 239. LIABILITY— (See Insurance; Owner, Liability of; and various topic headings.) concurring independent acts, 210. incapacitated persons, see iNCAtXctTATED Persons. inexperience as affecting, IS 7. joint tort feasors,' 209. persons whose independent acts' concur in causing mjury, 210. violation of statute or ordinance, proximat;e cause, 198. LIBERTY— (See Registration.) LICENSE— (See Automobile in Public Service; Filling Stations; Garage.) all issued expiring at same time, 129. validity of minimum charge, 129. and revenue measure, 109, 110. title of act, 110. applicant for, failure to disclose infirmity, 262. application for, false representations in, 118. automobiles in interstate commerce, 144-146. automobiles "transporting persons or property," 137. badge of operator concealed, 260. car owned by corporation or partnership, 267. license issued to whom, 267. cars for hire, see Automobiles in Public Service. chauffeur's license, 1027. nonassignable, 1027. revocation of, 1027. object of, 99. classification, 113, 114. classification for, by municipality, 135. copy of application as evidence, 120. county, necessary in every county, 117. defined,^ 9S. distinction between license fee, license tax, and tax, 96. ■ double taxation, 106, 109. INDEX 1571 [references are to sections.] LICENSE— Continued . "duly licensed chauffeur," 102S. effect of employing unlicensed chauffeur, 264. exemption, see Taxation. exempting automobile from, 133. expiration of all, at same time, 129. false representations in application for, 118. fee, see License Fee. fee must be reasonable, 102. fixing amount, 103. revenue incidentally derived from, 104. disposition of, lOS. not a tax, 106. helper on truck cranking engine, not an operator, 266. imposed by city and state, 132. is personal, 100. mandamus to compel issuance, 119. municipal corporations, power to impose, 121. construction of power, 122. and power to tax, distinction, 123. does not include power to tax, 124. included in power to regulate, 12S. includes power to charge fee, 126. does not include power to prohibit, -130. nonresident, foreign corporation is not, when, 263. not assignable, 100. object of, 95. of automobiles, power of state, 97. , ,. operating automobile without, see Unlicensed Operator. purpose, 99. revocation of, 101. to operate does not authorize carrying passengers, ,261. effect of violating law, 261. operator not trespasser, 261. unlicensed operator accompanied by licensed operator, 26S. verified copy of application for, as evidence, 120. who entitled to, 100. LICENSE FEE— amount of, 102, 103. amount of, imposed by municipality, 127, 128. and revenue measure, 109, 110. as affecting equality and uniformity of taxation, 107. automobiles engaged iii operating for hire, 109. automobiles in interstate commerce, 14S, I46. classification, see License. disposition of, lOS. distinguished from license tax, and tax, 96. exempting automobiles from, 133. fixing amount of, .103. imposed by both city and state, 132. 1572 INDEX [references are to sections.] LICENSE FEE— Continued. imposed by municipality not a tax, 131. must be reasonable, 102. not a tax, 106, 131. not double taxation, 106, 109. power of municipal corpora tionfe, 121. construction of, 122. distinctions, 123-12S. power to license and regulate includes power to impose, 126. privilege tax, see Privilege Tax. revenue incidentally derived from, 104. statute may be both police and revenue measure, 110. title of act, 110. unreasonable search and seizure, 136. LICENSE TAG— (See Prosecution.) LICENSE TAX— and privilege tax, 108. as double taxation, 109. automobiles in interstate commerce, 145. automobiles operated for hire, 109. classification for, 113, 114. classification by municipality for purpose of, 135. distinguished from license fee, and tax, 96. excise and, 108. exempting automobiles from, 116. exempting automobiles from, 133. imposed under power to license, 131. interstate commerce,, 111. persons in interstate commerce. 111. power of municipal corporation, 121. construction of, 122. distinctions, 123-126. statute both police and revenue measure, 110.. uniform rate, see Taxation. unreasonable search and seizure, 136. LICENSED CHAUFFEUR— (See Chatoteur.) LICENSEE— (See Occupant.; pedestrian, duty of, 304. injury to, 304. LIEN— (See Garageman; Repairman; Sales.) agents lien on consigned cars, 1443. claim for damages caused by car is lien thereon in some states, 59. on automobile for injuries, 1354, 1373. statute making no provision for owner to be heard on disputed claim, validity, 1336. INDEX 1573 [references are to SECnONS.] LIGHTS— absence of, liability, proximate cause, 178. absence of, at night as negligence per se, 177. common law rule as to wagons, 176. "day-break" defined, 176. duty to have at night, 176. guest riding in automobile without proper lights, injury to, 54-1. inability to stop within radius of, 168. injuries to pedestrians, see Pedestriaus. motorist blinded by, injury to conductor replacing troltey, 392. necessity for, on automobile being fowed, 176. negligence in failing to have, 177. , must be proximate cause of injury, 178. on automobiles "operated or driven,'' 179. on "front" of automobile, 181. on rear o^ car, 176. power of municipality to require, 71. purpose of, 1T6. , ' showing in direction vehicle moving, 180. standing automobile, 179, 180. > statutory provisions, 176-182. statutory provisions construed, 176. street car running without, 6S1. sunset, judicial notice of, 182. towed cars, statute as applicable to, 353. working in street at night without, 497, 499. LIVERY STABLE— (See Garage.) LOCAL LAW— (See Special Law.) LOCKING RING— (See Pedestrian.) LOCOMOBILE— defined, 4. LOSS— (See Insurance.) MAIL SERVICE— automobiles in, subject to state regulation, 140. MALICIOUS MISCHIEF— due to careless driving, 1593. MANDAMUS— to compel issuance of license, 119. MANHOLE— (See Defective Highways.) MANUFACTURER— (See Agent and M'f'r.) 1574 INDEX ' [references are to sections.] MANUFACTURER— Continued, care required of, 1482. concealment of defect by, 1484. knowledge of defect by purchaser, 148S. knowledge or notice of defect in car, 1483. liability, for injuries due to defective car, 1480-148S. to whoini liable, 1480. automobile as imminently dangeirous, 1481. MANUFACTURER'S NUMBER— (See Regulation.) MANSLAUGHTER— accident occurring while motorist violating law, 1573. driver intoxicated, IS 74. driving without license, IS 74. committed with automobile, 1S67. contributory negligence no defense, 1567. conviction of owner riding with chauffeur, 1579. conviction of, under indictment for murdrfr, 1580. criminal intent, 1568. "culpable negligence," 1S71. ' disease supervening and causing death, 1578. evidence of sfjeed at place other than that of accident, 1576. evidence, sufficiency of, 1575. intoxication as evidence of negligence, 1572. negligence must be gross or wanton in some states, 1570. negligence must be proximate cause of death, 1569. running over child in plain view, 1577. MASTER AND SERVANT— (See Owner, Liability of.) negligence of master not imputable to servant, SCO. negligence of servant imputable to master, 500, 512. MEASURE OF RECOVERY— (See Damage to Automobile; Insurance.) MECHANIC— (See Owner, Liability OFr) MINOR— , (See Sales.) intrusting car to, 1041. liability for damaging borrowed car, 987. MISDEMEANOR— (See Ordinance; Prosecution.) MISREPRESENTATIONS— (See Insurance; Warranty.) MODEL OF CAR— (See Insurance.) INDEX 1575 [references are to sections.] MORTGAGE— (See Insurance; Repairman; Sales.) MORTGAGOR— (See Insurance.) MOTOR-CAR— defined, 4. MOTOR CYCLE— defined, 1. is automobae, 7. leaving track at races; injury to officer, 395. liability of owner for negligence of rider, 395. ordinance forbidding riding on, in front of driver, 11: MOTOR VEHICLE— defined, 4. MOTORIST— aged, with defective sight and hearing, 424. injuring child, 424. approaching street car, duty, 401. at street intersections, see Intersecting Highways. care required of, 150. as depending on condition of vehicle, 152. commensurate with dangers, etc., 151. may expect others to use care, ISO. as to machine parked at curb, 150., statutory high degree, 153. for own safety, 154. when in peril, 199. children, injuries to, see Children. coasting as negligence, 174. collisions with street cars, see Street Cars, Collisions With. collisions with trains, see Trains, Collisions With. defective sight and hearing 424. defined, 4. driving past street car stopped to take on or let oft passengers,; 403, 414, 420j duty as to brakes, 162. ' >. duty to persons boarding or alighting from street cars, 401. duty to persons employed in street, 486 et seq. duty to sound warning, 185. statutory regulations, 185-187. testimony concerning, l88. evidence of want of care, 159. frightening horses, see Frightening Horses. high degree of care imposed by statute, 153. care for own safety, 154. inability to stop within distance objects visible, 16?. incapacitated persons, see Incapacitated Persons. inexperience as affecting liability, 157. intoxication of, as evidence, 161. law of road, see Law of the Road. 1576 INDEX [references are to sections.] MOTORIST— Continued. liability for injuries to occupant of automobile, see Occupant. lights at night, duty and regulation, 176-182. may assume others will use due care, 196. minor driving in violation of law, effect on right to recover for injuries, 42S. must anticipate illegal speed by others, 196. must observe statutory requirements, 156. on private land by invitation, care, 164. overtaking and passing, rule of road as applicable, 403. passing street car, 401 et seq. pedestrians see Pedestrians. presumption as to skill of, 160. racing in highways, 173. rain on windshield, 183. required to stop in rear of street cars, construction of ordinance, 184. right on highways, 147. skill required of, 1S7. speed as negligence, 165. statutory prima facie evidence, 166. quiet zone signs as evidence, 167. speed greater than is reasonable, etc., 170. speed in ''approaching a descent," 172. speed that endangers life, etc., 171. statute creating only criminal liability, 155. violation of as negligence, 155. struck while placing tire in tire holder, 398. struck while stopped in highway putting up top, 397. unlicensed, see Unxicensed Operator. verdict as warning to, 217. violating rules of the road, see Law or the Road. warning signals — _ duty to give, 185. regulation, 185-187. testimony as to giving; 188. MOTORMAN— (See Street Car Employees ; Street Cars, Collisions With.) MUNICIPAL CORPORATIONS— (See Defective Highways.) automobiles in interstate commerce, 144-146. charter powers, construction, 81. chauffeurs, regulation of, 1028. class legislature, 87. classification of subjects of license, 135. construction of ordinances, 83. passed under express power, 84. passed under implied power, 85. penal, 86. discriminatory ordinances, 87. fenders on motor trucks, 75. validity of ordinance, 75. INDEX 1577 ' [references are to sections.] MUNICIPAL CORPORATIONS— Continued, filling stations, see Filling Stations. forbidden to impose license or tax on automobiles, 133. forbidding riding on motor cycle in front of driyer, 77, garages, regulation of, see Garage. liability for defective streets, see Defective Highways. liability for negligent operatioi) of its automobiles, 1044. liability for permitting races in public highway, 393, license fee, power to impose, 126. amount of, 127. license required in addition to state license, 132. , lights, power to require, 71. ordinance, conflict with state statute, 91. illustrations, 91, 92. with statute forbidding denial of free use of streets, 93. ordinance regulating automobiles "within city limits!' void, 66 j ordinance, title of, 89. i ordinance, void in part, 90. parking regulations, validity, 78. police officers, requiring obedience to, invalid, 76. police ordinances, 82. police power of, 64. power to impose license, 1^1. X construction of, 122. distinction between, and power to tax, 123, does not include power to tax, 124. power to regulate includes, 125. includes power to, charge fee, 126. power -to regulate speed, 67. power to regulate use of streets, 65. power to require lights on automobiles, 71 registration, power to require, 79. enjoining enforcement, 80. , regulate and license, power includes right to charge fee, 126. does not include power to prohibit, 130. regulating automobiles "transporting persons or property," 137. regulation of automobiles by, see Reguxation. regulation of cars for hire, see Automobiles in Pubmc Service. requiring automobiles to pass to right of street cars,. 73, validity of ordinance, 73. to stop at rear of street cars, 74. signs, placing of, 69. sufficiency, 69. failure to place, 69. smoke and gas, forbidding escape of, 72. unreasonable searches and seizures, 136. NAME— (See Evidence; Regulation.) NAVY— (See Federal Laws; Regulation.) 1578 INDEX [references are to sections.] NEGLIGENCE— as to brakes, 162. at street intersections, see Intersecting Highways. automobile left on car track, 224. automobile starting of own accord, 206. automobile unattended in highway, 222. started by gravity, 223. started by third person, 222. backing automobile, 225. care in starting automobile, 227. care required of driver, ISO. as depending on condition of vehicle, 1S2. commensurate with dangers, etc., ISl. may expect others to use care, ISO. as to machines parked at curb, ISO. highet degree imposed by statutje, 153. for own safety, 154. care required of invitee, 164. y care required of motorist for own safety, 154. care required when in peril, 199. coasting automobile, 174. collisions between automobiles, see Automobile, Collisions Between collisions with trains, see Trains, Collisions With. I concurring, see Last Clear Chance. concurring independent acts of different persons, liability, 210. disregarding signals of traf&c officer, 245. driver as imputable to occupant, see Occupant. driver forced from roadway by negligence of another, 240. evidence of, 159. guest Of driver, see Occupant. high degree of care imposed by statute, 153. care for own safety, 154. incapacitated persons, see Incapacitated Persons. inexperienced driver, 157. intoxicated driver, 161. invitee, care required of, 164. invitee, see Occupant. joint tort feasors, liability, 209. last clear chance doctrine, 20i. law of read, see Law of the Road. licensee, see Occupant. lights, duty and regulations, 176-182. absence must be proximate cause of injury, 178. motorist may assume others will use care, 196. passenger, see Occupant. passing standing street car, construction of ordinance, l'i4 proximate cause of injury, 200. racing in highways, 173. rain on windshield as, 183. skidding, care to avoid, 218. instruction to jury,' 218. INDEX H79 [references are to sections.] NEGLIGENCE— Continued. striking lamp post, 219. as evidence of negligence, 220. skill, motorist required to have, 157. speed as, 16S. under statute, prima facie evidence, 166. quiet zone signs as evidence, 167. ' inability to stop within distance objects visible, 168. speed greater than reasonable, etc., 170. speed in "approaching a descent," 172. ., speed regulations as applicable to fire department, 169. speed that endangers life, etc., 171. statutory requirements, motorist must observe, 1S6. street car motorman, see Street Cars, Collisions With. towing car in street as, 353. towing truck without brakes on slippery street, 189. unlicensed operator, see Unlicensed Operator. unregistered automobile, see Unregistered Automobile. use of automobile not per se, 148. violation of rules of road, see Law op the Road. violation of statute creating criminal liability, 155. violation of statute or ordinance as, 197. as evidence only, 197. must be proximate cause of injury, 198. warning, duty to sound, and regulations, 185-188. NEWSBOY— injuries to, see Children. NOISED (See Automobile; Frightening Horses.) NONRESIDENT— (See Regulation.) foreign corporation is not, when, 263. registration, term of exemption, 259. overstaying, 259. NONSKJD CHAINS— failure to use, 309. NOTICE— (See Insurance; Sales; Warranty.) of defective street by municipality, 909. NUISANCE— (See Automobile.) driving car while intoxicated, 1586. filling station as, 1270, 1272. garage as, 1248. holding races in public highway, 393. skidding automobile, 219. stones in highway, 945. 1580 INDEX [references are to • SECTIONS.] OBSTRUCTING TliAFFIC— (See Prosecution.) OBSTRUCTION— (See Intersecting Highways, and Collisions of Various Kinds.) • fog or snow as, 183. rain on windshield as, 183. OCCUPANT— acquiescence, or participation in driver's negligence, S43. assisting in driving of machine, liability, 512. automobile stalled on track, S31. canal, operator driving into, S47. care of one does not excuse care on part of another, 520. care required of, S20, et seq. intoxicated occupant, 521. care required of, not same as driver, 522. collisions with street cars, 529-532. duty of occupant, 529. automobile stalled on track, 530. captain of fire department with control over driver, 531. riding on running board, struck by* overhang at curve, 532. collisions with railroad trains, 533-538. duty of occupant, 533. illustrative cases, 537. occupant in rear seat, 534. father watching son drive, 535. crossing bell ringing, 536. jumping from automobile, 538. crossing bell ringing, 536. ^ driver and, fellow servants, when, 510. ' duty and liability of owner to person requesting ride, 551. failure to alight, 526. failure to direct or warn driver, 526. failure to look for danger, 524, 525. failure to protect against negligence, 527. father watching son drive, 535. having a right of control of ' automobile, 512. inactive in presence of danger, 523. injuries to, 500 et seq. instructions to jury, see Instructions. intoxicated, 521. intoxicated driyer, riding with, 539. occupant drinkfng with, 540. intoxication, driver and occupant drinking together, 540. invited by servant of owner to ride, 548. joint enterprise of driver and, 514-519. co-employees, 516. driver and guest, 517, 518. policeman and patrol driver, 519. fireman and. driver, 519. jumping from automobile on approach of train giving no signal, 538. INDEX 1581 [repekences are to sections.] OCCUPANT— Continued. jumping from moving automobile, liability of owner, SSO. i liability of, for injury to third person, 1S8. liability of owner or driver to gUest for negligence, S4S-549. driving into open canal, 547. guest invited by servant of owner, S48. guest injured by automobile skidding, res ipsa loquitur, 549. negligent driver, riding with, 539. negligence of driver as imputable to, 500. adult driver to minor occupant, 501. as between members of family, 502. co-employees, 504. dealer's driver and prospective purchaser, 508. employer to employee, 500. husband and wife riding in community property, 503. members of fire department, 505. Michigan rule, 501. nurse and driver of ambulance, 507. policeman and patrol driver, 506. Wisconsin rule, 501. overloaded automobile, 542. overturning of automobile due to striking dog, 528. participation or acquiescence in driver's negligence, ,543. passenger jumping from automobile in motion, 550. liability of owned, 550. presumption when killed, 509. f.; ^ ' res ipsa loquitur, skidding automobile, 549. riding in automobile without proper lights, 541. riding in rear seat, 534, 537. riding on running board, struck by rear of street car rounding curve, 532. riding with back towards danger, 525. riding with intoxicated or negligent driver, 539, 540. rules of road as applicable to, 511. skidding automobile, res ipsa loquitur, 549. speed statute as applicable to, 513. ' statute imputing driver's negligence to gratuitous passenger void, 544. status of person requesting fide, 551. testing a danger, 543. OFFENSE— (See Arrest; Prosecdtion.) same act may constitute against statute and ordinance, 94. • OFFICER— applicability of speed regulation to, 1566. , arresting without warrant, 1554. care required of, 494. colliding with obstruction while exceeding speed limit, 495. firing at car to cause driver to stop, 1556. liability for loss due to illegal arrest, 1555. 1582 INDEX [REFERENCES: ARE TO SECTIONS.] OFFICERS— Continued. motorist disregarding signal, of, duty of pedestrian, 3£i2. negligence of patrol driver as imputable to, S06. of corporation, authority to enter car at races, 393. ordinance requiring obedience to, validity, 76. , ,> patrol driver and, as engaged in joint enterprise, ,S 19. regulation of traffic by, 245. struck by automobile after alighting from front end of street car, 407 _ struck while on duty, 486, 494. i , automobile on wrong side of street, 494. OPERATING FOR HIRE— (See Automobile in Public Service; Insurance.) OPERATOR— (See Chauppeur; Motorist; Unlicensed Operator.) OPINION— (See^ Evidence.) ORDINANCE— (See Construction; License; Municipal Corporations; Regulation.) conflict with state statute, 91 illustrations, 91, 92. with- statute forbidding denia;l of free use of streets, 93. distinguished from resolution, 82. enacted for particular "purpose, 208. extends to protection of Whom, 208. illustrations, 208. forbidding automobiles on highways at night, 84. ' making failure to pay for hired car misdemeanor, invalid,. 1309. regulating automobiles "within city limits" void, 66. regulating crossing of streets, see Streets. same act may offend statute arid ordinarice, 94. title of, 89. , violation of, as negligence, 197. to create liability must' be proximate cause, 198. void in part, effect, 90. OVERHANG— . (See Pedestrian.) street cars, see Street Cars, Collisions With. OVERLOADING— (See Occupant.) OWNER, LIABILITY OF— acts of servants generally, 1035, 1038. burden of proof, what plaintiff must, prove, 1047. jury question, 1048. control of automobile, proof of, 1052. dangerous instrumeptality, theory of, 1042.. permitting car out of repair to be used, 1043. fire chief, liability for acts of subordinate driver, 1045. INDEX 1583 [references are to sections.] OWNER, LIABILITY OF— Continued. incompetent person, intrusting car to, 1040, 1041. intrusting car to one of prohibited age, 1041. joint owners, 1037. , jury question, 1048. liability for negligence of driver of racing machine, 39S, master and servant, relation of, 1032. salesman on commission, 1034. when it exists, 1033. municipal corporation, 1044, not liable for servant's acts, when, 1038, 1039. ownership, proof of, 1049. car registered in defendant's name, 1050. plea of general issue admits ownership, lOSl. partnership, liability when car operated by partner, 1046. racing car, see Pedestrian. riding with chauffeur, conviction of offense, 1579, 1610, 1611. salesman on commission as servant, 1034. service of process on, in any- county, by statute, 62. statute making liable for all injuries invalid, 58. statute making liable when car operated with his consent valid, 60. statutory liability, 1036. taking car without consent of, crime, 61. ACTS OF CHAUFFEUR act to gratify personal malice, 1092. attractive nuisance, truck as, 1104. carrying passengers contrary to orders, 1106. chauffeur and machine hired to another, 1113, 1114. owner agreeing to stand liable for acts of chauffeur, 1115. chauffeur doing work for anothei- employee, 1117. / chauffeur going for own laundry, 1077. chauffeur going to his meals, 1078. chauffeur injuring person while placing car at repair shop, 1101. chauffeur inviting another to ride with him, 1095, 1109. chauffeur of car for hire taking young lady home without charge, 1107. chauffeur on way to secure parent's consent to drive for owner, 1083. chauffeur operating car for hire on commission, 1108. chauffeur permitting another to drive car, 1111. chauffeur taking family on pleasure trip, 1076. chauffeur taking friends for a ride, 1079. chauffeur temporarily in service of another, 1112. chauffeur using car for own convenience in employer's business, 1081. chauffeur using car for own pleasure or business, 1072, 1073. chauffer using car in violation of instructions, 1074. chauffeur with general control of car, 1093. competency of chauffeur, mistake of owner as to, 1057. defendant and chauffeur riding in car registered in defendant's name, 1105. deviation from route or instructions, 1086-1088. accident occurring before deviation commenced, 1089. returning after, deviation by regular route, 1090. . 1584 INDEX [rEPEI^ENCES : are to SECTIONS.] OWNER, LIABILITY OF— Continued. following proper route in improper manner, 1091. act to gratify personal malice, 1092. driving own automobile for another, 108S. employee practicing driving evenings, 1084. employee taking friend to theater, 1080. employee using car after working hours, 1075. employee using car to reach work earlier, 1082. evidence of relationship of owner and chauffeur, 10S3. failure of owner to deny authority of chauffeur, 1110. following proper route in improper manner, 1091. going for supplies or to have car repaired, 1099. hired car and chauffeur going beyond trip employed for, 1100. injury to person riding with chauffeur, 109S, 1109. insurance carried on car by defendant as evidence of ownership, 1069. land owner's car carrying . client of real estate agent to look at land,' 1102. "look the car over," what included in authority, 1094. name on automobile or driver's cap as proof of agency of driver, 1065, 1067. ownership as evidence that driver acting for owner, 1064, 1065. permitting children to climb an automobile, 1103. truck as attractive nuisance, 1104. presumption from chauffeur operating employer's car,' 1058-1062. presumption from chauffeur purchasing .supplies in owner's name, 1071. presumption from owner riding in car driven by another, 1063. presumption from ownership, 1064. presumption from use of car with owner's consent, 1070. ratification of acts of chauffeur, 1056. registration number issued to dealer as proof driver was acting for owner, 1068. repairman making trip for owner while testing car, 1116. returning for owner after using car for own purpose, 1096. scope of employment, 1054, 1055. ^ "special service," 1112. testing car, 1097. testing car by actual run, judicial notice, 1094. testing car on pleasure trip of own, 1098. u?e by permission of owner as proof of agency, 1070. DEALER FURNISHING DEMONSTRATOR OR INSTRUCTOR (See Dealer.) ACTS OF BORROWE'R OR HIRER chauffeur as borrower, 1130, 1131. committeeman borrowing car to transport political speaker, 1132. employee as borrower, 1130, 1131. family car, borrowed by campaign committee, driven by owner's daughter, 1133. nonliability of owner, 1128. statutory liability, 1129. liability of borrower, 1134. statutory- liability, 1129. ' ACTS OF MEMBER OF FAMILY OR GUEST adult child, 1178. INDEX 158S [RErEKENCES ARE TO SECTIONS.] OWNER, LIABILITY OF— Continued. using car for own purpose, 1179, 1182. owner riding with, 1180. using car without permission, 1181, 1182. taking fellow employees for ride, 1183. brother driving owners car in which mother is riding, 1219, "business," 1163. car borrowed by son and driven by third person designated by father, 1190. liability to invitee of third person, 1190. car in use for purposes of both parent and child, 1176. .car kept for benefit of son's health, 1177. - chauffeur driving under orders of owner'si daughter, 1193. children using car during absence of pareiits, 1194. daughter being taught to drive, 1169. daughter lending family car to. stranger, 1167. daughter using car in general control of chauffeur .during lowner's absence, 1222. daughter using car owned by father and mother, 1192. denying use of car to certain member of family, 116S. family car; 1163 et seq. ■ , . family car driven at request of owner's wife, 1168. , generally, 1160. ' i . guest — . : chauffeur driving at direction of member of family, ,1221.. automobile used by, 122S. guest, liability of, 1226. guest operating car for partners, 1227. husband driving wife's car, 1218. husband's liability for negligence of wife, 1209. husband's liability to wife, 1210. intrusting car to incompetent or reckless son, 1172, 1173. invitee of driver, liability of owner to, 1190. liability of owner to daughter's guest, 1207. member of family permitting another to drive, 1223. minor child, 1196. about father's business, presumption, 1197. driving with mother, wife of owner, 1201. driving with sister and guest, 1200. father riding within sonrin-law's car, 1205. habitually using car, 1206. on errant for mother, in violation of owner's orders, 1195. operating car for hire, 1199. * owner riding with, 1204. taking car contrary to orders, 1203. taking guests to dance, 1202. without authority, 1198. mother — riding with minor son over, whom she has control, 1214. using daughter's car and chauffeur, 1215. niece driving uncle's car, 1208. owner driven by husband's employee, 1228. B. Autos.— 100 1586 INDEX [references are to sections.] OWNER, LIABILITY OF— Continued. owner, duty of, when accompanying wife or minor child, 117S. owner's chauffeur driving son-in-law, 1220. partnership, liability of, car operated by' guest, 1227. permitting minot to drive car in violation of law, 1174. physician permitting son to Use his car, 1224. presumption from son driving father's car, 1171. son as employee j 1162. son driving car containing owner's wife, daughter, guests, 1184, 118S. son general chauffeur of father, 1189. son learning to drive under instructions of selling agent, 1170. son leaving car unlighted in street according to custom, 1191: son taking daughter's servant home, 1186. son taking young lady home, 1188. son and daughter returning from dance, 1187. son-in-law using family car, 1166. statutory liability, 1161. wife — as agent or servant, 1-211. driving husband's car with his consent, 1212. employing chauffeur to drive car, legal title of which is in her name, 1213. liability of husband for acts of, 1209. liability of husband to, 1210. riding in husband's car driven by third person, 1216. sending chauffeur for physician for person found injured in street/* 1217^ MISCELLANEOUS bookkeeper driving car kept for salesman, 1152. car owned by officer of corporation driven by another officer, 1148. car owned by president, driven by chauffeur of corporation, 114S. cash register sales agent employed on commission, 1139. conditional buyer driving car, title in seller, 1138. corporation owner of car driven by officer, 1143, 1144, 1146, 1149. employee getting car from repair, shop, 1137. employee of third person testing car for defendant, 11S4, employee procuring another to drive, 11S5. employee taking car to demonstrate, 11S3. friend driving car to police station after chauffeur's arrest, 1141, 1142. garageman demonstrating car left by owner for purpose of sale, 1136. liability of automoljile school for negligence of student, 1159. manager for automobile company testing car for customer, 1147. mechanic employed to repair car, 1135. orderly of hospital interfering with driving of ambulance by employee of garage, 1156. owner present, permitting another to drive, 1157. owner riding in car with tester, 1158. repairman driving owner's car to repair shop, 1140. sales agent inviting another to ride, 1150. salesman using car for private purpose, 1151. superintendent driving home in employer's car, 1149. volunteer driving car to garage when owner arrested, 1142. INDEX 1587 [references are to sections.] OWNER, LIABILITY OF— Continued. INJURIES TO CHAUFFEUR ., band flying off of wheel, 1239. brakes defective, 1234-1236. chauffeur with full control of car, 1230. competency of chauffeur presumed, 1229. engine back firing, 1231, 1232, 1237. exceeding speed limit, 1241. inexperienced employee, 1232. mechanician injured on defective race track, 1243. owner moving spark lever causing back fire when cranked; 1231. race track defective, 1243. starting lever flying back, 1237. steering gear defective, 1233. tester injured on testing track, 1242. using car contrary to orders, 1240. wrench slipping off of lug, 1238. OWNERSHIP— (See Evidence; Insurance.) PARENT AND CHILD— (See Owner, Liability of.) injuries to children, see Children. PARKING— ; (See REGUL.4TI0N.) as nuisance, 78. as wilful obstruction to traffic, 78. duty of passing motorists as to machines parked at curb, ISO. validity of regulations, 78. PARTNERSHIP— (See Agent and MVr; Insurance.) liability of, when car operated by, one , of paftners, ,1046. i registration of car in name of, 2S7, 267. PARTIES— (See Insurance.) PASSENGER— \ (See Automobile in Public Service; Occupant.) street railway, struck by automobile, liability ' of railway, S9^. street car, injured by truck turning onto track in front of car;' 629.' street car riding on bumper, stuck by automobile, 644. PASSENGER VESSELS— (See Gasoline.) PAVED STREET— defined, 268. PEDESTRIAN— alighting from standing machine, 334. _in country road, Sii. alighting backwards, 334. 1588 INDEX [references are to sections.] * PEDESTRIAN— Continued. alley, automobile turning into, 388. and ' motorists, mutual' rights and duties, 287, 288. automobile! changing course towards, 385. automobile deflected against, by collision, 383. automobile 450 feet away when pedestrian starts to cross street, 350; automobile moviijg out of driveway between buildings, 387. automobile not seen by, 312-314. in village street, 313. automobile obscured — ■_ by wagon, 320. , . by street car, 321. automobile on wrong side — pedestrian carrying umbrella, 328. V automobile on wrong side, pedestrian emerging from behind wagon, 325. aiitomobile speeding to cross in froiit of team, 386. automobile starting when cranked, 382. automobile swerving, pedestrian moving back and forth, 332. automobile turning suddenly around street car, 322. automobile, zigzagging, obscured by standing vehicle, 324. backing automobile, failure to look for, 380. between "crossings, 380. backing automobile, struck by, 377. no warning, 378. on wrong side of street, 378. on sidewalk, 379. becoming excited on approach of automobile, 330. between crossings — walking in roadway, 337. falling on ice in avoiding automobile, 338. walking in street to avoid building material, 339. boarding or alighting from street cars, see Street Cars. bridge, struck while on, 349, 351. building material, walking in street to avoid, 339. liability building contractor, 339. care required of, 287, 288, 293-299. care required not same as when crossing tracks, 298. ■ carrying armful of pies, crossing from rear of wagon, 341. children, see Children. compelling, to yield way, 292. confusion on approach of automobile, 330. congested street, injured in crossing, 343, 368. contractor leaving material on walk, liability, 339. corner, struck by automobile turning or just after turning, 360. struck from rear, 361. cross at crossings, statute requiring construed, 302. crossing after seeing automobile, 344, 345. crossing race track at fair, 396. crossing roadway of bridge, 349. ' crossing street diagonally carrying sack of grain, 340. acijssing street in "middle of block, 300. INDEX 1589 [references are TO' SECTIONS.] PEDESTRIAN— Contijiued. crossing street in plain view, 354. on crosswalk, 3SS. struck irom rear, 361. crossings, duty of motorist at, 290. cutting corner, motorist, 381. passing another vehicle, 381. signal of traffic officer, 381. defense of action by, matters properly shown, 400. diverting automobile to front or rear of, 291. driveway to public building, struck while on, 3S0. duty in using highways, 287, 293. duty of motorist to, 289. at crossings, 290. duty of, when motorist disregards signal of traffic officer, 362. elderly woman stooping near curb, 348. emerging from behind crowd in middle of block, 318. emerging from behind vehicle in middle of block, 317. emerging from behind wagon, automobile Oh wrong side, 325. emerging from in front of street car, 316. emerging from in front of team, 315. evidence of probable conduct of, in face of danger, 307. failure to see what he should see, 312. fright, falling from an automobile approaching without warning, 331. ice, falling on, in avoiding automobile, 338. inatttention of operator, 389. inexperienced operator, 389. instructions to jury, see Instructions. intoxicated, 399. iron bars protruding from rear of turning automobile, 390. last clear chance doctrine applied in injury cases, -305-306. last clear chance, pedestrian confused, 330. leading horses into street from yard, 311. licensee, duty of, 304. injury to, 304. lights,! automobile running without, 374. approaching crossing, 375. blinded by, 376. lights on street car blinding both pedestrian and motorist, 376. locking ring rolling from passing automobile, 373. look and listen, duty to, 294. not continuous, 296. look, failure to, along intersecting street, 360. look to rear, duty to, 297. may assume motorist will use due care 299. may use any part of highway, 300. must not impede traffic, 300. motorist attempting to pass in rear of, 384. motorist disregarding signal of traffic officer, 362. duty of pedestrian, 362. motorist driving between curb and row of parked automobiles, 32* 1590 INDEX [references are to sections.] PEDESTRIAN— Continued. motorist driving past standing street car, 323. pedestrian crossing in front of car, 323. motorist struck while placing tire in tire holder, 398. motorist struck while putting up top, 397. moving back and forth to avoid automobile, 332. moving from place of safety in front of auto^lobile, 333; •■ must anticipate use of highways by motorists, 288. must not impede traffic, 300. neither pedestrian nor motorist seen by the other, 314. not seen by motorist, 314. rainy night, high speed, 329. officer at race track struck by motorcycle which left course, 39S.-r on crosswalk in view, 3S5.. struck from rear, 361. on sidewalk struck by truck deflected by depression in street, 936. overhang of truck, struck ; by, 1 371. overhanging tire, struck by, 372. overtaking and colliding with, 308. overloaded machine, dark night, slippery road, high speed; 306. pedestrian in charge of animals, 310. ■ r parked automobiles, motorist driving between, and; curb, 326. prostrate in street, 352. res ipsa loquitur^ ' ^ automobile running onto sidewalk, 369. pedestrian having seen automobile approaching, .345. rights in highway, 287. right of way of, at crossings by ordinance, 287, 303. right of way, vehicles having between crossings, 301. roadway of bridge; pedestrian crossing, 349. > !:;. or roadway, walking in, between crossings, 337; falling on ice in avoiding automobile, 33:8. to avoid building material, 339. ; ■ running upon street, 293. safety, moving from place of into danger, 333. sidewalk, struck while on, 363, 365, 367, 369, 388. res ipsa loquitur, 369. * fire automobile forced onto sidewalk by negligence of /another, 370. by overhang of truck, 371. by overhanging tire, 372. by locking ring from passing automobile, 373.i . by machine backing out of yard, 379. sitting on bridge approach, 351. skidding — due to excessive speed, 363. due to collision of automobiles, 367. turning corner, 364. turning from wet car track, 36S, turning quickly in emergency, 366. ' slippery, crowded street, excessive speed, 368. spectator at race injured by automobile leaving course, 393-396. INDEX 1591 [REFEEENCfiS ARE TO SECTIONS;] PEDESTRIAN— Continued. spectator a trespasser, 394. of&cer employed at track, 395. crossing race track at fair, 396. speed, causing automobile to skid, 363. speed, excessive, 3S7, 358. speed, excessive, at night, 306, 329. speed, excessive, and no lights, 37S.' speed, excessive, causing pedestrian to become confused, 330. speed, failure to slacken, 359. speed on slippery, crowded street, 368. speeding of automobile to cross in front of team, 386. standing in street, 346. statute requiring, to cross at crossings, 302. stepping back, to avoid automobile, in front of street car, 336. stooping near curb, elderly woman struck, while, 348. stop, look and listen rule, 295. street car, pedestrian waiting for it to pass, 347. • street car employees struck in street, 391. conductor falling from car, struck by passing truck, 391. conductor adjusting trolley pole, 392. motorist blinded by light, 392. are within protection of statute requiring automobiles to stop in rear of street cars, 391. struck by automobile moving from between buildings, 387. struck by automobile turning or just after turning corner, 360. struck from rear, 360. swerving of automobile, pedestrian moving back and forth, 332. towing rope, tripping over, 353. traffic of&cer, motorist disregarding signal of, 362. duty of pedestrian, 362. trespasser at races, 394. umbrella, pedestrian carrying, .327-328. not seen by motorist, 327. ' automobile on wrong side, 328. view of automobile obscured — by wagon, 320. by street car, 321. view of motorist and, obscured by team, 319. waiting for street car to pass, 347. walking close in front of automobile, 342. walking in street, 300. must not impede traffic, 300. warning, automobile backing without, 378. on wrong side of street, 378. warning, failure to give, 331, 359. pedestrian falling from fright, 331. woman lying prostrate in street, 352. PENAL ORDINANCES— (See Construction; Municipal Corporations.) 1592 INDEX [references are. to sections.] PENAL STATUTES— (See Statutes.) PERIL— (See Imminent Peril.) PERSONAL LIBERTY— (See Registration.) PERSONS EMPLOYED IN STREETS— (See Employees.) PILFERAGE— (See Insurance.) PLAYING IN STREET— (See Children.) PLEADING— (See Insurance.) PLEDGE— (See Sales.) POLES— (See Defective Highways.) POLICE OFFICER— (See Officer.) POLICE ORDINANCES— (See Municipal Corporations.) POLICE POWER— described, 31. excluding automobile from highways, 35. limitation of, 33. of municipal corporations, 64. see Municipal" Corporations. registration, see Registration, ■ regulating use of automobile, 34. regulating use of property, 32. regulation, see Regulation. repeal of law by implication, 36. taxation, see Tax. POLICY— (See Insurance.) PRESUMPTION— as to skill of driver, 160. car damaged, lost or stolen while in possession of garageman,! 1284. chauffeur's competentcy, 1229. Chauffeur of truck has no authority to permit persons to ride with him, 1109. collisions with street cars, see Street Cars, Collisions With. INDEX 1593 [references are to sections.] PRESUMPTION— Continued. employee of garageman acting m scope of employment, 1291. motorist may assume others will use care, 196. owner riding in car driven by another, 1063. ownership of car as indicating driver acting for owner, 1064, 106S. res ipsa loquitur, see Res Ipsa Loquitur. scope of employment, see Owner, Liability oe. son driving father's car, 1171. statutory, that collision with street car was due to' company's negligence, 650. that deceased motorist relied on train complying with speed ordinance, 734. that motorist saw what he could see by looking, 690. when passenger is killed, 509. PRICE FIKING— (See Agent and M'e'e.) PRIVATE CONVEYANCE— "in or on" while cranking engine, 1639. PRIVATE CROSSINGS— (See Trains, Collisions With.) PRIVATE DRIVEWAY— (See Children; Pedestrian.) PRIVATE RIGHT OF WAY— (See Street Cars, Collisions With.) motorist driving onto at night, struck by street car, 640. , PRIVILEGE TAX— (See Tax.) excise and, 108. PROCESS— (See Service.) provision for service on owner in any county, 62.., PROHIBIT— power to, not included in power to license or regulate, 130. PROOF— (See Burden of Proof; Evidence.) PROOF OF LOSS— (See Insurance.) PROPERTY RESTRICTIONS— (See Garage.) , PROSECUTION— assault and battery, 1S89. assault to do great bodily harm, 1590. assault with intent to murder, 1591. breach of peace, "tumultuous and offensive carriage," 1592. carrying revolver "about- the person," carried behind seat cushion, 1594. charging an offense, 1557, 1558. 1594 INDEX [references are to sections.] PROSECUTION— Continued, conspiracy, 1S93. criminal intent, 1564. criminal negligence, 1609. dealer's number used for private purpose, 1587. displaying borrowed license tag, 1588. driving without registration number, 1581. due to mistake, 1582. unable to secure number plate, 1583. duplicity in alleging offense, 1559. failure of operator to stop on signal from driver of team, signal by person other than driver, 583. failure to stop on signal from driver of horses, 1600. signal by occupant, 1600. forcing another into dangerous place, 1595. intoxicated driver, 1585. as nuisance, 1586. jurisdiction of court, 1560. fine in excess of, 1560. larcency of car in Texas formerly misdemeanor, 1603. leaving place of accident unlawfully, 1601. sufficiency of evidence, 1602. malicious mischief, 1593. manslaughter, 1567 et seq. obstructing traffic, 1613. officer, applicability of speed regulation to, 1566. one act constituting more than one offense, 1S63. owner violating law while merely riding with chauffeur, 1579, 1610. unaware of violation, 1611. proof and variance, as to date of offense, 1562. rate card, failure to dbplay, 1584. « reward for evidence, authority of states attorney to offer, 1615. speed regulations violation, 1605. speed greater than reasonable, etc., 1605. as evidence of negligence, 1608. statutory signs not erected, 1606. passing other vehicle, 1607. Sunday law violation, 1614. taking car without owner's consent, 1596. all aiding are guijty, 1597. as larceny, 1598. trial, summary or by jury, 1561. turn close to curb, failure to, 1612. offense described, 1612. uncertainty of statute, 1565. , violation of law forbidding operation of, cars having taximeters, 1604. wrongfully operating car on highway, 1599. PROSPECTIVE PURCHASER— (See Dealer.) INDEX 159S [references are to sections.] PROXIMATE CAUSE— (See Lights; Negligence.) automobile starting of own accord, 206. driving on wrong side of highway, 237. driving unregistered car or without licenses, see Unregistered Automobile; Unlicensed Operator. frightening horses, injury due to, S68. instructions, 200. last clear chance doctrine is merely question of, 204. of injury, 200. _ , violation statute or ordinance must be, to create liability, 198. PUBLIC HIGHWAYS— (See Highways.) PUBLIC SERVICE MOTOR VEHICLE— (See Automobile in Public Service.) defined, 4. PUNISHMENT— (See Prosecution.) PURCHASER— (See Dealer; Sales.) QUIET ZONE SIGNS— (See Evidence.) RACE TRACK— (See Owner, Liability of.) holding in public highway as negligence j 393. as nuisance, 393. RACING— and testing automobiles in street, 912. authority of corporation officer to enter car for, 393. in highways, 173. in highway, collision between racing automobiles, 802. injuries to spectators, 393-396. spectator a trespasser, 394. officer . employed at track struck by, machine which left course, 39S. RAILROADS— (See TiiAiNS, Collisions With.) RAILROAD CROSSINGS— (See Trains, Collisions With.) defective, causing injury to automobile, 921. RATE CARD— failure to display, prosecution, 1584. RATIFICATION— (See Agent and M'f'r; Owner, Liability of.) 1596 INDEX [references are to sections.] REBATE— offered by manufacturer on condition, right of purchaser to recover, 1438. REFORMATION— (See Insurance.) REGISTRATION— and display of number, 4S. as denying due process of law, 49, 79. as infringing personal liberty, 48. as infringing privileges and immunities of citzens, SO. as taking of property, 47. automobiles in interstate commerce, 144. by former owner, transfer of ownership, 247. condition precedent to valid sale, 1367. constitutionality of law, 46, 79. corporate owner, fictitious trade name, 2S7. corporation owner, 267. "custodian" or "owner" required to register car, 2S5. dealer's number on car operated by private owner, 251. for pleasure, 2S2. death of owner, effect on, 2S3. discrimination — between residents and non-residents, SI. against non-residents, 52. between non-residents, S3, due process of law, 49. enjoining enforcement, 80. exempting automobiles kept in stock, 44. failure to remove tags when car sold, 2S4. false, 256. fictitious trade name, 257. foreign corporation not non-resident, when, 263. in name of defendant, as evidence of ownership, 1050. in name of one of joint owners, 258. joint owners, 258. non-readent, foreign corporation is not, when, 263. non-resident, term of exemption, 259. overstaying, 259. "operating" car under false registration, 256. operating unregistered car, see Unregistered Automobili.. "owner" or "custodian" required to register"^ cat, 255. partnership dissolution, toect on, 247. partnership or firm name, 257. partnership owner, 267. power of municipality to require, 79. prosecution for offenses relating to, see Prosecution. purpose, 45. unreasonable search and seizure, 136. REGULATION— accident, driver required to give name, etc., 57. INDEX 1597 [references are to sections.] REGULATION— Continued. agents and dealers, taxing, validity, S6. automobiles for hire see AtTTOMOBiLES in Public Service. automobiles in interstate commerce, 144, 146. automobiles in mail service, 140. automobiles required to pass to right of street cars, 73. automobiles required to stop at rear of street cars, 74. validity of ordinance, 73, 74. chauffeurs, 1028. class legislation, 43. classifipatioh for, 113. according to horsepower, 114. classification for purpose of license, 13S. conflict of ordinance with statute, 91. illustrations, 92. with statute forbidding denial of free use of streets, 93. crime to have automobile with number, etc., removed, SS. crime, taking car without owner's consent, 61. crossing of streets, forbidding except at designated crossings, 70. ordinance not effective until designation made, 70. distinction between regulate and prohibit, 88. driving horses, not applicable to automobiles, 167. equal protection of laws, 43. exempting automobiles kept in stock, 44. exclusion of automobile from highways, 35. fee for, see License Fee. fenders on motor trucks, 7S. forbidding automobiles on highways at night, 84. garages, see Garage. gas and smoke, forbidding escape of, 72. giving certain vehicles right of way, 68. laws regulating traction engines not applicable to automobiles, 17S. license, see License. Ughts, 71. limitation of, 33< local or special law, 112. making claim for damages lien on car, 59. making owner liable when car operated with his consent, 60. manufacturer's number or mark removed from car, crime, 5Sj naval service member not amenable to, by state, 139. necessity for, 37. i necessity for uniform, 38. non-resident, discrimination, see Registration. non-resident required to appoint agent on whom process served, 63. obedience to police officers, 76. of automobiles "transporting persons or property," 137. of automobiles "within city limits" void, 66. of speed, by municipality, 67. of speed, power of state, 39. owner liable for all injuries, statute invalid, 58. 1598 INDEX l[RErERENCES ARE TO SECTIONS.] REGULATION— Continued. parking, validity, 78.^ . as nuisance, 78. '> wilful obstruction, 78. police officers, requiring obedience to, validity, 76.' power of, includes power to license, 125. does not carry power to prohibit, 130. power of, see Municipal Corporations. registration, power of municipality to require, 79. enjoying enforcement, 80. registration, see Registration. regulation as class legislation, 43. repeal of law by implication, 36. requiring driver to give name, etc., in' case of accident, 57. requiring driver to stop on signal from driver of horses, 54. requiring non-resident to appoint agent on whom process may be served, 63. riding in front of driver on motorcycle forbidden, 11. right of way to certain vehicles, 68. • same act may ofiend both statute and ordinance, 94. service of process on owner .in any county,^ statute, 62. signs required to be placed by municipality, 69. sufficiency of compliance with, 69, failure to comply, 69. smoke, gas, etc., forbidding escape of, 72. special law, 112. speed, applicability to peace officer, 1566. speed, power of state, 39. statutory, as cumulative, or declarative of. common law, 156. statute making owner liable for all injuries done by cax^ invs^lid, 58. statute Blay be both police and revenue measure, 110, taking car without owner's consent, crime, 61. tax, see Tax. taxing dealers and agents, 56. traction engines, not applicable to automobiles, 175. uniform, necessity for, 38. unreasonable search and seizure, 136. use of automobile, 34. use of property, 32. REGULATORY TERMS— (See Words and Phrases.) "absolute control at all times," 279. "approaching," 283. "approaching a high embankment," 284. "as close as practicable to the right curb," 273. "as near the right-hand curb as possible," 272. "average rate of speed," 281. "business portion," 282. "curb," 270. "drive," 278. "intersecting highways," i i 76. INDEX 1S99 [references are to SECnONS.l REGULATORY TERMS— Continued, "meeting on highway," 271. ''paved street," 268. "ride or drive," 278. "road," 269. "slowly moving vehicles," 274. "steam," 280. "the road," 269. "traffic," 27S. "traveler,", 286. "uniform rules," 28S. "vigilant watch," 277. REMEDY— (See Sales.) RENTING— (See Insurance.) REPAIRMAN— (See Garageman; Owner, Liability ' of.) contract to put car "in good running condition," performance, 1.^42. duty and liability generally, 1316. excessive charge, recovery of j car by owner, 13l9. lien of, 1317. ' as dependent on possession, 1324. assignability, 1327. attaches when, 1320. / car repaired for lessee, 1321. discharge, 1337. e^ect of recovery less than amount demanded, 1318. estoppel of owner to assert rights algaihst, 1334. for constructing body before delivery, 1332. for what attaches, 1323. repairman as "wheelwright," 133S. repairs ordered by person other than owner, 1333. repairs to several cars, 1328. statute making no provision for owner to be heard on disputed claim, 1336. statutory, as good against innocent purchaser, 1322., superiority over lien of mortgagee or seller, 1329, 1330, 1331. time for filing "delivery" of car, 1326. waiver by special agreement, 132S. proof of ownership of repaired car, 1339. proof of repairs, 1338. repairs not ordered, liability of owner, 1340. setting off cost of subsequent repairs against repair bill, 1341. REPAIR WAGON— colliding with vehicle, 244. right of way of, 244. REPEAL— of law by implication, -36. ■ 1600 INDEX ' [references are to sections.] REPLACEMENTS— (See Sales.) REPUDIATION— (See Insurance.) RES GESTAE— (See Evidence.) RESIDENT— (See Regulation.) RES IPSA LOQUITUR— applicable to automobile accidents, 20S. automobile starting of own accord, 206. backing without warning, injury to child, 432. child found injured in street, 48S. colliding with horse tied to hitching post, 896. colliding with standing wagon at night, 8S4. collisions with horse-drawn vehicles, 868. collision with train, 782. defense, 782. instruction to jury, 782. explosion of tank, behig. repaired, by blowpipe, 131S. injuries to pedestrians, see Pedestrians. injury to jitney passenger, ISIS, not applicable, when, 20S. rebuttal of, by defendant, 207. skidding, 210, 220. skidding, injury to guest of driver, S49. street car leaving track, 6S7. trolley pole breaking and falling on automobile, 655. RESOLUTION— distinguished from ordinance, 82. RESTRAINT OF TRADE— (See Agent and MVr.) RESTRICTIONS— (See Garage.) REVENUE— (See Federal Laws ; License Fee ; ' Tax.) REWARD— authority of state attorney to offer, 161S. RIDE OR DRIVE— defined, 278. RIDER OF HORSE— in highway, struck by automobile, 900, 901. RIGHT OF WAY— (See Automobiles, Collisions Between; Regulation.) INDEX 1601 [references are to sections.] RIGHT OF WAY— Continued. at intersections, see Intersechng Highways. fire department vehicles, collision with street cars, 607. on highways, 233. pedestrians, see Pedestrians. salvage corps has not, 606. vehicles given, by law, 244. rights and duties of driver, 244. ambulance, 244. repair wagon, 244. ROAD— (See HtGHWAY; Words and Phrases.) ROADBED— (See Insurance.) ROBBERY— , J (See Insurance.) ROLLER SKATING— (See Children.) ROPE— (See Defective Highways; Towing Rope.) RULES OF THE ROAD— (See Law of the Road.) SAFETY ZONE— pedestrian struck within, 411. SALES— (See Agent and MVr.) acceptance, conditional, 1352, acceptance, failure to return car as, 1349. acceptance of order as, 13S0. acceptance of order, implied, 1346. acceptance of order, provision as to, waiver by seller, estoppel, 13S1. accession, doctrine of, 1382. agent, authority of, 1402. breach of contract of, return of car for, 142S, 1426. must be in reasonable time, 1427, 1428. breach of warranty, see Warranty. buyer exercising ownership over car as affecting right to rescind, 1431. car in possession of seller damaged after sale, 1371. car not fit for use as non-performance of contract of sale, 1410. car not owned, 1347. caveat emptor, 1406. . chauffeur selling car without owner's consent, 1348a. conditional acceptance, 1352. conditional buyer may recover lor damage to car, 1383. conditional sales, 1353. B. Autos.— 101 1602 INDEX [REJERENCES AEE: TO f SECTIONS.] SALES — Continued. conditional seller and buyer, rights -atid 'iremedies of, 1379, 1383. unrecorded sale agreement, -1380. "■i" ' ■'■ '' ' conditional seller re-taking car, 1381. right to tires 3,nd other replacements, 1382. consideration, want or failure of, as defense, 1386. consignment to bank ar sale to customer, 13SS. contract signed by only one party, 1345.*- ' ' corporation or officer, power to purchase, 1368. damages — for fraudulent procurement of exchange of car for land, 1421. for breach of warranty, 1433. for failure to replace defective parts, 1434. rescission by buyer and refusal of seller to' accept, right to recover lor storage and insurance, 143S. when purchaser refuses to accept, measure, 1377. delivery, failure to make, on time, 137S. ' estoppel of owner to assert title to car sold, 1348. exception, 1348. evidence of condition or value of car, 1436. failure of seller to keep full line of supplies as" represented, 1387. failure to develop rated horse power, evidence, 140S. fraud, what is, effect of, 1417, 1418, il419. ' may be proved by parol, 1416. fraud in inducing purchase of car, 1419. fraud in procuring exchange of car for land, 1421. fraudulent procurement of cancellation of order, 1384. measure of damages, 1385. incumbered car, purchasing; 1372. interstate commerce, 1369. invalid unless car registered, 1367. lease or sale, 1366. lien of conditional seller as superior to l^en for injuries, 1354. lien on car for injuries inflicted, 1373. minor — valiflity of pur,chase by, 1359,,., disaffirmance of purchase by, 1360. restoration on disaffirmance, 1361. as agent of parent, ratification, 1362. misrepresentations by selling company, car sold through credit 'sales company, 1404. mortgage or pledge, .1,365. notice of rejection required after first use, demonstration as first use, 1430 order and acceptance as sale, 1350. ordering cars, 1467. paying sight draft before opportunity to inspect car, 1423. performance, time for, when old car,, traded in, 1357. pledge or mortgage, 1365. possession as evidence of ownership, 1374. proof of market value _by experts, 1437. rebate offered by manufacturer on condition, right of purchaser to sue for, 1438, INDEX 1603 [refekences arE'to sections.] SALES— Continued, refusal to perform, offer to perform after, 1378. registration as condition precedent to, 1367. remedies for breach of sale contract, 1376. remedy — 1 of one fraudulently induced to purchase car,, 1419.^ of one fraudulently induced to exchange car, 1420. for breach of warranty, 1422 et seq. replacements, doctrine of accession, 1382. . repudiation of part of order by buyer, 13S8. rescission of contract of, must be in reasonable time, 1427, 1428. right to rescind for structural defect which seller guaranteed to repair, 1432. sale or consignment, 1364. ' .' ' sale or executory contract of, distinction, 1363.' sale or lease, 1366. '" salesman, authority of, to sell, 1370. statute of fra,uds, 13S6. oral sale, 1356. memo;randum, 13S6. title passes, when; 1343, 1344. warranty, see Warranty. written contract, effect of, 141S, 1416. SALES AGENT— (See Agent and MVr; Owner,' Liability of.)' SALESMAN— (See Agent and MVr; Owner, Liability of; Sales.) SALVAGE CORPS— collision with street car, injury to employee, 606. vehicle of, has no preference in streets, 606. SCHOOL— (See Automobile School; Garage.) mjuries to children near, see Children. SCOPE OF EMPLOYMENT— (See Owner, Liability of.) SECOND-HAND CAR— . (See Insurance; Sales; Warranty.) when car is not, 1653. SERVICE— .? (See Process.) on agent as service on manufacturer, 1444. SET-OFF— ■'' 'J'l"'-'-.' cost of subsequent repairs against repair bill, 1341. of one breach of contract against another, 1463. 1604 INDEX [reeerences are to sections.] SIDEWALK— (See Pedestrian.) child injured while on, 434, 435. at private driveway, 441. SIGHT— (See Incapacitated Persons.) SIGHT-SEEING CAR— (See Automobile in Public Service.) SIGNAL— ' (See Regulation; Warning.) by driver of-horses to stop unheeded by motorist, prosecution, 1600. signal by occupant, 1600. by driver of team, see Frightening Souses. crossing signals, see Trains, Collisions With. SIGNAL DEVICE— ' automobile must be equipped with, 18S. instruction relative to, 18S. statutory provisions, 18S. testimony as to use of, 188. use of, unavailing, no liability, 186. want of, as negligence per se, 197.- when failure to sound creates no liability, 186. SIGNS— (See Evidence; Regulation.) SKATING— (See Children.) SKID CHAINS— failure to use, 309. SKIDDING— as evidence of negligence, 220. as nuisance, 219. care required to avoid, 218. child on sidewalk injured, 434. colliding with lamp post, 219. injury to guest in automobile, res ipsa loquitur, 549. injuries to pedestrians, see Pedestrian. instruction to jury, 218. res ipsa loquitur, 220. street intersection where view obscured, 825. SKILL- (See Presumption.) evidence of skill of driver, admissibility, 159. motorist must have, 157. instruction as to, 157. INDEX 1605 [refehences are to sections.] SMOKE— (See Regulation.) SON— (See Owner, Liability of.) SPECIAL LAW— class legislation, see Class Legislation. law regulating and licenrfng automobiles as, 112. SPECTATOR— (See Racing.) SPEED— application of regulations to fire department, 169. approaching a descent, 172. as negligence, 16S. statutory prima facie evidence, 166. at intersecting highways, see Intersecting Highways. Children, injuries to, see Children. collision with street cars, see Street Cars, Collisions With. evidence of, see Evidence. excessive, evidence of, sufficiency, 3S7, 3S8. excessive, injury to pedestrian, see Pedestrian. frightening horses, see Frightening Horses. greater than reasonable, etc., 170. injury to one of group of children, 431. inability to stop within distance objects visible, 168. naval service member iiot amenable to state regulation of, 139. of train as negligence, 741. power of municipality to regulate, 67. power of state to regulate, 39. quiet zone signs as evidence, 167. ^ racing in highways, 173. regulations, prosecution for violation, 160S-1608. statute regulating, as applicable to occupant of automobile, ' £13. that endangers life, etc, 171-. SPEEDOMETER— (See Evidence.) STABLE— (See Garage; Garageman.) STAGE COACH— automobile as, 6. STATE— (See Police Power.) spectator injured at races held by, liability of, 393. 1606 INDEX [references ARE' to ' sections.] STATUTE— authorizing passing of street cars on left, injury to child, 466. construction, 40. creating only criminal liability, ISS. violation is negligence, ISS. criminal or penal, uncertain in creating offense, 1S6S. effect of partial invalidity, 41. enacted for particular purpose, 208. ■ extends to -protection of whom, 208: illustrations, 208. imputing driver's negligence to gratuitous passenger void, S44. increasing owner's liability, see Owner; Regulation. lien, making no provision for owner to be heard on disputed claim, 1336. local or special law, 112. motorist must observe, 156, , ., ,, ,' , one subject to be expressed in title, 42,-110. passed for particular purpose, motorist relying on, 73^. penal, construction, 40. provisions affecting autom,obile, see Regulation. provisions of, are cumulative, 156. , as declaratory of common law, 156. , . _ requiring automobiles to stop in rear of street cars.pjo^ejcrts street, car employees, 391. :,_ '. statute applicable to passengers, '40^, 403. requiring motorist to stop at rear of street car, purpose, 405. construed, 405. title of, one subject, 42, 110. violation of, as negligencej,197, as evidence , only, 197., to create liabflity must be proximate cause, 198. STATUTE OF FRAUDS— (See Sales.) STATUTORY LIABILITY— of owner when car operated.with his consent, expri& or' iiisplied, 103^. STEAM— as used in statute, defined, 280. STEAM ROLLER— overtaking and colliding with, 838. STEERING GEAR— . failing td work, 433. injury to driver, see Owner, Liability or. STOP, LOOK AND LISTEN— as applicable to pedestrians, 29S. crossing street car tracks, 592. look, duty to in crossing street car tracks, see Street Cars, toLtlsioNS With. railroad crossings, 685-694'' INDEX 1607 IKBEERBNCES' ; ARE TO ' SECTIONS.] STOPPING— (See Evidence.) STREET CARS— , , , automobiles required to stop at , rear , qf , 74. validity of ordinance, 74. autom<^biles required to pass to right of, 73. validity of ordinance, 73. emerging from behind, see Chu-pren ;, Eep!e^i;rian. law of road as applic^ible to, 601.,.,,, i i ordinance requiring automobiles to stop in rear of construed, 184. standing, motorist, driving past, injuries to pedestrians, see Pedestrians. automobile left on track, 224. STREET CARS, COLLISIONS WITH— automobile in view several hundred/feet, 681. automobile reducing speed crossing track, excessive (Speed of ,car,!66p. ,, . automobile seen 100 feet distant, 6S6. r automobile stalled on track, mutual obligations, 602. backing car into Y, 653. backing onto track', 634. backing out of driveway onto track, 670. car coming from opposite direction than expected, 63Q. car following closely behind another, 623., colliding with passenger riding on bumper, 644. , concurring negligence', ;673.„ , ■,• ' '.! ,, ',■;,, . , conductor on running board struck by autoniobile, ,643; continuing on track after seeing approaching car, 625. crossing behind standing car in front of car on parallel track, 618. crossing in front of lighted car, at night,' 63 6 < crossing when car reduces speed, 626. .?i , , danger not apparent until too late to stop car, 674 regular stopping place not at street crossing, 413. rights and duties of, 402. safety zone, struck within, 411. stepping from car, 408. i stepping from curb, automobile on wrong side, 417. "stopping" defined, 403. struck before seeing automobile, 406. struck just after alighting, 409. , struck just before boarding car, 419. turning back on approach of automobile unlawfully passing car, 420. waiting at crossing for car, 415, 416. automobile on wrong side, 416. STREET CAR CONDUCTOR— (See Employees.) conductor, falling from car, strilck by 'passing truck, 391. conductor on running board struck by automobile, 643. conductor struck while adjusting trolley pole, 392. crossing street from car, 496. motorist blinded by light, 392. statute requiring motorists to stop at rear of cars is for benefit of, 208, 391. using street to go from front to rear of car, 196. may assume what, 196. STREET INTERSECTIONS— (See Intersecting Highways.) STREETS— (See Highway.) defective, see Defective Highways. injury to persons employed in, see Employees. ordinance forbidding crossing except at designated places, 70. not effective until designation madej 70. power of municipality to regulate use of, 65. > regulation of use, see Regulation. statute forbidding denial of free use of, conflict of ordinance with, 93. STUMP— (See Defective Highways.) SUBROGATION— (See Insurance.) 1612 INDEX [references are to sections.] SUIT— (See Insurance.) SUNDAY— letting cars on, 1310.' violating Sunday law in holding races, 1614. . Sunset— '■' '-^ '• ' ' judicial notice of time of, 182. SUPERSEDEAS BOND— (See Insurance.) SURETIES— (See Automobiles in Public Service.) TARIFF— (See Customs Duties.) TAX— agents, and dealers, S6. annual lump sum, 115. automobiles in interstate commerce, 144, 146. . automobile used in fraudulent evasion bf federal tax, 143. classification for, 113. according to horsepower, 114. distinguished from license fee, and license tax, 96. double, license fee does not constitute, 96, 106, 109. equality and uniformity, 107. excise, privilege or license tax, 108. exempting automobiles from, 116, 133. ^ interstate commerce. 111. license and revenue measure, 109, 110. title of act, 110. license, see License. license fee, see License Fee. license fee is not, 106, 131. lump sum, lis. power of municipal corporations, 121. construction of, 122. distinction between, and power to license, 123. not implied from power to license, 124. power of state to impose privilege tax, 98. power of state to tax automobiles, 97, 108. rate of, uniform, 134. uniform rate of, 134. TAXICAB— (See Automobiles in Public Service.) agency for automobiles as including, 1447. TAXICAB PASSENGER—, injuries to, see Occupant. INDEX 1613 [references are to sections.] TELEGRAPH POLES— (See Detective HiGH-vyAYs.) TELEPHONE POLE— in highway, collision with, 221. TESTIMONY— (See Evidence.) TESTING— automobile in street, 912. TESTING TRACK— (See Owner, Liability or.) THEFT— (See Insurance.) TITLE— (See Insurance; Sales; Statutes.) TOWING— not negligence per se, 3S3. truck without brakes on slippery street as negligence, 189. TOWING ROPE— tripping over, 353. TOWNSHIP— (See Defective Highways.) TRACK— (See Owner, Liability of.) TRACTION ENGINES— laws regulating, not applicable to automobiles, 17S. TRAFFIC— defined, 27S. TRAFFIC OFFICER— (See Officer.) TRAFFIC REGXJLATION— by .police officers, 24S. TRAINS, COLLISIONS WITH— approaching crossing in fog, down grade, without stopping, 708. assuming company will give crossing signal,' 683. attempting to beat train over crossing as negligence per se, 682. attempting to cross in front of car, slowing down on track, 729. last clear chance, 729. automobile stalled on track, 726. backing engine at night without lights indicating direction of movement, 752. backing onto track, last clear chance, 710. backing train, duty of trainman on rear of, 742. backing train suddenly near crossing, 749. 1614 INDEX [references are to sections.] TRAINS, COLLISIONS WITH— Continued. backing train without proper lookouts or signals, 7 SO. automobile stopped on track in emergency, 751. box car left in street with bar projecting, collision with, 772. instruction to jury, 772. box cars standing near street, or projecting into street, 778, 779. excessive speed of train, 779. car moving south on northbound track, 773. care required of motorist approaching crossing, 682. failure to sound horn, 682. relying on due care lj)y railroad company, 683. stop, look and listen, 685-694. causal connection supplied by statute, 74S. "convenient" crossing, 775. crossing, duty of motorist ' approaching, , 682 . relying on due care by railroad company, 683. more than one track, 692. crossing, duty of trainmen at, 737. instructions to jury, 738. crossing, sufficiency of, 775. crossing after seeing train, 720. crossing bell silent, rights and duties, 771. crossing defective, injury due to, 774. crossing flagman — absence of customary, 760. duty of, 757. ' duty of, when automobile stalls on track, 758. failure to signal, 763. failure to have, as negligence, 759. .raising gates, 762. signalling motorist to cross, 761, 762. stopping on track in obedience to, 764. crossing gates down, insufficient light, 770. crossing gates lowered close in front of automobile, colliding with, 769. crossing gates lowered on automobile, 768. crossing gates, raising, as invitation to cross, 762.^ crossing gates up, 766. colliding with cars standing on crossing, 767. crossing gates presumed to be controlled by company, 768. crossing signals — as to motorist who sees train, 748. causal connection supplied, by statute, 743. failure to sound, 743, 744. for whose benefit intended, 743. illustrative cases, 744. motorist becoming confused, 746. mqtorist's vieiy obscured, excessive speed, 747. motorist who sees train, 748ii; running without headlight, 753. testimony as to having been given, 744. INDEX 1615 [references ' ARE TO SJ^GTIONS.]' TRAINS, COLLISIONS WITH— Continued. ' ' crossing track at place other than crossing, 733. discovered peril cases, 781. driving against cars standing on' crossing, gates up, 767. driving against moving train at night, 703: driving against standing train at night, 702. driving on crossing soon after passing of train, 716. struck by train movilig in opposite direction, 717. duty of motorist where there is more than one track, 692. train moving in opposite direction from customary travel, 692. engineer may assume motorist will take usual precautions, 74D. evidence as to signals having been given, 684. excessive speed of train, failure to look, 718. failure to stop after seeing automobile stalled on track, 754. flagman's signals, motorist disregarding, 711. flagman waving white flag instead of red, 711. flat car attached to interurban car, colliding with, 704. "flying switches," care required, 7SS. '' •'''• contributory negligence, 7S6. ' headlight, running without, no signals, 713. heedless of train in plain view, 713. ' ' last clear chance, 714. ' inclosed machine, motorist wrapped in robe, 728.'' injury to occupant of automobile other than driver, S33-S38. instructions to jury, -see Instructions. intoxication of motorist may be proved, 736. jumping from automobile on approach of train, 538. "kicking back" cars, care required, 755. contributory neghgence, 756. last clear chance^ ' ' automobile stopped too near track, 732. backing onto track, 710. cases, ,780. heedless of train in view, 713, 714. slowing down on track, 729. light insufficient, crossing gates down, 770. look and listen, duty to, 686.' time and plape to, 687. look, failure to, after signaled by track man, 721. look, failure to, at night, 715. look, failure to, excessive speed of train 718. loofe^ failure to, until too late, 722. ' looking, as a continuous duty at crossing,' 689. looking SO feet from track, struck by railroaid motor car, 724. looking in only one direction at crossing, 688. looking to the rear, 706. looking where view limited without again'looking, 723. momentum, trusting to, to carry automobile across track, 727. motor car, struck by, 724. ' " , motorist employee of railroad with knowledge of train tiffle, 707. noise of automobile and wind,- 697. " ' '•'' 1616 ' INDEX [kEPERENCES AEE TO: SECTIONS.] TRAINS, COLLISIONS WITH— Continued. place motorist should look and listen at crossing, 687. pbles and wires as warning of railroad, 701. presumption that motorist saw what he could see by looking, 690. private crossings, duty of company and motorist at, 691, 739. railroad and public road in deep cuts, 725. railroad motorcar and automobile, collision between, 700. relying on exercise of care by railroad company, 683. res ipsa loquitur applied, 782. instruction to jury, 782. defense^ 782. semaphore signaling danger, 707. signal by track man, failure to look, 721. signal, failure of flagman to, 763. signaled to cross by trainman, 76S. signaled to cross by watchmsm, 761, 762., signals, failure to give, motorist's view obscured by box car, 778. slippery road, collision with train unlawfully blocking road, 70S. slowing down on track, 729. last clear chance, 729. sound obstructed, noise of automobile and wind, 697. speed limit, motorist exceeding, 709. speed of train unlawful, 731. speed ordinance, motorist relying on, ,734. speed, rate of, as negligence, 741. stalled on track, 726. stalled on ti^ack, duty of crossing flagman, ^|8, stalled on track, failure of engineer to stop, 7S4. standing train, driving against at night, 702. statute passed for particular purpose, motorist relying on, 73S, stop, duty to, as well as to look and listen, 68S. stop, failure to, crossing obstructed by workmen, down grade, in fog, 708. stop, look and listen, 685. where view or sound obstructed, 693, 694. illustrative cases, 694. stopped and listened, struck by car on fair track obscured from view, 719. stopped, looked and listened, struck after having, 699. stopped on track in emergency, struck by backing train, 751. stopping automobile too near track, 731, 732. last clear chance, 732, unlawful speed of train, 731. stopping on track in obedience to flagman, 764. struck by train that could have been seen, 712, sun shining in operator's face, 698. time and place motorist should look and listen at crossing, 687. trailer, colliding with, 704. train moving in opposite direction from customary travel, 692. train unlawfully blocking crossing, slippery road, 70S. unaware of railroad, 730. view, car on far "track obscured from, 719. "view obscured" defined, 69S. INDEX 1617 [references are TO' SECTIONS.] TRAINS, COLLISIONS WITH— Continued. view obscured by box car projecting into street; no signal, 778. view obstructed by deep cut, 725. / view obscured by rain or snow, 696. view obscured, no crossing signals, excessive speed, 747. view obscured, sun shining in operator's face, 698. view or sound obstructed, duty of motorist, 693, 694, illustrative cases, 694. view, unnecessary obstruction to, on right of way, 776. statute requiring weeds to be cut on notice, 776. failure of company to remove on notice from Service Commission, 777. wrapped in robe and in inclosed machine, 728. TRAVELER— deiined, 286. TREES— , (See Defective Highways.) TRESPASSER— * (See Pedestrian; Unlicensed Operator; Unregistered Automobile.) applicant for license failing to disclose.anfirmity, 262. / carrying passengers without license, 261. children in street, see Children. TRIAL— (See Prosecution.) TROLLEY POLE— (See Street Cars, Collisions With!.) TRUSTEE IN BANKRUPTCY— (See Insurance.) TURKEY-- (See Animals.) TURNING— in street, 243. TURNPIKE— (See Highway.) deiined, 229. duty and liability of turnpike company, 965. injury from depression in, ^ 966. right of automobiles to use of, 232. UMBRELLA— (See Pedestrian.) UNATTENDED A.UTOMOBILE— (See Children; Negligence; Res Ipsa LoquituS.) UNDERTAKER— as carrier for hire, 1511. B. Autos.— 102 1618 INDEX [references are to sections.] UNITED STATES— (See Customs Duties; Federal Laws; Mail Service.)' : UNITED STATES ARMY— driver in, as "chauffeur," 1024, UNLICENSED OPERATOR— accompanied by licensed operator, 26S. applicant for license, failure to disclose infirmity, 262. as affecting guilt in manslaughter prosecution, 1S74. as evidence of negligence, 260. badge of operator concealed, 260. effect on rights of parties, 260. - employing, effect of, 264. foreign corporation not a nonresident, when, 263. helper on truck cranking engine, not an operator, 266. license to operate does not authorize carrying passengers, 261. effect of violating law, 261. operator not trespasser, 261. UNREASONABLE SEARCH AND SEIZURE— registration and licensing of automobiles as, 136. UNREGISTERED AUTOMOBILE— burden of proof, 249. corporate owner, fictitious trade name, 2S7. dealer's number on car operated by private owner, 2S1. ■ for pleasure, 252. death of owner, effect on r^istration, 2S3, defective street causing injury, 248. distinction when injury caused by another traveler, and by defective street, 248. effect on rights of parties, 246, 249. failure to remove tags when car sold, 2S4. false registration, 2S6. fictitious name, registration in, 2S7. - joint owners, registration in name of one, 258. Massachusetts rule, 247. non-resident, foreign corporation is not, when, 263. non-resident owner, term of exemption, 259. overstaying, 259. "operating" car under false registration, 256. "owner" or "custodian" required to register car, 255. partnership dissolution, effect on registration, 247. partnership name, registration in, 257. permitting use of, 250. registration by former owner, 247. < rights of passenger, 246. USABLE VALUE— of automobile while being repaired, etc., 972, 973. VALUED POLICY LAW— (See Insurance.') INDEX (1619 [references are to sections.] VEHICLE— automobile is, 20. bicycle as, 29, 30. VEHICLES, COLLISIONS WITH— (See Animals; Automobiles, Collisions Between.) reciprocal rights and duties, 834, W.\GON3 ,\ND BUGr,IES assuming motorist would turn out, 849. attempting to pass between vehicles, 8B4. automobile turning suddenly across street, 844. backing against parked car, 859. backing automobile without warning, 860. backing into collision with horse, 861. bars protru&ing from truck striking automobile when turning, '863. colliding with standiiig wagon, 854. ^ res ipsa loquitur, 854. deaf driver overtaken by other vehicle, 842. disregarding signal of wagon driver, 845. driving into rear of standing wagon, 837. driving wagon into highway from lane, 846. evidence of plaintiff's state of mind at time of collision, 867. excessive speed, 835. excessive speed on wrong side at street intersection, 857. heavily loaded dray on slippery down grade, 866. intersecting highways, collision at, 856. excessive speed of automobile on wrong side, 857. automobile turning corner close to left curb, 858. iron beams protruding from wagon stopped on crossing, 862. motorist blinded by light, 836, 843. overtaken vehicle failing to turn out, 839. overtaking and passing, 835, 836, 839, 840. * instruction to jury, 836. overtaking and passing deaf driver, 842. res ipsa loquitur application of, 868. res ipsa loquitur, colliding with standing wagon at night, 854. sitting on steam roller, struck by truck approaching from rear, 83^. slippery street, heavily loaded dray, 866. speed, suddenly increasing, 865. stopping buggy without. warning, 841. instruction to jury, 841. stopping wagon at left side of street at night, 854. stopping wagon in road, 850. just past turn at night, 851. a,t side of road at night, 852. ■ near center of road at night, 853. turn to right, team failing to, 848. , turning close to left curb, 858. turning suddenly across street, 844. turning wagon into driveway, struck; irom rear, 845. 1620 INDEX [references are Tb SECTIONS.] VEHICLES, COLLISIONS WITH— Continued, unlighted wagon, 83S, 836, 840, 85S. wrong side of road, team on, 847. wrong side, excessive speed, 857. BICYCLES attempting to pass between automobile and curb, 887. automobile swerving to left, 879, bicyclist striking curb, due to negligence of motorist, 878. bicyclist struck from rear after turning into street, 874. bicyclist suddenly emerging from private road, 882, boy bicyclist, instruction to jury, 869. crossing in front of automobile at street intersection, 873. duties and rights generally, 869. falling in front of truck, 885. i head-on collision in center of street, 880. intersecting roads, failure of bicyclist to see truck, 881. intersecting streets — bicyclist crossing in front of automobile, 873. bicyclist struck from rear after turning into street, 874. automobile on wrong side where view obscured, 875. truck cutting corner, 877. overtaking and colliding with, 870. instruction to jury, 870. bicycle in act of turning, 871. ' bicyclist just turned into street, 874. passing between automobile and curb, 887. signal, failure to, when turning corner, 877. speeding across in front of turning automobile, 883. towing rope injuring bicyclist, 886. liability, 886. "traveled" part of highway defined, 872. turn to right, failure of automobile to, 872. turning bicyclist struck from rear, 871. turning into path of automobile, 876. view obscured at intersection, automobile on wrong side, 875. wrong side, automobile on, at intersection where view obscured, 875. wrong side, bicyclist on, 884. VERDICT— as warning to drivers and protection to travelers, 217. VIEW OBSCURED— defined, 695. ' VIGILANT WATCH— defined, 277. WAGON— emerging from behind, see Children; Pedestrian. WAIVER— (See Agent and MVr; Insurance; Wareanty.) INDEX 1621 [references are to sections.] WARNING— "approaching and upon crossing," 187. approaching team without, S6S. at intersections, 190-194. where view obscured, 194. backing, failure to sound,- 22S, 432, 860. ' by train operatives, see Trains, Collisions With. children see Children. chime of small bells, sufficiency, 290. crossing signals, see Trains, Collisions With. duty to sound, 18S., evidence that signal was or was not given, 684. failure of motorman to give, 652. to motorist who sees car, 6S2. evidence, 6S2. failure to sound, approaching railroad crossing, 682. labor in street relying on, 488. passing street cars, 401 et seq. pedestrian, see Pedestrian. reckless sounding of horn, frightening horses, 577. signal by driver of team, see Frightening Horses. "signal upon approaching and upon crossing," 187. statutory requirements, 185. , stopping or turning without, 792-795. evidence as to custom, 793. testimony as to giving, 188. unavailing, duty to give, 186. when it would be unavailing, 186. WARRANTY— (See Insurance.) agent, authority to warrant, 1402. agent, liability for, made on authority of manufacturer, 1403. bank through which sale effected as co-warrantor, 1413. breach, parties defendant, 1429. breach, return of car for, 1425. sufficiency of tender of car, 1426. must be in reasonable time, 1427, 1428. breach of, as non-performance of sale contract, 1410. breach, waiver, 1414. / buyer exercising ownership over car as affecting right to rescind, 1431. by sellmg company, car sold through credit sales company, 1404. caveat emptor, 1406. cut of car in catalog, 1390. damages for breach, 1433. evidence of condition or value of car, 1436. express, 1388, 1389. failure to develop rated horse power, evidence, 1405. fraud, what is, effect of, 1417, 1418. may be proved by parol 1416. guaranty for year as warranty of fitness, 1393. 1622 INDEX [ REFERENCES ARE TO SECTIONS . ] WARRANTY— ^Continued. guaranty of good service, 1401. guaranty to run certain number of miles, 1396. implied, 1407. second-hand cars, 1408. car sold for. particular use, 1408j 1412. breach of, as non-performance of contract, 1410. . . excluded by express warranty, when, 1411, 1412. , bank through which car sold as co-warrantor, 1413. limited, 1398. made after sale, 1397. material and workmanship, 1394, 1395. notice, of rejection required after first, use, demonstration as first, use,, 1430. opinion, 139i2. proof of market value by experts, 1437. remedy for breach, 1422. paying sight draft before opportunity to inspect car, 1423. when sale depends on conditions precedent, 1424.- rescission by buyer and refusal of seller to accept, -right to recover for storage and insurance, 1435. right to rescind for structural defect i which seller agreed to repair, 1432. sale for particular use, 1408, 1412. satisfactory to purchaser, 1399. in particulal- business, 1400. seller's talk, 1391. waiver of breach, 1414. "well made of good material," 1395. written, effect of, 1415, 1416. WATCHMAN— (See Trains, Collisions With.) WIFE— ) (See Owner, Liability of.; , negligence of husband as imputable to, see Occupant. WINDSHIELD— rain collecting on, as obstruction, 183. as negligence, 183. WITNESSES— (See Evidence.) WORDS AND PHRASES— "about the person," 1594. "absolute control at all times," 279. "accession," 1382. "accident," 1632. "after actual trial of the issue," 1624 "agency," 1440. ■ "approaching," 283. "approaching a high embankment," 284. ' "as close as practicable to (he right curb," 273. INDEX 1623 [reeerences are to sections;] WORDS AND PHRASES— Continued. "as near the right-hand curb as possible," 272. "auto," 1. "autocar," 4. "automobUe," 1-67 "kutomobile bicycle," 4. , "automobile line," 4. "automobilism,'' 4. "automobilist," 4. "auto stage," 4. "autotruck," 4. "average rate of speed," 281. "best energies," 1452. "binding slip," 1618. "block," 1257. "bridge," 228. "busmess," 1163. "business portion," 282. "by-laws," 82. "by reason of the operation," 256. "center of road," 234. "chauffeur," 1023. "class legislatio,n," 43. "collision," 1722. "competing cars," 1464. "convenient" railroad crossing, 775. "covering note," 1618. "criminal cases," 94. "culpable negligence," 1571. "curb," 270. "current catalogs," 1454. "custodian," 255. ' "day-break," 176. ^ 'dealer," 1441. "defect," 906. "defective street," 906. "delivery," 1326, "demonstrating and testing," 1664. "derailment," 1666. "drive," 278. "driven," 179. "driver," 278. "driving," 583. "due process of law," 49. "duly established," 83. "duly licensed chauffeur," 1025. "efficient," 162. "entering or leaving any building," 1725. "equal protection of laws," 43. "every description of carriages," 122. "exclusive agent," 1478. 1624 INDEX [references are to sections.] WORDS AND PHRASES— Continued. "fire originating within the vehide," 1690. "four-wheel carriage for passengers," 4. "free use of streets,'' 93. "front," 181. "garage," 1244, 1246, 1262. "garage-keeper," 1277. "good running condition," 1342. "hackney coach," 1496. "highway," 228. , "household effects," 141. , "immediate notice," 1633. "imminently dangerous," 1481. "in or on" a private conveyance, 1639. "intersecting highways," 276. "intoxication," 161. "jitney," 1S12, 1513. "joy riding," 4. "^aw of the land," 49. "license," 95. "license fee," 96. "license tax," 96. "locomobile," 4. "look out," 584. "look the car over," 1094. "meeting each other," 234. "meeting on highway," 271. "misrepresentation," 1647 n. 80. "mobile," 1. "motor car," 4. "motor cycle," 7. "motor vehicle," 4. "rnotorist," 4. "notice," see "immediate notice." "object,;' 1722, 1725, 1726. "obstruction,"' 183. "operated or driven," 179' "operation," 179, n. 75, 256. "ojjerator," 266. "ordinance," 82. '.'other vehicles," 122. "outbuildings," 1267. "out of fepair," 906. "owner," 255. "paved street," 268. "penal ordinance," 86. "personal liberfy," 48. "pilferage," 1705-1707. "plying for hire," 1498. "police power," 31. INDEX 1625 [references are to sections.] WORDS AND PHRASES— Continued, "prohibit," 88. "public garage," 1246. "public hack," 1495, 1497. "public highway," 228, 229. "privilege," 95. "public service motor vehicle," 4. "pubUc stand," 1493. "regulate," 88. "resolution," 82. "ride or drive," 278. "road," 228, 269. "roadbed," 1723, 1724. "robbery," 1705, 1706. "seasonably," 234. "similar," 141. "slowly moving vehicles," 274. "soUciting," 1487. "special service," 1112. "statute," 1517. "steam," 280. "stopping," 403, "street," 228. "sufficient," 162. "suit," 1631. "tax," 96. "taxicabs," 1547-1550. "testing," 1664. "theft," 1705, 1706., "the road," 269. "traffic," 275. "transporting persons or property," 137. "traveled" part of highway, 872. "traveled part of road," 234. "traveler," 179, n. 76, 286. "tumultuous and offensive carriage," 1592. "turnpike," 229. "under influence of liquor," 1585. "uniform rules," 285. "upon," 187. "use," 92. "view obscured," 695. "vigilant watch," 277. "warranty," 1388, 1407. "wheelwright," 1335. "whenever it shall appear," 569. "while in use on a public highway," 176, n. 59.